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UK National Archives: Chinese Offices in Hong Kong Should Be Regulated by Basic Law Article 22

(23 Jun) The National Security Law will soon be enacted. Initial details of the "national security agency" to be established in Hong Kong [1] clearly states that it will not be restricted by Basic Law Article 22 like the other two offices [Hong Kong Liaison Office and Hong Kong and Macau Affairs Office]. This means it can arbitrarily intervene without adhering to Hong Kong's laws. However, this agency will apparently conflict with extraterritorial jurisdiction, as the British ruling class had concluded based on an in-depth investigation prior to 1997. The UK is surreptitiously keeping mum on the issue, feigning ignorance, but it is worth revisiting now.

Six months ago, a British document about stationing a Chinese foreign ministry in Hong Kong [2] was declassified. It revealed that China had made plans in the 1990s to establish a Ministry of Foreign Affairs in Hong Kong after 1997, which immediately alerted the UK government to discuss Basic Law Article 22. Of particular interest was whether the Chinese government had to pay rent per Hong Kong's land tenure system or if the land could be ceded rent-free because China would have owned the land and it would not be subject to the Basic Law.

This caused N.J. Cox, a Foreign and Commonwealth Office official, to specify, "Although Article 13 of the [Basic Law] provides that 'the Ministry of Foreign Affairs of the People's Republic of China shall establish an office in Hong Kong to deal with foreign affairs' there is no indication that Article 22 shall not also apply in this case." This meant that the UK knew all along that Article 22 was necessary to impose restrictions on any Chinese State Council's offices established in Hong Kong. To the UK, any authority that bypasses the Basic Law was invalid.

In fact, during the drafting of the Basic Law, a British legal advisor repeatedly took issue with the wording of Article 22 and the need to "make express provision" to "The CPG [Central People's Government] and its departments, and other executive organs the State..." [3] i.e. all official Chinese organisations and departments should be regulated under Article 22.

Moreover, the UK even proposed that "the CPG shall not interfere in the affairs which the HKSAR administers on its own in accordance with his Law", and that the "staff of Central Organizations in Hong Kong shall be subject to the jurisdiction of the Hong Kong Courts" [4]. It is apparent that the UK wanted to tighter restrictions on arbitrary Chinese intervention that could undermine Hong Kong's future relative autonomy. Clearer and more detailed provisions were put in place to prevent people from playing smart. Of course, the story finishes with China paying no heed to the Basic Law amendments, which results in today's situation where Chinese agencies can exist in Hong Kong without any checks and balances.

This declassified document on agencies with Hong Kong land grant issues provides a first look into the UK's clear-cut perspective on Basic Law Article 22 from official records. The original intentions of Article 22 are now distorted. Does the UK not have at least some responsibility in defending that and their original stance on the issue to maintain the integrity of the Sino-British Joint Declaration under international law?

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References:
[1] The Stand News： Tam Yiu-chung: National security agency not bound by Basic Law Article 22, mechanisms present to determine if suspects should be sent Mainland for trial
[2] 1991 FCO 40 3412 Future of Chinese Ministry of Foreign Affairs office in Hong Kong. The National Archives.
[3] 1990 FCO 40 2995 Future of Hong Kong Exchanges with the Chinese on the Basic Law. The National Archives.
[4] 1989 FCO 40 2643 Future of Hong Kong Basic Law General. The National Archives.

Source: Stand News