With Chief Executive Carrie Lam signing a cooperation pact with Guangdong province governor Ma Xingrui last Saturday on the Guangzhou-Shenzhen-Hong Kong Express Rail Link, the so-called three-step process for implementing a joint checkpoint system at the West Kowloon terminus has officially been kick-started.
While the Hong Kong government and the central authorities in Beijing see eye to eye on the necessity and urgency for the co-location plan, it appears, however, that the two sides have a difference of opinion over the legal grounds under which the plan will be implemented.
Perhaps nothing exemplifies the fundamental differences between Hong Kong and Beijing over this particular issue than this particular fact: Justice Secretary Rimsky Yuen said explicitly back in July that the National People’s Congress Standing Committee (NPCSC) would invoke Article 20 of the Basic Law to provide legal grounds for the co-location arrangement. However, Beijing officials and legal experts have suggested otherwise.
Article 20 stipulates that “the Hong Kong Special Administrative Region may enjoy other powers granted to it by the National People’s Congress, the Standing Committee of the National People’s Congress or the Central People’s Government”.
The reason why Yuen is in favor of invoking Article 20 is that he believes the clause can enable the HKSAR government to seek authorization from the NPCSC to legally define the port of the West Kowloon terminus to be outside the jurisdiction of Hong Kong, so that the implementation of the co-location arrangement would not violate provisions such as Article 18 of the Basic Law, under which mainland law is not applicable to the HKSAR (except for those listed in Annex III).
However, it appears Beijing simply disagrees with Yuen’s view, and is against invoking Article 20 when implementing the co-location arrangement. According to sources from the pro-establishment camp, Beijing officials have “reminded” them not to bring up Article 20 when discussing the co-location plan.
Instead, a source who is an expert on mainland constitution says the central government insists that all the Hong Kong government has to do is to handle the mainland immigration and customs facilities in the port at the West Kowloon terminus in the same way as it treats foreign consulates in Hong Kong.
Besides, there is no need to invoke Article 20 since the clause doesn’t authorize the HKSAR administration to authorize mainland law enforcement agencies to enforce mainland law in the port at the West Kowloon terminus.
So far it remains a mystery as to why Yuen, who is obviously not a layman in law, would be in favor of invoking Article 20. We may get to know the full truth only when perhaps someone involved in the issue publishes a memoir some day in the future.
This article appeared in the Hong Kong Economic Journal on Nov 23
Translation by Alan Lee
[Chinese version 中文版]
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