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Hong Kong Basic Law

China’s top legislative body has binding power over Hong Kong, Beijing scholar says

  • And it doesn’t matter if the Basic Law says so or not, Wang Lei asserts
  • That comes a day after a Court of First Instance judge refused to rule on the issue
PUBLISHED : Friday, 14 December, 2018, 9:37pm
UPDATED : Friday, 14 December, 2018, 11:07pm

Beijing’s top legislative body has binding power over Hong Kong, even if the city’s mini-constitution does not spell it out, a mainland legal scholar said on Friday – a day after a local court left the question unanswered.

Peking University law professor Wang Lei was the government’s expert witness during the hearing on the constitutionality of the arrangement that lets national laws be applied in a Hong Kong railway station.

High Court judge Mr Justice Anderson Chow Ka-ming largely adopted Wang’s views and ruled the arrangement constitutional on Thursday. But he stopped short of saying whether decisions made by China’s top legislative body were binding on Hong Kong in general.

The city’s Legislative Council enacted a law on the joint checkpoint arrangement at the West Kowloon terminal of the Guangzhou-Shenzhen-Hong Kong Express Rail Link after the National People’s Congress Standing Committee (NPCSC) approved the so-called co-location proposal in December last year.

But critics challenged the arrangement as unconstitutional, saying it breached 13 articles of the city’s mini-constitution, the Basic Law. In particular, they cited a provision that no national laws should apply in Hong Kong apart from those listed in Annex III, which deal with matters such as nationality and diplomatic immunity.

They argued the NPCSC’s co-location decision was not binding on Hong Kong, as the Basic Law only mentions the top legislative body’s power to interpret or amend specific clauses of the mini-constitution, and no power to create clauses anew.

Chow accepted Wang’s view that the committee’s decision on co-location was binding on Hong Kong from the mainland perspective, as it was a “will of the state” and “in substance” an interpretation.

But he said it would be inappropriate for him as a Court of First Instance judge to rule on the legal effect of NPCSC’s decisions under Hong Kong’s legal system.

Speaking at a legal forum at Chinese University on Friday, Wang insisted the NPCSC’s decision was binding on the city, even if the Basic Law did not include the relevant mechanism.

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He said the top legislative body’s supervisory power over Hong Kong stemmed from the Chinese constitution, from which the Basic Law was derived.

This power structure, according to Wang, empowered the NPCSC to “supervise how the Chinese constitution” was implemented in Hong Kong.

“The local government at the receiving end of [the NPCSC’s] authorisation should accept and respect NPCSC decisions, but not dispute its decisions, which are binding on Hong Kong,” he said.

“It’s just not practical to spell out the NPCSC’s power word by word in the Basic Law.”

He dismissed concerns that the NPCSC could dictate legislation in Hong Kong, saying Beijing would respect the city’s high degree of autonomy under the Basic Law.

But Cora Chan Sau-wai, a constitutional law scholar from the University of Hong Kong, warned Wang’s reasoning, and the judgment, could mean the NPCSC overriding the Basic Law.

She said the NPCSC’s power should be nothing more than those clearly defined in the Basic Law. “But that position was rejected by Chow in his judgement,” Chan said.

“While the NPCSC could always give interpretation over Hong Kong, after this case it could now skip the interpretation procedure ... save consulting the Basic Law Committee,” she said, referring to the panel of experts from Hong Kong and the mainland that advises the NPCSC before an interpretation.

“Effectively, the NPCSC is not constrained by the Basic Law.”