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Hong Kong MTR

Joint Hong Kong-mainland China checkpoint given go-ahead despite legal fears

Hong Kong government dismisses jurisdictional concerns after agreeing to lease quarter of West Kowloon railway terminus to mainland authorities

PUBLISHED : Wednesday, 26 July, 2017, 12:21am
UPDATED : Wednesday, 26 July, 2017, 4:23pm

National laws will be enforced on Hong Kong’s soil for the first time under a controversial plan ­approved by the city’s government on Tuesday to lease to mainland authorities a quarter of the West Kowloon ­terminus of the high-speed rail link to Guangzhou.

Top officials denied ceding Hong Kong territory to authorities from across the border as they tried to ease concerns about jurisdictional uncertainties, while critics called it a violation of the city’s mini-constitution, the Basic Law.

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The so-called co-location proposal endorsed by the Executive Council will allow mainland ­officers to exercise nearly full jurisdiction – criminal and civil – in the 105,000 square metre designated port area.

Top officials had a simple ­answer for critics warning that this would violate Article 18 of the Basic Law that states mainland laws cannot be enforced in Hong Kong territory.

“We do not think Article 18 would apply because ... the mainland port area would be regarded as outside the territorial boundary of Hong Kong,” Secretary for ­Justice Rimsky Yuen Kwok-keung said.

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Opposition lawmakers ­remained unconvinced, vowing to go all out to block the arrangement for the HK$84.4 billion Hong Kong section of the express rail link, which is scheduled to open in the third quarter of next year.

At least one judicial review would be launched against the ­co-location plan, a source said.

The arrangement will grant mainland authorities full control of the area leased to them, including specific zones on two levels for border clearance, as well as all platforms and trains.

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Only six specified exemptions will be handled under local laws, including civil disputes ­between passengers or between travellers and the railway operator.

The government pledged to consult the Legislative Council before China’s top legislature, the National People’s Congress, officially endorses the arrangement, which will then enable Hong Kong to enact local legislation to take it forward.

Yuen dismissed the notion of ceding Hong Kong land, insisting the local government had fought for the city’s interests.

“The implementation of a ­co-location arrangement is ­neither a directive nor an order by the central people’s government,” Yuen said.

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He also rejected concerns about Hongkongers’ rights and freedoms being curbed under the deal when asked what would happen, for example, if a local resident was stopped at the mainland port area for wearing a T-shirt with a political message that would normally not be ­allowed across the border.

The passenger would still have to go through border clearance procedures even if immigration facilities were kept separate, Yuen said, adding that the administration was “quite confident” about fending off legal challenges.

Six alternative proposals, ­including on-board immigration clearance and amending the Basic Law, were studied by the two sides and rejected.

A government source said the need for nearly full mainland jurisdiction in the leased area, ­beyond the immigration and quarantine aspects originally discussed, was to avoid legal uncertainties and loopholes due to “overlapping jurisdictions”.

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Opposition pan-democrats put up a united front to oppose the deal.

“Pan-democratic lawmakers will try their utmost to prevent this law from passing through Legco,” camp convenor James To Kun-sun said. “Because this law would ­ultimately damage the principle of ‘one country, two systems’, Hong Kong’s high degree of ­autonomy and protection for Hong Kong people.”

Basic Law Committee member Albert Chen Hung-yee, a ­University of Hong Kong legal scholar, said the idea was ­“innovative” and would not ­violate the mini-constitution, as the authorisation would come from the NPC.

Tian Feilong, of the semi-official think tank Chinese Association of Hong Kong and Macau Studies, described it as an exceptional arrangement even for mainland China, as only a special administrative region such as Hong Kong would require a land lease with a sovereign state for such a project.

Speaking before the Executive Council meeting, Chief Executive Carrie Lam Cheng Yuet-ngor admitted the issue was a hot potato, but called on Hongkongers to view the matter in an objective and pragmatic way, saying the new administration would work hard to lobby the public.