Date
28 July 2017
Justice Secretary Rimsky Yuen cites a provision in the Basic Law that allows Beijing to completely bypass Legco. Photo: HKEJ
Justice Secretary Rimsky Yuen cites a provision in the Basic Law that allows Beijing to completely bypass Legco. Photo: HKEJ

Basic Law allows Beijing to transplant own laws into HK?

What one country, two systems?

The way things are unfolding, Beijing appears bent on imposing its own system on Hong Kong in a bid to tighten its grip on the territory.

This time around, it is transplanting its own laws into the special administrative region.

In Wednesday’s session of the Legislative Council, Justice Secretary Rimsky Yuen gave further details of the controversial co-location arrangement for the high-speed rail system that will run through Hong Kong, Shenzhen and Guangzhou.

Yuen revealed that the government is studying whether it is possible to amend an annex to the Basic Law in order to allow Chinese immigration officers to perform their duties at a joint checkpoint of the cross-border rail terminus in West Kowloon.

Yuen insisted that national laws could be applied in the city without breaching the “one country, two systems” principle.

He cited Annex III of the Basic Law titled “National Laws to be Applied in the Hong Kong Special Administrative Region”.

It lists six Chinese laws that are applicable to Hong Kong, including the laws related to the use of Chinese national flag and anthem, the national day of China, the use of the national emblem, the nationality law, the law on territorial sea, as well as regulations on diplomatic privileges and immunities.

It’s worth mentioning that Annex III of the Basic Law has had three changes since the handover of sovereignty on July 1, 1997.

The most recent change was made on Oct. 27, 2005, when the “Law of the People’s Republic of China on Judicial Immunity from Compulsory Measures Concerning the Property of Foreign Central Banks” was added to Annex III.

The addition was made by the Standing Committee of the National People’s Congress (NPC), the country’s legislature.

And so to implement a joint China-Hong Kong immigration checkpoint in the territory, Beijing can easily use Annex III, insert a Chinese law into the Hong Kong jurisprudence, and iron out any legal kink that prevents the arrangement for the high-speed rail link from being implemented.

Yuen’s revelation is stupefying, to say the least. Here, embedded in the very law that is supposed to ensure Hong Kong’s autonomy, is a provision that allows Beijing to tamper with our legal system to suit its needs.

Article 18 of the Basic Law states: “The Standing Committee of the National People’s Congress may add to or delete from the list of laws in Annex III after consulting its Committee for the Basic Law of the Hong Kong Special Administrative Region and the government of the Region.”

Based on this provision, there is no need to consult the Legislative Council, much less the Hong Kong people, to make changes to the composition of Annex III.

Of course, the government will consult Legco and the public in the event that Beijing wants to add some more of its laws to the list.

But we have had so many of these consultations in which Beijing’s will prevailed in the end.

Remember how many consultations the government conducted with regard to its political reform program for the 2017 chief executive election?

Despite the widespread opposition, the government insisted on the Beijing-dictated electoral reform plan, which eventually met an ignominious defeat at Legco.

Annex III provides the most convenient channel for Beijing and Hong Kong authorities to override any legal hindrances to whatever they plan to do in the territory and impose their will on Hong Kong people.

So there is no such thing as violation of the Basic Law, or the “one country, two systems” principle. The Basic Law itself contains a provision that allows Beijing to impose its rule on the territory.

As regards the co-located immigration check, the NPC simply has to pick an appropriate Chinese law that make the arrangement legal.

And once the proposal is approved by the NPC Standing Committtee, it will become effective. Legco will be completely bypassed.

But should the government take such an approach to legalize the Chinese immigration law in Hong Kong, the debate will not only be limited to the co-location arrangement for the cross-border rail link but extend to the very spirit of the “one country, two systems” principle.

Article 18 of the Basic Law states clearly that the laws on the list should be confined to those relating to defense and foreign affairs, or matters that go beyond the limits of Hong Kong autonomy.

The question then is, what are these matters that go beyond the limits of Hong Kong autonomy?

Is the co-location arrangement for the West Kowloon rail station beyond the limits of Hong Kong autonomy?

This issue is likely to be a key battlefield between pan-democrats and Beijing loyalists.

For example, is it a must for Chinese officials to execute Chinese laws in Hong Kong? Why can’t Chinese authorities just grant a franchise to Hong Kong immigration officers so the latter can do the checks on behalf of the Chinese?

All this debate is likely to further widen the gap between Hong Kong and the mainland, given the people’s low level of confidence in the administration of Chief Executive Leung Chun-ying.

So many instances have proved that Hong Kong officials only bow to Beijing rather than uphold the territory’s autonomy.

The picture is getting clear. Hong Kong will again offer no resistance if Beijing decides to apply Chinese laws in Hong Kong.

And after transplanting China’s immigration laws into Hong Kong, what’s next on Beijing’s agenda? Will it be the internet security law?

– Contact us at [email protected]

SC/AC/CG

EJ Insight writer

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