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Hong Kong Basic Law

Hong Kong’s high-speed rail joint checkpoint debate is proof the Basic Law works, and why political stability is its best safeguard

PUBLISHED : Tuesday, 08 May, 2018, 4:17pm
UPDATED : Tuesday, 08 May, 2018, 10:02pm

The controversy over the central government’s control over certain customs and immigration areas of the high-speed rail terminal in Hong Kong focuses on Article 18 of the Basic Law, which states that “National laws shall not be applied in the Hong Kong special administrative region except for those listed in Annex III to this law”. 

However, the enactment of the Basic Law was a state act permitted by Chinese law. There is nothing in the Basic Law that prohibits the National People’s Congress, which enacted the Basic Law, from promulgating another state act that overrides Article 18. 

In tackling an unforeseen cross-border issue such as the extension of the high-speed rail network to Hong Kong, the central government may have chosen to bypass Article 18 with a state act – precisely to show that it has sovereign control over Hong Kong. 

Joint checkpoint plan on track to become law for Hong Kong’s high-speed cross-border rail

In fact, Article 19 states that Hong Kong courts “have no jurisdiction over acts of state”, which are not necessarily confined to defence or foreign affairs. Even without an interpretation from the National People’s Congress Standing Committee, Article 19 guarantees that a deal involving a state act cannot be successfully legally challenged in Hong Kong courts. 

Article 20 states that Hong Kong “may enjoy other powers granted to it” by the central government, which could include the power to locally legislate through proclamation an arrangement regarding the use of the terminal. 

The fear in Hong Kong is whether this arrangement may set a precedent for similar proclamations, overriding other parts of the Basic Law. However, even without such measures, according to Article 18, under circumstances of war or domestic turmoil perceived to be endangering national security, the central government may apply other national laws to Hong Kong. 

Hong Kong courts have ‘different understanding’ of Basic Law

While the central government has sovereign power to impose state acts on Hong Kong, it would not have enacted the Basic Law in the first place if the ultimate purpose was to dismantle it without cause. 

It is, therefore, important for Hongkongers to understand that the ultimate safeguard of the Basic Law is the underlying political stability of Hong Kong, as the two are mutually constituent and interdependent. 

Michael Ng-Quinn, professor, University of Redlands, California