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Hong Kong lawyers can oppose the joint checkpoint plan for the high-speed rail, but they should not deny its legal basis

Ronny Tong says a professional body such as the Bar Association has a responsibility to refrain from using emotive rhetoric. Its recent statement not only falls short of this standard, but also reflects wilful ignorance of the changes in the legal system under ‘one country, two systems’

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Ronny Tong says a professional body such as the Bar Association has a responsibility to refrain from using emotive rhetoric. Its recent statement not only falls short of this standard, but also reflects wilful ignorance of the changes in the legal system under ‘one country, two systems’
A professional body must at all times be alert to the possibility that its views may be misunderstood. This responsibility dictates that any statement on important issues of great concern to the community should be carefully worded and supported by good reasons and firm facts. Illustration: Craig Stephens
A professional body must at all times be alert to the possibility that its views may be misunderstood. This responsibility dictates that any statement on important issues of great concern to the community should be carefully worded and supported by good reasons and firm facts. Illustration: Craig Stephens
I have been a member of the Hong Kong Bar for over 40 years and have the highest respect for its council. I also firmly believe that when a professional body deals with an important issue, it must do so in a fair and professional way, and always be on guard to avoid using emotive and intemperate rhetoric. This is particularly so when it comes to interpreting a constitutional document like the Basic Law.
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You can therefore imagine my shock and sadness at reading the Bar Association’s statement on the co-location clearance proposal of the Hong Kong government for the cross-border rail link, and on the corresponding decision by the National People’s Congress Standing Committee relating to that.

Don’t get me wrong; I respect the association’s view and do not expect it to coincide with mine. But I also expect a more restrained and measured statement, much in the vein of the statements that previous Bar Councils – the governing body of the association – have issued in the past.

The dispute over the legality of the co-location proposal comes down to one question: is it in contravention of Article 18 of the Basic Law? This article, which defines the very essence of “one country, two systems”, reads, “National laws shall not be applied in the Hong Kong SAR except those listed in Annex III to this law … [which] shall be confined to those relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the region as specified by this law.”

But what does it mean?

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Our Court of Final Appeal has said on many occasions in interpreting the Basic Law that it is an aspirational document and one must adopt a purposive interpretation. This means the Basic Law is forward-looking and not enslaved by dated concepts. When we read the Basic Law, we must read it as a whole, try to discern its purpose, and give effect to it in accordance with such a purpose.

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