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China may be using joint checkpoint plan to strip Hong Kong courts of power, legal scholar says

University of Hong Kong legal scholar Eric Cheung has said that the true intention behind the Express Rail joint checkpoint plan may be to subjugate Hong Kong courts, paving the way for the legislation of the Article 23 anti-subversion law.

The controversial arrangement has been heavily criticised by the city’s legal community for lacking legal foundation and violating the Basic Law. Article 18 of the Basic Law stipulates that no Chinese laws may apply in the SAR, with a few exceptions listed in Annex III of the mini-constitution.

Eric Cheung Tat-ming

Eric Cheung Tat-ming. File photo: Wikimedia Commons.

But scholar Eric Cheung, who expressed his concern over the mechanism to former justice secretary Rimsky Yuen and other senior officials last September, said the government’s adoption of the plan – despite strong opposition from lawyers – made him suspect that there may be other motives.

‘Subjugate Hong Kong courts’

Under the arrangement, Hong Kong will effectively surrender its jurisdiction across a quarter of the new Express Rail terminus, where immigration procedures will be performed by mainland law enforcement agents when it opens this year.

Executive Council member and barrister Ronny Tong said seven years ago that the proposal could not be legally justified, though he has recently changed his position to align with the government’s. Former Legislative Council president Jasper Tsang also made similar remarks last month.

Cheung said Monday that he had been perplexed by the government’s decision to risk violating the Basic Law by placing checkpoint facilities at the heart of Hong Kong, when it could implement the plan at Futian Railway Station in Shenzhen without having to give up Hong Kong’s jurisdiction.

“Sometime between 2014 and 2015, the central government suddenly retracted its decision to reserve checkpoint space at Futian Railway Station, creating an impression that Hong Kong had no choice but to adopt the current joint checkpoint plan,” he said.

Following Beijing’s approval of the plan last Wednesday, top Chinese official Li Fei, Chief Executive Carrie Lam and several pro-Beijing figures repeatedly said that the NPCSC – China’s top legislature – has a final say over any constitutional matters.

But questions remain over whether NPC decisions bind Hong Kong courts, unlike interpretations which have been ruled by the courts to be legally binding.

high court

Photo: HKFP/Ellie Ng.

Cheung said that the NPCSC may hand down an interpretation saying that any local law deemed constitutional by Beijing cannot be reviewed by local courts, if the plan – set to be legislated by the Legislative Council this year – is challenged in judicial reviews.

He speculated that the interpretation will focus on Article 17, which states that laws enacted locally must be reported to the NPCSC to determine whether it complies with the Basic Law.

Cheung said such an interpretation would effectively strip Hong Kong courts of their power to review the constitutionality of local laws, including the potential Article 23 legislation even if it may violate human rights standards.

See also: ‘Rule without law’: Hong Kong lawyers hit back as leader Carrie Lam attacks ‘elitist mentality’

He said his speculation is based on the authorities’ reactions over the past week. The Hong Kong government said in a statement last Friday that “under every system, there will be – and must be – an organ of highest and ultimate authority.”

“The NPC is the highest organ of state power, whereas the NPCSC is the NPC’s permanent body. The entire process leading to the adoption of the present Decision by the NPCSC… is fully consistent with the constitutional process of the State,” it said.

“In other words, the present Decision is a decision made entirely pursuant to the PRC Constitution and related procedures. It has legal effect and is not a mere executive decision as suggested by some.”

But HKU law professor Albert Chen told RTHK that Cheung’s speculation lacked any basis. He said local laws passed after the 1997 Handover have all been reported to the NPCSC, but no issue described by Cheung has ever arisen.

Albert Chen Hung-yee

Albert Chen Hung-yee Photo: Wikicommons.

Cheung acknowledged that he was only speculating at this point: “I have never used conspiratorial theories to comment on any issue, but I have become extremely worried about the developments of the controversy. I sincerely hope that my analysis will be proved wrong by history.”

Judicial review

Meanwhile, Cheung Chau resident Kwok Cheuk-kin, known for his judicial activism, filed a judicial review challenge on Tuesday against Carrie Lam. He argued that by pushing for the joint checkpoint plan, Lam had breached her oath, stating that she would uphold the Basic Law as per Article 104.

Kwok previously attempted to challenge the checkpoint arrangement, but his application was rejected on the basis that it was premature.


China may be using joint checkpoint plan to strip Hong Kong courts of power, legal scholar says