Beijing’s legal justification in allowing mainland law to be enacted in part of the new West Kowloon Express Rail terminus does not harm Hong Kong’s rule of law, executive councillor Ronny Tong said on Thursday.
The veteran barrister told RTHK that he opposed the arrangement seven years ago as a member of the pro-democracy Civic Party because – as a legislator at the time – he did not have any responsibility in finding a solution for the government.
Hong Kong will effectively surrender its jurisdiction across a quarter of the new terminal, where immigration procedures will be performed by mainland law enforcement agents.
Tong’s comments stand in contrast to those of several top constitutional lawyers such as Philip Dykes, who said that the arrangement contravened the Basic Law, and that the National People’s Congress Standing Committee (NPCSC) – China’s top legislature – cited several articles out of context.
“This decision shows that the Basic Law is a forward-looking, ‘living’ constitutional document,” said Tong on Thursday.
“When it was enacted [in 1990], nobody imagined the contradictions that would arise between the joint checkpoint arrangement and ‘One Country, Two Systems’… this decision shows that they can be resolved.”
Tong specifically said that the arrangement did not violate Article 18 – which states that national laws should not be applied in Hong Kong – because the NPCSC’s decision meant that the local government would be allowed some flexibility in dealing with immigration issues.
“I can’t see any other situation where this [flexibility] can be applied,” he said. “You can’t just set up a checkpoint at Victoria Park… you can’t justify that no matter how you interpret [the article].”
“I believe there’s no damage [to the rule of law],” he added. “I look forward to reading the views or the judgements of the courts on this matter.”
The 67-year-old quit the Civic Party and his legislative seat two years ago, before joining Chief Executive Carrie Lam as an advisor earlier this year.
When asked by RTHK why he did not support the checkpoint plan during his time as a legislator, Tong said he never thought about leasing part of the West Kowloon terminus to the mainland.
But he said he changed his mind after observing the Shenzhen Bay Port arrangement – where part of a Shenzhen border checkpoint was leased to Hong Kong in 2006, with Hong Kong laws in force.
Barrister Chris Ng told HKFP earlier that the two checkpoint arrangements are incomparable, as the Shenzhen arrangement can be justified by Basic Law Article 20 which allows the NPCSC to give Hong Kong additional powers, such as the power to exercise jurisdiction outside the region.
“However, the same cannot be said about China exercising jurisdiction in Hong Kong, which is not supported by any provisions in the Basic Law,” Ng said.
However, Tong said that if given the choice, he would not have built the high-speed rail terminus in Hong Kong in the first place.
“It has created so much controversy in society… some people even say that the Basic Law is a piece of waste paper and that ‘One Country, Two Systems’ no longer exists.”
“With all these negative discussions and social divisions it has caused, if you ask me, I think it was not worth it.”