Hong Kong's Controversial Joint Checkpoint Plan Prompts Spate of Judicial Reviews

Many argue that the plan to allow mainland Chinese law to be enforced at a high-speed railway station to speed up immigration checks is unconstitutional.

Ousted Hong Kong lawmaker and veteran rights activist Leung Kwok-hung lodges an application for a judicial review of legislation allowing mainland Chinese police to have jurisdiction at a high-speed rail checkpoint within the city, June 22, 2018.

Hong Kong citizens filed three judicial reviews this week of legislation allowing mainland Chinese police to have jurisdiction at a high-speed rail checkpoint within their city limits.

On Wednesday, judicial review veteran Kwok Cheuk-kin filed his application, which calls on the city's High Court to to block the decision by chief executive Carrie Lam, legislation for which passed in the Legislative Council (LegCo) last week amid accusations that the vote broke procedural rules.

Kwok told local media that he is seeking the review because the decision could set a precedent that eventually erodes Hong Kong's status as a separate legal jurisdiction.

The controversial joint immigration checkpoint legislation passed last week has inspired a second application for a judicial review challenging the plan to allow mainland officers to enforce mainland laws in part of the West Kowloon high-speed rail terminus.

A second application followed on Thursday, this time from the leader of the localist group Youngspiration, Sixtus Leung, a formerly elected LegCo member stripped of his seat by China's parliament after he changed the wording of his oath of allegance.

Leung said the court should overturn LegCo's approval of the checkpoint bill, on the grounds that it is unconstitutional.

Article 18 of Hong Kong's mini-constitution, the Basic Law, states that "national laws shall not be applied in the Hong Kong Special Administrative Region," and that only laws relating to China's defense or foreign policy may apply. Hong Kong has maintained a separate immigration border since the 1997 handover to Chinese rule.

A second ousted lawmaker and veteran rights activist Leung Kwok-hung also lodged an application on Thursday, citing Article 18.

Constitutional basis questioned

And on Friday, a member of the pro-democracy party Neo-Democrats, Jeff Ku, lodged a legal challenge claiming that the SAR has no power to cede parts of Hong Kong's territory to Beijing.

"Both the Law Society and the Bar Association have said that there is no constitutional basis for the government to cede parts of its jurisdiction to the mainland," Leung Kwok-hung told RFA. "We don't think the government is allowed to do this."

He said the standing committee of China's parliament, the National People's Congress (NPC), had made no legal interpretation to allow the checkpoint plan to proceed, as it has the the right to do.

"In the absence of an interpretation, they would need to amend the Basic Law, which would require a meeting," Leung said.

LegCo passed the proposals into law on June 13, creating a human rights black hole within the city's supposedly separate legal jurisdiction, according to the New York-based Human Rights Watch (HRW).

Under the plan, Hong Kong law, including the International Covenant on Civil and Political Rights (ICCPR) and other existing provisions for the protection of human rights, will no longer apply to part of Hong Kong’s West Kowloon railway terminus, or any trains running between Hong Kong and mainland China, HRW said.

The group warned that Chinese law includes vaguely worded and sweeping national security and public order laws commonly used by the Chinese government to charge its peaceful critics.

The city's Bar Association (HKBA) has hit out at the arrangement, saying it constitutes an irreparable breach of the Basic Law.

The city's lawyers say the Hong Kong immigration department, not the mainland Chinese border police, should be in charge of entry and exit control checks for passengers entering and leaving the city, citing Article 154(2) of the Basic Law.

Reported by Lam Kwok-lap for RFA's Cantonese Service. Translated and edited by Luisetta Mudie.