25 April 2019
Beijing's ruling on joint-immigration control at the West Kowloon express railway terminus has sparked concern in Hong Kong about violation of the city's autonomy. Photo: MTR
Beijing's ruling on joint-immigration control at the West Kowloon express railway terminus has sparked concern in Hong Kong about violation of the city's autonomy. Photo: MTR

Co-location: There is no legal solution, only political solution

We’re now seeing for the first time in Hong Kong a clash of two vastly different legal systems. If not handled delicately, a constitutional crisis could erupt that rocks the very foundation of one country, two systems. Such a clash of legal systems was inevitable sooner or later. One country, two systems is almost like fitting a square peg into a round hole – a free society within a communist state. The system worked well in its infancy when China wanted to show the world its hands-off approach towards Hong Kong and to use it as a model for unity with Taiwan. A jittery Hong Kong embraced it as the only way to preserve its way of life after reunification.

Its architect, the late Deng Xiaoping, had envisaged the promised fifty years of no change would buy enough time for the mainland to become prosperous like Hong Kong so one country, two systems would give way to true reunification. But China didn’t need fifty years to modernize. Its economy is now second only to that of the US after just twenty years of reunification. That has given it the global clout Deng never imagined when he crafted one country, two systems.

But as China became more confident of its global status and Hong Kong’s yearning for greater democracy grew, the two sides began viewing one country, two systems through very different eyes. Hong Kong people see the Basic Law, our mini-constitution, as a buffer against mainland meddling. Many had expected that aside from opening up economically, the mainland would do so politically too during the fifty years of no change, making it more like Hong Kong.

I don’t know if that was Deng’s intent but as we all know, it hasn’t happened. If anything, Hong Kong people now see China under President Xi Jinping as having become more authoritarian. The central government, however views the Basic Law not as a buffer against its communist rule but as a child of China’s constitution. It didn’t press this point with either words or actions in the past, worried that doing so would unsettle both Hong Kong people and the international community.

But China has started using its new self-confidence under Xi to assert its sovereignty over Hong Kong in ways it never did before to counter rising hostility towards the motherland, especially among young people, many of whom are now even advocating independence. It no longer cares as much as before about how the international community views its behavior towards Hong Kong.

That became evident when the National People’s Congress Standing Committee interpreted the Basic Law in a way that left local courts no choice but to disqualify six opposition legislators for improper oath-taking. Prior to that, it had no qualms about offering a take-it-or-leave-it political reform framework that the opposition rejected as fake universal suffrage which screened out chief executive candidates Beijing didn’t like.

Now, the NPCSC has made another controversial decision, this time without even an interpretation of the Basic Law, that joint-immigration control at the West Kowloon express railway terminus complies with Hong Kong’s mini-constitution even though Article 18 states mainland laws cannot be applied here. How can a decision alone give legal status to something that is otherwise in violation of the Basic Law? Mainland officials insist the NPCSC decision is legally sound because we must view it through the mainland’s constitution, not Hong Kong’s common law system.

It is this reasoning that has pushed Hong Kong into treacherous legal waters. What reigns supreme in Hong Kong? The mainland constitution or Hong Kong’s common law system? Mainland officials, of course, insist China’s constitution is the final authority but most Hong Kong legal experts, including the Bar Association, have likened the NPCSC action to rule by man.

How will Hong Kong navigate itself out of the treacherous legal waters it now finds itself? No one knows but we must face the reality the near-complete HK$84 billion express railway is scheduled to open late this year. Hong Kong and Guangdong have already signed an agreement for the railway to operate. The NPCSC has already decided that stationing mainland officials at the terminus to enforce mainland law complies with the Basic Law.

The final step will come soon when the Legislative Council votes on joint immigration. It’s a foregone conclusion the proposed law will pass now that the establishment camp has a controlling vote following the disqualification of six opposition legislators. A judicial review is almost certain, sucking local courts into a political firestorm.

Local judges are in a no-win situation. There are strong legal arguments that the NPCSC decision to allow joint immigration was not made under any article of the Basic Law and actually violates Article 18. But a legal argument can also be made that such a decision is constitutionally sound under Hong Kong law because the NPCSC is the final authority over China’s constitution and the Basic Law flows from the mainland constitution.

If local courts make a ruling using our common law system, joint immigration could well be declared unconstitutional. That would be a slap in the face of Beijing. The NPCSC would have to counter with a Basic Law interpretation, which nobody wants, not even Beijing. If the local courts rule even NPCSC decisions have legal effect in Hong Kong, many people would lose faith in not only the Basic Law but also one country, two systems.

Aside from the NPCSC move, I cannot see a legal solution that would satisfy the many Hong Kong people who are already losing faith in one country, two systems. Beijing’s interpretation of the law would be seen as further eroding Hong Kong’s high degree of autonomy.

On the face of it, the controversy is of a legal nature but at its heart lies politics. It is a perfect issue for the opposition to rally its base with accusations of mainlandization. The opposition insists it only rejects the NPCSC decision to justify joint immigration, not the railway itself. It says another solution which complies with the Basic Law must be found.

But the fact is there is no other legal solution, only a political one, which essentially means accepting the NPCSC insistence that its decision on joint immigration complies with the Basic Law. If we cannot bring ourselves to doing that, then perhaps Basic Law Committee deputy director Elsie Leung Oi-sie’s idea of blowing up the HK$84 billion rail terminus and using the land for housing is a good one.

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A Hong Kong-born American citizen who has worked for many years as a journalist in Hong Kong, the USA and London.

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