Hong Kong begins the new year celebrating an odd victory: a voluntary reduction in its China-granted autonomy by “leasing” back to China a portion of a new railway terminal where mainland security personnel will apply mainland law, a development which on the face of it is inconsistent with the Hong Kong Basic Law, the constitutional document of the Hong Kong Special Administrative Region enacted by China’s National People’s Congress in 1990.
In order to accommodate the extension of China’s high-speed rail system, the Hong Kong government proposed joint immigration and customs facilities in the West Kowloon Station so trains won’t have to stop at the border.
The idea has been controversial since it was first raised, largely because Article 18 of the Basic Law stipulates that mainland law shall not be applied in Hong Kong, except for a handful that are listed in an annex, such as the law on the national anthem and national flag.
To get around the prohibition, the Hong Kong government came up with the idea of leasing the Mainland Port Area to the mainland so that it will be regarded as “situated in the mainland”.
The West Kowloon arrangement parallels one in 2006 whereby the mainland extended Hong Kong’s borders and gave it control of what is called the Hong Kong Port Area in Shenzhen Bay, where Hong Kong law prevails, for the convenience of travelers between the two sides. There was little if any argument within Hong Kong then.
Hong Kong authorities argue that its plan doesn’t contravene the Basic Law because, instead of extending national laws to the whole of the HKSAR, it applies to only a small area. What Hong Kong’s government wanted was legal backing from China’s parliament.
That is what it got on Dec. 27. That day, the National People’s Congress Standing Committee endorsed the plan for the high-speed rail link, which will connect Hong Kong with Guangzhou and other points in China’s interior. The NPCSC said that the cooperation arrangement was consistent with the Chinese Constitution and with the Basic Law.
Supporters of the plan acknowledge that there is no provision in the Basic Law that provides for such a contingency, since at the time of its adoption no one envisaged the development of a Chinese high-speed rail system.
However, they point to other provisions in the Basic Law that they consider justify the extraordinary move, such as ones that call on the government to “provide an economic and legal environment for encouraging investments, technological progress and the development of new industries” as well as to promote “tourism, real estate, transport” and so on.
The Hong Kong Bar Association, an authoritative body that represents barristers, issued a statement saying it was “appalled by the NPCSC Co-location Decision” and calling it “the most retrograde step to date in the implementation of the Basic Law,” which “severely undermines public confidence in ‘one country, two systems’ and the rule of law in the HKSAR.”
The decision, it said, “amounts to an announcement by the NPCSC that the Co-operation Agreement complies with the Constitution and the Basic Law ‘just because the NPCSC says so’.”
As for the argument that mainland law will only be applied in the Mainland Port Area and not across Hong Kong, the Bar Association said that “such logic, if extended, is capable of authorizing the application of Mainland laws to any part of the HKSAR designated by the HKSAR Government (e.g., the High Court Building).”
The Hong Kong government points out that the idea of allowing China to lease a Mainland Port Area had originated with Hong Kong, not Beijing.
Granted, that was a Hong Kong decision. But the problem is that a precedent has now been set. In 1999, the first Chief Executive, Tung Chee-hwa, invited Beijing to interpret a provision in the Basic Law on the right of abode and the Chinese government obliged. Subsequently, China decided on its own to issue a series of interpretations, including a recent one that evidently was designed to determine the outcome of a court case.
The Hong Kong government should have insisted that the NPCSC decision should declare that any further “leases” of territory would only be done upon the initiative of Hong Kong, not of the central government.
But it did not do so. It was happy with its short-term objective of getting the NPCSC to endorse its plan. It may live to regret this.
Furthermore, Hong Kong must continue to focus on legal reasoning rather than the status of a body issuing a decision. An executive decision is different from an interpretation, even when issued by the same body.
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