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【一地兩檢】「戴啟思名單」詳細回應:人大常委解釋難令人信服 若基本法被扭曲法治將受損

2017/12/27 — 21:44

全國人大常委會今日全票通過「一地兩檢」的決定草案,完成「三步走」程序的第二步。有意競逐大律師公會主席的「人權大狀」戴啟思的六人候選名單,隨即就一地檢表態,批評人大常委會的法理解釋難以令人信服。他們引用《基本法》,強調全國性法律不適用於香港,若《基本法》的明確含義被扭曲,本港法治將受到威脅和破壞。

戴啟思的名單在Facebook專頁發表逾千字的英文長文,就一地兩檢表態。文章批評,港府用了七年的時間研究及與內地討論,至今卻仍未能就有關安排提供令人滿意的法理解釋,他們對此感到失望:「全國人大常委會今天在法理上的解釋,是不能令人信服、不能令人滿意的。」

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他們引述《基本法》第18條,香港是奉行回歸前原有法律,以及香港立法機關制定的法律,且全國性法律除列於附件三外,不得在港實施。第18條的效力非常明確,就是附件三外全國法律不適用於香港,「並沒有理由說若果內地法律只適用於香港某地區,就能獲第十八條允許」。

文章指他們並不是要反對高鐵,但強調做法應該按照《基本法》來進行,因為這是法治的基本要求。他們稱《基本法》的含義必須客觀明確,第18、19、22條的法律效果,明確指出除附件三外,全國性法律不適用於香港的任何部分,任何內地機構或在港人員均須遵守香港法例,「如果《基本法》的明確含義可被扭曲,而《基本法》條文可以按權宜、方便來解釋,法治就會受到威脅和破壞。」

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律政司司長袁國強今日在記者會上表明,一地兩檢安排不會違反《基本法》第18條。他指第18條規定有關全國性法律實施的範圍是整個香港特區,實施主體為香港特區本身,適用對象是香港特區所有人。但在西九站實施全國性法律,實施的範圍只限內地口岸區,實施主體為內地有關機構,適用對象主要為內地口岸區高鐵乘客。他認為這情況與《基本法》第18條所規定的完全不同,因此不存在抵觸的問題。

今次的立場書,是由戴啟思的六人名單聯合發表。除戴啟思之外,其他五人為香港大學法律學院教授陳文敏、刑事案專家及資深大律師駱應淦、大律師沈士文、身兼法政匯思成員的大律師石書銘、大律師陳偉彥。立場書全文如下:

Philip Dykes' List - Position on Co-location Arrangement

1. The Hong Kong Government took over 7 years since 2010 to study and discuss with Mainland authorities on the customs, immigration and quarantine arrangements for the High Speed Rail. We are disappointed that after 7 years of study, there is still no satisfactory explanation of the legal basis for the current arrangement. The explanation of the NPCSC today on the legal basis is unconvincing and unsatisfactory.

2. On 25 July 2017, the Government proposed the “co-location arrangement” whereby the laws and jurisdiction of the Mainland would apply to two areas of Hong Kong, an area in the West Kowloon Station and the train compartments of the High Speed Rail. The majority of Hong Kong laws will be replaced by Mainland laws, including Mainland criminal law, in those areas.

3. By way of illustration, it is a criminal offence of undermining public order (尋釁滋事罪) in Mainland China which can be sentenced to not more than five years of fixed-term imprisonment, criminal detention or control (Section 293 of the Criminal Law of the People’s Republic of China). There is no comparable criminal sanction in Hong Kong and the introduction of Mainland Criminal Law worries the public about whether the oppositions in Hong Kong will face a similar threat of criminal punishment to demonstrate in the West Kowloon Station. Similarly, if someone commits a criminal offence at the Mainland Port in the West Kowloon Station, they are subject to be tried and punished by Mainland law, and not Hong Kong law. Hong Kong police has no enforcement power, and Hong Kong courts have no jurisdiction over that part of West Kowloon.

4. If the co-location arrangement is to be implemented in Hong Kong, it must comply with the Basic Law, which is not only the mini-constitution of Hong Kong but also a piece of national law.

5. According to Article 18 of the Basic Law, the laws of Hong Kong shall be the Basic Law, the laws in force in HK before the handover in 1997 and the laws enacted by Legco laws shall apply to the whole HKSAR. It expressly mandates that no national laws shall be applied in HKSAR except by inclusion in Annex III which “shall be confined to those relating to defence and foreign affairs and other matters outside the limits of the autonomy of the HKSAR. The effect of Article 18 is very clear: the laws that apply to HK is Hong Kong law. National laws shall not apply to Hong Kong, save those included in Annex III. There is no justification to say that Article 18 allows Mainland laws to apply to Hong Kong if they are only applied to a certain part of HKSAR.

6. Also according to the provisions of the Basic Law, the HKSAR is vested with independent judicial power, including that of final adjudication, and the courts of the HKSAR have jurisdiction over all cases in the HKSAR (Article 19(1) and (2) of the Basic Law). Taking away the jurisdiction of HK courts from a part of Hong Kong will certainly be a breach of Article 19.

7. Article 22 expressly provides that no department of the Central People’s Government or province/autonomous region/municipality may interfere with the affairs of HK. Even if Mainland departments set up offices in HK with the consent of HKSAR Government, the Mainland officials must abide by the laws of HK.

8. Articles 2, 7, 118 and 119 of the Basic Law were said to be cited by the NPCSC in the explanation notes to provide the legal basis for compliance of the co-location arrangement with the Basic Law. Articles 2 and 7 are general provisions that HKSAR is to exercise a high degree of autonomy and the HK Government to manage land resources which are state properties. Articles 118 and 119 are under Chapter V of the Basic Law which provide that HKSAR Government shall provide environment and formulate policies for promoting and encouraging economic activities.

9. It is obvious that such articles do not provide the basis for Basic Law to be disapplied in certain parts of Hong Kong as the co-location arrangement so proposes. Such general articles cannot have the effect of overriding the specific and clear provisions, e.g. articles 18, 19 and 22. Such reading of the Basic Law would be stripping different articles out of context and do violence to the solemnity of the Basic Law which should operate to safeguard the principle of “one country two systems” in Hong Kong.

10. Further, the exercise of high degree of autonomy is a mandatory requirement of the HK Government under the Basic Law. The Hong Kong Government would have abrogated its constitutional duties by surrendering a part of Hong Kong such that the Basic Law and most Hong Kong laws do not apply.

11. Likewise, the Hong Kong courts which are bound to exercise its independent judicial power over all cases within HKSAR pursuant to Article 19 would be stripped off of their constitutional functions by such violent construction of the Basic Law.

12. In fact, according to the Hong Kong Government’s papers to Legco, it agrees that the co-location arrangement (without obtaining additional powers under Article 20) would contravene various provisions of the Basic Law, in particular, Article 18, and it is not appropriate to adopt national laws to only a particular area of HK. It is clear that applying the national laws, including Mainland Criminal Law directly in HK will be a breach of Article 18.

13. There must be objective legal basis for the co-location arrangement. The Hong Kong Government in its paper to Legco proposed to acquire additional powers by virtue of Article 20. However, even the NPCSC do not consider it appropriate to “legalize” the co-location arrangement by granting additional powers to HKSAR by virtue of Article 20.

14. We must point out that the Basic Law, being promulgated by the NPC, is a piece of national law and should be complied with, not only by the Hong Kong government, but also by all state departments. The current co-location arrangement is in direct contravention of the Basic Law and if implemented would substantially damage the rule of law in Hong Kong. It would undoubtedly undermine confidence of the public, in particular, of investors whether local, national or international, in the state and Hong Kong government’s willingness to uphold the rule of law which is essential to protect the economic environment of Hong Kong.

15. We do not oppose the introduction of High Speed Rail. What we say is that this has to be done in accordance with the Basic Law. This is the basic requirement of the rule of law. The meaning of the Basic Law has to be ascertained objectively. The effect of Articles 18, 19 and 22 are clear: national laws shall not apply to any part of Hong Kong (save through Annex III), and any Mainland organization or personnel in Hong Kong is subject to Hong Kong law. The rule of law will be threatened and undermined if the clear meaning of the Basic Law can be twisted and the provisions of the Basic Law can be interpreted according to expediency and convenience.

27 December 2017

Philip Dykes SC
Lawrence Lok SC
Johannes Chan SC (Hon)
Erik Shum
Joe Chan
Randy Shek

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