Hong Kong is being squeezed … into China

Is the co-location arrangement a sign of progress or regression? The answer hinges on the nature of Hong Kong’s common law and how “one country, two systems” should evolve – a political decision.

The Bar Association has two basic standpoints. First, the common law system, which was introduced by the British to Hong Kong, is an autonomous system that serves as the cornerstone for the rule of law in the city. As the Basic Law is interpreted and implemented in strict accordance with the common law, the NPC’s decision on co-location undermines the authority, dignity and integrity of the common law in Hong Kong.

Second, the “one country, two systems” arrangement is built on the Sino-British Joint Declaration and institutionalised under the Basic Law. The rule of law and judicial independence require that the two systems be strictly separated.

Known for its antipathy to the NPC’s decisions and interpretations of the Basic Law, the Bar Association has always been wary of the nation’s rule of law and its authority. In its understanding, “one country” is separate from “two systems”. Its goal is to continue to uphold the rule of law system inherited from its colonial past, and resist being merged into the mainland system.

As a result, after the handover, Hong Kong lawyers have developed an understanding of the Basic Law that is based on the common law system of rights and freedoms.

However, this common law system is fundamentally at odds with “one country, two systems”, the legislative intent of the Basic Law, and the central government’s approach.

In attacking the NPC decision, the Bar Association has harped on two points: it said no provision in the Basic Law offers sound legal grounds for the decision; consequently, it was purely arbitrary. But this understanding ignores the uniqueness of the “one country, two systems” arrangement as part of constitutional decision-making, and the continuous evolution of the arrangement itself.

To be fair, it is a lawyer’s habit to insist on sound reasoning based on the actual words of a law, but the co-location plan is not just a legal matter but also a political one. Its constitutional legitimacy rests on the following points.

First, no part of the Basic Law can be directly cited as legal backing because the need to legislate for such co-location was not anticipated when the law was being drawn up. But it does not mean the Basic Law provides no legal authority.

Second, the constitutional intent of “one country, two systems” should also be taken into account, to judge whether a decision would be conducive to the prosperity and stability of Hong Kong, and whether it would damage the city’s high degree of autonomy and the freedom of its residents. On this, the NPC Standing Committee gave an authoritative and convincing argument in its explanatory notes.

Third, an NPC Standing Committee decision is legally and constitutionally equivalent to state legislation. It is a discretion exercised by the country’s highest legislative body to endorse the legitimacy of an agreement.

Fourth, Hong Kong legislation and court decisions on judicial reviews should respect and comply with the NPC Standing Committee decisions. Constitutionally, Hong Kong is in no position to review or reject such decisions.

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The Bar Association criticised the decision for being a case of “just because the NPC [Standing Committee] says so”. But this is based on the principles set down by “one country, two systems” and the Basic Law. It is no different from, say, the Hong Kong Court of Final Appeal having the final say on a case in its jurisdiction. In any legal order, there is an ultimate authority whose word is the final word, which must be accepted if all procedures in its decision-making have been followed.

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To uphold the rule of law, we should not only recognise the authority of the common law, but also the authority of state legislation.

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In other words, the criticism of the legal and cultural elite in Hong Kong exposes their wishful thinking about the supremacy of the common law, and how their understanding lags behind the continuously evolving “one country, two systems” arrangement. Hong Kong’s leading lawyers have failed to grasp the full meaning of the post-handover “new constitutional order”, and failed as well to show professional respect for the nation’s legal system.

Back when mainland China still relied on Hong Kong as a launch pad for its globalisation, when Beijing gave Hong Kong free rein in exercising its autonomy, Hong Kong was free to indulge in its arrogant defiance of the nation’s legal system and its emotional attachment to its colonial past.

Today, however, a rising China has entered a new era of global governance. By contrast, the outlook of this group of Hongkongers – whether on the nation, the world, or legal matters – appears narrow.

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This co-location plan that would link Hong Kong to the nation’s high-speed railway was forged after proper negotiation, and is backed by an authoritative NPC Standing Committee decision. The project would benefit Hong Kong people and society, and is set to be a landmark in cross-border integration. It’s time for Hong Kong’s legal and cultural elite to readapt to the nation they live in, and better understand the evolving “one country, two systems”.

Tian Feilong is an associate professor at Beihang University’s Law School in Beijing, and a director of the Chinese Association of Hong Kong and Macau Studies