Cora Chan Comments on Article 22 of the Basic Law and the Recent Arrests of Pro-Democracy Figures (Podcast@Verfassungsblog)

"Corona Constitutional #13: It's getting dark in Hong Kong" (Podcast)

Cora Chan

Verfassungsblog-On Matters Constitutional

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.

Albert Chen Comments on the Recent Controversy Arising from Statements of the HKMAO and Liaison Office

Comments for the Press on the Recent Controversy arising from Statements of the HKMAO and Liaison Office

Albert H.Y. Chen

First comment (18 April 2020)

“I think the statements made by the HKMAO and Liaison Office are legitimate and lawful comments on important aspects of the implementation of the Basic Law that are the concerns of the Central Authorities. As pointed out in the statements, the Central Authorities have the responsibility to exercise supervision over the implementation of the Basic Law. The Basic Law was intended to establish a legislature in the HKSAR that is effective in its operation. The effective operation of the LegCo is in the public interest of Hong Kong people, as well as in the interest of the Central Authorities who have legitimate concerns regarding any 'malfunctioning' of LegCo. 

     The filibuster during the meetings to elect the chairman and deputy chairman of LegCo's House Committee has resulted in LegCo being paralysed. Without a chairman the House Committee cannot meet to discuss and do any normal legislative business. According to LegCo rules and practice, the House Committee occupies a central role in the operation of LegCo as a whole. It scrutinises bills and subsidiary legislation. It decides on the establishment of bills committees to study bills, and on the appointment of subcommittees to study subsidiary legislation. It decides on the establishment of select committees or committees of inquiry. It decides whether to refer particular matters to the LegCo panels on various policy domains. It prepares for the plenary meetings of the LegCo. 

     The failure of the House Committee to elect a chairman and deputy chairman (and then to start its normal operation) after 15 meetings in the last six months is scandalous and a matter of grave public concern in Hong Kong. The paralysis of LegCo's normal legislative function is clearly detrimental to the public interest of Hong Kong, and a significant malfunctioning of the constitutional role which the Basic Law assigns to LegCo.

     In these circumstances, I consider it legitimate for the Central Authorities, acting through the HKMAO and Liaison Office, to issue an admonition and to draw the public's attention to this matter.

     The courts of HK have pointed out that the Basic Law should not be iinterpreted merely literally and narrowly. Provisions should be interpreted purposively and in their context. Adopting the proper approach to the interpretation of Article 22 of the Basic Law, I do not think it is a breach of the article for the HKMAO and Liaison Office to make the recent statements or comments. ”

Second comment (19 April 2020)

“The crux of the matter (which may not have been reported in a balanced manner by the media) is that 'opposition' politicians have paralysed the legislative function of LegCo (since the beginning of the current LegCo session in October 2019) by paralysing its House Committee (by filibuster so that it has failed to elect a chairman after 15 meetings in the last 6 months). Many people don't understand the function of the House Committee, which actually is the heart of LegCo's legislative activities -- this Committee decides on whether a bill should be further considered by setting up a Bills Committee, and decides on the setting up of subcommittees to scrutinize subsidiary legislation. LegCo has not been able to perform these basic and vital legislative functions in the last 6 months because the House Committee cannot handle its normal legislative business (because there is no chairman to chair its meetings for normal business (other than the election of a chairman)). To put it simply, almost all legislative activities in Hong Kong have come to a halt. LegCo is still able to perform its financial (as distinguished from its legislative) function (such as approving the allocation of money yesterday to assist those affected by the economic downturn caused by COVID) because the LegCo Finance Committee (as distinguished from the House Committee) is still able to function. As regards legislative business, 14 bills and 89 pieces of subsidiary legislation (in the form of regulations) are in a state of limbo because of LegCo's paralysis, including a bill on paternity leave for fathers, and a bill to provide tax relief to those adversely affected by the pandemic, and many pieces of regulations to introduce social distancing measures. 

     In my opinion, the paralysis (in the last 6 months) of the legislative function of LegCo is unprecedented in the history of HK (including its colonial history and the history of the HKSAR). This is a constitutional crisis of major magnitude. I cannot imagine any HK court interpreting Artice 22 of the Basic Law in such a way as to hold that public statements (which have no legal effect whatsoever and can be simply ignored by LegCo members concerned) made by the Hong Kong and Macau Office and the Liaison Office alerting Hong Kong people to this constitutional crisis in HK constitute an unlawful or unconstitutional 'interference in the affairs' of the HKSAR.” 

Third comment (in Chinese) (21 April 2020)

（1）中聯辦及港澳辦日前公開譴責郭榮鏗等立法會議員的「拉布」行為，被「反對派」指是干預港人治港有違基本法，請問兩辦是否有作出干預？在法律上如何定義「干預」？

關於最近這個事件，不少市民並不了解詳情，只知道港澳辦和中聯辦（‘兩辦’）發表一些批評立法會議員郭榮鏗和若干其他‘反對派’議員的言論，被批評者則指責兩辦干預特區自治事務，違反《基本法》第22條。我認為我們必須嘗試全面了解，究竟過去半年在立法會發生了什麼事情：就是立法會的立法工作被全面癱瘓了（雖然它的財政撥款功能和辯論一些社會議題的功能還在運作）-- 因爲在立法會的立法工作中佔有核心角色的立法會內務委員會，完全不能運作（所謂‘停擺’），原因是經過過去六個月内的十五次會議（由郭榮鏗議員負責主持的會議），議員仍未能選出本立法年度立法會內務委員會（‘内會’）的主席，因此内務委員會便不能正式開始運作。

  為什麼會這樣？就是因為有不少議員在這十五次會議中不斷‘拉布’，而作為會議主持人或臨時主席的郭議員容許他們無限地進行拉布，所以經過15次會議之後，仍未進入選舉内會主席的正式程序。大家都可以理解，一個委員會需要一個負責會議的主席，選舉主席的程序並不太複雜，主要是確定候選人，然後讓各候選人發言，然後就大家投票選出主席人選。但很多市民可能都不知道的真相是， 經過這15次會議，各候選人仍未開始就他們的競選‘政綱’發言。有20多位議員被提名為主席候選人，所以理論上他們每人都可以發言，去說服大家投他（她）一票，去選他（她）做主席。

  但是，事實是經過十五次會議，作為會議主持人（即臨時主席）的郭議員仍未讓這些候選人發言，進行競選活動；原因就是郭議員在每次會議中讓議員們無限度地進行拉布（而他又不履行立法會大會或其他委員會的主席在類似的情況下剪布‘的職權）。這樣，立法會的立法功能便被癱瘓了半年，立法會無法成立法委員會去審議條例草案（有十多部法例草案（包括例如關於男士侍產假的法例、關於疫情下稅務寬免的法例）的立法程序因此被無限期擱置、無法決定是否成立小組委員會去審議附屬法例（有八十多部附屬立法（包括所有關於疫情下的管制措施的附屬法例）的審議也因此無法進行），也無法處理有議員建議成立專責委員會去處理某些事項的建議。

   正是在香港這個史無前例的憲制危機出現的情況下，’兩辦‘才就這嚴峻的局面發表意見。 他們發表意見，是以其發言人接受傳媒查詢時回答記者的發問的形式發表的。 正如中聯辦發言人在4月17日的發言中指出，這樣的情況實在’已經令人忍無可忍‘（這點我是有共鳴的，我也深感這情況的忍無可忍），就是在這種極端的情況之下，兩辦對有關議員提出批評和譴責，並呼籲 ‘香港特區立法會必須盡快恢復正常運作’（引述自港澳辦4月13日的發言）。我認為兩辦的發言是從香港市民的整體利益出發的，關注的是儘快恢復立法會的正常運作，是善意的勸誡，絕不構成所謂‘干預’特區自治事務。必須了解，有關發言只是‘兩辦’發言人在接受記者查詢時的回覆，沒有任何法律效力，不是任何公權力的行使，沒有改變任何權利或義務關係，也不是中央向特區政府的指令或指示。郭議員和其他在進行拉布的議員若果不接受兩辦的忠告，不痛改前非，而把它們的話當成耳邊風，它們也無可奈何。所以我看不到為什麽兩辦的發言發聲可構成所謂‘干預’特區的自治事務。

（2）中聯辦及港澳辦在香港有何角色？

由於根據《基本法》，香港特別行政區作爲直轄于中央人民政府的特別行政區，被授予高度自治權，所以香港內部事務的管理，其本上完全由香港的行政、立法和司法機關負責。《基本法》對中央可以行使的權力已經有清晰的規定，這些權力可以通過全國人大、全國人大常委會、中央人民政府（即國務院）等機構行使。

    根據國務院的組織規範，國務院的組成部門，包括26個部委，另外，有一個國務院直屬特設機構、十個國務院直屬機構、兩個國務院辦事機構（國務院港澳事務辦公室是其中之一），還有九個國務院直屬事業單位（新華通訊社是其中之一）。中聯辦的前身是港英時代中國政府設在香港的新華社香港分社，這個機構從2000年起改名為‘中央人民政府駐香港特別行政區聯絡辦公室’：見《國務院關於更改新華通訊社香港分社、澳門分社名稱問題的通知》（2000年1月15日，國函[2000]5號）。中聯辦是中央駐港的機構之一，其職能包括例如聯繫並協助內地有關部門管理在港的中資機構、促進香港和內地之間的交流和合作、聯繫香港社會各界人士、反映香港居民對內地的意見，並承辦中央交辦的其他事項。例如中聯辦就《基本法》的實施的重大問題作發言，便是中央交辦的事項之一。 

（3）兩辦在香港是否有監督權？

‘監督權’是一個與自治制度有關的法理概念。世界上很多國家都有立法賦予國家内某地區或某些地區一定程度的自治權，當一個主權國家通過其憲法或其他自治法規， 規定該國內某地區或某些地區享有自治權的時候，一般來說，都會設立一種監督機制，保障憲法或法律所設立的關於自治的憲制安排能順利和合法實施，從而保證，如果在自治區出現違反或偏離關於該自治憲制安排的情況，主權國家可採取適當的行動，予以糾正。

《基本法》沒有明文用到 ‘監督權’的字眼，但《基本法》的多項條文都有體現監督權的概念。舉例來說，根據《基本法》第17條，如果香港特別行政區的立法機關制定了違反《基本法》中若干條款的法律，全國人大常委會可否決有關法律，這便是中央對於香港的立法活動的監督權的體現。又例如根據《基本法》第158條，全國人大常委會享有《基本法》的最終解釋權，所以如果香港當局對《基本法》有錯誤的理解，中央可運用對《基本法》的解釋權去糾正有關錯誤。

  至於港澳辦、中聯辦等機構就《基本法》的實施的重大問題發言，例如在香港出現了立法會的立法功能被癱瘓的情況（《基本法》設計的香港政制架構基本上由行政、立法和司法三大機關構成，三機關的其中之一是特別行政區立法會，它的被癱瘓是一種憲制危機），在這種情況下兩辦的發言也可理解為監督權或監督功能的表現，但必須指出，這類發言與上述根據《基本法》由人大常委會或中央人民政府行使的權力不同，這類發言沒有法律效力，不是公權力的正式行使，不會改變任何法律上的權利和義務關係，所以嚴格來說，並不算是監督權的正式行使，只能說這樣的發言對特區的有關人士及其行為可能發揮一定程度的監督作用，正如輿論監督一樣。 

A Strained Interpretation of the Basic Law - Johannes Chan Comments on Article 22 and Non-Intervention in Hong Kong Affairs

A Strained Interpretation of the Basic Law

Professor Johannes Chan

Chair of Public Law, Faculty of Law, The University of Hong Kong

In Lewis Carroll’s Through the Looking Glass, there is this well-known conversation between Alice and Humpty Dumpty:

“I don’t know what you mean by ‘glory’,” Alice said.
Humpty Dumpty smiled contemptuously. “Of course you don’t - till I tell you. I meant ‘there is a nice knockdown argument for you’!”
“But ‘glory’ doesn’t mean ‘a nice knockdown argument’,” Alice objected.
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean - neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master - that’s all.”

The reason why the law is respected is because the interpretation of the law is a rational process. The meaning of the law does not change with political climate or expediency.

     The meaning of Article 22 of the Basic Law is very clear. Art 22(1) states that “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 which the Hong Kong Special Administrative Region administers on its own in accordance with this Law.” It refers to “departments of the Central People’s Government”, not some departments of the Central People’s Government. The purpose is clear. No department of the Central People’s Government shall be permitted to meddle in affairs which are within the internal autonomy of the HKSAR. Yet under the interpretation of the Liaison Office of the Central People’s Government in the Hong Kong SAR (“Liaison Office”), the phrase means “no department of the Central People’s government except some departments.” This is clearly contrary to the plain meaning and purpose of Article 22. It would be odd that Article 22 is there to prevent interference with the internal affairs of the HKSAR by remote provinces and municipalities that may have little interaction with the HKSAR but not to prevent interference by those departments that have the closest interaction with the HKSAR.

     Article 22(2) continues, “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 the approval of the Central People’s Government." This sub-paragraph also refers to “departments of the Central Government”. The predecessor of the Liaison Office was Xinhua News Agency. It changed its name to that of the present Liaison Office with effect from 18 January 2000, and when it established an office in Hong Kong, it obtained the consent of the HKSAR Government. In an Information Note prepared by the Constitutional Affairs Bureau of the HKSAR Government for the Legislative Council Panel on Constitutional Affairs, it was clearly explained that the Liaison Office was set up pursuant to Article 22(2) of the Basic Law.[1] In other words, the Liaison Office falls within the meaning of the phrase “department of the Central Government” for the purpose of Article 22(2).

     In the second version of the amended press release issued by the HKSAR government on 19th of April 2020,[2] it was said that the Liaison Office is one of the three offices set up by the Central Government in Hong Kong. The phrase “according to Article 22(2)” was deleted in this version. However, this could not change the historical fact as explained in the above Information Note to the Legislative Council that the Liaison Office was set up pursuant to Article 22(2). If it were not the case, what is the legal basis for setting up the Liaison Office? If it was set up pursuant to Article 22(2), then why would it be a department of the Central People’s Government under Article 22(2) but not a department of the Central People’s Government under Art 22(1)?

     Art 22(3) further provides that “all offices set up in the Hong Kong Special Administrative Region by departments of the Central Government, or by provinces, autonomous regions, or municipalities directly under the central government, and the personnel of these offices shall abide by the laws of the region." This sub-paragraph again refers to the “departments of the Central Government”. In the above press release, the HKSAR government stated that the personnel of the Liaison Office shall abide by the Basic Law and the laws of the HKSAR, but it deleted the phrase “shall in accordance with article 22(3)”. Yet it is obvious that the reason why they are abide by the Basic Law and the laws of the HKSAR is because of Article 22(2). That is, the Liaison Office falls within the meaning of “departments of the Central Government” in Article 22(3). How could the same phrase in the same article mean that the Liaison Office is both a department of the Central Government and not a department of the Central Government?

     The Liaison Office said that it is an organisation of the Central Government in charge of Hong Kong affairs. This is only half true. The full title of the Liaison Office is the “Liaison Office of the Central People’s Government in the Hong Kong Special Administrative Region”. Its responsibility is to liaise and coordinate. Central-local relationship is outside the autonomy of the HKSAR. It is expected that there would be an increased volume of traffic of people and businesses between Hong Kong and the Mainland after the changeover, and the role of coordinating these activities falls on the Liaison Office. It is an office of coordination, not an office of power. Its role is not to handle or supervise the conduct of internal affairs in Hong Kong. There is no legal basis to say that the Liaison Office is to supervise the implementation of the Basic Law in Hong Kong. Where does it get this power? How could such a power be reconciled with the Basic Law? What are the extent and limits of such power?

     Some people argued that the Liaison Office is a special organ of the Central Government, or even the persona of the Central Government. It is true that its predecessor, Xinhua News Agency, operated as a de facto consulate of the PRC in Hong Kong before 1997. This was necessary because the Chinese Government does not recognise the three unequal treaties and the legitimacy of the British administration in Hong Kong. Therefore, it could not set up a consulate in Hong Kong before 1997 and this gave Xinhua News Agency a special role. This is no longer necessary after 1997. There is no need for any consulate in the HKSAR after the resumption of sovereignty. If it were intended to play the role of being the representatives of the Central People’s Government to supervise the implementation of the Basic Law after 1997, it would be very surprising that this was not mentioned in the Basic Law at all. The intention has to be that Xinhua News Agency has completed its historical role in Hong Kong after 1997 and would (and indeed has) resume its normal role as a news agency. The Liaison Office was set up to deal with co-ordination and liaison work between the HKSAR and the Mainland. According to the official website of the Liaison Office, its terms of reference include (1) to liaise between the Ministry of foreign affairs and the garrison; (2) to coordinate and assist the Mainland’s relevant departments to manage the Chinese enterprises in Hong Kong; (3) to promote economic, educational, science and technology, cultural and athletic exchange and cooperation between Hong Kong and the Mainland; to integrate with Hong Kong people from all levels of society; to advance exchanges between the Mainland and Hong Kong, and to report on the Hong Kong residents’ views towards the Mainland; (4) to handle relevant issues that touch upon Taiwan; and (5) to undertake other matters at the direction of the Central Government. Thus, it is true that the Liaison Office represents the Central People’s Government, but only in relation to the limited roles as defined in its terms of reference. It would be very surprising if it were to play a role of supervising the implementation of the Basic Law in Hong Kong that such an important purpose is not mentioned at all in its terms of reference for over 20 years since the establishment of the office in Hong Kong. The only logical conclusion is that this is not its role. Its role is one of coordination and liaison, not of power or of supervising the implementation of the Basic Law in Hong Kong, let alone becoming a shadow or “not so shadowed” government in Hong Kong.

     Further, as the arguments go, if Article 22(1) does not apply to the Liaison Office, the logical conclusion is that the Liaison Office could interfere with the internal affairs of Hong Kong. “Supervision” is an extremely broad term in Chinese law, and may include many different kinds of power. Does it mean that the Liaison Office would become a super power in the governance of the HKSAR? Does it mean that it could at any time criticise, comment, suggest, direct, or even command and order how the internal affairs of the HKSAR should be conducted? Could it even supervise how the Secretary for Justice should “independently” discharge her duty to prosecute by “supervising” or “reminding” her to take out criminal prosecution against individual citizens? Where does that power stop and why? What are its limits? And if it were to have such powers, what is the role of the Hong Kong and Macau Affairs Office of the State Council then? In such case, how much a “high degree of autonomy”, or indeed any degree of autonomy, is left?

      The interpretation of the Liaison Office is also inconsistent with the object and purposes of the Basic Law. Article 2 of the Basic Law states that the HKSAR is to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication. Article 12 states that the HKSAR enjoys a high degree of autonomy. Articles 13 and 14 refer to foreign affairs and defence, which are the responsibilities of the Central People’s Government. Article 16 then provides that the HKSAR Government shall be vested with executive power and shall on its own conduct the administrative affairs of the Region. Articles 17 to 19 then set out the limits of the legislative and judicial powers of the HKSAR. The structure of chapter 2 is clear. Apart from foreign affairs and defence, and matters expressly reserved in chapter 2, Hong Kong is to enjoy a high degree of autonomy and to administer its internal affairs on its own. The setting up of the 3 offices in Hong Kong is particularly telling: the office of the Ministry of Foreign Affairs for conducting foreign affairs; the Garrison for providing defence; and the Liaison Office for dealing with matters involving Central-local interaction. This reflects the structure of Chapter 2 of the Basic Law. The rest are matters of internal affairs which are to be left to the HKSAR to administer on its own. In order to further protect the high degree of autonomy, Article 22(1) then affirms that no department of the Central People’s Government or other provinces etc shall interfere with the internal affairs in which the HKSAR is to administer on its own. How could the HKSAR administer its internal affairs “on his own” if someone is there to give instructions and directions?

      Some people said Hong Kong only enjoys a high degree of autonomy; it is not an independent entity. This is true but it confuses the real question. The question now is whether a department of the Central People’s Government may interfere with the internal affairs of the Hong Kong SAR. The power of the HKSAR to conduct internal affairs on its own without interference is conferred by the Basic Law. If the HKSAR government fails to properly administer its own internal affairs, the remedy is that the Central Government may replace the Chief Secretary and/or the principal officials of the executive authorities whom the Central People’s Government appointed. This is the basic principle in modern management. A delegate enjoys the power, and if he/she fails to discharge his/her duties or manages his/her jobs improperly, he/she has to be held responsible for the failures. It is not that if the delegate fails to discharge his/her duties, the delegator shall step in and take over the administration. This also provides a response to the argument that the Central People’s Government must have the power to ensure that the Basic Law is properly implemented in Hong Kong. This is not in dispute, but this power of supervision by and accountability to the Central People’s Government are manifested by (1) foreign affairs and defence are the responsibilities of the Central People’s Government; (2) any legislation that is inconsistent with the Basic Law is of no legal effect; (3) the NPCSC can return any new legislation that is inconsistent with the Basic Law; (4) the court has no jurisdiction over matters of foreign affairs and defence; (5) the Court of Final Appeal has the duty to refer a question of the Basic Law on excepted affairs to the NPCSC for interpretation in the course of adjudicating an appeal; (6) the power of final interpretation of the Basic Law is vested in the NPCSC, which can be exercised at any time on any provision with or without any referral, and the interpretation is binding on the Hong Kong courts; (7) the Chief Executive and the principal officials of the HKSAR are appointed by the Central People’s Government; and (8) the Chief Executive has to report duties on a regular basis to the Central People’s Government. This is how delegation and accountability works. The HKSAR Government is delegated the full authority and responsibilities to administer its internal affairs, and it is the HKSAR Government who should be held responsible for how it discharges or fails to discharge its responsibilities. It is not for a department of the Central People’s Government, let alone the Liaison Office which is responsible for liaison and coordination only, to interfere with the administration of internal affairs of the HKSAR. It is of course possible, as an exercise of the sovereign power, to withdraw or change the delegate’s roles or powers, but when the delegation is done through the Basic Law, this can only be done by first amending the Basic Law. This is simply a manifestation of the principle that the Basic Law is equally binding on the Central People’s Government. Thus, the Central People’s Government certainly has the power to interpret, through the NPCSC, the relevant provisions of the Basic Law to mean that the HKSAR Government enjoys a high degree of autonomy under the supervision and guidance of the Liaison Office, but this will make the Basic Law beyond recognition, and render One Country, Two Systems a historical event of yesterday.

     It may be argued whether the comments of the Liaison Office on the conduct of the in-house meeting of the Legislative Council amounted to an interference with the internal affairs of the HKSAR. Such comments serve no useful purposes, save to sharpen the conflicts within the community and put the Liaison Office in the position of a party to the conflict. Such comments should be avoided in any event. Indeed, the mere fact that the HKSAR Government has to change its public statements three times to eventually agree with the position of the Liaison Office may serve the best testimony of an interference. The argument at this level may still be contained. Yet to argue that the Liaison Office is above the Basic Law and is not subject to the restriction of Art 22 of the Basic Law, and to assert that it has a new and vague role of supervising the implementation of the Basic Law in Hong Kong are to open a Pandora box which would create more problems than it could solve. Unfortunately, neither the Liaison Office nor the HKSAR Government has the political wisdom to avoid stepping right into a minefield.

      The rule of law requires that law be interpreted objectively and rationally. The meaning of the law cannot be changed or twisted in order to meet the political weather of the day. In the Mainland, some officials may still believe that law is to serve politics. As a result, when law and politics are in conflict, politics prevails. Law could be interpreted, reinterpreted, twisted, or even ignored at will as long as it is politically expedient to do so. This is not the legal system or the rule of law in Hong Kong. If the Mainland’s idea of law is to be extended to Hong Kong; if the interpretation of the Basic Law is just like what Humpty Dumpty said, that it is dependent on one’s whim; when a requirement to take an oath upon assumption of office could become an eligibility requirement to run for the office; when the restriction that national law shall not apply to Hong Kong could be turned to mean national law shall not apply to everywhere in Hong Kong; when a clear department of the Central People’s Government can be regarded as not a Central People’s Government department in the Basic Law to serve political expediency, the Basic Law will soon become an elusive document that will be devoid of any significance.

Notes

[1] LC Paper No CB(2)898/06-07(02) (Jan 2007) and Gazette No 3/2000, GN 300 (Government Secretariat).

[2] The HKSAR Government issued three versions of a press release on 19 April 2020. In the first version, it stated that the Liaison Office was set up pursuant to Art 22(1) of the Basic Law and its personnel are, in accordance with Art 22(3) of the Basic Law, abide by the Basic Law and the laws of the HKSAR. In the second version, it deletes the references to the Basic Law. In the third version, it said that the Liaison Office was not a department of the Central People’s Government for the purpose of Art 22(1).

陳文敏
香港大學法律學院公法講座教授


(原文刊於《明報》，2020年4月20日，此增訂版回應了一些不同的意見。)





在《愛麗絲夢遊仙境》的續集《透過玻璃鏡面》內，有這樣一段情節；

「我不知道你所說的「榮耀」是什麼意思，」愛麗絲說。

Humpty Dumpty 輕藐地笑笑說：「在我告訴妳之前，妳當然無法明白。 ⋯當我選用一個詞彙時，它所表達的只是我所選擇的意思，不多不少。」


法律所以受尊重，是因為法律的解釋是以客觀為基礎，不會隨政權喜惡而改變。

《基本法》第22條的意思是相當清楚的。第1款說：「中央人民政府所屬各部門、各省、自治區、直轄市均不得干預香港特別行政區根據本法自行管理的事務。」這條款清楚說「中央政府各部門」，不是說中央政府某些部門，也不是說中央政府各部門，但某些部門除外。中聯辦的解釋是「中央政府各部門，但有些部門除外」，這明顯和這一款的用詞是相亙衝突的。而且，若這條的目的是排除包括一些和香港沒有太多聯繋的偏遠省市對香港內部事務的干預，卻不包括和香港有最多直接接觸和最有可能干預香港內部事務的部門，這是難以理解的。

第22條第2款說：「中央各部門、各省、自治區、直轄市如需在香港特別行政區設立機構，須徵得香港特別行政區政府同意並經中央人民政府批准。」這一條款也是用上「中央各部門」。中聯辦的前身是新華社，後來易名為中聯辦，在港成立辦事處時，便跟從這一條款的程序，徵得特區政府的同意。特區政府在2007年提交立法會的文件中清楚說明，中聯辦是根據《基本法》第22條第2款在港設立辦事處的。

特區政府在4月19日凌晨發出第二份修正新聞稿，指中聯辦是中央政府在特區設立的三個機關之一，卻刪去「根據《基本法》第22條第2款設立」這一句，但這並不改變上述提交立法會的文件中，政府清楚說明中聯辦是根據第22條第2款所設立的歷史事實。若中聯辦不是根據第22條第2款設立辦事處，它的法律依據從何以來？若它是根據第22條第2款設立，那為何在第22條第2款它是中央部門，但在第1款卻不是中央部門？

《基本法》第22條第3款指出：「中央各部門、各省、自治區、直轄市在香港特別行政區設立的一切機構及其人員均需遵守香港特別行政區的法律。」這一款同樣用上「中央各部門」的字眼，特區政府的新聞稿也說中聯辦及其人員均需遵守《基本法》及特區的法律，卻又刪去「按照《基本法》第22條第3款」這句話，但明顯他們遵守《基本法》的理據便是根據這一條款，亦即是說中聯辦屬這一條款內所指的「中央部門」。同一句說話在同一條條文內，如何可以得出中聯辦是中央部門但又不是中央部門的結論？

中聯辦說它是中央政府負責處理港澳事務的機構，這只說了一半。中聯辦的全名是「中央人民政府駐香港特別行政區聯絡辦公室」，它的職責是負責中港之間的聯絡工作，中港關係並非香港特區自治範圍內，而隨着中港經商關係日益頻密，中聯辦的角色便是處理這些中港之間的活動的聯絡和協調工作，它是一個聯絡機構，而非實權機構。它的角色亦非處理香港內部事務，亦沒有任何法律依據指中聯辦的角色被提升為監督《基本法》在香港實施，並且可以直接干預香港的內部事務？這權力來自何處？權力有多大和受到甚麼制約？這會否越俎代庖，連港澳辦的工作也給它取替了？