基本法的新詮釋?政府該給香港人理由為何羅哲斯被拒入境 A new interpretation of the Basic Law? Hong Kong deserves to know why Rogers was denied entry

編按: Evan 認為,在羅哲斯被拒入境時,根據《基本法》林鄭一定已被知會;如果羅哲斯入境確實是外交問題,構成「外交事務」的要素必須要釐清,並理應告知羅哲斯、英國政府和香港人。

Evan argues that in denying Rogers entry, Carrie Lam must have been informed in accordance with the Basic Law; and if his entry was indeed a foreign affair issue, what constitutes “foreign affairs” needs to be defined. Rogers, the British government and the Hong Kong people should be told.

*  *  *

Two days after Chief Executive’s inaugural policy address, Carrie Lam again took to the stage, this time at a dinner event hosted by a pro-democracy leaning association.

Her speech praised the work of the association and its members, calling them out during her speech in a show of a new, more open and engaging style of leadership. In particular she congratulated the association’s founder, a man who has worked tirelessly for many years behind the scenes in the interests of Hong Kong.

At the end of the evening this man was again honoured, this time by the association’s chairman, a well-known district councillor, who presented him with a magnum of champagne. Carrie applauded.

Yet as the man returned to his table, he half-jokingly said, after what happened to Ben Rogers he was worried that should he leave Hong Kong he might find himself barred from returning. Among the pro-democracy crowd no one laughed.

In fact, Ben Rogers, a former Hong Kong resident and now vice-chair of the British Conservative party’s Human Rights Committee, had been set to meet with many of the people in the room. Many people know Ben, including the association’s founder.

“I was scheduled to meet Benedict Rogers last Friday afternoon,” he would later tell me. “So when I made my weekly trip to my Shenzhen factory there was an opportunity to see if that gave me a black mark.”

“When the immigration lady leaned forward and started to ask me a question, for a second I wondered if something unpleasant was coming,” he said. “But it was simply an inquiry as to whether I had a Chinese name.”

It may seem all a little silly, and yet another example of those of an anti-establishment bend to over react. But the people at the dinner are not the type. It is an association of lawyers, accountants and other professionals. All very serious people, much like Carrie herself. In fact, they are people Carrie and many in senior positions of government know well.

Ben Rogers had arranged, privately, to travel to Hong Kong to meet with friends. They included people sat next to our government, people our Chief Executive knows and, I suspect, genuinely values. They are people with whom she and her administration are trying to reach out to and engage; people she feels she can deal with. Indeed, even the Liaison Office reaches out to these people through intermediaries. They are not radical nor represent positions that threaten Hong Kong or Beijing.

Yet somehow Rogers’ plans became known to Beijing. In the UK Rogers’ received threats warning him not to go. When he did make the trip, he was stopped at Hong Kong airport. His lawyer, Albert Ho, was barred from meeting him.

Rogers’ entry into Hong Kong was evaluated to constitute such a threat that he had to be barred and denied legal representation. The decision was taken knowing it would be news, both in Hong Kong and London. It was also taken knowing it would prove a distraction on the day of Carrie Lam’s policy address, diverting attention from what many in Hong Kong hoped would represent a new and more responsive administration.

According to Basic Law, it is the Hong Kong SAR government that controls immigration into Hong Kong. Article 154 of the Basic Law:

The Government of the Hong Kong Special Administrative Region may apply immigration controls on entry into, stay in and departure from the Region by persons from foreign states and regions.

The Basic Law is quite clear that only in matters concerning national security and foreign affairs does Hong Kong not have jurisdiction, giving Beijing the right to intervene to prevent someone from being granted entry into Hong Kong. Article 19 states:

The courts of the Hong Kong Special Administrative Region shall have no jurisdiction over acts of state such as defence and foreign affairs.

And Article 19 also states:

The courts of the Region shall obtain a certificate from the Chief Executive on questions of fact concerning acts of state such as defence and foreign affairs whenever such questions arise in the adjudication of cases. This certificate shall be binding on the courts. Before issuing such a certificate, the Chief Executive shall obtain a certifying document from the Central People’s Government.

Therefore, there is a clear procedure through which such an intervention must follow. Note that this procedure states that the Chief Executive is to be informed.

Yet when Carrie Lam was asked on RTHK the morning after Rogers was denied entry, she stated clearly, and without any ambiguity that she does not know why he was denied entry and that it was an issue for the department of immigration. Clearly then either procedure was not followed, and therefore the Basic Law violated; or Carrie Lam lied to the public on the day after her policy address. Either way, it does not look good for either her or for Hong Kong.

Since then, the Hong Kong SAR government has refused to comment on the issue, despite both a personal request from Rogers, and a legal letter from his lawyers addressed to the Director of Immigration demanding an official explanation. Disappointingly as of publication there has been no response.

The British government has also lodged a complaint with both the Hong Kong government and Beijing, and the issue was raised in parliament, with John Bercow, the Speaker of the House, describing Rogers as an “outstanding and articulate champion of freedom, democracy, human rights and the rule of law in Asia and elsewhere,” and adding “his treatment was frankly utterly scandalous.”

In requesting clarification as to why a British national was barred from entering Hong Kong, Beijing’s response was to call in an official from the British embassy for a dressing down, before lodging their own representations with London.

Chinese Foreign Ministry spokesman Lu Kang stated that it is “China’s sovereign right whether or not to prevent someone from entering,” and “stern representations” had been lodged with London over “Britain’s recent series of wrong remarks and actions on this issue.” There was no attempt made to expand on why Britain’s remarks and actions were wrong.

In a similar statement, Hua Chunying, speaking for the Chinese Foreign Ministry, said Rogers “knows very well himself” whether his trip to Hong Kong involved an intention to intervene in Hong Kong’s internal affairs and judicial independence.

Beijing is wrong to regard Hong Kong as an internal affair. It is also wrong that they should find offence in Britain requesting clarification. Britain has both a right and a moral obligation to monitor developments and ensure the principles of ‘One country, Two systems’ are respected. Beijing’s “comprehensive jurisdiction” is dependent on their honouring the Sino-British Joint Declaration, a document registered with the United Nations and one that is as much British as Chinese.

It is therefore very worrying to read several commentaries toeing this line. In a recent op-ed piece, Sovereign State has full control of borders, Paul Surtees states “a city’s local government, anywhere in the world, is generally not tasked with instituting national policies on immigration.” Beijing’s sovereignty over Hong Kong is conditional; Hong Kong is not just another local government. Such articles, though toeing Beijing’s official line, do not help either side develop a constructive relationship. It is also symptomatic of an attitude that has breeds growing levels of dissent in Hong Kong.

Given these statements, and the severity of declaring Rogers’ a threat to national security, one might assume that Beijing’s decision was taken on grounds of his entry into Hong Kong being an issue of foreign affairs. However, if this is indeed the case, it raises the question as to how are foreign affairs to be defined under the Basic Law? In effect then this action would constitute yet another interpretation, and by law the Hong Kong public need be informed.

Rogers’ crime in the eyes of Beijing, it can only be presumed, was to have co-authored the commission’s recent report on China, which was damning in it’s finding. As part of the inquiry, Rogers received written submissions from such respected figures as former Chief Secretary Anson Chan, and the founder of the Democratic Party Martin Lee.

His threat to Hong Kong’s judicial independence was in speaking to Hong Kong’s most respected senior judge, Kemal Bokhary, who concluded in April that his warning four years ago of “a storm of unprecedented ferocity” facing the judiciary has now come about and that his “fears have been realised”. It was Bokhary, not Rogers, who described there being “very serious problems,” and that Hong Kong and the rule of law faced “grave challenges” as “things which were second nature to you and I may recede to the back row where judicial independence is eroded.”

For Rogers to have been denied entry into Hong Kong, and for the Hong Kong immigration department to have been overruled in its rightful operation, a reason must have been presented to our government. Given that Beijing’s sovereignty in Hong Kong is conditional and dependent on the Basic Law there is no reason why the Hong Kong government should not be open in clarifying on what grounds Rogers was barred from entering. Not to do so would raise genuine questions as to whether Beijing has in this case complied with the Basic Law.

Rogers was a friend of people praised and honoured by Carrie Lam; a friend of those within her circle who know and respect her and who are prepared to see the best in her administration. Yet Beijing would have us believe these people, who are respected by many in Hong Kong and seen to representing the best in our community, are agitators for dissent and pose a national threat; and that Rogers private trip to Hong Kong to meet such people represented a threat of national concern. It is not only Ben Rogers and the British government that deserve clarification. Hong Kong people also deserve to know.

Originally published on Stand News and Hong Kong Free Press 

Respond to 基本法的新詮釋?政府該給香港人理由為何羅哲斯被拒入境 A new interpretation of the Basic Law? Hong Kong deserves to know why Rogers was denied entry

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