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Hong Kong high-speed rail

Joint checkpoint decision in Hong Kong an ‘act of state’, leading Beijing adviser says

Head of semi-official think tank cites clause in Hong Kong’s mini-constitution

PUBLISHED : Wednesday, 03 January, 2018, 8:32am
UPDATED : Wednesday, 03 January, 2018, 2:38pm

Decisions by China’s top legislative body are tantamount to “acts of state” that Hong Kong courts have no jurisdiction over, a leading mainland adviser declared on Tuesday amid a rapidly escalating row over the legality of a joint checkpoint plan for a cross-border rail link that will see national laws enforced in part of the city.

Lau Siu-kai, who heads a semi-official think tank on Hong Kong affairs, cited a specific clause in the city’s mini-constitution, the Basic Law, to support his argument.

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It came after some pro-Beijing legal heavyweights conceded that the endorsement of the so-called co-location arrangement by the National People’s Congress Standing Committee (NPCSC) would have no direct binding power over local courts, should opponents challenge its constitutional justification.

The NPCSC last week set off a storm in the city by formally approving the plan to allow mainland immigration and customs officers to enforce national laws over a zone leased to them at the West Kowloon station of the high-speed rail link to the mainland cities Shenzhen and Guangzhou.

Opposition politicians and prominent legal professionals are demanding the government explain how the co-location plan does not breach Article 18 of the Basic Law, which states that no national laws can be enforced in Hong Kong unless they are annexed in the mini-constitution.

In an interview with the Post, Lau, vice-chairman of the Chinese Association of Hong Kong and Macau Studies, Lau, suggested local courts had no jurisdiction over NPCSC rulings.

“Decisions of the NPCSC, the highest body that embodies sovereignty, are undoubtedly acts of state,” Lau said.

He cited Article 19 of the Basic Law, which stipulates that Hong Kong courts “shall have no jurisdiction over acts of state such as defence and foreign affairs”, and should obtain a certificate from the city’s leader who is required to obtain the binding certificate from the Central People’s Government when such questions arise.

According to a previous paper issued by the Department of Justice, typical acts of state under the common law system include the annexation and cession of territory, declaration of war and peace and making treaties.

Decisions of the NPCSC, the highest body that embodies sovereignty, are undoubtedly acts of state
Lau Siu-kai

Lau pointed out a broader definition under mainland law, which refers to “an act which is committed in the name of the state authorised by the constitution, and embodies sovereignty”.

As a member of the Preliminary Working Committee, which the NPCSC set up for the preparation of Hong Kong’s change of sovereignty in the 1990s, Lau recalled mainland legal experts had a broader view of “acts of state” than what was listed in Article 19, to include Beijing’s appointment of Hong Kong’s chief executive and deciding when the city enters a state of emergency.

Professor Albert Chen Hung-yee, a member of the Basic Law Committee under the NPCSC, agreed that acts of state included the top legislative body’s decisions according to mainland law, but he dismissed the need to invoke Article 19. He said Beijing could simply interpret the co-location plan as not being in breach of Article 18 if local courts requested an interpretation of clauses relevant to the controversial arrangement.

However, University of Hong Kong law professor Eric Cheung Tat-ming expressed concern in a viral article he posted on Facebook on Monday night that the NPCSC might interpret Article 17 to argue the constitutionality of local legislation for the co-location plan, paving the way for Beijing to interfere with other local laws.

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As Article 17 states that the NPCSC has the power to decide whether local laws conform with the mini-constitution, Cheung said, the top legislative body could use it to make its case. And if anyone sought to oppose it legally through a judicial review, Cheung added, Beijing could reinterpret Article 17 to argue that laws ruled constitutional could not be challenged by the local courts.

He said such an interpretation could also clear obstacles for the enactment of a national security law required under Article 23 – a highly contentious issue for Hong Kong – even if the local legislation content violated human rights.

Bar Association chairman Paul Lam Ting-kwok called it unhelpful to speculate about the motives behind the NPCSC’s decision, saying it would only make people emotional and worried, which would eventually distract the community from the more important legal reasoning.

“Subjectively speaking, I can understand the fear. But objectively speaking ... I do not think one can really draw this sort of inference based on what we know so far,” Lam told the Post.

“My concern is solely based on how the absence of a legal foundation [of the co-location arrangement] will impact the rule of law and people’s confidence in it.”