High-Speed Rail Severs Hong Kong’s Autonomy

Update (2018-12-13): A Hong Kong High Court ruling has affirmed that Mainland Chinese officers can operate on Hong Kong soil and may apply PRC “national laws” in their section of West Kowloon station, but that this was limited to the special circumstances of the high-speed rail terminus, and was not necessarily applicable elsewhere in the Special Autonomous Region. The justice who issued the ruling demurred on answering larger legal questions about the Chinese central government’s ability to unilaterally interpret Hong Kong’s Basic Law.

Original story (2018-12-10):

Six months ago, Hong Kong’s Legislative Council passed a controversial measure allowing Beijing’s laws to apply within the autonomous territory. Chinese immigration officers would enforce PRC law inside a portion of the terminal serving the high-speed train linking Guangzhou and Shenzhen, on the mainland side, to Hong Kong. Despite intense opposition from pan-democratic legislators and outcry from citizens’ groups, the trains started rolling in September.

In a city already fearful of losing ever more of its freedoms to Beijing, the bill in question was unprecedented. The project was dubbed “co-location” because both Hong Kong and PRC officers would be stationed within the same facility to administer the laws of their respective jurisdictions. It immediately spurred legal challenges, still ongoing, with implications not only for co-location’s constitutionality, but how “rule of law” in the SAR is interpreted more broadly.

Legal experts worry that the Chinese section of the terminal will be governed by the full force of PRC criminal law, not simply border rules or customs regulations. They are concerned this policy strips away core elements of Hong Kong’s autonomy, such as freedom of speech—once thought to be protected under the territory’s Basic Law, but appearing increasingly fragile. They also fear that co-location could be a beachhead for more of Beijing’s edicts to be executed on Hong Kong soil, which could even include arrests of dissidents and transport overseas.

Several citizens and lawmakers filed lawsuits requesting a judicial review of the constitutionality of this act. According to Article 18 of the Basic Law, China’s “National laws shall not be applied in the Hong Kong Special Administrative Region.” The only exceptions to this article are those listed in Annex III, namely the national anthem, national flag and diplomatic privileges. Unfortunately for the Hong Kong public, the court proceedings on co-location, which consolidated five challenges, only began on October 30, more than a month after the high-speed rail station already opened.

Activists had sought an emergency injunction to prevent the checkpoint from coming into operation, arguing that trains could function without this new facility, but Justice Anderson Chow Ka-ming, who is presiding over the case, ruled that it would be too costly for the Guangzhou-Shenzhen-Hong Kong Express Rail Link to delay the start of operations. Ironically, the rail link has failed to meet revenue or passenger targets since opening, despite government predictions that it would be profitable on day one.

For the past several weeks, both activists and the government have made their case before Justice Chow, on whether co-location violates Hong Kong’s Basic Law.

Constitutional questions

In what is described as “a rare move,” the Hong Kong Department of Justice may call in testimony from a mainland legal expert to weigh in on the earlier authorization of the rail link by the National People’s Congress Standing Committee (NPCSC) back in 2017, which preceded the LegCo’s own bill.

Several prominent Hong Kong lawyers said in a joint statement that “the current co-location arrangement is in direct contravention of the Basic Law and if implemented would substantially damage the rule of law in Hong Kong.” However, the NPCSC preemptively claimed in its 2017 announcement (in Chinese) that this move was completely allowed under the Basic Law.

As reported in the Hong Kong Free Press, the NPCSC said its decision “concerned only part of Hong Kong” whereas “Article 18 refers to situations where the whole of Hong Kong is affected by Chinese law.” Article 18 would therefore not apply, when only a quarter of the West Kowloon Railway Station was in question—and thus China could have “full jurisdiction over the area.” Many legal experts criticized this as a major “distortion” of the Basic Law.

NPCSC interpretations of the Basic Law are considered authoritative—even above the Hong Kong Court of Final Appeal. As the South China Morning Post points out, such interpretations are “binding for the city’s courts at all levels.” This is because under Article 158, final power to interpret the Basic Law rests with the NPCSC. (The body also has the power to interpret the PRC’s own Constitution, which in China is considered a legislative act, whereas in common law countries such as the United Kingdom or the United States, constitutional interpretation is a judicial act).

Caption: West Kowloon Station with “Hong Kong Clearance” and “Mainland Clearance” areas (courtesy of Hong Kong Legislative Council)

Inviting an interpretation

However, such Basic Law interpretations have historically been limited to very special circumstances. They are sought only when a court case touches on a “responsibility of the Central People’s Government”—as opposed to a purely local matter—or if it concerns “the relationship between the Central Authorities and the Region” and “if such interpretation will affect the judgments on the cases.” Under other conditions, as per Article 19 of the Basic Law, “The Hong Kong Special Administrative Region shall be vested with independent judicial power, including that of final adjudication.”

As cases proceed through the Hong Kong judicial system up to the Court of Final Appeal (CFA), the CFA can eventually make a request to the NPCSC for interpretation. Note, too, that the NPCSC is supposed to confer with the Committee for the Basic Law of the Hong Kong SAR before issuing any ruling. Finally, as Hong Kong law professor Cora Chan notes in an interview, “the [NPCSC’s] interpretation is an interpretation, rather than an amendment of the law.”

In only five instances has the NPCSC levied interpretations of the Basic Law: 1999 (right of abode for children based on parents’ permanent residence status at the time of birth), 2004 (regarding selection methods for the Chief Executive; any new amendments would require NPCSC approval), 2005 (if a Chief Executive leaves office early, his duly chosen successor would fulfill the remainder of his term), 2011 (state immunity in court cases) and 2016 (requirements for a valid oath for lawmakers entering the Legislative Council).

The Court of Final Appeal has sought NPCSC interpretation in a single case, in 2011, when a Hong Kong court originally ruled that the Democratic Republic of the Congo was not entitled to full diplomatic immunity in a commercial case.

In two cases, the SAR government itself sought NPCSC interpretations (1999 and 2005).

In the final two cases, the NPCSC gave a ruling of its own accord, without a request from any Hong Kong government entity. A 2004 interpretation concerned Chief Executive and Legislative Council selection methods for 2007 and 2008, respectively. The NPCSC erected new barriers to amending the electoral process, arrogating itself new approval powers and putting universal suffrage for Hong Kong on a much higher shelf—possibly out of reach.

A more recent NPCSC interpretation, also extremely controversial, occurred while the Hong Kong court system was considering the validity of oaths by pan-democratic legislators when being sworn into office in 2016. Some of the legislators had offered their own creative variations, adding in prefacing comments or speaking exceptionally slowly as a form of protest.

Instead of allowing the Hong Kong judiciary to complete their review, Beijing jumped in on its own and decided the democratic lawmakers’ oaths were insufficient, and thus grounds for disqualification from the legislature. The NPCSC ruled that “An oath taker must take the oath sincerely and solemnly, and must accurately, completely and solemnly read out the oath prescribed by law”—a heavy-handed example of patriarchy seeking not only to regulate speech but to modulate citizens’ tone of voice.

Once this directive was issued, Hong Kong courts had no choice but to obey by expelling the lawmakers. A former Justice Minister of Hong Kong called this action “strongly politically motivated.”

Impact on Co-Location

In the co-location case, there are two questions. The first is, whether the original NPCSC “approval of the joint checkpoint plan” in 2017 is actually “directly binding on Hong Kong law.” The decision was not a formal interpretation of the Basic Law, and throughout the legislative process, Beijing only contended it was issuing a “law under the mainland legal system” and “was silent on the effect on Hong Kong.”

A court case could spur the NPCSC to once again weigh in on its own volition to make a ruling, or it could potentially force the Court of Final Appeal to request an interpretation if it deems the case as one that (under Article 158) pertains to the relationship between Hong Kong and the Central Government, as opposed to fully within the CFA’s ability to interpret the Basic Law.

Secondly, the Justice Department has suggested it will call a legal witness from the mainland to opine on the case. If that opinion is accepted, and eventually adopted by the court in its ruling, it could open up another channel through which the NPCSC could simply legislate on its own, and then import its preferences, even when it is not ruling through an official interpretation of the Basic Law.

As high-speed trains pull into the West Kowloon station, the borders between Hong Kong and the mainland already appear to be dissolving in other ways. The plan for a Greater Guangdong Bay Area (an 11-city mega region connecting many of Guangdong Province’s major economic centers plus Hong Kong and Macau) is one such effort to unite these disparate administrative regions and bring their populations to heel—some say to Hong Kong’s detriment. A continuing influx of Chinese visitors could also swamp the special administrative region, while the passage of heavy-handed security legislation could erode its freedoms further. In the meantime, two pro-democratic lawmakers were recently charged for protesting in the LegCo chamber about West Kowloon co-location back in June.

At the moment, the rule of law applies in Hong Kong. A judicial review could still reverse the most troubling aspects of the new rail station and its questionable co-location arrangement. But as Beijing’s grip continues to tighten, the people of Hong Kong have grown less and less optimistic about escaping this Chinese railway tether—or what some sardonic observers might call a noose.

(Feature photo of Hong Kong’s West Kowloon Station by Prosperity Horizons on Wikicommons, CC BY-SA 4.0)