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One law for us and none for CPG offices

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.

Although Article22 of the Basic Law stipulates that mainland authorities have to abide by SAR laws, this was undermined by the amendment to section 66 of the Interpretation and General Clauses Ordinance. Since no SAR laws apply to the CPG offices, this reinforces the impression that mainland authorities are above the law.

The administration argued the amended section 66 is not inconsistent with the Basic Law. This is because Article22 does not provide any guidance as to whether or not any particular ordinance should be binding on the CPG offices. Moreover, many laws do not have relevance to the activities of the CPG, and it would be inappropriate for them to bind the CPG.

However, the administration undertook to review 17 ordinances which expressly bound the SAR Government but were silent on their applicability to CPG offices. In October 1998, the administration told Legco that, as a matter of policy, 15 of the 17 ordinances should apply to the CPG offices in the SAR. The relevant policy bureaus and departments would prepare legislative amendments to this effect.

As for the applicability of the Personal Data (Privacy) Ordinance (PDPO), the administration said no decision had been taken because it had to discuss with the CPG whether and how the ordinance would affect the operation of their offices in Hong Kong.

In 1999, amendments to the Arbitration Ordinance were introduced into Legco. That was one of the 15 ordinances identified as applicable to the CPG. However, the amendment did not show the law binds the CPG. In January 2000, the bill was enacted without referring to the CPG offices.

The administration promised to work on an appropriate formula for the law to bind the CPG offices, but ruled out a simple and direct expression: 'This law binds the CPG.' Without an 'appropriate formula', amendments to the other 14 ordinances could not proceed.

Discussions on amending the 15 ordinances and the review of the PDPO have taken almost three years. Legco members are frustrated and dissatisfied with the administration's procrastination. The matter was raised at the Legco House Committee last month, and the administration decided to brief the Legco Panel on Administration of Justice and Legal Services yesterday.

According to a paper supplied to the panel, little progress had been made on the 15 ordinances because the relevant bureaus and departments have their own priorities. Obviously, amending the law to bind the CPG is considered a minor matter.

Of the 15 ordinances, the administration agreed five have direct relevance to the CPG offices in their capacity as employers. They are the Sex Discrimination Ordinance, Mandatory Provident Fund Schemes Ordinance, Disability Discrimination Ordinance, Occupational Safety and Health Ordinance and Family Status Discrimination Ordinance. As long as these laws are not amended, the CPG offices can defy them with impunity and their employees will not have any legal protection. This must be contrary to the administration's policy intent, and contrary to the rule of law.

The delay on the applicability of the PDPO is also inexcusable. The law gives data subjects the right of access to personal data on them held by local organisations. There is no reason why the CPG offices should be exempted.

Another area of zero progress involves the PLA. The administration said the work covered 90 ordinances and subsidiary legislation and the garrison was being consulted. There is no telling when legislative amendments will be introduced into Legco.

I have often said that how the administration handles the Falun Gong is a litmus test for the 'one country, two systems' concept because it shows whether Hong Kong people can enjoy freedoms which are denied to people on the mainland. Similarly, the way the SAR handles the applicability of local laws to the CPG offices is an indication of whether the SAR has the rule of law.

Before the change of sovereignty, Beijing tried to assure Hong Kong people by pledging that mainland authorities would abide by local laws. Four years later, this is still an empty promise, and seriously undermines any claim that Hong Kong has the rule of law.

'As long as these laws are not amended, the CPG offices can defy them'

Emily Lau Wai-hing is a legislator and member of The Frontier

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