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Hong Kong Basic Law

Hong Kong legal challenge to mainland’s high-speed rail terminus lease ‘unlikely to succeed’

Lawyers in Hong Kong and Beijing say approval by National People’s Congress Standing Committee will make a judicial review ‘nearly impossible’

PUBLISHED : Wednesday, 26 July, 2017, 8:00am
UPDATED : Wednesday, 26 July, 2017, 4:22pm

It will be “nearly impossible” to win a court challenge against the proposal to apply mainland laws to part of the West Kowloon terminus for the high-speed rail link, lawyers say after the justice secretary unveiled his plan on Tuesday to seek confirmation from the ultimate source of legality – the National People’s Congress Standing Committee.

Once the committee passes a decision to allow the Hong Kong government to lease a 105,000 sq m site to mainland authorities, Hong Kong courts will be effectively stripped of the power to scrutinise the “fait accompli”, according to constitutional lawyers in Hong Kong and Beijing who spoke to the Post.

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“It has put the [Hong Kong] government in a position where it cannot be defeated,” University of Hong Kong law academic Eric Cheung Tat-ming said.

Executive councillor and former Bar Association chairman Ronny Tong Ka-wah said the committee “can authorise Hong Kong to [lease the land].”

Although immigration arrangements at the terminus have stirred controversy in the city for years, the Hong Kong and Beijing governments decided that mainland law enforcement officers will be stationed at a joint checkpoint.

They argued this was the only way to make the system convenient for train passengers.

There was an initial discussion about whether mainland officers’ duties could be limited to less sensitive areas such as immigration, customs and quarantine.

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But justice secretary Rimsky Yuen Kwok-keung said after thorough discussion, the option that would give the most certainty was giving officers full legal powers.

In Tong’s words, “while geographically [those areas] still belong to Hong Kong, constitutionally and legally they are no longer part of it.”

Under the plan, the two governments will first reach a cooperation agreement, then ask for a ruling by the Standing Committee before leaving it to the local legislature to finalise the arrangement.

Albert Chen Hung-yee of the Basic Law Committee under the National People’s Congress, described the proposal as “innovative”, adding the arrangement would not violate the Basic Law because it would be authorised by the Standing Committee.

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Hong Kong has no power to lease out land to allow the mainland to exercise control. The current plan is for the government to seek authorisation from the Standing Committee under Article 20 of the Basic Law, which stipulates that Beijing can grant Hong Kong power it does not already possess.

“Since there are no articles in the Basic Law [allowing this], this is an innovative arrangement,” Chen said.

Tian Feilong of a key think tank on Hong Kong affairs in Beijing, said it “best reflects the spirit of one country, two systems” by seeking Standing Committee approval.

However, Tian cautioned that Beijing could weigh in if Hong Kong lawmakers failed to pass a bill within a reasonable time, for example by issuing an executive directive to Chief Executive Carrie Lam Cheng Yuet-ngor.

Under the plan, part of the station will be designated as a mainland port area, which Yuen said would allow mainland laws to be applied free of legal uncertainty.

A government source said the arrangement could also minimise the problem of mainland fugitives facing the death penalty fleeing to Hong Kong where there is no capital punishment.

Yuen stressed this was neither ceding land to the mainland nor redrawing Hong Kong’s boundary.

“What are supposed to be matters concerning infrastructure and the law should not be politicised,” he said, commenting on the possibility of judicial challenges.

Pan-democrats said the proposal would contravene Article 18 of the Basic Law which rules out national laws being applied to Hong Kong unless they are listed in Annex III of the mini-constitution.

“How can a resolution of the Standing Committee have any legal effect to make Hong Kong lose a bit of jurisdiction at the West Kowloon checkpoint?” Democrat lawmaker James To Kun-sun said.

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“Even the Hong Kong legislature cannot legislate to authorise mainland officials to enforce their laws in Hong Kong territory [as it is] against the Basic Law.”

But to launch a judicial review involving such a politically sensitive case, they reckon, would do the courts more harm than good.

“If the Court of Final Appeal rules that it is constitutional, it opens a floodgate [for the introduction of further mainland law],” Democrat lawmaker Lam Cheuk-ting said. “But if the result is unconstitutional, it will lead to a Standing Committee interpretation.”

Yuen’s explanation has given rise to questions about mainland Chinese jurisdiction as he outlined six areas where Hong Kong laws will continue to apply, including construction work, insurance for the station building and the railway’s operational safety.

“This would mean for the first time, Hong Kong courts would be given the jurisdiction to rule on matters outside of Hong Kong,” Cheung said. “It simply highlights [confusion] about whether the area is still part of Hong Kong or not.”