The law is not a matter of convenience

July 28, 2017 18:00
The co-location arrangement means that other parts of the territory could similarly be 'given away' if pragmatic considerations required this to happen. Photo:

What do tyrants and other enemies of liberty do when they come across a law that threatens to stop them getting their way? First, they start bleating over "unnecessary legal obstacles". Then they emphasise the convenience of overlooking "legal technicalities" and when it all gets to be a bit much they simply interpret the law to meet their requirements.

Shockingly, all of this is on display as the government moves to create a so-called co-location arrangement for Chinese officials to operate mainland jurisdiction over the new high-speed rail terminus in West Kowloon.

Carrie Lam, the chief executive, is careful to stress that the plan, which drives a coach and horses through Article 18 of the Basic Law, has nothing to do with mere "convenience" but is a perfectly legal way of dealing with a logistical problem of immigration and customs control for a train service linking Hong Kong to the mainland.

She says this safe in the knowledge that the Standing Committee of the National People’s Congress will be most obliging when asked to pronounce on the legality of ignoring Basic Law provisions specifically stating that "national laws will not be applied in the Hong Kong Special Administrative Region" except in cases that emphatically do not include this one.

Even if things get too hot, as this proposal faces stiff opposition, the government can always rush off to the Standing Committee to obtain another of its famous "reinterpretations" of the Basic Law. The grey men in Beijing will have no hesitation in declaring that mainland officials have the right to operate in the SAR regardless of the clear constitutional prohibition on doing so.

Ah ha, say the apologists for this proposal, but this terminal will no longer be part of the SAR’s territory as, under powers given to the government via Article 20 of the Basic Law, it can simply lease this space to the mainland.

There were alternatives, including the obvious one of using Article 20 to allow mainland officials to operate in the terminus but this clearly involves more legal difficulties than simply turning the whole area over to the mainland.

Instead, the government (almost certainly under "guidance" from Beijing) has come up with a more draconian solution as it means the application of not only mainland immigration and customs laws in Hong Kong but all other laws, such as those dealing with subversion that could be used to prevent, for example, passengers, accessing material that is banned across the border.

This casual tossing aside of a crucial piece of Hong Kong’s landmass is even more worrying because it suggests that other parts of the territory could similarly be "given away" if pragmatic considerations required this to happen. Indeed, some of the Beijing flag wavers are already proposing this.

By way of contrast, it is interesting to note that when the Garrison Law was devised, providing for the stationing of PLA forces in Hong Kong, there was no suggestion that the land to be used by the garrison would fall under mainland law. On the contrary, this land remains as an integral part of the HKSAR and those using it remain subject to Hong Kong laws.

However, the Garrison Law was devised prior to the handover, at a time when Beijing was far more careful to observe the niceties of autonomy that have now been relegated to the irrelevant basket.

While Carrie Lam is careful to avoid the "convenience" argument to support the case for the co-location arrangements, the Beijing sycophants have been milking this line for all it's worth. Why, they say, are democrats wasting people’s time when it’s a no-brainer that convenience will be enhanced by a one-stop customs and immigration service?

The answer is summed up in three words: rule of law. And, yes, the law can be cumbersome and inconvenient but it remains as a bulwark for defending fundamental rights and responsibilities.

As for the idea that people are being alarmist by suggesting that another nail is being driven into the coffin of the Basic Law, well, it is probably as alarmist as the warnings over the reinterpretations of the law coming from Beijing and over the government’s increasing appetite for using legal means to overturn election results. It would be nice to say that those warnings were alarmist. However they have turned out to be far more predictive than alarmist.

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Hong Kong-based journalist, broadcaster and book author