Submission​ ​on​ ​Express​ ​Rail​ ​Link​ ​Co-Location​ ​ArrangementProgressive​ ​Lawyers​ ​Group

A. Introduction​ ​and​ ​Executive​ ​Summary

1. The Government has recently announced its proposal on the border control arrangementsand jurisdictional matters in relation to the Mainland-Hong Kong Express Rail Link(“XRL​”). In short, the Government proposes a co-location arrangement of border andcustoms control facilities at West Kowloon Station and the Mainland to have criminal jurisdiction to be exercised at some areas of West Kowloon Station and on all operating trains.

2. The Progressive Lawyers Group (“PLG​”) is of the view that such proposal is in clear and direct contravention of numerous provisions of the Basic Law, in particular, Articles 17, 18, 19 and 22. We set out our position as follows.

B. The​ ​Spirit​ ​of​ ​the​ ​Basic​ ​Law

3. The Preamble of the Basic Law states that the establishment of the HKSAR and the promulgation of the Basic Law are to implement the “basic policies of the People’s Republic of China regarding Hong Kong” which “have been elaborated by the Chinese Government in the Sino-British Joint Declaration” under the principle of “one country, two systems”.

4. Article 3(2) & (3) of and Annex 1 to the Sino-British Joint Declaration further states that Hong Kong enjoys “a high degree of autonomy, except in foreign and defence affairs which are the responsibilities of the Central People’s Government” and be vested “with executive, legislative and independent judicial power, including that of final adjudication. The laws currently in force in Hong Kong will remain basically unchanged“. Article 1 of the Sino-British Joint Declaration also defines “Hong Kong” indivisibly and without qualification as “including Hong Kong Island, Kowloon and the New Territories”.

5. The concept of “One Country Two Systems” does not only preserve the socio-political systems previously practiced in Hong Kong, but also represents an express recognition that the PRC and the Hong Kong legal systems are rooted in fundamentally distinct normative values. The Hong Kong system emphasises governance through law which entails: (1) the functional separation of powers between the executive, legislative and the judiciary; and (2) constitutionally protected fundamental rights.

6. The National People’s Congress as empowered by Article 31 of the PRC Constitution therefore established the HKSAR by adopting the Basic Law in 1990 as a piece of national law, which expounds the above fundamental policy of “Hong Kong People administering Hong Kong”.

7. The high degree of autonomy conferred upon Hong Kong is enshrined in numerous provisions in the Basic Law.1 It is only in areas such as foreign affairs 2and the defence of Hong Kong against armed attack that the Central Government has direct jurisdiction over Hong Kong. 3

C. Meanings​ ​and​ ​Effects​ ​of​ ​Articles​ ​17,​ ​18,​ ​19​ ​and​ ​22

8. Articles 17, 18, 19 and 22 of the Basic Law are provisions under Chapter II which governs the relationship between the Central Government and Hong Kong.

C.1 Article 17

9. Article 17 of the Basic Law (and also Article 3(3) of the Sino-British Joint Declaration and Part II of Annex 1 thereto) provides that the HKSAR shall be vested with legislative power. 4 Although laws enacted by the legislature of Hong Kong must be reported to the Standing Committee of the National People’s Congress (“NPCSC​“) for record, such reporting shall not affect the entry into force of such laws. The NPCSC may only return the law in question but not amend it if it considers, after consultation with the Committee for the Basic Law, that such law does not conform with the provisions of the Basic Law (1) regarding affairs within the responsibility of the Central Government; or (2) regarding the relationship between the Central Government and the HKSAR.

10. Hence, even the NPCSC cannot legislate for Hong Kong. The NPCSC may only return law which does not conform with the Basic Law and are regarding (1) affairs within the responsibility of the Central Government; or (2) the relationship between the Central Government and the HKSAR.

11. Article 17 therefore reinforces Hong Kong’s high degree of autonomy and the principle of “One Country Two Systems” by vesting Hong Kong with legislative power which even the NPCSC cannot supplant.

C.2 Article 18

12. Article 18 of the Basic Law clearly sets out the law to be applied in the HKSAR:

(1) Article 18(1) (as in Article 8 of the Basic Law and Article 3(3) of the Sino-British Joint Declaration and Part II of Annex 1 thereto), provides that the law previously in force in Hong Kong (including the common law and pre-existing legislation) remains in force.

(2) Article 18(2) provides that national laws shall not be applied to Hong Kong except for those listed under Annex III. Such national laws shall be applied only by way of local promulgation or legislation.  

(3) Article 18(3) restricts the power of the NPCSC to apply national laws to Hong Kong via Annex III. First, the power is confined to apply national laws relating to: (i) defence; (ii) foreign affairs; and (iii) “other matters outside the limits of the autonomy of [the HKSAR] as specified by [the Basic] Law”. Secondly, national law is to be applied only after consultation with the HKSAR Government.  

13. It is thus clear that national laws must not be applied in the HKSAR unless they relate to: (i) defence; (ii) foreign affairs; and (iii) “other matters outside the limits of the autonomy of [the HKSAR] as specified in [the Basic] Law”; and are included in Annex III and incorporated by local promulgation or legislation.  

C.3 Article 19  

14. Article 19 of the Basic Law (and Article 3(3) of the Sino-British Joint Declaration and Part III of Annex 1 thereto) provides that the HKSAR shall be vested with independent judicial power, including that of final adjudication. The Courts of the HKSAR shall have jurisdiction over all cases in the Region​, except (1) any restriction imposed by the legal system and principles previously in force in Hong Kong or (2) cases concerning acts of state such as defence and foreign affairs.  

15. Such independent judicial power and the composition of the Judiciary is provided in detail in Articles 80 to 96, which allow foreign judges to sit in the Hong Kong Courts and allow Hong Kong Courts to refer to precedents of other common law jurisdictions. Hong Kong Courts are only required under Article 158 to seek interpretation from the NPCSC on the relevant article of the Basic Law if the case in question concerns affairs which are (1) the responsibility of the Central Government, or which (2) concern the relationship between the Central Authorities and the HKSAR.  

16. Article 19 therefore also enshrines the principle of “One Country Two Systems” and provides jurisdiction to the Hong Kong Courts over all cases, whether criminal or civil, which occur within the HKSAR​. To remove jurisdiction from the Hong Kong Courts and to confer the same to Courts of another region would be in direct contravention of Article 19.  

C.4 Article 22  

17. Article 22 provides that: (1) no department of the Central Government, province or municipality may interfere in the affairs which the HKSAR administers on its own in accordance with the Basic Law; and (2) all personnel and offices of the Central Government within the HKSAR must abide by the laws of Hong Kong.  

18. The Chinese Constitution stipulates that the National People’s Congress is vested with all powers of the State. Even the executive authorities are established by, responsible to and subject to the supervision of the National People’s Congress. Given that the Basic law passed by the National People’s Congress is not only the mini-constitution of Hong Kong, but also national law, even the executive authorities of the Central Government must comply with the Basic Law and “shall not interfere in the affairs which the HKSAR administers on its own in accordance with this Law”.  

19. Article 22, being a piece of national law, therefore clearly prohibits any officials of the Mainland, whether from any department of the Central Government or local government, from executing duties under or enforcing laws of the Mainland within the HKSAR.  

C.5 Other Articles of the Basic Law  

20. In addition to Articles 17, 18, 19 and 22, the following provisions of the Basic Law are also relevant and should also be read together:  

(1) Articles 2 and 12 which provide that Hong Kong exercises a high degree of autonomy and enjoy executive, legislative and independent judicial power;  

(2) Article 8, which states that “[t]he laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region”;  

(3) Articles 27 to 35, and 41, which guarantee the fundamental rights and freedoms of Hong Kong residents and persons within the HKSAR, including the rights against arbitrary or unlawful arrest, detention or imprisonment, or torture (Article 28) and the rights to confidential legal advice and choice of lawyers for timely protection of their legal rights (Article 35);  

(4) Article 39, which guarantees the application of the International Covenant on Civil and Political Rights (“ICCPR​”) in Hong Kong including the right to fair hearing;  

(5) Articles 106 and 108, which provides that the HKSAR shall practise an independent taxation system and the Central Government shall not levy taxes in the HKSAR;  

(6) Article 116, which confirms that “[t]he Hong Kong Special Administrative Region shall be a separate customs territory”;  

(7) Article 154, which states that “[t]he Government of the Hong Kong Special Administrative Region may apply immigration controls on entry into, stay in and departure from the Region by persons from foreign states and regions”; and  

(8) Article 159(4), which provides that “no amendment to [the Basic] Law shall contravene the established basic policies of the PRC regarding Hong Kong”, i.e. the basic policies as declared in the Preamble of the Basic Law and Annex 1 to the Sino-British Joint Declaration.  

21. Reading and understanding all the above provisions of the Basic Law together, the only possible interpretation is that the HKSAR is established over the area of Hong Kong previously ruled by the British and is granted a high degree of autonomy, including the legislative power and independent judicial power, under the principle of “One Country Two Systems”. The Basic Law also guarantees all persons physically within the HKSAR their fundamental human rights, including the rights against arbitrary arrest, detention, torture and the rights to fair hearing.  

D. Analysis of the Government’s Proposal 

D.1 Violations of various Articles of the Basic Law  

22. The Government proposes that certain areas of the three bottom levels of the West Kowloon Station to be leased out to the Mainland which would together with the operating train compartments form the Mainland Port Area (“MPA​”). This arrangement is said to facilitate the border and customs control to be exercised by the Mainland officials on two of the bottom levels of the West Kowloon Station. PRC laws (except 6 areas of civil law governing e.g. contracts and insurance between MTR and passengers) will be applied in these areas and all operating trains within the HKSAR. In the exercise of such duties, the Mainland officials will have all powers under national law, including the power of arrest and detention and to transfer any arrested persons to the Mainland for further detention, investigation and potentially prosecution. The Mainland courts will have jurisdiction over all the matters in which PRC laws apply, i.e. including criminal Jurisdiction  

23. As explained above, Articles 17 and 18 provide that Hong Kong is vested with legislative power and no national law can be applied in Hong Kong unless they concern defence, foreign affairs or “other matters outside the limits of the autonomy of [the HKSAR] as specified in [the Basic] Law”..  

24. The Government’s proposal involves the exercise and practice of most national laws on certain levels of West Kowloon Station and all operating trains. Most of such laws do not concern defence or foreign affairs or any other matters that fall outside of Hong Kong’s autonomy. In particular, as noted above, Articles 8, 106, 108, 116 and 154 clearly states that pre-existing laws (which would include, amongst other things, criminal law), taxation (which would include the imposition of import duties and excises), customs and immigration controls are matters which fall squarely within Hong Kong’s autonomy.  

25. As such:  

(1) The scope of application of national laws in Hong Kong as now proposed by the Government in connection with the MPA go well beyond that which are currently applied in Hong Kong under Annex III of the Basic Law. Any attempt to impose national laws in the entirety or in any part of Hong Kong (the area of which is indivisible and unqualified under the Sino-British Joint Declaration) that are not already included in Annex III is contrary to Article 18 of the Basic Law and therefore unconstitutional.  

(2) This unconstitutionality cannot be cured in the context of the MPA by seeking to add further national laws into Annex III of the Basic Law. The areas of national laws that are currently proposed to be imposed in the MPA are, as noted above, not matters that fall outside Hong Kong’s autonomy. Article 18(3) makes clear that only national laws that fall outside Hong Kong’s autonomy can be added to Annex III.  

26. Moreover, Article 19 provides that Hong Kong is vested with independent judicial power and Hong Kong Courts have jurisdiction over all matters within the HKSAR. To remove jurisdiction in the designated areas within the boundary of the HKSAR and confer the​ ​same​ ​upon​ ​the​ ​Mainland​ ​authorities​ ​obviously​ ​violates​ ​Article​ ​19.  

27. Further, Article 22 provides that all departments of the Central Government, provinces and municipalities must not interfere with the self-administration of the affairs of the HKSAR and any such official must abide with the laws of Hong Kong when they are allowed to enter the HKSAR. Therefore allowing officials from the Mainland to exercise​ ​national​ ​laws​ ​in​ ​Hong​ ​Kong​ ​is​ ​in​ ​clear​ ​breach​ ​of​ ​Article​ ​22.  

28. In any event, the criminal law applied in the Mainland is fundamentally different from the criminal law of Hong Kong. The powers of arrest, detention and use of force exercisable by the Mainland authorities are potentially wider than those by Hong Kong authorities. In particular, the concept of administrative detention is alien to Hong Kong. To exercise such powers in Hong Kong are clearly incompatible with many fundamental human rights protected by the Basic Law, such as the rights against arbitrary arrest and detention and the rights to confidential legal advice and fair hearing.  

29. To apply national criminal law in Hong Kong would not only contravene Articles 17, 18 and 19; in so far as the MPA is concerned, it also violates other provisions of the Basic Law which afford people within Hong Kong territory protection of fundamental human rights, including but not limited to, Articles 28, 35 and 39.  

D.2 Article 20 of the Basic Law cannot salvage the legality of the Government’s proposal  

30. The Government has attempted to salvage the legality of its proposal by receiving additional powers from the NPCSC allegedly pursuant to Article 20 of the Basic Law to set up such MPA and confer jurisdiction upon the Mainland authorities to exercise national laws within the MPA.  

31. The PLG is of the view that any additional power that Hong Kong may be granted by the NPCSC under Article 20 of the Basic Law must be subject to and must therefore not contravene other provisions of the Basic Law. To do otherwise would erode the integrity and consistency of the Basic Law and make a mockery of its very existence. That which is unconstitutional cannot be made constitutional by a sleight of hand. It would be in breach of the basic policies of “One Country Two Systems” and high degree of autonomy to be practiced in the Hong Kong.  

32. In any event the removal of jurisdiction from parts of its soil and to allow national laws to be applied in Hong Kong is not in substance additional powers conferred upon Hong Kong. It is exactly the opposite, namely removing powers and jurisdiction from Hong Kong. Article 20 should not be used to cloak the actual derogation of powers from Hong Kong and the direct breaches of provisions of the Basic Law.  

33. The Government has in its proposal used the arrangement at Shenzhen Bay Port as a precedent for demarcating a “port area” for the counterpart to exercise jurisdiction and for Hong Kong to be granted additional powers pursuant to Article 20.5  

34. However, to use the Shenzhen Bay Port as a precedent is not only inappropriate but also misleading for the following reasons:-  

(1) Basic Law does not apply to Shenzhen Bay area which has always been part of the Mainland. On the contrary, the soils of the West Kowloon Station and the tunnel of the XRL have always within Hong Kong territory where the Basic Law has since 1 st July 1997 applied.  

(2) The Government has expressly promised when it answered questions from Legco members during the deliberation of the Shenzhen Bay Port Hong Kong Port Area Bill in 2007 that any additional powers granted under Article 20 “have to be consistent with the Basic Law, and cannot deprive the HKSAR of the rights protected under the Basic Law.​”6 As analysed above, the current Government Proposal to be granted “additional powers” by virtue of Article 20 contravenes various fundamental articles of the Basic Law and will deprive the HKSAR of the rights protected under the Basic Law. The current Government Proposal is therefore exactly what the Government explicitly stated that it is not allowed to do under Article 20.  

35. We are additionally concerned that the ultimate object of the Government’s proposal in relation to the MPA appears not to be the ensuring of its adherence to the Basic Law. Rather, by making the NPCSC a central part of its legal mechanism for implementing the MPA, the Government is merely seeking to take the question of adherence to the Basic Law away from the Hong Kong Courts. This would be done by virtue of the assertion that any decision of the NPCSC under Article 20 of the Basic Law to approve the creation and implementation of the MPA (and any local legislation falling under it) would constitute or otherwise flow from an “act of state” over which the Hong Kong Courts have no jurisdiction.7  

36. It is worrying that such invocation of Article 20 of the Basic Law gives the NPCSC yet another means of determining the content of the Basic Law and the scope of Hong Kong laws, effectively amounting to a rule by decree. This follows the NPCSC’s recent use of its Basic Law interpretation powers Article 158 of the Basic Law in December 2016 not only to interpret the meaning of oath-taking requirements under Article 104 of the Basic Law, but also to make specific prescriptions on oath-taking which were matters of local Hong Kong law. Taken together, these developments create concerns about future legal and constitutional certainty in Hong Kong. Such certainty is in turn an essential ingredient of the rule of law, which is fundamental to Hong Kong maintenance of its status as an international financial centre.  

37. In sum, the Government’s proposal in relation to the MPA would be in breach of the spirit of “One Country Two Systems” and the high degree of autonomy afforded to the HKSAR guaranteed by the Basic Law and the Sino-British Joint Declaration, as well as their express and unambiguous provisions.  

E. Comparison with Arrangements between Foreign Countries and between the Mainland and Hong Kong  

38. The Government has referred to the arrangements between foreign countries, such as those between the United States and Canada, and between the United Kingdom and France for the Eurostar train. It also referred to the customs and immigration arrangements between the Mainland and Hong Kong at Shenzhen Bay. In referring to these examples, the Government has sought to suggest that its proposal in relation to the MPA is commonly found elsewhere and ought not be controversial. However, the PLG notes that these arrangements are not legally and constitutionally comparable to that which exist in relation to the proposed MPA:  

(1) The arrangements between the United States and Canada and between the United Kingdom and France involve independent sovereign nations which enjoy sovereign powers to legislate for their countries. By contrast, both the Mainland and Hong Kong administrations are bound by and must observe the Basic Law. Any similar arrangement would contravene the spirit and provisions of the Basic Law and the Sino-British Joint Declaration which guarantee “One Country Two Systems” and a high degree of autonomy to be practiced in Hong Kong as explained above.  

(2) As for the Shenzhen Bay scenario, where Hong Kong law applies in a land area belonging to the Mainland, that differs from the currently proposed MPA scenario. There is no constitutional prohibition on such an arrangement on Mainland territory, whereas as noted above, the Basic Law clearly prohibits such an arrangement in relation to the application of Mainland laws in Hong Kong.  

39. In so far as the North American and European examples cited above are concerned, we also note (although these points do not go to the fundamental question of constitutionality in the Hong Kong context as mentioned above) that the sovereign states that have implemented such arrangements share similar standards and afford similar protections on human rights. They can thus be confident that the human rights of its citizens would not be substantively prejudiced even where the officials of another state exercise rights of arrest or detention within the restricted areas for border control and customs. If suffices to mention for present purposes that a comparable degree of similarity in rights protection simply do not exist as between the Mainland and Hong Kong.  

40. We also note, for completeness, potentially referable but more restrictive immigration and customs arrangements reached between other countries:.  

(1) As between Singapore and Malaysia northbound passengers taking the Malaysian Railway may clear both Singapore’s and Malaysia’s custom and immigration at Woodland Train Checkpoint (in Singapore), but southbound passengers have to clear Malaysian custom and immigration at Johar Bahru (in Malaysia) and then Singapore custom and immigration at Woodland Train Checkpoint. This arrangement arose from a set of unique historical and legal circumstances as between Singapore and Malaysia subsisting from the time of Singapore’s independence, and in any event these states do not have comparable provisions in their constitutions as those referred to above in the Basic Law.  

(2) Another example is the high-speed railway, the Allegro Express, between Finland and Russia. It connects between Helsinki, the capital of Finland, and St. Petersburg in Russia. Between the two terminals, there are 4 additional stops in Finland, and 1 additional stop in Russia. Both countries retain their immigration and customs control. However, physical control points are only installed at one additional stop in Finland (the one closest to the border) and at the additional stop in Russia for passengers boarding and alighting at the two respective stops. For all other passengers travelling to and from the terminals or other additional stops, the officials from both countries would carry out immigration and customs controls on board the trains (“on-board clearance”). Such an arrangement would substantially reduce the time required for passengers to queue up for border controls (except for passengers boarding at the last or alighting at the first stop), and does not involve any jurisdictional issue.  

F. Comparison​ ​with​ ​Situations​ ​involving​ ​Consulates  

41. There have been suggestions that the proposal is akin to the lease of land to foreign consulates, which are immune from interference by the HKSAR authorities.  

42. However, we take the view that the situation involving foreign consulates is very different from the current context and not comparable for the following reasons:  

 (1) The immunity and privileges enjoyed by foreign consulates are matters of foreign affairs which the Central Government has exclusive power and control under the Basic Law. As such, the “Regulations of the People’s Republic of China Concerning Diplomatic Privileges and Immunities” (the “Regulations​”) being a piece of national law was included in Annex III of the Basic Law. The local legislation which gives effect to this piece of national law is the Consular Relations Ordinance, Cap. 557 (“CRO​”). Both are promulgated to give effect to the articles of the Vienna Convention on Consular Relations which the PRC is a signatory (“Vienna Convention​”).  

 (2) Aside from the protection of immunity for consular officers, the Vienna Convention, the Regulation and the CRO provide that consular premises are inviolable. Hence, local officials or law enforcement agencies cannot freely enter into such premises to exercise their functions and duties. However, the premises being inviolable does not mean that the laws of the HKSAR do not apply in those premises. To the contrary, the laws of Hong Kong still apply in those premises and the HKSAR officials may enter such premises to enforce the same with the consent of the subject consulate-general. Therefore, any local people committing offences in those premises can be arrested by Hong Kong police and prosecuted in Hong Kong courts.  

(3) Under the Vienna Convention, the Regulation and the CRO, the consular officers are entitled to carry out consular functions, e.g. issuing visas/passports and taking evidence in accordance with international arrangements, in the consular premises. However, such consular functions do not include Customs control or criminal jurisdiction.  

43. In the premises, the situation with consulate premises is not comparable with the Government’s proposal which involves the exercise of customs law and criminal law within the West Kowloon Station and on operating trains.  

G. Alternative​ ​Methods  

44. There are obvious alternative methods to implement the boundary controls without contravening the Basic Law and sacrificing the rule of law, e.g. installing control points at the stations in Guangzhou and Shenzhen which the Government had previously stated that spaces had been reserved for the same.8

45. The Government has stated in its proposal that it considered all alternative proposals not feasible or economically viable.  

46. For example, the Government declined the idea of on-board clearance due to physical limitation of space on the trains and short journey time between Hong Kong and Futian. 9 The Government also considered the traditional separate-location arrangement undesirable. 10  

47. However, it seems that the Government has not considered a combined mode of the on-board clearance and separate-location arrangement which has been adopted in the Finland/Russia as noted above. If a similar arrangement is adopted for XRL between Hong Kong and the Mainland, for trains starting from/ending up in the Mainland outside Guangdong province, on-board clearance can be effected which journey time would be long and physical space on trains is a matter not difficult to resolve. Such an arrangement would also save passengers time from queuing up at the Mainland boundary controls. For trains travelling to Shenzhen or Guangzhou, the traditional separate-location arrangement may be adopted.  

48. Such a combined mode seems feasible albeit involving slightly higher costs for the Mainland authorities. However, such an operating mode would not involve the jurisdictional issues or contravene the Basic Law as the current proposal does.  

49. Thus, there do exist other alternative methods which do not contravene the Basic Law and are feasible despite higher costs involved or lower economic convenience. It is not for the PLG, as a group of lawyers and law students, to endorse any particular alternative method from a logistical perspective. Nonetheless, the PLG urges the Government to explore all possibilities in alternative methods which comply with the spirit and provisions of the Basic Law.  

Progressive​ ​Lawyers​ ​Group
18​ ​September​ ​2017
 

1 The Basic Law provides as follows: Article 2 authorises Hong Kong to exercise ‘a high degree of autonomy, executive, legislative and independent judicial power’; Article 3 states that executive and legislative positions ‘shall be composed of permanent residents of Hong Kong’; Article 12 provides that Hong Kong as a local administrative region of the PRC shall enjoy a high degree of autonomy; Article 16 sanctions the executive to conduct regional administrative affairs on its own; Article 17 grants the legislature with powers to make laws for the region; Article 19 vests Hong Kong with an independent judiciary and powers of final adjudication; Article 22 prevents the Central Government from interfering in the affairs which Hong Kong administers on its own in accordance with the Basic Law; Article 23 grants Hong Kong the power to enact laws on state security laws; Article 26 confers a right upon residents to vote and stand for election; Articles 27 to 34 guarantee fundamental rights; Article 39 guarantees and protects the application of the International Covenant on Civil and Political Rights (the“ICCPR​”) in Hong Kong; Article 159 provides that ‘no amendment to this Law shall contravene the established basic policies [which is a reference to the Joint Declaration] of the PRC regarding Hong Kong.’ In addition Hong Kong has its own regional flag and emblem, independent finance and taxation systems.
2 Chapter VII Basic Law provides that Hong Kong has autonomy over some areas of external affairs,
e.g. trade relations in the WTO, power to enter into bilateral treaties concerning economic matters.
3 Article 13 and 14 of the Basic Law.
4 Such legislative power is regulated in more details in Articles 63 to 79 of the Basic Law.
5 Para. 47 of the Government paper tabled for discussion by the Legco <
http://www.legco.gov.hk/yr16-17/english/hc/papers/hccb2-1966-1-e.pdf >
6 Para. 20 of the Report of the Bills Committee
<http://www.legco.gov.hk/yr06-07/english/bc/bc55/reports/bc550425cb2-1626-e.pdf&gt; and the
government’s press release of the speech given by Ambrose Lee Siu Kwong, the then Secretary for
Security, on 25th April 2007 <http://www.info.gov.hk/gia/general/200704/25/P200704250279.htm&gt;
7 HKSAR v Ma Wai Kwan [1997] HKLRD 761; Ng Ka Ling and Others v Director of Immigration (No 2)
[1999] 1 HKLRD 577.
8 Para. 19 of the Legislative Council Brief dated 22 April 2008
<http://www.legco.gov.hk/yr07-08/english/panels/tp/tp_rdp/papers/tp_rdp-thbtcr11658199-e.pdf&gt;
9 Paras. 17-18 of Annex to Paper tabled for Legco
<http://www.legco.gov.hk/yr16-17/english/hc/papers/hccb2-1966-1-e.pdf&gt;
10 Paras. 19-23 of Annex to Paper tabled for Legco
<http://www.legco.gov.hk/yr16-17/english/hc/papers/hccb2-1966-1-e.pdf&gt;

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The Progressive Lawyers Groups FAQs on the Governments co-location proposals in the  Hong Kong section of the Express Rail Link  

Overall summary 

Q1: I don’t want to have to read through all this, give me one phrase that summarises the Government’s proposal. 

Rule by decree. 

Q2: What’s that? 

It is essentially when those in power acts in a way as to say to everyone “I am the law”. It is the exact opposite of “rule of law”. 

Q3: Why do you say that? 

I thought you did not want to read lots of explanations? If you want to know why, read these FAQs! 

Co-location arrangements – Generally 

Q4: What is a co-location arrangement? 

When a person travels from A to B and the two places are subject to separate immigration and customs clearance systems, the normal situation would be for the person to clear through one set of immigration and customs when she leaves A, and to clear through another set of immigration and customs when she arrives at B. 

An exception to this normal rule is a co-location arrangement. An example of this would be where a person travelling from A to B clears immigration and customs of both A and B at A, such that when she arrives at B, she does not need to clear immigration and customs at B. Such an arrangement would involve B being permitted by A to have officials in A’s territory to enforce the laws of B to varying degrees. 

Q5: Do such arrangements exist in the real world? 

Yes. Commonly cited examples include: 

– London/Paris Eurostar train route: in each of the stations along this route, there exists both British and French immigration and customs officers performing both British and French clearance procedures before passengers board the train. This arrangement was entered into by treaty between the United Kingdom and France. 

 – Canada/USA pre-clearance: Canada and the USA have an agreement in place where American officials can conduct pre-clearance immigration and customs checks in certain Canadian airports. Passengers passing such checks would generally not be required to go through further checks upon arriving in the USA. 

– Shenzhen Bay co-location: Passengers in motor vehicles going between Hong Kong and the Mainland through the Shenzhen Bay would clear both Hong Kong and the Mainland immigration and customs checkpoints. The Hong Kong checkpoints are located physically in Mainland China. By agreement, that area is leased to Hong Kong and Hong Kong law mostly applies in that part of Mainland China. 

Q6: Is it legal to put similar arrangements in place within Hong Kong territory? 

No. Let us explain why in answers to further questions. 

Co-location arrangements – Hong Kong Government proposal 

Q7: When was the first time that the issue of having co-location arrangement in Hong Kong territory discussed in Hong Kong? 

It was raised as early as 2008-2010 when funding to build the Hong Kong section of the Express Rail Link was considered by the Hong Kong Legislative Council. At the time, quite a  number of legislators doubted whether it would be legally possible to implement a co- location arrangement in Hong Kong territory and whether that would impact on the  operation of the rail link. The Government made clear at the time that co-location was an issue being considered, but even if a co-location arrangement cannot be implemented in Hong Kong, the rail link would still be of benefit due to its high speed. 

Q8: So what is the Government proposing now? 

The Government is proposing to impose a co-location arrangement in the West Kowloon Express Rail Link station. When a train travels from Hong Kong to the Mainland, a passenger is to clear both Hong Kong and Mainland immigration and customs at the station before boarding the train. When a train travels from the Mainland to Hong Kong, a passenger would not be deemed as “leaving” the Mainland before clearing Mainland immigration and customs at West Kowloon, such that both Mainland and Hong Kong immigration and customs clearance would take place at West Kowloon. 

Q9: How does the Government plan to do this? 

First, the Hong Kong Government will enter an agreement with the Mainland in relation to this. Then, the Standing Committee of the National People’s Congress will decide to “grant” power to the Hong Kong Government to implement this. Finally, both the Mainland and Hong Kong will legislate to implement the Standing Committee of the National People Congress’s decision. 

If put in place, the overall effect of all this would be for the Hong Kong Government to “rent” parts of the West Kowloon station out to the Mainland. In those areas, and on the operating trains (but not on the train tracks in Hong Kong territory), Mainland laws will apply, with a few narrow exceptions that will have little day to day practical impact on passengers. 

Fundamental legal problems with the Government’s proposal 

Q10: Can Mainland laws be applied in Hong Kong? 

The answer is pretty much “no”. Article 18 of the Basic Law is clear: except for certain national laws that are incorporated into Hong Kong law under Annex III of the Basic Law, no Mainland laws are to be applied in Hong Kong. Article 19 provides that Hong Kong courts have jurisdiction over Hong Kong. Article 22 says that all Mainland officials in Hong Kong have to adhere to Hong Kong law. Just on this, even the People’s Liberation Army has to follow Hong Kong law when not acting in their defence capacity, and when civilians illegally entered into a PLA site in 2013, that was dealt with by Hong Kong law and the Hong Kong Court. 

Q11: But I thought Article 18 of the Basic Law allows the Central Government to add to the list of applicable national laws under Annex III of the Basic Law? 

Yes, that’s right. But the Central Government can only do that in relation to laws related to foreign affairs, defence, and other matters not within Hong Kong’s autonomy. However, things like criminal law (being part of pre-existing Hong Kong law), taxation (eg duties and excises), customs and immigration are all matters specifically within Hong Kong’s autonomy under the Basic Law. See Articles 8, 106, 108, 116 and 154 of the Basic Law. 

Note that the Government’s proposal on co-location has not gone down the path of imposing Mainland laws at West Kowloon station through this mechanism. 

Q12: But isn’t the Government’s proposal legal under Article 20 of the Basic Law? That’s what they seem to be suggesting. 

Article 20 does give the Standing Committee of the National People’s Congress the power to grant additional powers to Hong Kong. But any rights and powers granted under the Basic Law or a mechanism under it must be itself subject to the Basic Law, otherwise the Basic Law would become meaningless. The Government itself expressly said that the exercise of any such additional powers must comply with the Basic Law when it proposed the Shenzhen Bay Arrangement in 2007. If the Hong Kong Government can be granted the power to designate any area within Hong Kong as not being part of Hong Kong such that the Basic Law is said not to apply, that would be a circumvention of Articles 18, 19 and 22 of the Basic Law, not to mention other protections of fundamental rights that are applicable in Hong Kong. 

Q13: But there is no definition of “Hong Kong” in the Basic Law, such that the Government can re-define any area as not being governed by Hong Kong? 

There are actually clear national decisions and orders defining what constitutes “Hong Kong”, and those decisions and orders do not provide for any carve-outs to create little Mainland hamlets in Hong Kong. More fundamentally, as a matter of international law to which China is bound despite any suggestions to the contrary, Article 1 of the Sino-British Joint Declaration clearly defines “Hong Kong” as including “Hong Kong Island, Kowloon and the New Territories” without any exception. 

So, to those who make the argument set out in this question, nice try, but it does not work. 

Q14: If everything is as you say, why is the Government so seemingly confident that its proposal will survive any legal challenge, such that they have no plans for a Standing Committee of the National People Congress interpretation of the Basic Law to explain away legal problems? 

The Government tries to be clever on this one. They are not seeking to put together a proposal that conforms to the Basic Law. All they have done is to hatch together a plan that hopefully (from their perspective) cannot be challenged by the Hong Kong courts regardless of whether it conforms to the Basic Law. They know that their proposal definitely will not and cannot be challenged within the Mainland legal system. They also know, from previous case law in Hong Kong, that Hong Kong Courts cannot challenge acts of state by organs of the Central Government. By making their plan to dis-apply Hong Kong law in certain areas entirely dependent on a purported grant of power by the Standing Committee of the National People’s Congress, the Government knows that, there is a real chance that the proposal is beyond challenge. 

And even if lower level Hong Kong courts do rule against the Government, once the case reaches the Court of Final Appeal, there is a very real likelihood that it would have to refer the scope of Article 20 of the Basic Law to the Standing Committee of the National People’s Congress for interpretation. And we all know what the result of that would be. Further, the Government can then say that they did not seek such an interpretation, the Court did. 

Q15: Wow, so this co-location proposal is a case of whatever those in power says goes? 

Yes, and it sets a precedent as a mechanism for effectively displacing provisions of the Basic Law via the back door. That is why we said at the start that this is rule by decree! 

Q16: If, as you say, the Government’s proposal doesn’t work, then what would legally work in relation to immigration and customs clearing for the Hong Kong section of the Express Rail Link then? 

Any plan that does not involve the application of Mainland laws in Hong Kong territory could work. Examples of this include having checkpoints at certain stations on the Mainland, conducting immigration and customs checks on board the train once it enters into the Mainland, or some combination of the two where stations close to Hong Kong would have checkpoints and those in the train for the longer haul are checked on board (the last of these examples is actually used in the Finland/Russia cross-border rail line). Remember, the Government had explicitly said back in 2008-2010 that the absence of co-location would not fundamentally affect the benefits of high-speed rail in Hong Kong. 

Other legal and related issues arising 

Q17: Does it matter whether the plan for co-location in Hong Kong is applied through “renting” or “selling” any part of Hong Kong to the Mainland? 

No. The real issue is whether any part of Hong Kong can in fact apply Mainland laws regardless of whether the relevant Mainland law hamlet within Hong Kong is rented or otherwise granted to it. The Basic Law has already given us a clear answer, and the answer is “no”. The answer is so clear that it took the Hong Kong and Mainland authorities 7 to 9 years to come up with its present proposal. And as noted earlier, the ultimate aim of this  proposal does not even appear to be for it to conform to the Basic Law, but merely to shield it from being challenged. That tells you something. 

Q18: The co-location arrangement is convenient and would encourage more commercial integration between Mainland and Hong Kong businesses. Doesn’t Articles 118 and 119 of the Basic Law, which require the Hong Kong Government to create a friendly commercial environment for Hong Kong, make the co-location arrangement legal? 

The convenience or otherwise of a co-location arrangement at the West Kowloon station has been much discussed by various parties in the public arena, and it is not our place to get into that discussion. But even assuming there is such convenience, who said that Articles 118 and 119 of the Basic Law are not subject to other provisions of the Basic Law such as Articles 18, 19 and 22 as mentioned earlier? We hope such a silly suggestion did not come from any legally trained person with experience! 

Q19: Why do people like those in your group have to be so difficult and obstructive? Don’t you want to be part of a high-speed rail network that connects to what will or already is the biggest market in the world? What’s wrong with wanting to be part of that and help create a better commercial environment for Hong Kong? 

We have nothing against Hong Kong becoming part of China’s high-speed rail network. But high-speed rail and immigration and customs clearance issues are separate things. We repeat again, the Government had previously said that high-speed rail would bring real benefits for Hong Kong regardless of the mode of immigration and customs clearance finally being put into place. 

And speaking of creating a good commercial environment, what could be more important for that than a legal and constitutional system that provides certainty? By effectively resorting to rule by decree in the way the Government seek to implement the co-location arrangement proposal, how is that good for legal and constitutional certainty? And how are the supposed conveniences of the proposed co-location arrangement so great that it overrides the fundamental importance of legal and constitutional certainty to Hong Kong as an international financial centre? 

Q20: But the Government already said that the proposed co-location arrangement for West Kowloon station is a one-off, and there are no plans for more such arrangements to be imposed in Hong Kong. Doesn’t that mean that concerns about this being some Mainland takeover is unfounded? 

But that’s not the point. The fundamental issue is not necessarily even about co-location arrangements. Once a precedent is set for the Government to be able to use a mechanism to circumvent the Basic Law by getting the Central Authorities to make a “decision” so that it cannot be challenged, the use of such a mechanism need not only be used for co-location arrangements. It can potentially be used for anything that would otherwise be considered contrary to the Basic Law. In short, this is a rule of law problem in so far as it brings in a means for rule by decree. 

Q21: You keep harping on about the Basic Law and Sino-British Joint Declaration. But these documents were entered into a long time ago. They did not account for new situations. Shouldn’t the law move forward with changing times? 

 Of course times change. But the Basic Law and the Sino-British Joint Declaration were specifically created for Hong Kong to maintain its own separate system until 2047 at least. And as a mini-constitution and an international treaty respectively, they are in their nature intended as documents that are permanent and be steady and constant in spite of changing times. 

Anyway, who said that to enable the circumventing of constitutional provisions effectively through rule by decree is a step forward? One would have thought that this is instead a step backwards! 

Q22: Would it make you feel better if the scope of Mainland laws to be applied in West Kowloon station and on the train while it is physically in Hong Kong is restricted to customs, immigration and quarantine? 

Alas, no. We repeat again the clear and unambiguous provisions under Articles 18, 19 and 22 of the Basic Law. 

Q23: But even you admit that co-location arrangements exist in other places around the world and in Shenzhen Bay. Why is it unproblematic in those places and problematic in Hong Kong? 

In none of those places mentioned do there exist provisions highly similar to Articles 18, 19 and 22 of the Basic Law. And in the cases of Eurostar and Canadian airports with US officials (although this does not go to the question of constitutionality under the Basic Law framework in the Hong Kong context), those agreements were more readily reached because the countries concerned had relatively similar human rights standards. Where divergent human rights standards exist between countries, such as between Finland and Russia, the cross-border rail link between them do not allow for co-location arrangements.  

Q24: But how about People Liberation Army sites in Hong Kong? And how about the special treatment of foreign consular sites and officials in Hong Kong? Aren’t they precedents for application of foreign laws in Hong Kong territory? 

First, defence and foreign affairs are specifically outside the scope of Hong Kong’s autonomy under the Basic Law. Second, in relation to the PLA, as mentioned earlier, any transgressions within their sites by civilians in Hong Kong is a matter of Hong Kong law and judged by Hong Kong courts, and PLA soldiers in Hong Kong also have to follow Hong Kong law on top of any national military laws applicable to soldiers. Third, in relation to foreign consular sites and officials, consistent with foreign affairs not being within Hong Kong’s autonomy, there is a specific piece of national law under Annex III of the Basic Law which deals with this. In any event, Hong Kong laws still apply and Hong Kong still have jurisdiction over all consular sites although Hong Kong officials cannot enter those sites without consent of the consulates. 

Thus, although the examples of PLA sites and foreign consular sites and officials may at first seem superficially comparable to proposed co-location arrangements, they are in fact quite different. 

Q25: Should I be scared about the differences between Mainland and Hong Kong laws when we are physically in Hong Kong but in a designated Mainland law area in West Kowloon station or on the train itself? 

Differences between Mainland and Hong Kong laws will, in the context of the Government’s proposed co-location arrangement, no doubt be discussed further by various parties in the public domain over the coming months. We would only make two points. First, generally speaking, it is correct to say that Basic Law rights and other legal rights afforded to individuals within Hong Kong territory will not be applicable in the areas where Mainland laws are to be applied under the Government’s co-location arrangement proposal. Second, regardless of whether Mainland laws are “scary” (that is, it does not matter even if Mainland laws are less “scary” than Hong Kong laws), it does not take away the fact that the Government’s co-location arrangement proposal is clearly contrary to the Basic Law, and that the proposed means for implementing it seeks to circumvent the Basic Law effectively by decree. 

Progressive Lawyers Group 

18 September 2017 

http://thestandnews.com/politics/%E9%AB%98%E9%90%B5%E4%B8%80%E5%9C%B0%E5%85%A9%E6%AA%A2-faq-%E7%82%BA%E4%BD%95%E6%94%BF%E5%BA%9C%E6%96%B9%E6%A1%88%E6%98%AF-%E6%B3%95%E4%BB%A4%E7%B5%B1%E6%B2%BB/

Please allow EdUHK space to handle ‘democracy wall’ incident

EJ Insight》

Please allow EdUHK space to handle ‘democracy wall’ incident

by Ip Kin-yuen / Today, 10:55

Tragedy struck on the morning of Sept. 7 when the oldest son of Undersecretary for Education Christine Choi Yuk-lin jumped to his death from the family home.

I was completely shocked and deeply saddened by the news, and I immediately offered my condolences to Choi and her family on that day, despite the fact that we might have political differences.

However, the day after the tragic incident took place, a banner ridiculing the death of Choi’s son surfaced on the “democracy wall” of the Education University of Hong Kong (EdUHK).

While I am very disgusted at such inhumane, outrageous and cold-blooded banner that extremely disrespected the deceased and his family, I also urge those who did it to stop hurting Choi and her family immediately, show some common decency, and withdraw those comments on the banner.

Unfortunately, even though the banner was quickly removed by the university, the incident has continued to snowball and has produced strong repercussions in the community.

In particular, some members of the public and organizations went to extreme lengths to express their anger, such as storming the EdUHK campus in protest and demanding that the university punish those who put up that banner in some specific ways.

I believe such extreme action is totally unnecessary.

As a matter of fact, I feel compelled to emphasize that since the EdUHK is a very mature tertiary education institution, it has a well-established set of guidelines and mechanism to deal with such incidents.

For example, if necessary, the university management can take the case to the student discipline committee for further investigation and scrutiny in accordance with the EdUHK Student Code of Conduct.

That said, I believe any attempt to pile pressure on the EdUHK over the incident in a high-profile fashion in the absence of substantial evidence regarding who actually did it would only further fuel the controversy.

Worse still, it could turn the university campus into a political battleground and eventually take an irreversible toll on the teaching staff and students of the EdUHK as well as society as a whole.

Even more worrisome is that according to media reports, some school principals have told the EdUHK that they would never hire its graduates because of the offensive comments posted on its campus, and some have even canceled the scheduled internship of current EdUHK students.

I think it would be absolutely ridiculous if the media reports were true.

First, at this point we aren’t even sure whether or not the two individuals who were caught on CCTV camera putting up the banner are actually EdUHK students.

Second, even if it is confirmed that the two individuals who put up that disgusting banner are indeed EdUHK students, it is my heartfelt assertion that their act definitely didn’t represent the true values and opinion of the vast majority of EdUHK students.

Therefore, any idea of imposing “collective punishment” on all EdUHK students for the wrongdoing committed by a few “bad apples” is not only totally unfair to the rest of the students, but is also against the principles of education.

As such, I believe the offensive and shameful act against Choi and her family that took place on the EdUHK campus was only an isolated case, and the rest of its students shouldn’t be implicated in it, nor should they be labeled by the education sector and the public either.

This article appeared in the Hong Kong Economic Journal on Sept. 15

Translation by Alan Lee

[Chinese version 中文版]

– Contact us at english@hkej.com

JC/CG

http://www.ejinsight.com/20170918-please-allow-eduhk-space-to-handle-democracy-wall-incident/

Sir David Ford’s service to Hong Kong recalled

Sir David Ford’s service to Hong Kong recalled

Anson Chan talks to RTHK’s Richard Pyne

Tributes have been pouring in for the last British Chief Secretary of Hong Kong, Sir David Ford, who’s died at the age of 82.

Chief Executive Carrie Lam was among those who expressed sorrow at his passing.

In a statement, the Chief Executive praised Ford for leading the civil service “to serve the community with the utmost dedication” and making “significant contributions” when he served as chief secretary.

Lam also offered her deepest condolences to his family on behalf of the SAR government.

Ford, who joined the colonial government in 1972 and held various senior posts over the years – including Director of Housing, Secretary for Housing and Secretary for the Civil Service – served as Chief Secretary from 1986 to 1993.

Anson Chan, who succeeded Ford in November 1993 to become the city’s first female and ethnic Chinese Chief Secretary, recalled Ford’s work in preparing for the handover.

She told RTHK’s Richard Pyne about Ford’s foresight in maintaining the city’s competitiveness and pressing ahead with plans to build a new airport.

A founding member of the Democratic Party, Martin Lee, who often crossed swords with Ford in the legislature, also paid tribute.

Lee said Ford as a person often surprised him with his direct approach and truthful answers.

http://news.rthk.hk/rthk/en/component/k2/1353496-20170911.htm

The Great 2017 Campus Poster Freak-out Panic

by biglychee / Today, 12:35

A week ago, mischievous students celebrated the start of the new academic year by putting up ‘Hong Kong Independence’ banners at Chinese University. After the media swiftly reported the shock-horror incident, university authorities panicked, and security guards removed the offensive items. Similar posters sprouted at other campuses – surprise, surprise. Government officials went into panty-wetting mode trying to insist such displays are illegal without specifying how; lawyerly shoe-shiners suggested the use of archaic sedition law. Mainland students attending local institutions contributed to the ongoing free-speech debate by tearing down posters.

Before anyone had time to say ‘Well, that escalated quickly’, much-loathed pro-Beijing kid-brainwashing-proponent Under-Secretary for Education Christine Choi’s son committed suicide. Widespread hateful mockery about her karma ensued, mostly on-line, but also in the form of a poster at Education University. Officials and loyalists, trying not to appear too opportunistic about the common thread – namely, the evil of banners/posters in general – responded with mass-formation mouth-frothing against abhorrent, immoral, debauched, sub-human, disgraceful radical youth. University authorities freaked out and more-or-less wept, campus CCTV footage of the perpetrators was leaked to media, and the university authorities freaked out even more. Thousands of businesses reportedly/supposedly swear never to hire another Education U grad.

Ideally, calm and reason would enter the picture at this stage. Instead, a poster similarly celebrating the death of Mainland dissident Liu Xiaobo appeared at Education U. It looked obviously to be the work of Mainland students – if you credit them with the awareness and subversive flair of their Hong Kong counterparts. Some might suspect scurrilous locals dabbling in black propaganda. Either way, radical students grasped the opportunity to mouth-froth against abhorrent, immoral, disgraceful, etc, and criticize the campus administration for not freaking out, sobbing, etc.

This is not just a succession of storms-in-teacups. The Great 2017 Campus Banner Horror highlights the extreme fear of our establishment lightweights (college administrators, local government officials, all-purpose shoe-shiners) when publicly faced with sheets of cloth or paper bearing the wrong words. They are caught between the vindictive and ruthless Communist Party on one side and an angry younger radical population who know exactly what buttons to push (examples here and here).

Voices of moderation – apparently, some still exist – hope that Hong Kong’s Chief Executive will show leadership and assure Beijing that it does not need to go ballistic over mere banners. This charming idea assumes that a paranoid Leninist regime will take advice from the hapless figurehead stooges it appointed while the wayward city undergoes rectification. Chinese official media meanwhile call for any mention of independence to be criminalized in Hong Kong, ‘as Nazi activities are in Germany’.

The use by both sides of Christine Choi’s family tragedy shows how far Hong Kong has descended in the last few years. The exploitation of someone’s loss of a child is vile – but brainwashing people’s kids is vile. Beijing has ordered United Front intimidation and government persecution of opponents, and an assault on local institutions and values. Its supporters and hangers-on must conform. That means rejecting the relatively decent mutual respect of the old days, and no longer expecting civilized political discourse, or even much sympathy.

http://biglychee.com/?p=18430

Why Justice Secretary must delegate the powers of prosecution -by Dennis Kwok

EJ Insight》

A recent news report published by Reuters has shed new light on the decision of the Department of Justice (DOJ) to appeal against the sentence of the three student leaders over their trespassing offenses.

According to the report, it was Secretary for Justice Rimsky Yuen who insisted on taking the case to the Court of Appeal despite the fact that the prosecutions division of the DOJ had advised him against doing so. So far, Secretary Yuen hasn’t publicly denied the reports about his role in the case.

The startling revelations about Yuen’s role in this high-profile lawsuit have once again called into question whether the Secretary for Justice, a politically appointed official, should continue to hold the powers of criminal prosecution.

The fact that Yuen is simultaneously playing both chief prosecutor and the person in charge of drafting laws concerning highly controversial issues that could spark social unrest or even violent protests such as political reform and the “co-location arrangements” apparently constitutes a serious role conflict.

Before 1997, the office of the Secretary for Justice had been a politically neutral position so as to ensure its impartiality. However, the introduction of the accountability system by former Chief Executive Tung Chee-hwa in 2002 changed all that.

In fact, back then the Hong Kong Bar Association had expressed strong reservations about the Justice Secretary, now a politically appointed official, hanging on to the powers of criminal prosecution and suggested that the powers of prosecution be delegated to the Director of Public Prosecutions.

Many common law jurisdictions such as the UK and Canada have launched initiatives to separate the powers of prosecution from their politically appointed cabinets in order to ensure the impartiality of their prosecutors.

For example, in the UK, the Attorney General is no longer a cabinet member, while in Canada, the Federal Attorney General has handed over such powers to the newly established and independent Public Prosecution Service of Canada.

At the recent consultation session with Chief Executive Carrie Lam on her upcoming Policy Address, I urged her to follow the advice of the Bar Association. Now the ball is in her court.

This article appeared in the Hong Kong Economic Journal on Sept. 5.

Translation by Alan Lee

[Chinese version 中文版]

– Contact us at english@hkej.com

RC/RA

http://www.ejinsight.com/20170906-why-justice-secretary-must-delegate-the-powers-of-prosecution/

Just some links… – biglychee

One of those terrifying things you assume only happen to other people, but I momentarily encounter the phenomenon apparently known as ‘pressure [at least by my delicate standards] of work’. It’ll pass. Meanwhile some reading…

An FT piece on how the Chinese party-state is rewriting history, indeed, making parts of it disappear. It draws on this paper, ‘Peering Down the Memory Hole’ – scroll to Fig 3, p7 for an example of how censors are removing evidence of 1950s-era debates about the Mainland legal system and such concepts as an independent judiciary. (What debates?)

And here’s Google Books’ copy of the Routledge Handbook of the Chinese Communist Party, edited by Willy Wo-Lap Lam, published just days ago. You can read some interesting parts here – notably Lam’s introduction – and of course order the whole thing. Also, while evil Western ideas are still allowed in Hong Kong universities, here’s a visiting academic’s reading list for a Lingnan U course on contemporary China.

A shop in Central – is this a sign of the times?

http://biglychee.com/?p=18400

Where the deplorables love immigrants – biglychee

The Trump administration wants to deport undocumented ‘Dreamers’, and Europeans are reportedly fleeing the UK ahead of Brexit. Liberals in these countries resist by embracing immigrants as hard-working and contributors to cultural vibrancy. Yet phenomena like Trump and Brexit are partly popular reactions against immigration – or against the ruling sophisticates who are too politically correct or driven by economics to admit that influxes of newcomers can damage life for ordinary people in host communities.

In Hong Kong, we do not have quite the same split between progressive schooled urbanites and resentful reactionary dimwits. Our ruling order has a mission to subdue enlightened pluralism and install harmony, deference and obedience. One of its methods is to displace or dilute the uppity indigenous population with mostly poorer and supposedly malleable newcomers from the Mainland.

So we have a situation where the liberal, critical-thinking, coastal smart-asses are anti-immigration, and the intolerant and authoritarian closed-minded forces are determined to cram more huddled masses from the Chinese hinterland into the city. No surprise that environmental activists Green Sense go ignored when they point out the obvious link between Hong Kong’s housing crisis and the continuous inflow of migrants. (Green Sense would be better off pointing out that the constant stream of Mainland arrivals also feeds nativist and pro-independence sentiment.)

However, Beijing is not only trying to tighten its grip on Hong Kong through long-term demographic engineering. It wants the continued support of co-opted octogenarian property tycoons whose cartels squeeze the domestic economy. That’s why you can forget all this disruptive innovative/creative tech industry stuff – we have vested interests to protect.

By allowing in more Mainlanders while artificially restricting the supply of affordable housing, the Hong Kong government forces more people into private-sector accommodation. At the lower end, this pushes up rents in nasty sub-divided apartments and similar accommodation. But the pressure on per-square-foot housing prices obviously trickles up into other market segments, hence the HK$8,500-a-month nano-flats at Shouson Hill, and ever-rising rents generally.

So Mainland immigrants make our population more loyal and patriotic – and help to push up Beijing-shoe-shining landlords’ profits. Talk about a win-win!

http://biglychee.com/?p=18408

No anthem teaching in international schools

The Undersecretary for Education, Christine Choi, said on Friday that international schools in Hong Kong won’t be required to teach students about China’s national anthem. She said such schools on the mainland are not required to do so either. As for local primary and secondary schools, Choi said their curriculums would not require changes for teaching students about the anthem as this is already included in their lessons. Beijing on Friday approved a new national anthem law, making it a criminal offence for its improper use. It will come into effect on National Day on October 1. Hong Kong will enact local legislation to implement it in the territory, but there’s no timetable yet for that.

http://news.rthk.hk/rthk/en/component/k2/1351881-20170901.htm

Public will be heard on anthem law: Patrick Nip

The Secretary for Constitutional and Mainland Affairs, Patrick Nip, has pledged to listen to the public’s views on a proposed national anthem law before it is enacted in Hong Kong. Nip said the law, passed on Friday by Beijing’s top legislative body, would need to go through legislative procedures before it is included in Hong Kong’s mini-constitution – the Basic Law. The law sets out how the national anthem should be used and will make mocking it in any way a criminal offence. The law also says schools should teach the anthem, and the press should publicise the behaviours expected when it is played. Beijing has recently indicated that it wants the law to also be applied in Hong Kong and Macau. The legislation will eventually be incorporated into the Basic Law. The new rules will go into effect on National Day, October 1.
http://news.rthk.hk/rthk/en/component/k2/1351966-20170902.htm

— gReader