Background
The Co-location arrangement was recently endorsed by the National People’s Congress Standing Committee (NPCSC), China’s top legislative body, to form a joint checkpoint at the Hong Kong (HK) stop for the Guangzhou-Shenzhen-Hong Kong Express Rail Link, which will be open next September. Passengers will be allowed to have their immigration procedures taken and passports checked by both Chinese and HK immigration officers at the HK terminus. Part of the terminus will be leased to the Mainland immigration, whom can enjoy full jurisdiction of Mainland law in the Mainland port area at the terminal. As for the location of the station, it will be in West Kowloon, a central part of HK far away from the HK-Mainland border. In other words, under the co-location arrangement, Mainland law will be implemented in HK. Its implementation in HK depends on whether it will be passed in the HK Legislative Council.
Controversy: Is the arrangement constitutional?
The Basic Law is the principal source of law in HK: all other laws and legislation must abide by this Law. “One country, two systems” is the primary goal of the Law; to achieve this, the Law guarantees HK “a high degree of autonomy” and “judicial independence”, as promised in the Sino-British Declaration. The moot point of the issue lies in Article 18 of the Law. It states that national law of China should not apply in HK except that stated in Annex III, which is confined to “defense, foreign affairs, and other matters, outside the autonomy of the region”. The implementation of national law at the West Kowloon terminal under the co-location arrangement, however, is not included as one of the exceptions in Annex III. As many HK legal practitioners and academics have questioned, how can the legality of such an arrangement that contravenes the Basic Law be justified?
The NPCSC and HK Government justified this by stating that Art 18 is meant to limit the application of national law on everyone in the whole special administrative region; the Mainland port area of the terminus is considered as a contained region within HK and the arrangement will not affect those not using the railway to travel to other areas. This plan is different from the circumstances detailed in Art 18, thus not contradicting this article. Meanwhile, this arrangement also conforms to the legal basis of Art 118: providing “an economic and legal environment for encouraging investments, technological progress and the development of new industries”.
Reflections: the severe blow to the rule of law and the judicial independence of Hong Kong
The explanation of the NPCSC does not reduce the doubts over the legality of the co-location arrangement. The words of the Article are unambiguous and clear enough to be understood, therefore the literal interpretation of Art 8 should always prevail over the purposive one adopted by the NPCSC. Art 8 clearly states that national law only applies to HK in the exceptional cases specified in Annex III, which do not include the co-location arrangement.
However hard the NPCSC strives to justify its legality, their explanation is merely distorting the literal meaning of Art 18, which is unacceptable under the rule of law in HK. Having the legal basis of Art 118, a relatively general Article, cannot overturn the fact that the arrangement violates Art 18. What the NPCSC has done severely hampers the supremacy of the Basic Law, an essential element of the rule of law that Hong Kong citizens take pride in having.
It is astonishing that the NPCSC claimed that their explanation over this legal issue is the highest legal authority and could not be overruled or doubted. In HK, under the rule of law, everyone, including the executive and legislature, is equal before the Basic Law and must abide by the Law; the judiciary is independent and does not surrender to those in power. Yet, today, the actions of the NPCSC give the implication that whatever the NPCSC says is right: the NPCSC, it appears, is above the law, including the Basic Law. They seem to have forgotten or flagrantly disregarded that HK is guaranteed judicial independence and the rule of law as a special administrative region under the One Country Two Systems in the Basic Law. What is said in the Basic Law is now becoming a myth: there are no more “two systems”. Following from what the NPCSC has done, there is only one system: the autocratic rule of China, overpowering the independent legal system and rule of law in HK.
Recent years have seen the gradual erosion of the rule of law and judicial independence. They are the cornerstone to the success of Hong Kong and the safeguard of their fundamental rights. China, however, has adopted an indifferent attitude towards these values, and the HK Government is now no better than a puppet, lying to the citizens on the constitutionality of the co-location arrangement by the NPCSC, instead of safeguarding the core values they treasure so dearly. A quote from Orwell’s 1984 best describes this situation now: two plus two is not always four. It can be five, three or something else.
Hong Kong is now told by China: two plus two is not always four.
Serena Chan
Asia Feature Writer
8 February, 2018
Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are listed in the bibliography above.
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