The Hong Kong Special Administrative Region currently faces a constitutional crisis. The opposition camp has orchestrated a partial paralysis of the normal functioning of the Legislative Council, one of three pillars of the Hong Kong’s constitutional structure, since October. Article 17 of the Basic Law says the HKSAR is vested with legislative power to enable the normal functioning of government. The deliberate, protracted sabotaging of the election of a chairman for its House Committee would not be tolerated in any other democratic parliament.
This wilful exploitation of procedural rules is not a one-off political stunt, but an extended, purposeful scheme to prevent LegCo from debating and voting on the National Anthem Bill, among other things, which the political opposition is unbendingly determined to oppose.
That both the Liaison Office of the Central People’s Government (CPG) in the HKSAR and the Hong Kong Macao Affairs Office (HKMAO) have commented legitimately and critically on what has unfolded is not surprising. They have done so by exercising a sovereign right of supervision when faced with an unprecedented deterioration in the proper constitutional operation of the HKSAR.
The response has provoked opposition claims of “unconstitutional intervention” contrary to Article 22 of the Basic Law. This argument is ill-founded and is, above all, an attempt to shield this central constitutional crisis from a full and proper review by all key stakeholders.
The British encountered repeated political emergencies in Hong Kong during their 155-year tenure. London was able to remove and replace governors and senior civil servants. And they did so repeatedly to help address crises and to provide special skills as necessary. Sovereign supervision — and intervention — was the norm. The British constitutional system under which Hong Kong was governed essentially conferred political-executive carte blanche on the British government, although these powers were exercised with discretion and in accordance with certain political-constitutional conventions.
Beijing and the HKSAR government operate within a set of far more detailed constitutional rules. These are laid out in the Basic Law, which operates within the “one country, two systems” framework. It is, however, mistaken to conclude that this system renders the power of supervision enjoyed by Beijing in the HKSAR almost constitutionally nonexistent compared to that enjoyed by London before 1997.
They (the Liaison Office and HKMAO) have done so (commented on the LegCo impasse) by exercising a sovereign right of supervision when faced with an unprecedented deterioration in the proper constitutional operation of the HKSAR
In 1991, shortly after the promulgation of the Basic Law in Beijing, Paul Fifoot, an adviser to the British government during the drafting of the Basic Law, noted that the high degree of autonomy granted to the HKSAR “is not autonomy” and that the provisions of the Basic Law “are not immutable”. That is, there are limits to the high-degree autonomy (it is not a form of complete autonomy). He specifically argued that although the Sino–British Joint Declaration states that the People’s Republic of China’s policies will remain unchanged for 50 years, “It does not say that there will be no change in the way those policies are implemented insofar as to the limits of a high degree of autonomy are concerned and other matters”.
Almost 10 years later, the Court of Final Appeal (CFA) told us, in the Right of Abode litigation, that the Basic Law was to be interpreted purposively and not narrowly or literally.
In 1968, the Australian foreign correspondent and author Richard Hughes said pointedly in his best-known book, Hong Kong: Borrowed Place, Borrowed Time, that “Hong Kong is China”. Since 1997, the HKSAR has enjoyed a high degree of autonomy within China. And, as the sovereign entity of Hong Kong, the CPG has enjoyed distinct supervisory power over the SAR.
Article 2 of the Basic Law stipulates that it is the National People’s Congress that authorizes the high degree of autonomy and Hong Kong’s executive, legislative and independent judicial power. Article 12 stresses that the HKSAR is a local administrative region of China that comes directly under the CPG.
The Joint Declaration is an important document that has shaped the content of the Basic Law, but the Basic Law itself draws its pivotal constitutional status and authority directly from the Chinese Constitution of 1982.
Article 22 of the Basic Law states that no departments of the CPG or other local governments in China may interfere in those affairs that the HKSAR administers on its own. It also says that any offices of such departments properly established in Hong Kong must abide by HKSAR laws.
Constitutions are typically broadly worded. It is common to encounter, over time, a need to reconcile different provisions within the same constitution. The fourth and longest-serving chief justice of the US Supreme Court, John Marshall, said, “We must never forget that it is a constitution we are expounding … intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs”.
The operation of the Basic Law within the “one country, two systems” formula means that Beijing, as the sovereign having ultimate responsibility for the HKSAR, does not enjoy the completely free hand London did with respect to British Hong Kong. But, taken in the round, Beijing’s power of sovereign supervision is extensive. The Basic Law and its derivative relationship with the Chinese Constitution coupled with the political and legal fact that the HKSAR is an inalienable part of China (Article 1 of the Basic Law) make this clear.
Article 22 needs to be read purposively, bearing these factors in mind. Its purpose is to control the operational scope of certain mainland government departments within the HKSAR. Its purpose is not to apply an unqualified gag on the sovereign capacity of CPG entities like the Liaison Office and the HKMAO to review and comment on matters of conspicuous constitutional difficulty. The literal reading of Article 22 advanced by “pan-democrats” has the primary aim of shielding them from legitimate criticism of their continuing project to undermine the normal operations of LegCo. This reading plainly does not serve the better interests of Hong Kong, which the Basic Law is fundamentally crafted to secure. Moreover, it is contrary to the CFA ruling that the Basic Law must be read purposively.
The author is a visiting professor in the Faculty of Law, the University of Hong Kong. The views do not necessarily reflect those of China Daily.