Dispute of Article 22, raising the last ugly veil of the Basic Law

(21 Apr) The Liaison Office of the Central People's Government in the Hong Kong Special Administrative Region (LOCPG) asserted on the other day that it had the authority to supervise Hong Kong on the “normal functioning of its political system” and “matters pertaining to the overall interests of society” incited tremendous dispute. Confronting accusation from the pan-democrats, that LOCPG has violated Section 1 of Article 22 of the Basic Law which “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”, LOCPG defended that LOCPG “was not “the department of the Central People's Government” in a general meaning”.  It turns out that government departments are divided into being “in a general meaning” and “not in a general meaning”. Such an “Animal Farm” explanation from LOCPG has widened the horizons of Hong Kong people and raised the last ugly veil of the Basic Lawand “Hong Kong People administering Hong Kong, and a high degree of autonomy”.

Instead of attributing such controversy to the distinctive views of Civil Law and Common Law, one could say that the controversy was due to the difference between rule of law and rule of man. Since CCP’s establishment, China has been led by policies from the party, while law has merely been a role of coordination. Therefore, the law could be revised and/or amended deliberately anytime, requiring neither the authorization of the people nor be reviewed by the court.As the policy regarding Hong Kong has been changed from “river water does not interfere well water” (a Chinese saying which means not intervening each other’s business) to emphasizing “a complete ruling authority”, Article 22 naturally requires modernization so that LOCPG can do whatever it desires to Hong Kong.

How should Article 22 truly be construed? What is the position and the role of LOCPG? Xinhua News Agency Hong Kong Branch, the predecessor of LOCPG, is a China official organization in Hong Kong (“the Organization”). In 1999, the State Council of China announced the Organization to be renamed as “The Liaison Office of the Central People's Government in the Hong Kong Special Administrative Region” with 5 main functions: 1) liaise with the Ministry of Foreign Affairs Office in Hong Kong and the People’s Liberation Army Hong Kong Garrison, 2) liaise with and assist relevant departments in China to manage the China business organization in Hong Kong, 3) encourage exchange and cooperation in aspects including economy, education, science, culture, sports, and liaise with people of all walks of life to boost contact and views between China and Hong Kong, 4) handle matters related to Taiwan, and 5) other matters commanded by the Central People's Government. The director of LOCPG then, Jiang Enzhu stated that these 5 functions were actually the duties of the Organization and LOCPG should “fulfill its functions as authorized by the Central People's Government as strictly as it used to be” and “not to intervene matters within Hong Kong Special Administrative Region’s area of autonomy” subsequent to the change of name.  

One could incorporate the 5 functions of LOCPG with the statement of Jiang to construe the spirit of Article 22, which is to ensure that Hong Kong remains high autonomy and avoids intervention from departments of the Central People's Government. The initial intention of LOCPG was limited to liaison, unification and coordination, and not to become the second power center, therefore LOCPG is impossible to be excluded from “the departments of the Central People's Government” in Article 22 and to be allowed to become an independent realm. However, in a country ruled by man, the law can only be ancillary to those in power.

Source: HKCNews