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？
