Co-location ruling gives needed clarity to important legal issues

  • Doubts have been raised about the compatibility of the arrangement with Hong Kong’s Basic Law
  • The judge adopted a pragmatic approach in making his decision
PUBLISHED : Saturday, 15 December, 2018, 10:28pm
UPDATED : Sunday, 16 December, 2018, 1:45pm

The high-speed railway linking Hong Kong with cities in mainland China has been open for almost three months. Some 3.4 million passengers have used the express train to cross the border, undergoing immigration and customs checks in the mainland port area at West Kowloon Station. So some might regard last week’s court judgment on the legality of the project as academic and regard the judge’s finding that the rail link is lawful as inevitable.

But the legal issues raised by the so-called co-location arrangement, in which multiple mainland laws are applied to the port area in Hong Kong, are real and relevant. Indeed, they are of great importance. Doubts have been raised about the compatibility of the arrangement with Hong Kong’s Basic Law. Clarity was needed and the court’s ruling goes some way towards providing that. Mr Justice Anderson Chow Ka-ming adopted a pragmatic approach. He found that the Basic Law did not prohibit the co-location arrangement which, he said, was consistent with the preservation of Hong Kong’s distinct system. The judge said the Basic Law is a “living instrument” capable of developing over time to meet new social, economic and political realities. He was careful to stress his adherence to common law principles and previous rulings of the Court of Final Appeal when interpreting the Basic Law.

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The judge sensibly avoided the sensitive issue of whether decisions of the National People’s Congress Standing Committee are binding on Hong Kong’s courts. He did not need to rule on this point in order to decide the case. Mr Justice Chow did, however, use the Standing Committee’s decision asserting the constitutionality of the co-location arrangement to help him interpret the Basic Law. This is one of the issues which deserves further consideration by higher courts if, as seems likely, the decision will be challenged on appeal.

The judgment shows the finely balanced nature of the case. The judge accepted it can be argued “with considerable force” that the co-location arrangement breaches several key articles of the Basic Law. The government’s argument supporting the constitutionality of the arrangement was also forceful, he added. The judge provided some comfort for those concerned about the implications of his ruling. The rail project is unprecedented, he said, and his judgment does not necessarily mean mainland laws can be similarly applied to other parts of Hong Kong in the future.

For now, at least, the matter is settled. The trains will continue to run and passengers will benefit from the convenience the co-location arrangement brings. There will, no doubt, be other disputes about the Basic Law. There is no better way of resolving them than through the reasoned judgments of the city’s independent and impartial judiciary.