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Hong Kong Basic Law

China has changed, and so should Hong Kong lawyers’ understanding of ‘one country, two systems’

Tian Feilong says there is a grievous mismatch between the reality of a rising China and growing cross-border integration, and Hong Kong legal elites’ arrogant belief that the common law system is superior to the nation’s legal system, and therefore immune to change

PUBLISHED : Sunday, 07 January, 2018, 11:00am
UPDATED : Sunday, 07 January, 2018, 6:52pm

At the end of last year, China’s top legislative body, the National People’s Congress Standing Committee, en­dorsed a controversial plan to set up a joint immigration checkpoint in the heart of Hong Kong for its high-speed rail linking Guangzhou.

Response from the Hong Kong Bar Association was swift. In a strongly-worded statement, it said the Standing Committee had failed to provide any credible legal basis or constitutional legitimacy for its decision, which it called “the most retrograde step to date in the implementation of the Basic Law”. Hong Kong commentator Lam Hang-chi even said the decision would make Hong Kong a lawless city.

Clearly, some in Hong Kong are unaccustomed – even averse – to this new development of “one country, two systems”.

The quarrel over the legality of the decision pits the political elites in Beijing against the legal elites in Hong Kong. At its heart, the dispute comes down to a clash between the autonomy of the common law system in Hong Kong on the one hand, and the sovereignty of the central government on the other.

Beijing has ultimate control of Hong Kong – that’s the reality of ‘one country, two systems’

The co-location arrangement will not only benefit Hong Kong’s economy, but also facilitate the political integration of Hong Kong and the mainland. Constitutionally, it shows great respect for both Hong Kong’s high degree of autonomy and public opinion. Yet it has failed to win the trust and acceptance of the leading lights of the city’s opposition camp.

Compared to Beijing’s call for “comprehensive jurisdiction”, cross-border integration, which the co-location plan is pushing for, more easily touches the nerves of those Hongkongers who consider the city a fully autonomous region.

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.

Is the co-location arrangements a sign of progress or regression? The answer hinges on … how ‘one country, two systems’ should evolve

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.

This fundamental contradiction can be seen in every major constitutional controversy that has broken out since Hong Kong’s return to Chinese sovereignty. The split in perspectives is clearly seen if we compare, say, the central government’s 2014 white paper on “one country, two systems” with the 2016 manifesto of Hong Kong’s Civic Party.

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.

Constitutionally, Hong Kong is in no position to review or reject such decisions

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.

Hong Kong’s joint rail checkpoint shows the emperor is not always far away, and never out of mind

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.

Bar Association wrong to say joint checkpoint plan has no legal basis

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

Joint checkpoint decision in Hong Kong an ‘act of state’, leading Beijing adviser says

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.

All you need to know about the Hong Kong-mainland rail link

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