Hong Kong Basic Law

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

Elsie Leung says criticisms of the plan stem from poor understanding of China’s constitution and its relationship to Hong Kong’s mini-constitution

PUBLISHED : Friday, 29 December, 2017, 6:14pm
UPDATED : Friday, 29 December, 2017, 11:41pm

A row over the legality of mainland officials enforcing national laws in part of a station on the Hong Kong side of a cross-border rail link under construction escalated on Friday, with the government, the city’s former justice minister and several mainland scholars crossing swords with top members of the legal fraternity.

Elsie Leung Oi-sie, Hong Kong’s first secretary for justice after it returned to Chinese rule in 1997, suggested that criticism of the plan by local legal professionals stemmed from their failure to understand the Chinese constitution.

China’s top legislative body approved the scheme – for officers from the mainland to handle customs and immigration procedures for travellers in both directions – on Wednesday.

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Under Article 67 of the constitution, the National People’s Congress Standing Committee (NPCSC) is empowered to supervise decisions made by China’s cabinet, the State Council, Leung said in an interview aired online.

These decisions, Leung continued, included a cooperation agreement signed last month between the Hong Kong and Guangdong governments for a joint checkpoint in West Kowloon station, which will be the Hong Kong terminus for the express rail link to the mainland.

A government spokesman replied to criticism from the Hong Kong Bar Association and others in a statement issued on Friday night, echoing remarks by Leung and Li Fei, Beijing’s leading expert on the Basic Law.

“It is normal for different experts to interpret legal views in different ways, but it does not mean the decision has no legal basis,” the statement said.

The spokesman stressed the decision was made in accordance with the constitution of China, which Hong Kong must respect as it is the ultimate legal authority.

“This is not a situation in which ‘someone decided it just by saying so’, nor is it a reflection of ‘rule of man’ or a regression of the implementation of the Basic Law.”

Academics at a legal forum organised by Beihang University in Beijing echoed Leung’s view, with one describing the Bar Association’s response to the plan, known as co-location, as being “emotional” and lacking logic.

The Bar Association had on Thursday said it was “appalled” by the standing committee’s decision to authorise co-location by confirming it was consistent with Hong Kong’s mini-constitution, but not providing specific provisions from the Basic Law to support its stand.

“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.

The decision “severely undermines public confidence in ‘one country, two systems’ and the rule of law” in the city, it added, referring to the principle by which China governs Hong Kong and allows it a high degree of autonomy.

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Li Fei, who is head of the NPC’s Basic Law Committee, had dismissed criticism that co-location flouted Article 18, which states that barring a few exceptions, national laws should not be applied in Hong Kong.

He argued that national laws would only apply to travellers in the area of the terminus leased to the mainland, and not the whole of the city.

The Bar Association rejected Li’s explanation, saying that the logic “completely bypasses and emasculates” requirements under Article 18 and worse, suggested that mainland laws could then be applied to any part of Hong Kong designated by the government.

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Leung, the vice-chairwoman of the Basic Law Committee, on Friday said people should not view the Basic Law solely through the framework and principles of common law.

The city’s mini-constitution had been formulated in accordance with China’s constitution and the NPCSC had the “ultimate power” to interpret it, she said, adding that as the area with the joint checkpoint would be leased to Beijing, it could be deemed a mainland port area.

“When you are travelling to the mainland, you should be prepared to follow the laws there. If you are unwilling to obey, you can choose not to go there or to shoulder all the potential consequences,” she said.

At Beihang University’s forum to discuss “one country, two systems,” Professor Chen Duanhong of Peking University’s law school said Hong Kong had the power to make its own immigration arrangements at its borders only because Beijing entrusted the city with such power.

The city could not fight the central government with power given by Beijing, the academic said.

“Countries can sign cooperative agreements among themselves,” he said. “Why can’t the mainland and Hong Kong governments sign such agreements?”

Li Xiaobing, associate professor of law at Nankai University in Tianjin city, described the Bar Association’s statement as “emotional” and “uncivilised … [for using] words like ‘emasculate’”.

“The issue of co-location is a controversial matter and that was why there was a need for the NPCSC, as the highest legislative body, to make a decision.”

Professor Wang Yu, who specialises in Hong Kong affairs at Sun Yat-sen University in Guangdong province, said it was important to note that the co-location arrangement was finalised after many rounds of discussion between the Hong Kong and mainland government.

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“At this stage of ‘one country, two systems’, we need to adopt new thinking,” he said.

The co-location plan for the long-delayed and over-budget HK$84.4 billion rail link has sparked ongoing debate, with mainland officials stressing that Hong Kong must implement the plan now that the NPCSC has approved it, and pro-democracy lawmakers and legal experts saying that it would damage the rule of law and impinge on the city’s autonomy.

The city’s government is expected to table the relevant local legislation by February for Legislative Council approval, so that the rail link can begin operations as planned in the third quarter of next year.