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Pro-democracy lawmakers question legal basis of express rail link joint checkpoint arrangement

The Democratic Party has said it was disappointed by the proposed joint checkpoint arrangement for the Guangzhou-Shenzhen-Hong Kong Express Rail Link and have questioned its basis in law.

Areas of the site will be leased to the Beijing government as part of the proposal, so that Chinese authorities can enforce mainland laws in parts of the West Kowloon Terminus. The areas will be legally regarded as outside the territorial boundaries of Hong Kong.

Article 18 of the Basic Law stipulates that national laws shall not be applied in Hong Kong. But the government said that, since the the mainland port area will not be part of the city, there will be no violation of Hong Kong’s de facto constitution.

Guangzhou-Shenzhen-Hong Kong Express Rail Link

A train of the Guangzhou-Shenzhen-Hong Kong Express Rail Link. Photo: GovHK.

The Democratic party said the proposal is a challenge to the “One Country, Two Systems” principle and the high degree of autonomy enjoyed by Hong Kong. It said it would not support the proposal.

The party’s James To questioned what legal basis there was for Hong Kong to decide whether part of its land was outside of its own jurisdiction.

Three-step process

The proposal will be implemented in three steps. Hong Kong and China will have to reach an agreement, then the Standing Committee of the National People’s Congress will approve and endorse the joint checkpoint arrangement by issuing a decision. Local legislation in Hong Kong will follow.

The government said the Article 20 of the Basic Law has provided the legal basis for the local legislation. The article stipulates that Hong Kong “may enjoy other powers” granted to it by the Standing Committee or the central government. The government also stated that the Basic Law itself does not define the boundaries of Hong Kong.

basic law

Photo: HKFP.

Loss of jurisdiction 

But To said it was “mysterious” how the cancellation of jurisdiction could be achieved without amending the Basic Law, and without an interpretation of the Basic Law by the National People’s Congress.

He said the LegCo has no right to enact laws violating the Basic Law, namely Article 18, in allowing mainland law enforcement agents into Hong Kong.

To said the proposal was arbitrary in that, whilst Hong Kong will lose jurisdiction in the mainland port area, Hong Kong laws would still be followed in six civil law fields in the zone.

Lawmakers Fernando Cheung and Eddie Chu said the proposal set a bad precedent, as they were concerned about further incursions into Hong Kong’s land under Article 20.

“The National People’s Congress gives Hong Kong power… like it gives you a knife and asks you to stab yourself,” Chu said.

Express Rail Link High-Speed Rail terminus West Kowloon Floor Plan

Proposed floor plan of the terminus. Photo: Legislative Council.

Potential judicial reviews

Lawmaker Lam Cheuk-ting of the Democratic Party said society was concerned about cross-border law enforcement after the Causeway Bay Books incident, when a bookseller was apparently kidnapped from Hong Kong, only to reappear in the mainland.

“I am very worried that the public will mistakenly violate mainland laws,” he said.

The train cabin will also be a mainland area, meaning that criminal cases occurring on the train will be handled by mainland authorities.

“You can imagine that when a north-bound train has yet to leave Hong Kong, Hong Kong residents can still access local information, such as Liu Xiaobo’s article ‘I do not have enemies.’ They read it and share it – [but] sorry, according to the country’s law, you may have violated subversion laws, and you can be arrested,” Lam said.

Lam said there may be Hong Kong people who file judicial reviews challenging the proposal, whilst the party will study whether to do so itself.

He said he was concerned that – if the court rules the proposal is unconstitutional – Beijing may issue yet another interpretation of the Basic Law, harming the rights of Hongkongers.

National People's Congress npc beijing great hall

National People’s Congress. File Photo: Lukas Messmer/HKFP.

Judicial review win unlikely

Meanwhile, the pro-Beijing camp welcomed the proposal.

Lawmaker Priscilla Leung, also a legal scholar, said the three step procedure was careful and sound. She said the government has given clear explanations to legal issues.

“If the proposal is approved and endorsed by the Standing Committee of the National People’s Congress, this is an act of the central government and central authorities – Hong Kong courts have to respect the decision, I believe it is very difficult to raise a judicial review at Hong Kong courts,” she said.

Starry Lee, chairwoman of the Democratic Alliance for the Betterment and Progress of Hong Kong, said her party will ask the government to explain the arrangement to the public more.

Lee, also the chairwoman of the LegCo’s House Committee, said she will discuss with the secretariat as to whether the legislature, currently on summer break, should host extra meetings to discuss the proposal. She said the DAB would agree to extra meetings, but it will depend on lawmakers’ schedules.

The government already has enough votes at the Council to pass the proposal with the support of the pro-Beijing camp.

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Pro-democracy lawmakers question legal basis of express rail link joint checkpoint arrangement