Thursday, January 11, 2018

Albert Chen's Legal Analysis of Hong Kong's Joint Checkpoint Co-Location Arrangements (Ming Pao)

Professor Albert Chen provides a legal analysis of the NPCSC’s Decision on the Co-location Arrangement in a two-part article in Chinese published in Ming Pao on 8 January and 9 January 2018. He argues that the uproar in the legal profession after the NPCSC Decision is a result of different understandings of the meaning of the Decision and different ways of interpreting the Basic Law. The Decision is not inconsistent with the Basic Law. Taking into account the convenience of the passengers and the nature of “colocation”, the Co-location Arrangement can be understood to be a “proportionate” arrangement under Article 18 of the Basic Law if the Article is interpreted in accordance with a “purposive approach”.
     He contends in the first article:
“[T]he Decision of the NPCSC considers that Article 18 (of Basic Law) does not prohibit the Hong Kong SAR from exercising its high degree of autonomy in matters of immigration (entry and exit) control to set up the co-location arrangement and to deem the Mainland Port Area in the West Kowloon station to be part of the Mainland. Accordingly, the HKSAR can prescribe that for the purposes of the application of law and the jurisdiction of the courts (except for the six types of matters stipulated in the “cooperative arrangements on colocation” to be governed by the law of Hong Kong), the Mainland Port Area is deemed to be part of the Mainland. Therefore, the application of Mainland law in the Mainland Port Area of the West Kowloon station does not contravene Article 18 of the Basic Law. It must be pointed out that the Decision of the NPCSC does not assert or imply that the HKSAR government or the HKSAR legislature shall have power to mark out a piece of land anywhere in the Hong Kong for any purpose and to stipulate that Mainland law will be implemented on that piece of land. Therefore the Bar Association is mistaken in contending in a Statement on December 28 last year that the Decision of the NPCSC implies that the HKSAR government is capable of authorizing the application of Mainland laws to any part of the HKSAR designated by itself (e.g. the High Court Building) as long as it does not cover the whole of the HKSAR. This is definitely not the legal meaning of the NPCSC Decision.” 
     In the second article, Professor Chen states that: 
“Some legal professionals argue that the co-location arrangement is in clear violation of Article 18 of the Basic Law, and this is because they interpret Article 18 in accordance with the literal rule of interpretation. Let us put aside for the moment the interpretation approach (of “original intent”) adopted by the NPCSC, which may differ from the common law approach adopted in Hong Kong. Even in the common law tradition, the literal interpretation of law is not the only way of interpretation. Another method of judicial interpretation that has long been established by common law courts is to interpret and apply relevant legal provisions so as to give effect to the legislative purpose behind the provisions. This is the so-called purposive approach. In the precedents of common law, despite the fact that courts have followed the literal approach of interpretation in large numbers of cases, there are quite a few cases in which the Court applies the purposive approach in order to give a more flexible interpretation or application of the relevant laws; it is not rigidly constrained by the literal meaning of the legal text.”
For the full article in Chinese only, see Legal Analysis of the NPCSC Decision on the Co-location Arrangement II.  This post was prepared by Ms Isabella Liu, Research Officer, Faculty of Law.

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