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Hong Kong high-speed rail

Hong Kong Bar Association ‘appalled’ by approval of joint checkpoint plan, saying it ‘irreparably’ breaches Basic Law

Organisation slams top legislative body’s decision on co-location arrangement for cross-border rail link, calling it most retrograde step since 1997

PUBLISHED : Friday, 29 December, 2017, 8:55am
UPDATED : Friday, 29 December, 2017, 11:18pm

Hong Kong’s Bar Association was “appalled” by a decision made by China’s top legislative body on a joint checkpoint plan for a cross-border rail link, saying the move was the most retrograde step since 1997, with the city’s mini-constitution being “irreparably breached” and the rule of law “severely” undermined.

The statement released by the association late on Thursday night came after the National People’s Congress Standing Committee (NPCSC) on Wednesday approved a plan for mainland officials to enforce national laws in part of the West Kowloon station, which will be the Hong Kong terminus for an express rail link connecting the city to Guangzhou.

The association said that the decision concerning the co-location arrangement was not supported by any provisions in the Basic Law, the city’s mini-constitution. The association said it was “appalled” when the NPCSC approved the plan and confirmed it was consistent with the country’s constitution and the Basic Law without stating any basis.

“This plainly amounts to an announcement by the NPCSC that the cooperation agreement complies with the constitution and the Basic Law ‘just because the NPCSC says so’,” the statement said.

“Such an unprecedented move is the most retrograde step to date in the implementation of the Basic Law and severely undermines public confidence in ‘one country, two systems’ and the rule of law in the Hong Kong Special Administrative Region.”

One country, two systems is the principle by which China governs Hong Kong, and guarantees the city a high degree of autonomy.

“The integrity of the Basic Law has now been irreparably breached,” the statement added.

While Li Fei, a top Beijing expert on the city’s mini-constitution said on Wednesday that the current co-location arrangement complied with the constitution and the Basic Law, the association rebutted Li’s explanation.

“The decision is both wholly unconvincing and unsatisfactory in achieving its purported purpose, namely to provide a firm legal basis for … local legislation,” the statement said.

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

The Hong Kong government plans to present relevant local legislation, as the last step in a so-called “three-step process”, no later than early February for approval by the Legislative Council.

The association also questioned an argument from Beijing officials that the co-location arrangement did not contravene Article 18 of the Basic Law 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 association stated that such logic “completely bypasses and emasculates” requirements under the article, as the idea suggested that mainland laws could be applied to any part of Hong Kong designated by the government, such as the High Court Building, as long as this did not cover the entire city.

It criticised the NPCSC’s decision for not fully explaining why the mainland port area in the West Kowloon terminus should be seen as being on the mainland, as well as why it would not affect the city’s high degree of autonomy.

The association also said the decision had generated a strong perception among legal communities in and outside Hong Kong, as well as political communities outside the city, that the NPCSC was prepared to make decisions at the request of the city’s chief executive and the government just because the subject matter concerned was “a good thing”, without respect for the country’s constitution and the Basic Law.

“Such a strong perception will surely impair and undermine the confidence of the local and international communities on the maintenance of the rule of law and the ‘one country, two systems’ policy in Hong Kong, both of which are provided for by the Basic Law,” the statement said.

The city’s leader Carrie Lam Cheng Yuet-ngor said in a press conference on Wednesday that the co-location arrangement was a “good thing” for Hong Kong’s development.

A group of six legal heavyweights intending to contest the Bar Association election next month welcomed the position stated by the association.

“[The association’s position] had been long awaited by the legal community and the Hong Kong public. Far from being a divisive force, it can be seen that a democratic contest has brought about greater unity in the Bar,” the group said.

The six legal eagles, led by human rights lawyer Philip Dykes SC, had released its own statement on Wednesday criticising the NPCSC decision.