The decision to allow national laws to be enforced in part of Hong Kong’s cross-border express rail terminus was an “act of state” that cannot be challenged by local courts, a Beijing official said on Saturday.
Basic Law Committee vice-chairman Zhang Rongshun said the top legislative body’s endorsement of the joint checkpoint, or so-called “co-location” plan, in December was an act of state under the Basic Law’s Article 19, which stipulates that Hong Kong courts “shall have no jurisdiction over acts of state such as defence and foreign affairs”.
The comments from Zhang, who is also the vice-chairman of the National People’s Congress Standing Committee’s Legislative Affairs Commission, marked the first time Beijing had cited the effect of the NPCSC decisions on Hong Kong under Article 19.
Pan-democrats and some legal experts, including members of the Bar Association, have slammed the co-location plan for lacking a legal basis under the Basic Law. The plan will see part of the West Kowloon terminus for the rail link to Guangzhou leased to the mainland and allows national laws to be enforced there.
Speaking at a Shenzen closed-door annual meeting of semi-official mainland think tank, The Chinese Association of Hong Kong and Macau Studies, Zhang hit out at critics for politicising the issue and creating misunderstandings towards the legal status of the arrangement.
Some had claimed the decision made by the NPCSC and the Hong Kong government was made without proper grounds, and they refused to accept the special constitutional order laid down by the nation’s constitution and the Basic Law, Zhang was quoted as saying in the meeting.
Lau Siu-kai, vice-chairman of the association, who first told the Post about the effect of Article 19 earlier this month, said while such interpretations of the clause were a common understanding among mainland scholars, it was the first time that a Beijing official had to say so, probably due to fears of provoking opposition.
Zhang’s remarks contrasted those of Basic Law Committee member Maria Tam Wai-chu, who had said that the NPCSC’s decision on the co-location plan had “no direct binding power” over the city, as they were equivalent to mainland laws and not local laws.
Tam said it was instead a “looped three-step” process including local legislation that formed the legal basis for the arrangement.
Critics on Saturday were alarmed by Zhang’s remarks, arguing the acts of the central government or NPCSC should not be regarded as “acts of state”.
Democratic Party founding chairman Martin Lee Chu-ming, who sat on the committee that drafted the Basic Law, said “acts of state” was a common law concept under which the interpretation was different from acts of government.
“Hong Kong is running under a common law system, not mainland law. The Basic Law should always be viewed through the lens of common law,” he argued.
Lee added that many judicial cases were filed against the government in the city, as to demonstrate the separation of powers. Hence, acts of the central government or NPCSC were not acts of state, he said.
Civic Party chairman, Senior Counsel Alan Leong Kah-kit, said “acts of state” referred to acts between states, commonly at a stage of war.
He mocked Zhang, claiming he viewed the NPCSC as omniscient and questioned if the NPCSC could define what amounted to “acts of state” as they wished.
“I would rather he directly said what NPCSC says is the law … now he is randomly twisting the Basic Law and interpreting it in a way they wish,” Leong said. “What if one day the NPCSC ruled that Hongkongers are not allowed to eat?”
Rita Fan Hsu Lai-tai, Hong Kong’s sole representative on the NPCSC, said even without such an interpretation of Article 19, it would be difficult for local courts to challenge affairs involving national sovereignty as Hong Kong is only a region.