THIS SUNDAY is the fourth anniversary of the establishment of the Hong Kong Special Administrative Region (SAR). Looking back, it is reassuring to see that Hong Kong's free way of life has been largely preserved. This is due to the people's vigilance in safeguarding their basic rights. The Government would argue this is because we have the rule of law. But do we?
One cardinal principle of the rule of law is that no person or organisation is above the law. Developments since July 1997 show that the administration of Chief Executive Tung Chee-hwa has consciously undermined this important foundation.
Yesterday, acting Secretary for Constitutional Affairs Clement Mak Ching-hung tried to explain to the Legislative Council why, after four years of Chinese rule, not one law of the SAR is applicable to the Central People's Government (CPG) offices set up in Hong Kong.
During negotiations on the transfer of sovereignty, the central Government took pains to reassure Hong Kong that after 1997, the English-style rule of law would be preserved and mainland authorities and personnel in Hong Kong would have to abide by SAR laws. This undertaking is enshrined in Article22 of the Basic Law. However in April 1998, the Provisional Legco amended section66 of the Interpretation and General Clauses Ordinance, replacing the word 'Crown' with 'State'. Under this definition, 'State' refers to the SAR Government as well as three CPG offices in the SAR: the Office of the Commissioner of the Ministry of Foreign Affairs; the Hong Kong garrison of the People's Liberation Army; and the Liaison Office of the CPG.
One effect of the amendment is that offices falling within the 'State' definition are not bound by a law unless it clearly says they are. As a result, those ordinances which expressly bind 'the Government', but make no mention of the State, apply to the SAR administration but not the CPG offices.
To make such laws binding on the CPG offices would require amending the relevant ordinance to provide for it. There are more than 600 ordinances and more than 1,000 pieces of subsidiary legislation in Hong Kong.