This year marks the 30th anniversary of the enactment of the Basic Law. Forget about organising webinars to celebrate the anniversary, a debate about the core constitutional issues underlying the implementation of the Basic Law – China’s sovereignty over Hong Kong and the extent of Hong Kong’s autonomy – is unfolding right before us.
The debate was triggered by statements made by the Hong Kong and Macau Affairs Office (HKMAO) of the State Council, and the central government’s liaison office on April 13, chastising legislator Dennis Kwok Wing-hang for abusing the Legislative Council’s rules of procedure to delay the election of the House Committee chairperson.
After 15 meetings presided over by Kwok over six months, the House Committee remained bogged down in procedural matters, holding up the passage of scores of bills and motions, including the appointment of the chief justice of the Court of Final Appeal.
The unprecedented, open reprimands provoked a sharp response from the Hong Kong Bar Association, which issued statements and a letter to the secretary for constitutional and mainland affairs, pointing out that the actions of the two offices could “easily be perceived as interference”.
Ever since Hong Kong’s return to China in 1997, efforts have never ceased to be made, in some quarters, to resist China’s exercise of its legitimate power over Hong Kong.
A good example is the interpretation of Articles 22(4) and 24(2) (3) of the Basic Law by the National People’s Congress Standing Committee in 1999, to clarify the right of abode of children of Hong Kong permanent residents born outside Hong Kong.
On that occasion, the Bar Association orchestrated a parade of black-clad lawyers, to mourn the “death” of the rule of law in Hong Kong, even though the Standing Committee’s power of interpretation is clearly spelt out in Article 158 of the Basic Law. Rejection of China’s power over Hong Kong, often spearheaded by prominent lawyers, has continued ever since.
But is the Bar Association’s understanding of Article 22 correct, and did it ever bother to establish the facts surrounding the establishment of the HKMAO and the liaison office, and their respective functions and roles?
Article 22(1) says “No department of the Central People’s Government and no province, autonomous region or municipality directly under the Central Government may interfere in the affairs in which the Hong Kong Special Administration Region administers on its own in accordance with this Law.”
Article 22(2) further says: “If there is a need for departments of the Central Government, or for provinces, autonomous regions, or municipalities directly under the Central Government to set up offices in the Hong Kong Special Administrative Region, they must obtain the consent of the government of the Region and approval of the Central People’s Government.”
Yet, according to a report on the People’s Daily website in 2018, the HKMAO was established on September 13, 1978. A decision had been taken in August that year to establish a new bureau to coordinate the handling of matters relating to Hong Kong and Macau.
As the establishment of this office predates the Basic Law, it cannot possibly be regarded as one of the departments of the Central Government established after 1997 under Article 22(1) of the Basic Law.
Likewise, the liaison office was established well before 1997. It’s precursor was Xinhua News Agency. It was officially renamed the Liaison Office of the Central People’s Government in the Hong Kong Special Administrative Region in January 2000.
Xinhua News Agency, as the central government’s representation in Hong Kong before 1997, acted as a channel of communication between the Hong Kong government and the Beijing authorities.
Those who worked in the Hong Kong government before 1997 would know that whenever Hong Kong needed help, whether it be ensuring Hong Kong’s water and food supply or maintaining effective border control, Hong Kong officials would turn to Xinhua.
The liaison office has continued to render support whenever needed. A case in point is Shenzhen’s donation of 100,000 face masks per day to Hong Kong in late February, when the city was reeling from a dire shortage. The donation of face masks and other anti-epidemic supplies was arranged through the liaison office.
Given its long history of operation in Hong Kong, again, the liaison office cannot possibly come within the purview of Article 22(1).
Other questions raised in the Bar Association’s letter to the secretary for constitutional and mainland affairs bring to the fore the strong resistance of certain members of the bar to China’s resumption of the exercise of its sovereignty over Hong Kong.
The bar questioned the source of the legal authority of China’s “claimed power of supervision” over Hong Kong. The source of authority is China’s constitution, under Article 31 of which the Hong Kong Special Administrative Region was established.
The preamble to the Basic Law, as well as Articles 1 and 12, make it crystal clear that Hong Kong is an “inalienable part of China”, and that notwithstanding its “high degree of autonomy”, Hong Kong is a “local administrative region” of China and comes “directly under the Central People’s Government”.
As such, the HKMAO and the liaison office have legitimate power and responsibility to express concern over developments in Hong Kong or issue warnings.
The bar also questioned whether mainland officials stationed in Hong Kong are subject to Hong Kong laws. Of course they are. But lawyers should know that our laws have always provided for saving of the rights of the state.
If, before 1997, Hong Kong laws did not bind the British garrison, or other British representations in Hong Kong, where acts of state were concerned, why shouldn’t China’s acts of state enjoy the same immunity and privilege?
Regina Ip Lau Suk-yee is a lawmaker and chairwoman of the New People’s Party
Help us understand what you are interested in so that we can improve SCMP and provide a better experience for you. We would like to invite you to take this five-minute survey on how you engage with SCMP and the news.