Ceding land to implement Chinese laws on HK soil a foolish move

July 26, 2017 12:38
Part of the West Kowloon terminus for the Express Rail Link will be ceded to Beijing's control by declaring it mainland territory where mainland laws apply. Photo: MTR

So the Hong Kong SAR government has finally found a way to circumvent the Basic Law to push through with its co-location arrangement for the Express Rail Link.

It simply ceded a part of the West Kowloon station for the cross-border rail system to Beijing's control by declaring it mainland territory where mainland laws apply.

This arrangement allows the HKSAR government to avoid legal disputes regarding the plan for joint immigration and customs facilities at the rail station, which the opposition says violates the provisions of the Basic Law prohibiting the application of national laws in the territory.

The rail link, of course, is being built to connect Hong Kong to the national high-speed rail network, thus making it fully accessible to all major cities in the mainland.

But the core strategic consideration is to speed up the city's integration with the rest of China and enforce Chinese laws in the special administrative region, thus cementing China's sovereignty in the city.

Under the co-location arrangement, a quarter of the West Kowloon terminus of the rail link will become part of the mainland territory based on an agreement between Hong Kong and the central government.

The so-called Mainland Port Area (MPA) will be leased to the Chinese government. Chinese officers can carry out customs and clearance duties without violating the constitutional ban on applying national laws in Hong Kong.

Since the area will legally be under Chinese control, various Basic Law provisions, including Articles 8, 18, and 22, that explicitly bar mainland officials from interfering in local affairs or enforcing national laws in the territory will simply not apply, according to a joint statement by the Department of Justice, Transport Bureau and Security Bureau.

The idea of ceding land to Beijing to avoid the legal issues is quite clever but ultimately a foolish move. It will not help heal the social and political rifts in society and certainly will not encourage the cooperation of the opposition.

The fact is, the agreement is still subject to Legislative Council discussion and approval to become valid and legal. That said, lawmakers could raise as many questions as they can for the government to clarify the legality of the arrangement.

However, since six democratic lawmakers have lost their seats due to court rulings, the government has found no better time to finish the legislative process of the co-location arrangement than now. 

The Democratic Party has said it is considering filing a lawsuit to challenge the government's plan to cede land to the mainland, but the pan-democrats have practically lost their veto rights to block laws.

Lawmaker Claudia Mo accused the government of twisting the law and bending the rules for the sake of expediency, even if its action is against Hong Kong’s interests.

HKSAR officials said co-location plan is not a unique arrangement as it is being implemented in other countries' borders such as at the joint British and French checkpoints of the Eurostar rail system.

However, in the Eurostar arrangement, both countries are indeed performing their respective official duties in a restricted area of the rail station, but the area is still under the control of local government authorities.

Even though some French officials are working in the UK territory, they have no right to enforce French laws other than those related to immigration and customs. Both countries respect each other's jurisdiction and do not request for authority to pursue criminal cases.

Hong Kong’s co-location arrangement is completely different. First, what legal reason does China have to occupy the Mainland Port Area at the station and the trains in service? Why does Beijing need to enforce its own laws in Hong Kong?

It can be allowed to enforce customs and immigration-related laws in a specific area of the station and leave Hong Kong to take care of other matters. As such, Hongkongers would have no reason to fear mainland officials abusing their power under the co-location arrangement.

Second, from the practical perspective, most of the passengers of the high-speed rail system will most probably just be taking short-distance journeys to Shenzhen, Guangzhou or Dongguang. It’s not a difficult task for China to establish immigration checkpoints at stations in those cities to cope with the traffic, and in fact, some stations in Guangdong has reserved places for such checkpoints. No need for joint facilities.

For long-haul passengers, it won’t take too much time for the train to stop at Shenzhen for immigration and customs clearance on the train before it enters Hong Kong.

So there is no reason for the government to cede its jurisdiction in the West Kowloon station in exchange for unknown economic benefits from the high-speed rail.

But the Hong Kong government is expected to step up its one-sided public relations campaign to push the co-location arrangement, most probably by highlighting the convenience and economic benefits of the rail link – never mind Hong Kong's autonomy and the "one country, two systems" principle.

In the face of this apparently irresistible force, the opposition camp will have to prepare well, such as by consolidating their ranks and honing their arguments against the co-location arrangement. Otherwse, Hong Kong will see its most significant move backwards since the 1997 handover.

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EJ Insight writer