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Hong Kong high-speed rail

Hong Kong courts have no power to challenge decisions of China’s top legislative body, says Beijing loyalist Maria Tam

Comments from political heavyweights come amid furore over NPC Standing Committee’s approval of a joint checkpoint plan for cross-border express rail link

PUBLISHED : Saturday, 30 December, 2017, 2:27pm
UPDATED : Sunday, 31 December, 2017, 12:23am

A “decision” adopted by China’s top legislative body was equivalent to a law that Hong Kong courts had no power to challenge, a pro-Beijing political heavyweight said on Saturday, amid a row over the legality of the body’s approval of a joint checkpoint plan for a cross-border rail link.

“Under the Chinese constitutional system, decisions made by the National People’s Congress Standing Committee [NPCSC] are equivalent to laws. They are also laws,” said Maria Tam Wai-chu, a member of the Basic Law Committee under the NPCSC.

“We [Hong Kong] should have no jurisdiction over the NPCSC’s decisions.”

The NPCSC approved the scheme and issued the decision on Wednesday, allowing mainland officials to enforce national laws in part of the West Kowloon terminus – leased to the mainland and deemed a mainland port area – of the express rail link.

It sparked an outcry from the local legal sector including the Hong Kong Bar Association, which said it was “appalled” by the move. Former chairman Paul Shieh Wing-tai had earlier said that the decision made by the NPCSC lacked constitutional status in the city, thus the courts could disagree with it.

Hong Kong’s legal community can challenge Beijing’s approval of joint checkpoint plan, ex-Bar Association head says

However, he also conceded that such a legal battle may end up with the NPCSC issuing another “shocking” interpretation of the Basic Law, the city’s mini-constitution.

Tam, speaking to reporters on Saturday, made it clear that the decision on Wednesday had legal binding power over local courts, on a par with Basic Law interpretations made by the NPCSC.

“We cannot read it or expect it to be written in the same way as a court judgment in Hong Kong,” she said, adding that people should refer to the explanations handed down by Zhang Xiaoming, director of the Hong Kong and Macau Affairs Office, for the detailed legal basis of the decision.

Professor Johannes Chan Man-mun, former dean of the Faculty of Law at the University of Hong Kong, disagreed with Tam.

He said the Basic Law interpretations issued by the NPCSC had legal bidding power over the local courts, but decisions were not the same thing.

“The NPCSC has made a lot of decisions … the principle of ‘one country two systems’ is about not applying mainland policy to Hong Kong,” argued Chan, who said it was still a question about the nature of the NPCSC’s decision.

Also critical of Tam was Alan Leong Kah-kit, a former Bar Association chairman. Leong, former leader of the Civic Party, slammed her for placing the NPCSC in the position of a feudal “emperor” who has utmost power.

Earlier on Saturday, Elsie Leung Oi-sie, Hong Kong’s former secretary for justice, also came out for the second time in two days to reject criticism over the controversial “co-location” plan at West Kowloon.

She moved to assure people that the NPCSC would not announce and adopt a “decision” to force through national security legislation in Hong Kong, addressing concerns raised by the opposition.

Some opposition figures argued that with such an unprecedented act, the NPCSC could in the future adopt a decision to force through a national security law in the city. Beijing has signalled its impatience with Hong Kong for making no progress in rolling out the controversial legislation, as required under Article 23 of the Basic Law.

Ongoing row over legality of joint checkpoint plan sees Hong Kong’s ex-justice minister and mainland scholars enter the fray

“Basic Law Article 23 stipulates that the Hong Kong government shall enact laws on its own,” Leung told an RTHK radio programme on Saturday morning.

“How would the NPCSC adopt a decision that is obviously inconsistent with the Basic Law? Except if [it] amends the Basic Law in advance.”

On Friday, Leung had suggested that criticism of the rail decision by local legal professionals stemmed from their failure to understand the Chinese constitution.

For other concerns – including that the precedent would give rise to other places being excluded from Hong Kong’s jurisdiction – Leung stressed on Saturday that the government had the right to say “no”.

Six things to know about Hong Kong’s controversial ‘co-location’ joint checkpoint scheme

“If we circle [the area of] RTHK and change it to China Central Television … would the Hong Kong government agree? Would Hong Kong citizens agree? Would we sign an agreement with them?” Leung said, pointing out that the NPCSC endorsement came after the “co-location” agreement was signed between the Hong Kong government and the mainland.

Leung also said there was always a first time for everything, and a price to pay for every deal.

“But it doesn’t mean new, additional restrictions have been put on the Hong Kong government or Hong Kong people,” she added.