21 April 2020
In a podcast
with Verfassungsblog’s “Corona Constitutional” series, Cora Chan
commented on the recent arrests of pro-democracy figures in Hong Kong, as
well as on the controversy surrounding whether the China Liaison Office and
Hong Kong and Macau Affairs Office fall under the purview of Article 22 of the
Hong Kong Basic Law, which states that “no department of the Central People’s
Government… may interfere in the affairs which the Hong Kong Special
Administrative Region administers on its own in accordance with this Law”. On
the latter subject, Cora commented that whilst the distinction between
“departments of the Central People’s Government” and organisations that are
directly authorized by the Central People’s Government might be a genuine
distinction in the Chinese political system, the revelation that Article 22
might be read subject to this distinction is shocking to a lot of Hong Kong
people. The differences in the understandings of this provision between the two
camps reflect fundamentally different conceptions of law and power, and just
how profoundly different the Chinese and Hong Kong legal systems are. If
Beijing resorts to its plenary power of interpretation under Article 158 of the
Basic Law to resolve the dispute over Article 22, then it might be able to
resolve the dispute in the short run, but it would not be able to earn the
legitimacy that it needs to sustain its rule in the long run. In the parlance
of constitutional lawyers, it would be seeking to rely on a culture of
authority rather than a culture of justification.
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