Former top HK judge attacks city’s court, saying it should have dismissed joint checkpoint case instead of letting judge act as ‘emperor’

23-Jan-2019 Intellasia | South China Morning Post | 6:00 AM Print This Post

A former top Hong Kong judge has attacked the High Court’s decision to hear a challenge against mainland Chinese laws being enforced at a local high-speed rail terminus, saying the presiding judge was being cast as an ‘emperor’ able to quash laws.

The case was misguided and should have been thrown out from the outset rather than letting it become a “carnival of words”, former Court of Appeal judge Henry Litton said at a book launch on Monday evening.

In October, activists were allowed to argue their case against the co-location arrangement at the West Kowloon station that opened in September.

The National People’s Congress Standing Committee (NPCSC) had endorsed the plan to operate a joint checkpoint, where travellers get their documents processed by Hong Kong and mainland officials in one place, rather than having to pass through two different checkpoints.

Referring to High Court Judge Anderson Chow Ka-ming’s ruling on the judicial bid last month, Litton questioned the need for the city’s court to insert itself into something that had already been set up.

“In other words, a massive infrastructure scheme involving the mainland expending billions of dollars of taxpayers’ money and requiring years of planning, approved by the NPCSC which declared it to be consistent with the Basic Law, underpinned by a Hong Kong statute, built, operated and running, might still be nullified by a single judge sitting in Hong Kong,” he said.

“What kind of tyranny does this imply? The ‘emperor’ judge declares this and you tremble and obey? Such an approach to the case negates democratic principle and defies common sense.”

Chow had found the co-location arrangement constitutional but left it open as to whether decisions by China’s top legislative body were binding on the city.

Litton, who has been vocal about conciseness in judgment and opposing lengthy human rights debates, hinted Chow could have simply turned down the legal challenge in a chamber hearing instead of entertaining the applicants.

He implied hearing the case would raise questions about proper governance and the operations of the rail link.

Also present at the event was Johannes Chan Man-mun, former law dean of the University of Hong Kong. Chan however, argued that the courts had a role to examine the legality of each and every government act, and the high cost of the high-speed rail which was seen as a factor in the haste to pass the law was irrelevant.

He said courts should not make decisions based on the consequences of rulings.

Litton responded that the courts stood on equal footing with the executive and administrative wings of the government, and it should not be the judiciary’s function to judge the operations of other branches.

“[If] in the name of legality, you can tear up just about any institution in Hong Kong, are you then acting as a lawyer or a revolutionary?” Litton said.

He added that Beijing’s decision on the joint checkpoint plan was “unquestionably binding” on Hong Kong. Litton questioned the court’s need to summon two expert witnesses to examine the distinction between the NPCSC’s interpretation of the Basic Law, the city’s mini-constitution, and a free-standing decision, which would not be binding.

In his ruling, Chow had stopped short of answering if the NPCSC’s decision before local legislation had been enacted was automatically binding, without interpreting a specific clause in the Basic Law.

“The notion that the case could have turned on such a fine distinction is absurd,” Litton said, pointing out that even Chow agreed the NPCSC had unqualified power to issue an interpretation over Hong Kong.

The activists have appealed against Chow’s judgment, pending a hearing date.


Category: Hong Kong

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