Co-location 2 of 2: constraints and constructs

The co-location bill has received its first reading. In this first post I looked at the text of the bill [pdf]. I suggested that certain of its provisions appear superfluous, and that the reserved matters at articles 4 and 7 of the first schedule risk causing a norm conflict between the Mainland and local systems. In this post I turn to the question that has occupied much of the public debate thus far: is co-location constitutionally possible?

Much attention has been given to the first two limbs of BL 18, which are in chapter II headed “Relationship between the Central Authorities and the [HKSAR]”. I take the limbs one at a time ~ though as we will see the vulnerabilities are in fact the same.

BL 18.1: The laws in force in the Hong Kong Special Administrative Region shall be this Law, the laws previously in force in Hong Kong as provided for in Article 8 of this Law, and the laws enacted by the legislature of the Region.

BL 18.1 is positively framed, it tells us what the laws shall be. It has a corollary at BL 84 which obliges our courts to adjudicate cases “in accordance with the laws applicable in the Region as prescribed in Article 18”.

As we know, clause 6 of the bill proposes the fiction that the Mainland Port Area is “an area lying outside Hong Kong”and then goes on to confirm, perhaps unnecessarily, that it is outside Hong Kong for the purposes of the “application” of laws and the “delineation” of jurisdiction.

The question then is whether BL 18.1 permits some areas of Hong Kong not to have its “laws in force”.

Now the text does not say that the laws shall be in force “across the whole of the territory” of Hong Kong, and thus leaves a modicum of ambiguity. This is the administration’s purposive argument: BL 18 concerns the generally applicable law, so is not infringed by small and specific exceptions.

However it seems to me that BL 18.1 cannot have authorised unlimited fictional annexes, as that would permit an eventual circumstances of total annexation where there is no law in force in Hong Kong at all, rendering the article nugatory. This is how the “what next” argument moves from the political sphere to the legal argument: the fact that further incursions may follow this one, to a point where BL 18 defeats itself, makes it unlikely that a single incursion is permissible on the true reading of the text.

On the other hand, BL 18 may have authorised some annexation, to a point or degree of some form ~ but it certainly did not do so expressly. And such a meaning would be a lot to imply to a constitutional text that refers to “Hong Kong” and “the Region” some 92 times, without once contemplating a moving border or intermittent jurisdiction.

There is no escaping, I don’t think, the fact that on both ordinary and purposive readings, a statute that purports to disapply the “application” of law is is ultra vires BL 18.1 and of void effect. In particular the words “in the [HKSAR]” leave little if any room for a reading such as “in some” or “in most” of the HKSAR. Far less do they confer power on the legislature to determine what those areas might be. The point that the legislature may not have competence to do what it is trying to, is made by Dr PY Lo.

It strikes me that clause 6 additionally intends to operate as an ouster clause of epic proportions, and may also fall prey to BL 84. No caveats are built into BL 84. Indeed national laws, enjoying effect through Annex III, are subject to the court’s jurisdiction and the constitution, in the ordinary way: Ng Kung Siu (1999) 2 HKCFAR 442, [1999] HKCFA 10. How then classes of person, territory and subject matter can be withdrawn from the court’s reach in accordance with BL 84 is reasonably unclear, and certainly not textually contemplated.

BL 18.2: National laws shall not be applied in the Hong Kong Special Administrative Region except for those listed in Annex III to this Law. The laws listed therein shall be applied locally by way of promulgation or legislation by the Region.

The vulnerability under BL 18.2 appears at first slightly different, since the focus is on what may not be applied ~ vis national laws ~ rather than what the law of the land shall be. The Mainland Port Area remains (and will remain) within Hong Kong, though section 6(1) reads that it will be “regarded” as within the Mainland.

Of course, cause 6(1) will not apply national law. It is the Mainland that, in its separate system, applies national law, whether in Hong Kong or otherwise (and I happily recall Sir Ivor Jennings’ observation that parliament can ban smoking in Paris: though its effect on Pierre is another matter).

Indeed an ordinance cannot be the source of national law save where it gives permissible effect to an Annex III law. Thus the analysis under BL 18.2 collapses into that of BL 18.1. The reason that BL 18.2 will be breached if the bill becomes law is not that the bill will “apply” national law, but that it will oust the application of Hong Kong law and Hong Kong courts’ jurisdiction. Ordinarily of course local law would apply to Mainland authorities (say) taking decisions to detain individuals for questioning. If the “regarding” of the Mainland Port Area as in the mainland is unsuccessful constitutionally, such conduct would be false imprisonment simpliciter, and subject in the ordinary way to a writ action and such interlocutory relief as the circumstances may call for. One can see immediately the broad range of means by which the bill, as drafted, is liable to ask very difficult questions of local judges.

Thus we see also that there is no room for an argument that the constitution is left intact since, in its eyes, mainland “law” is not being applied. That argument would posit that national law is not “law” within the eyes and ears of Hong Kong’s legal system, or that: if the legal system of China is beyond the scope of a Hong Kong court then there is simply no provenance to discern that national “laws” are being applied. They could not be law. Aside from making a nonsense of the reference to national law in BL 18.2, this argument falls prey to BL 18.1. The (mere) absence of Hong Kong law and jurisdiction over a particular place within Hong Kong is enough to render the operative parts of the bill ultra vires the constitution.

Internal / external

So far my focus been internal. I use the premise that local courts look only to local law, and have no power to look beyond the constitution, by which I mean beyond the laws of BL 18. Professor Bing Ling thinks otherwise. He argues, in the different context of the Ng Ka Ling and right of abode decisions, that the meaning of the BL is informed ~ and can where the NPCSC is clear enough be conclusively informed ~ by acts of the NPCSC. He argues that this is because the BL is but an act of the NPC, and must be read in the context of the Chinese constitution and its laws: Chapter 5 in J Chan et al, Hong Kong’s Constitutional Debate: Conflict Over Interpretation (2000, HKU) (pp 154–155). By contrast of course I assess what the “law” of Hong Kong is by reference to BL18, being what courts (and thus authorities) may refer to and rely on.

Professor Ling would say that my view falls prey to the flaws in the “integrity of the sources argument” (p 159). He says the sources argument is incorrect for two reasons. First, he relies on the mechanism at BL 18.3 and Annex III whereby national laws are indeed applied in Hong Kong. Second, he advances the NPCSC and ultimately the Chinese Constitution as higher and alternative “rules of recognition”. He advances three premises in this regard: (1) as a matter of Mainland constitutional law NPCSC acts are subject only to the Chinese constitution, (2) Hong Kong is an inalienable part of China and “comes directly under the CPG” by BL 1 and BL 12, (3) there are thus two “rules of recognition” superior to BL 18 that are actionable in local courts: first conformity with acts of the NPC and second, that body’s conformity with the national constitution: pages 159-160. (Of note in passing: Chan CJHC took the view in the David Ma case that the Basic Law has  “at least three dimensions: international, domestic and constitutional” and that accordingly a purposive approach to interpretation may not apply to its entirety, though he went no further than that (§14). History has since disclaimed this view ~ at least in Hong Kong case law.)

Now if Professor Ling is right there is room for an argument that NPC acts, including the ratification of the cooperation agreement, inform questions concerning the scope and incidence of rights and obligations in Hong Kong. No doubt, then, it might be suggested that the Mainland’s conception or determination of what (e.g.) a “reserved matter” is, is as a truth of Hong Kong law, to properly be discerned by the Mainland. Integration, as it were. But is Professor Ling correct?

The first, Annex III argument is problematic in three respects. First, it was held in Ng Kung Siu quite clearly that Annex III laws are subject in the ordinary way to the constitution, and there has been no suggestion thus far that its reasoning is incorrect. Such a suggestion would be hard to maintain textually, since the Annex III laws take effect by legislation or promulgation and since neither is given, generally or in the instance of Annex III implementation, a place in the hierarchy equal to or above the remainder of the Basic Law.

Secondly, Annex III is drafted exclusively: national laws “shall not” be applied “except” by Annex III. It does not contemplate the spring board for a general jurisdiction that Professor Ling suggests.

Third, so far as direct effect does operate through Annex III, it is subject to substantive and procedural limits, in BL 18.3.  So far as substance is concerned, it is only “defence and foreign affairs” or other “matters outside the autonomy of the Region as specified in this law” that enjoy the exemption. Co-location seems to be neither, and the strict demarcation of direct effect in this way further militates against a proposition that generally NPCSC acts or national laws can be effective in Hong Kong. (Indeed the bill is not proposed under Annex III).

The second, rule of recognition argument has stronger footing but similarly falls subject to the clear words of BL 18 and 82. It may be true that the Chinese constitution sits atop the NPCSC which sits atop Hong Kong, but it is hard to discern a conduit for direct effect in the words of BL 12: “come directly under the Central People’s Government”. That is at least, by comparison with the textual support we find for a cocooned or hermetically sealed legal system in Hong Kong in the manner I contend for. Indeed Processor Ling omits to consider at least four further places in which you would expect to find a reference to national law for a conduit of direct effect to be intended on a plain or a purposive reading:

  • BL 8: “The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.
  • BL 11: “In accordance with Article 31 of the Constitution of the People’s Republic of China, the systems and policies practised in the Hong Kong Special Administrative Region, including the social and economic systems, the system for safeguarding the fundamental rights and freedoms of its residents, the executive, legislative and judicial systems, and the relevant policies, shall be based on the provisions of this Law.
  • BL 16: “The Hong Kong Special Administrative Region shall be vested with executive power. It shall, on its own, conduct the administrative affairs of the Region in accordance with the relevant provisions of this Law.
  • BL 19.2: “The courts of the Hong Kong Special Administrative Region shall have jurisdiction over all cases in the Region, except that the restrictions on their jurisdiction imposed by the legal system and principles previously in force in Hong Kong shall be maintained.

This, cocooned or hermetically sealed conception is I think the true meaning of the well known passages in Ng Ka Ling (1999) 2 HKCFAR 4, [1999] HKCFA 72, Li CJ, §§61–62, where it was said that the Hong Kong court’s could “hold … invalid” acts of the NPCSC that are inconsistent with with the Basic Law. I have previously suggested that in reality this is an absence of power rather than its presence: the Hong Kong courts simply have no jurisdiction over NPCSC acts, but a mandatory one over the incidence and scope of the Basic Law. Rather than hold invalid a Mainland act, then, the judge simply could not give legal effect to it.

Elephant

All that said, the elephant in the room is the (potential) power of the NPCSC to drastically redraft provisions of the Basic Law via a novel “interpretation”, such that a conduit of direct effect inheres. So far as the administrates invites such a course of action, it plays a worryingly stupid game, and not one conducive to political stability.

A third way?

If direct effect is only presently possible within the confines of Annex III, and if the proposed bill is likely to at best cause norm conflict and regrettable political clashes, and at worst provoke a constitutional crisis, is there a better way to effect co-location?

In England, officials of the French republic are allowed to exercise certain of their functions relating to immigration control for the purposes of admission to the Eurostar. They are given an express (and limited) power to detain for that purpose, and an immunity from prosecution in respect of acts done within their function. “Function” remains a matter of English law, and apart from a bar on claims for compensation in respect of the functions, the officials remain subject to English law and jurisdiction. French law does not vest. The provisions are contained in the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order 2003, and may be capable of replication here.

As Dennis Kwok notes, England is not subject to BL 18, a landscape that would have still to be navigated. Conceivably an argument would run that Hong Kong law would remain effective but that procedurally, claims would be barred. That would still require the fiction that BL 18 and BL 82 permit ~ in limited scenarios ~ a procedural bar as distinct from a jurisdictional annex, but it would be a much, much smaller fiction to maintain. It’s penumbra would also remain within the province of local courts, and we might put off the stand off that nobody really wants.

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