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Hong Kong Bar Association chairman Philip Dykes believes the issue raises important constitutional questions. Photo: Sam Tsang

Top lawyer asks government if Beijing could control Hong Kong’s prosecutors and judiciary, after justice chief says liaison office has supervisory powers

  • Bar Association chairman Philip Dykes wants clarification on breadth of Beijing’s power
  • Request comes day after city’s justice chief said Basic Law did not stop liaison office having supervisory power over Hong Kong

The Hong Kong Bar Association’s chairman has urged the city government to make clear whether Beijing’s supervisory power over the city extends to the judiciary and prosecutors.

Philip Dykes made his comments a day after the city’s justice secretary said the central government’s liaison office has such powers, and was not bound by the Basic Law’s rule over non-interference.

The debate over the liaison office’s power erupted earlier this month, when the office issued statements criticising opposition politicians for filibustering in the Legislative Council.

In response, the opposition said the liaison office was meddling with the city’s internal affairs, in breach of Article 22 of the Basic Law, which states that no department under the central government can interfere in Hong Kong matters.

The Hong Kong government has issued three contradictory statements on the subject, but Secretary for Justice Teresa Cheng Yeuk-wah gave the most definitive stance yet on Monday, saying that “Article 22 of the Basic Law does not apply to the liaison office”.

In a letter sent to the city’s top officials, Dykes, who leads the powerful legal body that represents more than 1,500 practising barristers, said he was surprised by the local government’s recent U-turn on the issue.

The letter was sent to newly appointed Secretary for Constitutional and Mainland Affairs Erick Tsang Kwok-wai, and copied to Cheng, and the city’s leader Carrie Lam Cheng Yuet-ngor.

Cheng’s remarks on Monday seemingly contradict past government papers which said the liaison office was bound by Article 22. Cheng added that the office still had to abide by Hong Kong laws, including the Basic Law.

In 2009, the government also tabled the Adaptation of Laws Bill at the city’s legislature, to include the liaison office, the foreign ministry’s local office, and the Chinese army’s local garrison in four local ordinances covering issues ranging from the protection of plants to copyright. The bill was approved by the legislature.

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Dykes urged the officials to explain what he called “newly asserted constitutional positions” and the liaison office’s authority and the limit to its power.

“There are various provisions in the Basic Law which guarantee operational independence to entities such as the Independent Commission Against Corruption, the Director of Audit, the Judicial Officers Recommendation Commission, and of course the Judiciary,” Dykes wrote.

“Does the claimed power of supervision extend to these bodies? If it does, how can the power be reconciled with the notion of independence?”

He also urged Tsang to explain whether the Department of Justice and its prosecutors were also covered by the liaison office’s supervisory power. Under Article 63 of the Basic Law, they are guaranteed freedom from interference.

The Chinese flag flies outside Beijing’s liaison office, in the Sai Ying Pun neighbourhood of Hong Kong. Photo: Bloomberg

“I believe that you owe it to the public to answer these questions and give a full exposition of the relevant legal principles and rules,” Dykes said, calling it an important constitutional issue.

The Post has asked Tsang’s office and the Department of Justice for a response.

Under Article 22(3) of the Basic Law, all offices set up in Hong Kong by central government departments shall abide by the city’s laws.

In 2007 and 2009, the Constitutional and Mainland Affairs Bureau cited the section as a “clear example” of why three authorities set up by Beijing in Hong Kong had to abide by local laws. They were the liaison office, the foreign ministry’s local office, and the People’s Liberation Army’s local garrison.

There have been no changes or amendments to local laws to cover the liaison office since then.