Binding power of decisions by China's top legislative body on Hong Kong still open to debate despite court ruling on joint checkpoint, legal experts say

A Hong Kong court may have concluded that allowing mainland Chinese laws to be enforced at the West Kowloon high-speed rail terminus is legally sound, but experts said the binding power of decisions by China's top legislative body on the city remains a subject of debate.

The National People's Congress Standing Committee (NPCSC) endorsed the plan to operate a joint checkpoint, where travellers get their documents checked by Hong Kong and mainland officials in one place, rather than in the city as well as on the mainland.

In ruling the arrangement constitutional on Thursday, High Court judge Mr Justice Anderson Chow Ka-ming did not address the bigger question of whether the NPCSC decision was binding on the Hong Kong government and the courts.

The constitutional debate was sparked after the NPCSC approved the so-called co-location arrangement in December 2017, giving mainland officials unprecedented jurisdiction over a part of the terminus in the heart of Hong Kong.

While Chow found the NPCSC decision to be of "high persuasive value", he said that as the first judge hearing the case, it was not for him to rule on its binding power.

"It would not be appropriate for me, sitting at first instance, to determine questions concerning the status and legal effect of the NPCSC decision under Hong Kong laws which may have far-reaching implications but are not strictly necessary for my decision," he said.

Senior Chinese officials, including former NPCSC Basic Law Committee chairman Li Fei, have insisted repeatedly that the decision carried "the highest legal authority", but this was challenged by Hong Kong legal experts and activists who took the government to court.

Under Article 158 and 159 of Hong Kong's Basic Law, the NPCSC can interpret clauses in the city's mini-constitution and make amendments. It has issued five interpretations since Hong Kong's handover to China in July 1997.

Veteran lawyer Robert Pang Yiu-hung SC said the court had approached the matter of the NPCSC's legal standing in a somewhat pragmatic way, without confronting its authority.

He said: "The court does not have to dwell on a controversial matter when it can reach the same conclusion, so why bother?"

He noted that the government did not argue that the NPCSC decision was applicable directly to Hong Kong and, in summarising the government's position, the judge said the decision should be given "great weight and respect" and bound as a relevant "foreign law".

Legal scholars Lin Feng and Johannes Chan Man-mun, from City University and the University of Hong Kong's law schools respectively, said an NPCSC interpretation of Basic Law clauses should not be confused with a free-standing decision which is not directly binding on Hong Kong.

"Under the city's common law system, the NPCSC decision was something outside the scope of the Basic Law," said Lin, an expert in the local and Chinese legal systems.

"It may be the highest legal authority in mainland China, but its decisions may not be applicable in Hong Kong."

Lin said Chow's ruling gave the courts flexibility to handle NPCSC matters on a case-by-case basis.

"By viewing the NPCSC decisions as extrinsic materials, the court could choose to refer to it, or choose not to in certain scenarios," he said, referring to any documents issued by mainland authorities that a Hong Kong court may take note of but not necessarily follow.

But Chan said for the court to attach "great weight and respect" to an NPCSC decision was practically no different from making it binding in Hong Kong.

He said: "It essentially says if a case reaches the NPCSC, the decisions would be binding on Hong Kong anyway, so why not give the NPCSC decision some weight and respect earlier?"

He felt Chow had wrongly applied the concept of "extrinsic materials" which was limited only to Basic Law drafting materials after 1997.

"I don't think the Court of Final Appeal would give the NPCSC a free hand on whether to view a decision in the same way as making an interpretation," Lin said. "If it did, that would create a huge problem in future."

Chan expected the matter to go before the city's apex court, and he preferred for it to deliver a proper interpretation of the co-location arrangement instead of a decision not stated in the Basic Law.

"Interpreting the Basic Law is a loophole, but at least there is procedure stated in the Basic Law for one to follow," Chan said. "Now the judgment is opening an even larger loophole that erodes Hong Kong's 'one country, two systems' principle.

This article originally appeared on the South China Morning Post (SCMP).

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