It is widely expected that the government will announce shortly details of the arrangements for co-location of customs and immigration facilities at the Hong Kong terminal of the Guangzhou-Shenzhen-Hong Kong Express Rail Link.
Under the proposed arrangements, mainland immigration and customs officers will be allowed to exercise their jurisdiction within Hong Kong territory.
Some members of the public might be under the impression that the co-location arrangement involves a lot of complicated legal concepts, so much so it is incomprehensible to the average individual.
However, they are wrong. As a matter of fact, the core legal concepts involved in the so-called co-location arrangement just can’t be simpler, and all of them simultaneously point to one cast-iron fact: the proposed arrangement is completely against the Basic Law and is therefore unconstitutional no matter how hard the government has sugarcoated it.
If one considers the following four simple questions, even a layman who hasn’t gone through any legal training can instantly understand why the co-location arrangement is unconstitutional:
Q1: Can mainland laws be made applicable to Hong Kong?
A: Absolutely not. It is because Article 18 of the Basic Law clearly stipulates that “national laws shall not be applied in Hong Kong” except for those listed in Annex III, which are mainly confined to laws that concern defense and diplomatic affairs, as well as matters that don’t fall within the jurisdiction of the SAR government such as the deployment of the People’s Liberation Army garrison in our city.
And according to Article 154 of the Basic Law, immigration control at our airport or train stations doesn’t fall within the category of defense or diplomatic affairs, and is purely an internal matter of Hong Kong. Hence, allowing Chinese authorities to implement mainland laws at the Hong Kong terminal of the express rail link undoubtedly constitutes a direct violation of Article 18.
Q2: What would happen if parts of the Hong Kong terminal of the express rail link and the compartments of both inbound and outbound trains have fallen within the jurisdiction of mainland authorities?
A: If that happens, the people of Hong Kong will lose all of their civil rights guaranteed either by our own laws or the Basic Law, and will be completely at the mercy of mainland law enforcement.
If any Hong Kong citizen is arrested or detained by mainland law enforcement either within the terminal or inside a train, they will be subject to mainland laws and there is absolutely nothing the Hong Kong government or the city’s courts or local lawyers can do about it.
Q3: Can the Hong Kong government rent out a designated area inside the terminal to mainland authorities and allow them to exercise their jurisdiction inside that area?
A: No it can’t. It is because according to the most basic legal principles, any contract or agreement concluded by two different parties in a particular country, city or region must not contradict or violate any local law, or else the agreement or contract will automatically become null and void.
As such, if the Hong Kong government concludes any deal with Beijing over renting out a part of the West Kowloon terminal to mainland immigration and customs authorities, the deal will automatically become invalid because it violates the Basic Law.
Q4: Given the fact that there is no shortage of foreign examples of co-location arrangement, can we carry out the same practice in Hong Kong?
A: No we can’t. Although co-location might be in effect in some countries, it doesn’t mean such practice can be duplicated in Hong Kong. That is because Article 18 of the Basic Law clearly stipulates that mainland laws cannot be applied to Hong Kong. Other places which adopt co-location at their border checkpoints don’t have such legal constraints that are unique to Hong Kong.
Besides, foreign law enforcement officers in countries that are implementing co-location arrangement are usually only allowed to exercise immigration laws, whereas here mainland law enforcement officers are likely to be given power to exercise criminal laws as well under the government proposal. That raises grave concern over potential threat to the civil rights of Hong Kong citizens within the station.
As we can see, it is almost a no-brainer that the co-location arrangement is against the Basic Law and is therefore unconstitutional.
The reason why the government has gone to such great lengths to mislead the public into believing that the arrangement involves highly complicated legal technicalities that are incomprehensible to the average individual is because only by doing so can it escape public oversight, so that it can bend the rules and rationalize something that is apparently unconstitutional and illegal.
This article appeared in the Hong Kong Economic Journal on July 25
Translation by Alan Lee
[Chinese version 中文版]
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