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Hong Kong high-speed rail

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

Paul Shieh warns, however, that this may lead to another central government interpretation of the Basic Law

PUBLISHED : Friday, 29 December, 2017, 12:21pm
UPDATED : Friday, 29 December, 2017, 2:31pm

Hong Kong lawyers and judges could challenge the controversial decision by China’s top legislative body to approve a joint checkpoint plan in the city for a cross-border rail link, a former Bar Association chairman said on Friday.

But Paul Shieh Wing-tai also conceded that such a legal battle could end up with the National People’s Congress Standing Committee issuing a “shocking” interpretation of the Basic Law, the city’s mini-constitution.

On Wednesday, state officials did not rely on any particular article in the Basic Law to formally approve the plan, which would allow national laws to be enforced on Hong Kong soil in part of the West Kowloon terminus for the Guangzhou-Shenzhen-Hong Kong high-speed rail link.

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The NPCSC sent shock waves through the city with its decision. The terminus is expected to open in the third quarter of next year.

Under Article 18 of the Basic Law, mainland legislation, barring some exceptions, shall not be applied to Hong Kong. But Beijing officials argued that they would be enforced only in a designated zone in the terminus and not to the whole of the city.

The officials and pro-Beijing politicians also said the decision was “unchallengeable” as the NPCSC was the “permanent body of the highest organ of state power”.

Speaking on a radio programme on Thursday, Shieh disagreed with pro-Beijing views on the matter. He said while the Basic Law set out the mechanism for the NPCSC to interpret or amend its articles, it did not mention the role of the latter’s “decisions”.

“A decision made by the NPCSC lacks constitutional status in Hong Kong,” he said.

Shieh added that while the approval of the plan could be respected by the people, “the court could disagree with it”.

“The court will not say that we are afraid just because the decision was made by the NPCSC,” he said.

However, Shieh said a judicial review could not be sought against the move by the NPCSC at this point. A legal challenge can only happen after a local decision on the issue has been made by the city’s Legislative Council or the chief executive.

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Shieh also said he believed a judicial review could trigger an interpretation of the Basic Law by Beijing.

“The NPCSC has said its decision did not rely on any particular article … so [the impact] of the interpretation could be more shocking,” he said.

Speaking separately on the same programme, University of Hong Kong law professor Albert Chen Hung-yee, a member of the NPCSC’s Basic Law Committee, said the committee “had reflected the views of Hong Kong’s legal sector to the central government”.

Chen said he originally supported the plan by Hong Kong’s justice minister to seek Beijing’s endorsement on the joint checkpoint arrangement under Article 20 of the Basic Law, which states that the city “may enjoy other powers granted to it” by Beijing.

“But scholars and officials … insisted that the co-location plan did not contravene Article 18,” he said, referring to the clause that protects the city from national laws.

The last time Beijing interpreted the Basic Law was in November last year when the NPCSC ruled that Hong Kong’s public officials must take their oaths “sincerely” and “solemnly” or face disqualification, paving the way for the eventual ousting of six pro-democracy lawmakers.