The National People’s Congress Standing Committee (NPCSC) does have the power to interpret the Basic Law, Hong Kong’s mini-constitution, but the rationale it used to back the co-location arrangement for the Guangzhou-Shenzhen-Hong Kong Express Rail Link was unconvincing and difficult to understand, says Hong Kong Bar Association chairman Paul Lam Ting-kwok.
In a speech at a ceremony opening the Legal Year 2018, Lam described NPCSC’s decision to approve the border-control plan as a major earthquake in the Hong Kong legal community, the Hong Kong Economic Journal reports.
The co-location plan allows for mainland authorities to carry out their duties only in the Mainland Port Area at the West Kowloon Station in relation to immigration inspection, customs, inspection and quarantine.
The NPCSC said in its resolution late last month that the co-location agreement complied with both the Chinese Constitution and the Basic Law. 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, according to the resolution.
In a statement issued late last month, the HKBA said the NPCSC’s decision was based on its interpretation of the Basic Law, since no provision of Hong Kong’s mini-constitution provides the source of authority.
While agreeing that the NPCSC’s interpretation of the Basic Law is binding on Hong Kong courts, Lam pointed out that such power of final interpretation is the link between the two systems and also the source of tension, under the “one country, two systems” principle, the HKEJ reported.
This kind of tension can lead to doubts, worries and even fears, and how the NPCSC exercises its power will affect people’s view on whether Beijing is resolute to keep the Basic Law intact, Lam stressed, adding that once negative views emerge, people’s trust and confidence in the rule of law will be diminished, and this will further jeopardize social stability.
As such, Lam called on the central authorities to maintain “a high degree of sensitivity” regarding whether to, when to and how to exercise its potent power, which can easily result in an earthquake in Hong Kong society. In the case of the NPCSC decision on the co-location scheme, he said “an earthquake has occurred”.
That said, Lam believes the rule of law in the city is strong enough to withstand the aftermath of the earthquake caused by the NPCSC’s decision.
Lam, who is seeking a second term in next week’s HKBA election, vowed that the association will continue speaking out on issues regarding the rule of law, provide basis and premises for rational discussion of controversial issues, and conduct constructive dialogues with the HKSAR government, the central government and those who do not belong to the pro-establishment camp.
Meanwhile, Rita Fan Hsu Lai-tai, an NPCSC member, told a radio program on Monday that the HKBA’s understanding of the Basic Law is problematic, as it understands it from a perspective of common law.
Fan said the Basic Law is a national law rather than common law, and criticized the local legal circle as a whole for not really knowing what national laws represent.
The fact that the Basic Law was passed by the National People’s Congress instead of any legislative authority in Hong Kong makes it a national law that has a higher status than the city’s common laws, she said.
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