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Court rejects ‘premature’ bids for legal action against Express Rail Link joint checkpoint arrangement

The High Court has declined applications for judicial reviews over the controversial joint checkpoint arrangement at the Guangzhou-Shenzhen-Hong Kong Express Rail Link, since such challenges are “clearly premature at this stage.”

The arrangement will involve “leasing” land to China and effectively giving up Hong Kong jurisdiction across a quarter of the West Kowloon terminus for faster immigration procedures performed by mainland law enforcement agents. Pro-democracy groups have raised concerns over what they called the ceding of territory to the mainland and potential violations of the Basic Law.

Four applications for judicial reviews have been submitted, but two had already been retracted owing to a failure to apply for legal aid. The two applications which proceeded were from Kwok Cheuk-kin, and another jointly made by Hendrick Lui and Li Ka-lim. They said that that the joint checkpoint mechanism – or “co-location arrangement” in government terminology – is unconstitutional as it violates 13 articles of the Basic Law.

express rail link construction terminus

File photo: In-Media.

But the government argued that the applications for leave to apply for judicial review were “entirely premature” and the court should not entertain the proposed challenges.

The government had said it will adopt a three-step process to implement the arrangement: reaching an agreement with the mainland; seeking approval from the Standing Committee of the National People’s Congress (NPCSC) to give Hong Kong power to “lease” land to the mainland; and the enactment of the arrangement through local legislation. However, details have yet to be announced.

Judge Anderson Chow accepted that the challenges were premature, since the government decision to adopt the arrangement “merely sets in motion a series of steps to be taken consecutively.”

He said the implementation of the proposed arrangement in not a matter which the government can proceed on its own, but is contingent on the acts and decisions of other parties or bodies who are not under the control of the government: “[T]he failure or non-fulfilment of any one of which may result in the abortion, or substantial modification, of the Proposed Co-location Arrangement,” he wrote.

“Second, the factual and legal events relevant for determining the constitutionality or legality of the Proposed Co-location Arrangement have not yet occurred.”

basic law

Photo: HKFP.

Kwok Cheuk-kin, one of the applicants, said he was concerned that there may not any ideal timing for a judicial review: “If we apply too late, [the court] could say the central government has agreed [to the arrangement] …and say it does not have the right to intervene in the central government’s decision,” he said.

Another applicant, Hendrick Lui, said they will consider filing an appeal.

NPCSC power 

Counsel for the applicants Martin Lee argued that the NPCSC has no power to override the basic policies of China’s relationship with Hong Kong, as enshrined in the Joint Declaration and the Basic Law. He said the joint checkpoint arrangement would violate the Basic Law.

Chow wrote that it is “not the appropriate occasion” to enter into a detailed discussion on the effects of any decision which may be made by the NPCSC.

He also said the power of the NPCSC to interpret the Basic Law was confirmed by the Court of Final Appeal recently in a case concerning the disqualification of two former lawmakers. He wrote it was not known whether the NPCSC decision over the joint checkpoint arrangement will include, or be accompanied by, a similar interpretation.

“Assuming that no such interpretation will be included or accompany the NPCSC decision, it would still be a moot question as to whether the decision itself can be treated as an interpretation of the Basic Law by necessary implication, and what would be the effect of a decision of the NPCSC short of a formal interpretation.”

“In all, I do not consider that it is possible, at this stage, to come to any conclusion that the Proposed Co-location Arrangement would necessarily be contrary to the Basic Law whatever may be the final form and contents of the Co‑operation Arrangement, the NPCSC decision and the local legislation.”

Court rejects 'premature' bids for legal action against Express Rail Link joint checkpoint arrangement