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Hong Kong high-speed rail

Newly approved joint checkpoint plan will damage Hong Kong’s rule of law, legal heavyweights say

Group of six lawyers led by Philip Dykes SC issues statement against arrangement for mainland laws to be applied at West Kowloon terminus of high-speed rail link

PUBLISHED : Thursday, 28 December, 2017, 9:29am
UPDATED : Thursday, 28 December, 2017, 9:57pm

A group of legal heavyweights, who will be contesting the Bar Association election next month, have criticised the newly approved joint checkpoint plan for a cross-border rail link, saying the controversial scheme will damage Hong Kong’s rule of law and undermine the confidence of the public.

The six-person list led by Philip Dykes SC – a prominent human rights lawyer who is vying for the top post on the Bar Council, the association’s governing body – made their comments on Wednesday. The other five members of the group, Professor Johannes Chan Man-mun, the former law dean of the University of Hong Kong, Lawrence Lok Ying-kam SC, Erik Shum Sze-man, Joe Chan Wai-yin and Randy Shek, are aiming for council membership.

Earlier that day, China’s top legislative body approved a plan for mainland officials to enforce national laws in part of the West Kowloon terminus for the Guangzhou-Shenzhen-Hong Kong high-speed rail link.

Speaking on a RTHK programme on Thursday, Chan said the National People’s Congress Standing Committee’s decision was tantamount to creating a “new path” for itself to change Hong Kong’s law.

“This was the NPCSC’s decision – how could it change Hong Kong’s legal basis or provide a legal basis for a controversial issue in Hong Kong? This is a new path that affects ‘one country, two systems’,” Chan said, referring to the model by which Beijing governs Hong Kong.

“We couldn’t find any article in the Basic Law which says the NPC can make decisions that can even set Hong Kong’s law aside in a specific place like West Kowloon … This was an important decision made without the Basic Law, or with it being overridden,” he argued.

Chan said that if the joint checkpoint had to be established, Beijing should consider legal means such as amending or interpreting existing constitutional provisions.

Joint checkpoint plan will not undermine Hong Kong’s autonomy, Basic Law Committee member says

Speaking on the same programme, Shum urged the Bar Association and the city’s outgoing justice minister, Rimsky Yuen Kwok-keung, to speak up and defend Hong Kong’s rule of law.

In a statement released on social media on Wednesday, Dykes and his team criticised the current arrangement, known as co-location, for being “in direct contravention” of the city’s mini-constitution, the Basic Law.

“[The arrangement] if implemented would substantially damage the rule of law in Hong Kong,” the statement read. “It would undoubtedly undermine confidence of the public, in particular, of investors whether local, national or international, in the state and Hong Kong government’s willingness to uphold the rule of law, which is essential to protect the economic environment of Hong Kong.”

One of the points raised was that having cases within Hong Kong not be under the jurisdiction of the city’s courts went against the Basic Law.

“According to the provisions of the Basic Law, the HKSAR is vested with independent judicial power, including that of final adjudication, and the courts of the HKSAR have jurisdiction over all cases in the HKSAR (Article 19(1) and (2) of the Basic Law). Taking away the jurisdiction of the HKSAR courts from a part of Hong Kong will certainly be a breach of Article 19,” the statement said.

The group noted the government’s duty to maintain the city’s high degree of autonomy: “The Hong Kong government would have abrogated its constitutional duties by surrendering a part of Hong Kong such that the Basic Law and most Hong Kong laws do not apply.”

Joint checkpoint plan will not undermine Hong Kong’s autonomy, Basic Law Committee member says

The legal heavyweights also rebutted an argument from Beijing officials that the co-location arrangement did not contravene Basic Law’s Article 18 because national laws would be enforced only in part of the West Kowloon terminus. The article states that national law shall not be applied to Hong Kong unless added to Annex III of the Basic Law.

The lawyers’ statement said there was no justification for saying that mainland laws could be applied if they were used only in a certain part of the city.

The election candidates’ strong stance stood in stark contrast to the three-paragraph statement issued by the Bar Association in October in response to the co-location arrangement.

Dykes’ group said they did not oppose the introduction of the rail link, but it had to be done in accordance with the Basic Law.

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

“The rule of law will be threatened and undermined if the clear meaning of the Basic Law can be twisted and the provisions of the Basic Law can be interpreted according to expediency and convenience,” the statement added.

The lawyers said the public would be concerned about the possible threat of being punished for “undermining public order” while still in the city, a criminal offence on the mainland that could lead to up to five years’ jail but has no comparable sanction in Hong Kong.

In a set of questions and answers on co-location, available on the Transport and Housing Bureau website, one question touched on whether a Hong Kong citizen would be held legally liable for using Facebook on the train and be at risk of undermining public order. The authorities explained that criminal offences committed on the train, even when it was operating in Hong Kong, would be handled under mainland law.

Additional reporting by Tony Cheung