24 October 2016
There are concerns that Basic Law will be misused to allow mainland immigration and customs agents to operate in Hong Kong when a new cross-border rail link gets going. Photo: RTHK
There are concerns that Basic Law will be misused to allow mainland immigration and customs agents to operate in Hong Kong when a new cross-border rail link gets going. Photo: RTHK

Why co-location plan on rail link raises some fundamental issues

Without revisiting the background of the tussle and the chicanery the government has displayed throughout, you won’t be able to understand what the immigration control co-location issue means to “one country, two systems”.

I am referring to the key aspect related to the Guangzhou-Shenzhen-Hong Kong high-speed rail link.

The government conceived the express rail project to speed up cross-border integration for the “one-hour living circle” between Hong Kong and the rest of the Pearl River Delta.

To push the project through the legislature, it schemed a three-fold lie: to purposefully underestimate the project cost, exaggerate the work progress and leave the unsettled co-location issue to the future.

Surely Hongkongers will have to agree to open the door for mainland agents, no matter how distasteful the prospect, given that we are already halfway through the construction of the rail link.

This is exactly what we saw last week when the Transport and Housing Bureau told lawmakers that we stand to lose up to HK$75.6 billion, including HK$60 billion already spent, if we choose to scrap the project.

If we press ahead, the total bill could hit the cap of HK$84.4 billion, which would be 32 percent higher than the original estimate back in 2009.

And, if Hongkongers reject the co-location plan for faster immigration and customs clearance, we will be pouring money for a hugely expensive white elephant as the express rail link may be no quicker than the current inter-city through trains, as officials warn.

This is how the government’s scheme to fool Hongkongers into the scam has worked out. To create the legal ground for mainland agents to enforce laws in Hong Kong, provisions of the Basic Law would be twisted.

A mainland law scholar sent out word last month that since the Chinese State Council delineated and gazetted the boundary of the Hong Kong Special Administrative Region prior to the Basic Law’s promulgation in 1990, Beijing has the legal power to allot a designated portion of Hong Kong’s territory – certain areas within the West Kowloon terminus – for occupation by mainland law enforcement personnel.

Article 7 of the Basic Law, which states that land and natural resources within the Hong Kong Special Administrative Region shall be state property, is also cited as the source of Beijing’s rights.

The only due procedure required is for the National People’s Congress to enact laws to enable mainland agents to be stationed in the heart of Hong Kong.

The rationale is indeed nothing new: Beijing exercises overall jurisdiction over Hong Kong and the SAR authorities have no power unless authorized.

Now we see local lackeys rush to echo Beijing’s rhetoric – former justice chief Elsie Leung Oi-sie said government policies always come ahead of laws. I wonder if Leung knows what she was talking about.

Is it justifiable to dismantle the Basic Law merely for the sake of ten minutes or so that passengers may be able to save in simplified immigration checks?

The fact is that any existing, well-oiled co-location arrangements can only exist between two independent nations with the prerequisite that sovereignty of either side will never be compromised.

For instance, US immigration and customs agents working in Canada can conduct checks of US-bound passengers and goods but they can never arrest anyone. Britain and France have in place a similar system since the inauguration of the Channel Tunnel and the Eurostar train services between the two countries. The same between Germany and Poland in their border areas.

But things between Hong Kong and the mainland can never take place on an equal footing. Many realize that when Hong Kong was given the go-ahead to send agents to the mainland in 2006, it indeed foreshadowed that mainland laws could also be made applicable to Hong Kong in a similar fashion.

No one on the mainland will feel unease when Hong Kong agents are seen on their territory, but it will be a different situation when the opposite happens.

Hongkongers are justified in dreading the prospects of Chinese security personnel arresting anyone with impunity in the city, given the disproportionate mismatches in size and population and Beijing’s track record of political bullying.

The trust is gone and the high degree of autonomy is but an illusion. This forms the backdrop of Hong Kong people’s firm stand against the co-location plan.

Some supporters of the plan trot out this argument: If two sovereign countries such as US and Canada can demonstrate goodwill and allow each other’s agents to discharge duties on the other’s soil, why can’t Hong Kong and the mainland, both of which are technically one nation, agree on a similar deal, which should be easier to implement anyway?

Well, I would say that the argument is flawed.

Such an arrangement works between two countries precisely because they are independent sovereignties dealing on a fair and equal basis.

If authorities really want to force the bill through the LegCo, why not make Hong Kong independent from China so that locals won’t reject the co-location proposal?

This article appeared in the Hong Kong Economic Journal on Dec. 14.

Translation by Frank Chen

[Chinese version 中文版]

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Former full-time member of the Hong Kong Government’s Central Policy Unit, former editor-in-chief of the Hong Kong Economic Journal

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