Cen­tral author­i­ties reign over and gov­ern Hong Kong

China Daily (Hong Kong) - - COMMENT -

In the United King­dom, the queen reigns and does not gov­ern. This is vir­tu­ally true. Un­for­tu­nately, some peo­ple have mis­ap­plied this anal­ogy to Hong Kong un­der “one coun­try, two sys­tems” and say the cen­tral author­i­ties may reign but not gov­ern Hong Kong.

With lim­ited knowl­edge and un­der­stand­ing, they have even claimed of hav­ing a sound base, cit­ing Ar­ti­cle 22(1) of the Ba­sic Law which states: “No de­part­ments of the cen­tral 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.” But this re­stric­tion on cer­tain gov­ern­ment de­part­ments at na­tional level and provin­cial gov­ern­ments’ in­ter­fer­ence in the au­ton­omy of the HKSAR can­not be con­strued un­duly.

The phrase “de­part­ments of the cen­tral gov­ern­ment” should not be con­fused with the cen­tral gov­ern­ment (State Coun­cil). The for­mer refers to var­i­ous min­istries and com­mit­tees of the cen­tral gov­ern­ment such as Ed­u­ca­tion Min­istry, Na­tional De­vel­op­ment and Re­form Com­mis­sion, etc but not the cen­tral gov­ern­ment it­self, or the cen­tral author­i­ties men­tioned in Chap­ter II of the Ba­sic Law — “Re­la­tion­ship be­tween the Cen­tral Author­i­ties and the HKSAR”.

Ex­cep­tions are also al­lowed. Ar­ti­cle 13(1) and 14(1) of this law de­clares ac­cep­tance of re­spon­si­bil­ity of the cen­tral gov­ern­ment for for­eign af­fairs re­lat­ing to and de­fense of the SAR. It is fur­ther pro­vided that the Min­istry of For­eign Af­fairs shall es­tab­lish an of­fice in Hong Kong to deal with for­eign af­fairs (Ar­ti­cle 13(2)). With­out in­ter­fer­ing with lo­cal af­fairs of the SAR, mil­i­tary forces shall be sta­tioned by the cen­tral gov­ern­ment in Hong Kong for de­fense (Ar­ti­cle 14(3)).

Not only shall the cen­tral gov­ern­ment be re­spon­si­ble for for­eign af­fairs and the de­fense of the SAR, Ar­ti­cle 45(1) of this law re­quires ap­point­ment of the chief ex­ec­u­tive by the cen­tral gov­ern­ment sub­se­quent to se­lec­tion by elec­tion or through con­sul­ta­tion held lo­cally. Ar­ti­cle 48(5) pro­vides that, af­ter nom­i­na­tion by the chief ex­ec­u­tive, all prin­ci­pal of­fi­cials of the re­gional gov­ern­ment shall be ap­pointed by the cen­tral gov­ern­ment as well. Those ap­point­ments are all sub­stan­tial as op­posed to vir­tual ap­point­ment of the prime min­is­ter and cab­i­net mem­bers by the queen in the UK.

Also Ar­ti­cle 48(3) of this law de­mands the chief ex­ec­u­tive sub­mit the SAR’s bud­gets and fi­nal ac­counts to the cen­tral gov­ern­ment for the record, to be su­per­vised by the lat­ter. Vet­ting bud­gets and fi­nal ac­counts is within the mean­ing of re­gional au­ton­omy; this is an ex­am­ple of the cen­tral gov­ern­ment look­ing into af­fairs of re­gional au­ton­omy, con­trary to the claim that the cen­tral gov­ern­ment only reigns over but not gov­erns Hong Kong.

Un­der Ar­ti­cle 48(8) of the Ba­sic Law, the chief ex­ec­u­tive is re­quired: “To im­ple­ment the di­rec­tives is­sued by the Cen­tral Gov­ern­ment in re­spect of the rel­e­vant mat­ters pro­vided for in this Law.”

Pur­suant to Ar­ti­cles 17, 18 and 158 of this law, all re­gional mat­ters can be clas­si­fied into three: af­fairs within the re­spon­si­bil­ity of the The au­thor is a vet­eran HK com­men­ta­tor and pro­fes­sor at the Re­search Cen­ter of Hong Kong and Ma­cao Ba­sic Law, Shen­zhen Univer­sity.

Most of the power cen­tral author­i­ties have over the SAR has not yet been ex­er­cised.

cen­tral author­ity, af­fairs re­gard­ing the re­la­tion­ship be­tween the cen­tral author­i­ties and the SAR, and af­fairs of au­ton­omy. Ir­re­spec­tive of their na­ture, the cen­tral gov­ern­ment may is­sue “di­rec­tives” to the chief ex­ec­u­tive for im­ple­men­ta­tion so long as the rel­e­vant af­fairs have been pro­vided for in this law.

As the cen­tral gov­ern­ment and the cen­tral author­i­ties may some­times be mixed up, clar­i­fi­ca­tion is nec­es­sary. The cen­tral gov­ern­ment refers to the State Coun­cil un­der the lead­er­ship of the pre­mier whereas there are five cen­tral author­i­ties, who may ex­er­cise func­tions and pow­ers upon Hong Kong un­der “one coun­try, two sys­tems”, in­clud­ing the Na­tional Peo­ple’s Congress (NPC), NPC Stand­ing Com­mit­tee (NPCSC), the pres­i­dent of the Peo­ple’s Repub­lic of China and the Cen­tral Mil­i­tary Com­mis­sion, in ad­di­tion to the cen­tral gov­ern­ment.

Aside from the above-men­tioned func­tions and power of the cen­tral author­i­ties the NPCSC also has other pow­ers such as the fol­low­ing:

The NPCSC may su­per­vise any lo­cal leg­is­la­tion sub­mit­ted for record by re­turn­ing such leg­is­la­tion if it does not con­form with pro­vi­sions of the Ba­sic Law re­gard­ing af­fairs within the re­spon­si­bil­ity of cen­tral gov­ern­ment author­i­ties or re­gard­ing the re­la­tion­ship be­tween the cen­tral author­i­ties and the SAR (Ar­ti­cle 17(3)). If it is vi­o­lat­ing pro­vi­sions of this law re­gard­ing af­fairs of re­gional au­ton­omy, the NPCSC’s leg­isla­tive in­ter­pre­ta­tion may if nec­es­sary be fur­nished.

Be­sides su­per­vi­sion of high-rank­ing judges — by re­port for the record by the chief ex­ec­u­tive to the NPCSC for the ap­point­ment and re­moval of the high­est judges in the SAR (Ar­ti­cle 90(2)), the Ba­sic Law has also adopted func­tional sep­a­ra­tion be­tween fi­nal ad­ju­di­ca­tion and fi­nal in­ter­pre­ta­tion of this law. Ad­ju­di­ca­tion power is vested in the Court of Fi­nal Ap­peal (Ar­ti­cle 82), while the in­ter­pre­ta­tion power is vested in the NPCSC (Ar­ti­cle 158(1)). That is to say, re­spect­ing the in­ter­pre­ta­tion of the Ba­sic Law, leg­isla­tive in­ter­pre­ta­tion by the NPCSC pre­vails to en­sure com­mon un­der­stand­ing of this law in the whole na­tion.

To be fair, cen­tral author­i­ties may not only reign but also gov­ern the SAR ac­cord­ing to the Con­sti­tu­tion and Ba­sic Law but most of the power cen­tral author­i­ties have over the SAR has not yet been ex­er­cised.

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