Hong Kong lawyers can oppose the joint checkpoint plan for the high-speed rail, but they should not deny its legal basis

I have been a member of the Hong Kong Bar for over 40 years and have the highest respect for its council. I also firmly believe that when a professional body deals with an important issue, it must do so in a fair and professional way, and always be on guard to avoid using emotive and intemperate rhetoric. This is particularly so when it comes to interpreting a constitutional document like the Basic Law.

You can therefore imagine my shock and sadness at reading the Bar Association’s statement on the co-location clearance proposal of the Hong Kong government for the cross-border rail link, and on the corresponding decision by the National People’s Congress Standing Committee relating to that.

Don’t get me wrong; I respect the association’s view and do not expect it to coincide with mine. But I also expect a more restrained and measured statement, much in the vein of the statements that previous Bar Councils – the governing body of the association – have issued in the past.

The dispute over the legality of the co-location proposal comes down to one question: is it in contravention of Article 18 of the Basic Law? This article, which defines the very essence of “one country, two systems”, reads, “National laws shall not be applied in the Hong Kong SAR except those listed in Annex III to this law … [which] shall be confined to those relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the region as specified by this law.”

But what does it mean?

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Our Court of Final Appeal has said on many occasions in interpreting the Basic Law that it is an aspirational document and one must adopt a purposive interpretation. This means the Basic Law is forward-looking and not enslaved by dated concepts. When we read the Basic Law, we must read it as a whole, try to discern its purpose, and give effect to it in accordance with such a purpose.

Adopting this approach, at least one reading of Article 18 is that its purpose is to prevent Chinese national law from applying to the whole of Hong Kong, thereby undermining “one country, two systems” and, in particular, the rights and freedoms of the people of Hong Kong. On this reading, if the proposed co-location clearance arrangement has no such effect but, on the contrary, is necessitated by economic development, then Article 18 is not contravened.

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In any event, there is a separate legal argument for the proposal. If local law is eventually passed “deeming” the immigration and customs clearance area that has been leased to mainland authorities as being outside the borders of Hong Kong, then Article 18 will not be engaged either. If so, it follows that the other provisions of the Basic Law will provide the necessary powers to the special administrative region government to set up the co-location border control. Such is the legal basis of the proposal.

You can say this legal basis is weak, or even wrong. But you cannot say there is no legal basis at all; nor can you say Article 18 admits of no such reading at all. Nor can you then build on this restricted view to make the accusation that the rule of law is being “severely undermined”.

There is another disturbing aspect. If there is a legal basis for the proposal – albeit one you do not agree with – then there was a procedure whereby the arguments in support were put forward openly in writing, and officials from the SAR government were invited to participate in meetings where the proposal was discussed, then voted upon by the NPC Standing Committee. Thus, one cannot say this is a case of “mere say so” by the NPC Standing Committee. One may disagree with the procedure, challenge its representativeness, or disagree strongly with the final decision, but it was no “mere say so”.

Besides, the NPC Standing Committee is the highest executive, constitutional and legal authority in the land and its decision on any view deserves some measure of respect, even if you strongly disagree with it. This is all the more so under “one country, two systems”. Not respecting the NPC Standing Committee is akin to not respecting the “one country” of “one country, two systems”, and if we don’t respect the “one country”, how can we expect the “one country” to respect the “two systems”?

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Since Hong Kong reverted to Chinese sovereignty under the concept of “one country, two systems”, some people seem to have failed to appreciate that our legal system has also undergone some significant changes. They ignore the accepted fact that different legal systems deal with constitutional issues differently. Under the common law system, constitutional issues are normally left to be dealt with by the courts under an adversarial system. In civil law countries, however, constitutional issues are often dealt with by a different institution, for example, a constitutional court under an inquisitorial system. The constitutional court often performs a different function from the lawmaking function of a legislature and the judicial function of a normal court. The final decisions of such an institution will rarely be challenged as being a breach of the rule of law.

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China is a civil law country. It has a unique unitary system of combining the functions of a constitutional and executive authority in the body of the NPC Standing Committee. Thus, NPC Standing Committee is the highest authority in dealing with both constitutional and administrative issues. But it is not a court in the common law sense. It does not purport to resolve adversarial disputes of a normal court.

Since Hong Kong is now part of China, Hong Kong must therefore also come under the authority of NPC Standing Committee in constitutional matters. This is recognised in the Basic Law.

Our Court of Final Appeal is vested with delegated power by the NPC Standing Committee to interpret provisions of the Basic Law but it is plainly not the final arbiter in issues relating to either the national constitution or provisions of the Basic Law which fall within the sphere of responsibility of the central government.

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In this way, when the NPC Standing Committee acted as a final arbiter in matters within its power, one cannot invariably say that such an act is a breach of the rule of law. To do so would only exemplify one’s ignorance or non-acceptance of the very necessary changes of Hong Kong’s legal system and constitutional order under “one country, two systems”. I certainly expect the Bar Council to be aware of this very important issue.

A professional body has a certain responsibility. It must at all times be alert to the possibility that its views may be misunderstood by the uninitiated, and be aware that people outside Hong Kong may be misled. This responsibility dictates that any statement on important issues of great concern to the community should be carefully worded and supported by good reasons and firm facts.

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I am deeply saddened by the fact that the seemingly irreparable political divide we suffer in Hong Kong has finally caught up with the legal profession. Perhaps I was too naive to think that the independent professional body that is the Bar can prevent itself from being dragged into the political mud fight we see around us every day.

There is a Bar Council election coming up soon. But judging from the association’s statement issued recently, I doubt there is anything to choose from between the incumbent team and the challengers.

Ronny Tong Ka-wah, QC, SC, a former Bar Association chairman, is a member of the Executive Council and convenor of the Path of Democracy