Ousted lawmaker Baggio Leung has filed a legal challenge against the controversial joint checkpoint arrangement for the upcoming high-speed rail.
The judicial review asks the court to rule that the arrangement is unconstitutional, and to rule that the Legislative Council has no power to pass it. He also asked the court to void the vote passed by the legislature last week.
The pro-democracy camp, as well as the Hong Kong Bar Association, have deemed the legislative bill unconstitutional as Hong Kong is set to effectively give up its jurisdiction across a quarter of the West Kowloon terminus, where immigration and customs procedures can be performed more speedily by mainland law enforcement agents.
The arrangement was intended for faster clearance so that passengers would not have to leave the train at the border. The rail project is expected to start operating by September.
Leung said he did not speak to the democrats or localist groups before filing the challenge. He will apply for legal aid from the government.
He said he has a high chance of winning if Beijing does not issue an interpretation of the Basic Law, but the chances of success will be low if Beijing decides to intervene.
Asked about claims by scholars that the Hong Kong courts have no power to overrule a decision by China’s top legislature, Leung said: “I don’t understand why Hong Kong courts cannot deal with things that happened in Hong Kong.”
Leung is currently on bail pending his appeal against his unlawful assembly conviction and jail sentence of four weeks.
Article 18 of the Basic Law states that Chinese laws are not to be applied in Hong Kong aside for those listed in Annex III, such as the national flag and emblem law. However, mainland law is set to apply in the Chinese-administered areas of the terminal.
When approving the arrangement last December, the Standing Committee of the National People’s Congress – China’s top legislature – maintained that the plan complied with the Basic Law.
The Standing Committee said in an explanatory document that Article 18 applies to Hong Kong residents, while the application of national laws in the mainland section of the West Kowloon terminus only targets railway passengers inside the key area.
“This is different from the situation described by Article 18 on the implementation of national laws in Hong Kong SAR. There is no issue with Article 18 being contravened,” it concluded.
However, the Hong Kong Bar Association – represented many of the city’s top lawyers – have repeatedly said the arrangement has no constitutional foundation and the Legislative Council had no authority to enact it.