More than 20 years after Hong Kong’s return to Chinese rule, a planned “co-location arrangement” in relation to a cross-border express rail link is causing the biggest ripple of shock in Hong Kong under the “One Country, Two Systems”.
Even though the HKSAR government earlier on proposed to invoke Article 20 of the Basic Law in order to provide the legal and constitutional basis for the co-location, which will see mainland border control officials operating in a designated zone at the West Kowloon terminus, director Li Fei of the Basic Law Commission under the National People’s Congress Standing Committee (NPCSC) has quickly dismissed the proposal out of hand.
Li’s move was widely seen as a terrible slap in the face for the Hong Kong government, particularly former Justice Secretary Rimsky Yuen.
As Li has put it, there is no need to invoke any article in the Basic Law in order to carry out the joint border checkpoint arrangements. Instead, all it takes is a resolution that approves the plan passed by the NPCSC, because, he stressed, the NPCSC has “overriding constitutional authority” on any issue regarding Hong Kong.
Li’s remarks have provoked a strong backlash from the Hong Kong Bar Association, which, in a statement, referred to the NPCSC decision as “the most retrograde step to date in the implementation of the Basic Law, and severely undermines public confidence in ‘one country, two systems’ and the rule of law in the HKSAR.”
On the surface, the ongoing dispute appears to be the result of the conflicting mindsets between common law trained lawyers in Hong Kong and continental law trained legal experts in the mainland.
However, in my opinion, one would get it totally wrong if he or she continues to wrestle with the issue of “legality” of the co-location arrangement, because the truth is, it is a political issue rather than a legal one.
Perhaps it’s time for the people in Hong Kong to wake up: what Beijing is now attempting to do is to impose “overall jurisdiction” on our city by the omnipotent NPCSC decisions, which can even override the constitutional framework laid down in the Basic Law.
That said, why would Beijing be worried at all as to which Basic Law article to invoke in order to secure the constitutionality of the co-location arrangement when it already has a handy tool at its disposal that can resolve every dispute and silence everyone, i.e. the NPCSC resolution?
In fact the idea of Beijing’s “overall jurisdiction” over Hong Kong is nothing new, and can date back to the drafting of the Basic Law back in the 1980s.
According to former director of the Central Policy Unit Shiu Sin-por, in the 1980s senior barrister Denis Chang Khen-lee once put forward the so-called “four-corner principle”, under which he proposed, from a common law perspective, that anything beyond the Basic Law, including the constitution of the People’s Republic of China and any mainland law that wasn’t listed in Annex 3 of the Basic Law, should not be applicable to Hong Kong after 1997.
Unfortunately, his proposal was vetoed by the Basic Law drafting committee, indicating that in the eyes of Beijing, it had absolutely no doubt that it is going to have complete control over Hong Kong under all circumstances after the handover.
In face of this harsh reality, there are indeed not too many options left on the table for us. We can either remain defiant by trying to paralyse our legislature and our government at all costs, or we can continue to hope against hope that Beijing would exercise self-restraint in the days ahead. O lastly, we can simply just capitulate.
The question is, if we, the people of Hong Kong, were unable to negotiate a deal that would work in our favor even at the best of times when we, as China’s biggest foreign investor back in the 80s, were in a position of relative strength, then what makes us think we can still fight for anything from Beijing today?
Perhaps what has happened to Catalonia in Spain can provide us with some useful insights into our current situation.
This article appeared in the Hong Kong Economic Journal on Jan 6
Translation by Alan Lee
[Chinese version 中文版]
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