The Express Rail Co-location Case: The Hong Kong Judiciary’s Retreat

In his Taiwan policy speech on January 2, 2019, People's Republic of China President Xi Jinping referred to the use of the “One Country, Two Systems” policy—previously deployed in Hong Kong and Macau—as a means to unify China with Taiwan. This proposal was poorly received across the Taiwanese political spectrum. The Mainland Affairs Council—a cabinet-level agency responsible for relations with the Mainland—declared that “One Country, Two Systems” had resulted in “the loss of freedom, rule of law and human rights of Hong Kong people,” an outcome “unacceptable to the Taiwanese people.” The opposition Kuomintang—known for advocating warmer cross-strait relations—was slightly more circumspect, noting that “One Country, Two Systems” was unlikely to receive majority support in Taiwan at this time.

Xi’s renewed proposal of “One Country, Two Systems” for Taiwan comes at a time of growing scepticism over the policy’s success in Hong Kong, both in Hong Kong itself and elsewhere. For example, the Hong Kong-based newspaper Apple Daily has reported that there is bipartisan consensus in the U.S. Congress that the United States-Hong Kong Policy Act should be reviewed. Under the Act, the United States’ treatment of the former British colony as distinct from Mainland China for customs and export control purposes is made contingent on Hong Kong’s continued autonomy under “One Country, Two Systems.”

Much of the recent discussion of the parlous state of “One Country, Two Systems” has concentrated on conduct by the Hong Kong Government, including the ban of the Hong Kong National Party in September 2018 and the expulsion of Financial Times journalist Victor Mallet in October 2018. In contrast, foreign observers have long taken judicial independence in Hong Kong for granted. For instance, the State Department’s Hong Kong Policy Act report in 2018 highlighted “Hong Kong’s strong traditions of rule of law, as displayed by its independent judiciary.” However, the independence and relevance of Hong Kong’s judiciary may now be in doubt. In March 2018, Reuters reported that Hong Kong’s judges — who traditionally do not speak publicly on political issues — privately expressed concerns that increasing intervention from Beijing would force them to restrict the scope of Hong Kong’s freedoms. As I argue later in this article, interventions from Beijing are likely to dictate outcomes to Hong Kong’s courts not only in cases directly involving political rights, but also cases that involve major policy initiatives such as public infrastructure projects.

These concerns have merit. In his discussion of courts in contemporary authoritarian regimes, Professor Martin Shapiro of UC Berkeley noted that such courts face a dilemma. If they challenge the authoritarian regime, they run the risk of being subjected to tighter controls, or even ignored altogether. If, however, they adopt a wholly supine attitude toward the executive, they would fatally undermine their own independence and perceived legitimacy. The solution, Shapiro wrote, was for such courts to be seen to be robust—but not too robust. This, also came with a cost: The courts would end up lending their remaining perceived legitimacy to the authoritarian regime. A December 2018 judgment by Hong Kong’s Court of First Instance in a case involving the city’s new express rail terminal is a vivid illustration of this dynamic in action. It should prompt critical reflection about the continued legitimacy of Hong Kong’s judicial system.

Background (1): Strategic Judicial Retreat

The express rail case emerged against the background of a pattern of strategic retreat by Hong Kong’s judges. Under the Basic Law—the territory’s quasi-constitutional instrument—the former British colony is supposed to enjoy a “high degree of autonomy,” except in foreign relations, defense and relations with Mainland China. However, Hong Kong courts only enjoy limited powers to interpret the Basic Law. Full powers of interpretation are vested in the National People’s Congress Standing Committee (NPCSC) in Beijing. NPCSC members are not judges, and the NPCSC “interpretations” delivered to date appear to owe more to political expedience than legal reasoning.

Beijing first exercised its interpretive weapon against Hong Kong’s courts in 1999, in the Ng Ka Ling right-of-abode litigation. The Court of Final Appeal (CFA) initially held that Hong Kong courts were empowered under the Basic Law to determine whether other laws were consistent with it—including acts of the NPCSC (paragraph 64). Following howls of outrage from pro-Beijing politicians at this perceived challenge to NPCSC authority, the CFA was eventually forced to issue a “clarification”—less an exercise in legal clarification than a humiliating kowtow to the Mainland authorities. The Hong Kong Government subsequently sought—and the NPCSC granted—an interpretation, putting the CFA firmly in its place.

Despite a brief moment in 2001 when the CFA accepted the argument (in Ng Siu Tung) that NPCSC interpretations should only have prospective effect, subsequent cases show that the CFA—and other Hong Kong courts—have generally adopted a highly permissive approach to NPCSC interpretations. In short, the NPCSC can interpret any provision of the Basic Law (Lau Kong Yung), at any time (including of its own motion), in any way it likes (Chong Fung Yuen). As will become clear below, Beijing has increasingly taken this as a blank check to disempower Hong Kong courts in politically sensitive cases.

Background (2): The Express Rail Line

Beijing’s attempts to bring Hong Kong to heel have not been confined to the use of Basic Law “interpretations.” Economic integration with Mainland China—in particular, major infrastructure projects connecting Hong Kong to the “Greater Bay Area,” such as Hong Kong’s new express rail line—have also featured prominently in Beijing’s Hong Kong policy.

In 2010, Hong Kong’s Legislative Council approved funding for the construction of an express rail line connecting the territory to neighbouring Guangdong Province. The new line drew vociferous opposition; one of the reasons for that opposition was the question of border checkpoints. Under the Sino-British Joint Declaration and the Basic Law, Hong Kong was empowered to retain its own laws, including immigration law and border controls. However, maintaining separate border checkpoints in Hong Kong and Mainland China would drastically reduce the time saved by the new express rail line, undermining its raison d’etre.

The answer would appear to be to “co-locate” the checkpoints – to have both Hong Kong and Mainland checkpoints physically located in the same place. This, however, created a problem. On its face, Article 18 of the Basic Law forbade Mainland law from applying in Hong Kong, save for expressly enumerated laws relating to defence, foreign affairs or other matters outside the scope of the territory’s autonomy. This would appear to mean that no co-location of Hong Kong and Mainland checkpoints could take place on Hong Kong soil. The Basic Law does not prohibit co-location from taking place on Mainland soil—an arrangement implemented at the Shenzhen Bay Control Point land crossing.

The response of the Hong Kong and Beijing governments to these constitutional concerns was to ignore them. In mid-2017, the Hong Kong government announced that co-location would indeed take place in the express rail terminal in Hong Kong. On Nov. 18 of that year, Hong Kong’s Chief Executive signed a cooperation agreement with the Governor of Guangdong Province to implement co-location. Under the cooperation agreement, a Mainland port area (“MPA”) would be designated within the Hong Kong express rail station; Mainland law and jurisdiction would apply in full within the MPA, with only a narrow set of reservations for Hong Kong law. On Dec. 27, 2017, the NPCSC declared that the cooperation agreement was consistent with the Basic Law. The next day, the Hong Kong Bar Association said of the Decision:

The HKBA is appalled by the NPCSC Co-location Decision, which merely states that the NPCSC approves the Co-operation Agreement and ‘confirms’ that the Co-operation Agreement is consistent with the Constitution of the People’s Republic of China and the Basic Law without stating how this is so. … This plainly amounts to an announcement by the NPCSC that the Co-operation Agreement complies with the Constitution and the Basic Law ‘just because the NPCSC says so’. Such an unprecedented move is the most retrograde step to date in the implementation of the Basic Law, and severely undermines public confidence in ‘one country, two systems’ and the rule of law in the HKSAR.

In the face of bitter opposition, the Legislative Council—dominated by pro-Beijing political parties—passed legislation to implement co-location on June 14, 2018. The express rail terminal commenced operations in Sept. 2018.

The Express Rail Judgment

Following four separate challenges to the constitutionality of co-location, the Court of First Instance held on December 13, 2018, that the arrangement was consistent with the Basic Law. The reasoning provides a stark illustration of the Hong Kong courts’ current approach of trying to appear robust without being too robust.

First, the Court of First Instance accepted the NPCSC’s decision at face value. Several passages in the judgment assert that the decision is binding on Hong Kong courts, and that the latter have no power to review the consistency of NPCSC decisions with Hong Kong law. Yet the court went further, describing the decision—which the Bar had lambasted as amounting to “because we say so”—as “carefully considered” (paragraph 75).

However, the court continued, it would have reached the same conclusion even if the NPCSC had not delivered its decision. At paragraph 72 it held:

… [A]lthough mere expediency is not in itself a sufficient reason to justify an arrangement which is otherwise inconsistent with the Basic Law, the fact that an arrangement is beneficial to the overall interests of Hong Kong (which, leaving aside the challenge to its legality or constitutionality, I consider to be the case with the Co-location Arrangement) is, in my view, a relevant consideration which one ought to take into account when determining whether such arrangement is prohibited by the Basic Law.

Curiously, the court did not consider alternatives that were, on their face, manifestly consistent with the Basic Law as relevant (paragraph 79).

Having upheld the constitutionality of the co-location arrangement, the Court then attempted to further “split the baby,” declaring that “[a] critical feature of the present case is that the Co-location Arrangement is justified by and limited to the particular circumstances and imperatives arising from the unprecedented port project” (paragraph 76).

“Splitting the Baby”

The judicial contortions evident in the express rail judgment are not isolated events. In two separate cases earlier in the year, the CFA found in favor of (1) pro-democracy leaders Joshua Wong, Alex Chow and Nathan Law; and (2) thirteen land activists protesting against a controversial redevelopment plan. In both cases, the CFA overturned sentences that had been imposed by the Court of Appeal. However, in both cases, the CFA did so on the basis that the Court of Appeal had retrospectively applied newer, much harsher sentencing guidelines. The CFA left the new guidelines intact—apparently as a warning against subsequent acts of protest.

Nor is the express rail case unique in attempting to rationalize an NPCSC-dictated result with a separate Hong Kong law-based argument. After several legislators-elect used their swearings-in in 2016 as a forum to protest against the Hong Kong and Beijing governments, the Hong Kong government brought proceedings to have two of them disqualified. The NPCSC issued its own “interpretation” of the Basic Law relating to oaths of office—a matter governed not by the Basic Law but by ordinary Hong Kong legislation—before the Hong Kong court delivered its own judgment. The court, having had terms dictated to it by the NPCSC, nonetheless claimed that it would have reached the same result even had it not been for NPCSC interference.

Lasting Consequences

The immediate consequence of the express rail judgment is that Mainland authorities may lawfully operate on Hong Kong soil. For their part, Mainland authorities have not been slow to exercise their powers. In Jan. 2019, Hong Kong media reported that a Hong Kong resident had been arrested by Mainland authorities within the MPA in Oct. 2018. Under an administrative arrangement, Mainland authorities are supposed to notify their Hong Kong counterparts of criminal proceedings (including arrests) involving Hong Kong residents in the Mainland. However, Hong Kong’s Chief Secretary Matthew Cheung asserted on Jan. 5, 2019, that the arrest was not related to a criminal investigation and therefore did not fall within the ambit of the notification arrangement. This is unlikely to reassure critics who remember the abductions of bookseller Lee Bo and billionaire Xiao Jianhua from Hong Kong, both of whom appear to have been taken by Mainland state security in the absence of any legal authority to do so.

The express rail judgment also has broader consequences for legal doctrine in Hong Kong. One of the refrains from defenders of the co-location arrangement—which appears in the express rail judgment itself—is that the Basic Law should be viewed as a “living instrument.” Insofar as the notion of “living instrument” means that a constitutional instrument should be interpreted in light of present-day conditions. this is unobjectionable. What the co-location saga should make clear, however, is that defenders of co-location mean something quite different. Under the rubric of a “living instrument,” apologists for the co-location decision demand the wholesale acceptance of NPCSC decisions and interpretations, regardless of their subject matter or the quality of their reasoning. They would require Hong Kong’s courts to read away unambiguous prohibitions on the basis of implied general powers, or even a thinly disguised appeal to economic or political expediency. In short, they would render the Basic Law largely meaningless as a constitutional document.

The judgment should also prompt concern regarding the future scope for Hong Kong courts to exercise a meaningful level of autonomy. In a marked departure from pre-clearance arrangements elsewhere in the world, Mainland law operates as the default within the MPA (rather than only laws relating to customs, immigration and quarantine). As the Hong Kong Government all but admitted in litigation, this was intended to strip individuals within the MPA of the protection of Hong Kong laws, or of Hong Kong’s courts. The willingness of the Court of First Instance to accept the ouster of its jurisdiction in the MPA should therefore be cause for alarm.

As I noted at the start of this piece, the predicament faced by Hong Kong’s courts is one shared by courts in other authoritarian regimes. However, there are two particularly noteworthy features about Hong Kong’s judicial retreat. First, it has not resulted in restraint from Beijing. Earlier in 2018, pro-Beijing politicians challenged the appointment of eminent Commonwealth judges to the CFA—an arrangement explicitly provided for in the Basic Law—questioning whether “foreign judges” would uphold the “national interest” in politically sensitive cases. This attack was part of a broader pattern of racist attacks on judges in the territory who are not of Chinese descent.

Second, Hong Kong’s judicial retreat is a matter of direct concern not only to the Hong Kong and Taiwanese people, but to other nations, including the U.S., whose foreign policy with Hong Kong is based on assuming a certain level of autonomy from the Mainland. The continued independence of Hong Kong’s judiciary is still seen as a key factor distinguishing Hong Kong from Mainland China. As the express rail case demonstrates, it should not be taken for granted that the territory’s courts will remain either independent or relevant.