Date
15 November 2018
The Hong Kong Bar Association said Beijing's decision on the co-location plan for the Express Rail Link severely undermines the people’s confidence in the “one country, two systems” and the rule of law in Hong Kong. Photo: HKEJ
The Hong Kong Bar Association said Beijing's decision on the co-location plan for the Express Rail Link severely undermines the people’s confidence in the “one country, two systems” and the rule of law in Hong Kong. Photo: HKEJ

Bar Association says NPCSC decision lacks legal basis

The Hong Kong Bar Association (HKBA) has voiced strong objection to Beijing’s decision to approve the co-location arrangement for the Guangzhou-Shenzhen-Hong Kong Express Rail Link, saying the move is the most retrograde step taken to date since the implementation of the Basic Law in 1997.

The association had declined to express its stance on the controversy on the ground that the courts were hearing several cases related to the issue.

But in a statement issued late Wednesday night, the HKBA said the decision made by the National People’s Congress Standing Committee (NPCSC) was based on its interpretation of the Basic Law since no provision of Hong Kong’s mini-constitution provides the source of authority, the Hong Kong Economic Journal reports.

The association stressed that Article 11(2) of the Basic Law provides that not even legislation of the Hong Kong Special Administrative Region (HKSAR) can contravene Article 11 of the Basic Law, and as such, the cooperation arrangement Hong Kong signed with Guangdong province on Nov. 18 and approved by the NPCSC, by itself, has no authority to override Article 11.

Under the arrangement, the authorities stationed by the mainland will carry out their duties only in the Mainland Port Area at the West Kowloon Station in relation to immigration inspection, customs, inspection and quarantine, integrated port administration and railway police.

The NPCSC said in its resolution that the agreement complied with both the Chinese constitution and the Basic Law. It pointed out that there will be no contravention of Article 18 of the Basic Law, which states that national laws shall not be applied in Hong Kong, because national laws would not apply to the whole of Hong Kong soil, but just a designated area of the terminus, the Mainland Port Area.

However, the HKBA said such logic is a misinterpretation of the Basic Law, and if extended, could be used to justify the application of national laws to any part of Hong Kong, for example, the High Court Building, as long as it does not cover the whole of the HKSAR.

It also completely bypasses and emasculates the requirement under Article 18(3) of the Basic Law that only national laws listed in Annex III of the Basic Law shall be applied to the HKSAR.

The HKBA said it is appalled by the NPCSC decision, which notes that it is the “obligation” of Hong Kong to legislate the co-location plan to ensure its implementation. This, the association said, amounts to saying that “just because the NPCSC says so”, the co-operation agreement complies with the Constitution of the People’s Republic of China and the Basic Law.

As such, the decision severely undermines the people’s confidence in the “one country, two systems” and the rule of law in Hong Kong, the HKBA said.

The functions and powers of the NPCSC are provided in Article 67 of the Constitution of the People’s Republic of China. The NPCSC’s functions and powers are also prescribed in Articles 17, 18, 20, 90, 158, 159 and 160, and Annexes I and II to the Basic Law. These provisions of the Chinese constitution and the Basic Law must be abided by the NPCSC when it makes a decision in respect of the HKSAR, according to HKBA.

The HKBA said the co-location arrangement will “appear to be inconsistent with” a total of 11 provisions of the Basic Law, including Articles 4, 11, 19, 22(3), 31, 35, 38, 39, 41, 80, 87.

It called the NPCSC decision wholly unconvincing and unsatisfactory in “achieving its purported purpose” of providing “a firm legal basis” for local legislation.

“Through the combined efforts of the HKSAR Government, the State Council and the NPCSC in producing the NPCSC Co-location Decision, the integrity of the Basic Law has now been irreparably breached,” the association said.

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TL/JC/CG

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