Richard Cullen Comments on High Speed Rail Co-Location Arrangements in Hong Kong (China Daily)

"Opponents of co-location ignore 'living law' model"
Richard Cullen
China Daily
2 Feb 2018

The intense debate over co-location of Hong Kong and Chinese mainland immigration and customs controls at the Guangzhou-Shenzhen-Hong Kong Express Rail Link's West Kowloon terminus shows no sign of slackening off. Supporters rely significantly on the National People's Congress Standing Committee's statement on co-location's legal validity, made in December last year. This perspective stresses the sovereign authority of the NPCSC within the "one country, two systems" political-legal hierarchy governing the status of the Hong Kong Special Administrative Region within the People's Republic of China. ...

    Almost 20 years ago, Hong Kong's Court of Final Appeal laid down a set of primary principles designed to shape the interpretation of the Basic Law of the HKSAR. In a pivotal right of abode case, Chief Justice Andrew Li Kwok-nang stipulated that, with a constitutional document such as the Basic Law, a purposive approach is needed as gaps and ambiguities are bound to arise in such an instrument given its necessary generality. He also cautioned against using a technical, narrow or rigid approach when considering the language of the Basic Law. The chief justice did not rely directly on the living constitution theory in this seminal exposition but these CFA formulations are in harmony with that theory. ...

     Those arguments which say co-location has yet to be shown to be permitted by the Basic Law rely, above all, on a lack of explained particular authority in the Basic Law for co-location (a previously unforeseen need) and the Basic Law protections against the general application of mainland law in the HKSAR. These arguments are serious but they are, when viewed within a living constitution context (coupled with the cautionary words from the Court of Final Appeal), narrow and quite technical. Had similar arguments prevailed (and they were made) in Australia a century ago this would have conspicuously restrained the country's development and adaptation to a constantly changing world... Click here to read the full article.