Three unanswered questions over the signing of Hong Kong’s controversial joint rail checkpoint deal
Hong Kong chief executive Carrie Lam Cheng Yuet-ngor and Guangdong provincial governor Ma Xingrui signed agreement on Saturday
With the stroke of a pen from Hong Kong chief executive Carrie Lam Cheng Yuet-ngor and Guangdong provincial governor Ma Xingrui on Saturday, a 26km strip of Hong Kong land is set to be leased out to mainland China.
There, mainland law applies, including the death penalty, and Hong Kong courts have no jurisdiction, according to the “cooperation arrangement” designating a “mainland port area” for the high-speed rail link from Hong Kong to Guangzhou.
But critics say the move contradicts the Basic Law, the city’s mini constitution.
The HK$84.4 billion project, which is due to operate in the third quarter of next year, will serve as an express rail link connecting Hong Kong to Guangdong and the national high-speed rail network.
Travelling at 200km/hr, it will take trains 48 minutes to get to the provincial capital of Guangzhou compared with the existing fastest time of 1 hour 53 minutes. It will also shorten the travel time to Beijing, from 24 hours 21 minutes to 8 hours 45 minutes.
The South China Morning Post explains some of the unanswered questions despite a nearly hour-long press conference chaired by Lam.
1. What is the constitutional justification for redesignating jurisdiction?
Unknown. There used to be a suggestion from Secretary for Justice Rimsky Yuen Kwok-keung that Article 20 of the Basic Law could apply. Under that provision, the National People’s Congress Standing Committee could grant powers not yet enshrined in the Basic Law to Hong Kong.
That suggestion was blasted by pan-democratic critics, who said Yuen was basically saying: give me power to give up my power.
That view, unexpectedly, was echoed by Beijing-loyalists. Rao Geping, an academic and member of the Basic Law Committee under the NPCSC, asked on Friday: “How would this [Article 20] be appropriate for co-location?”
The intention of that article, Rao said, was for the NPCSC to “exercise discretion to add power of autonomy” for Hong Kong.
Lam found herself in a legal quagmire when grilled by journalists interested to know which Basic Law articles would be relevant to support the rail plan.
Instead of citing the mini-constitution, she said it was the cooperation arrangement itself that provided a “solid legal basis” to carry the whole plan forward.
As to constitutionality, Lam, whose election promise focused on safeguarding Hong Kong’s rule of law, suggested it was something for the NPCSC, rather than her administration, to consider.
“We will be able to explain clearly how Basic Law articles are applied at a later stage when the NPCSC issues the decision,” she said.
2. What does the document signed on Saturday contain?
Confidential for now. According to Lam, it would be inappropriate to release the “cooperation arrangement” before it is endorsed and approved by the NPCSC, out of “respect for the mainland government”. Lam expected the approval in December, and hence the revelation of the details of the agreement.
She insisted that a press release issued by the government already contained the main points in the arrangement document.
Her minister for transport and housing, Frank Chan Fan, went further by suggesting it would be a “rule for gentlemen, or ladies”, to not make it public at this stage, though he was quick to add that “almost all things substantive have been made public”.
When the Hong Kong government prepared a report about universal suffrage to NPCSC in 2014, it was made public on the same day it was submitted to Beijing. And who chaired the press conference to explain the report? Carrie Lam.
Pan-democrats believed there was a conspiracy theory behind the Lam’s move.
“Lam kept the arrangement under the table so that the court cannot take up a judicial review and judge on its constitutionality,” Eddie Chu Hoi-dick, a lawmaker, said. “All she wants to do is to pre-empt the court and take the arrangement direct to the NPCSC.”
The NPCSC, according to Lam, will rule on her proposal in December.
3. How much room is left for lawmakers to manoeuvre over the co-location arrangement’s implementation during the local legislation process?
Not much. Lam said any proposed legislative amendments outside the ambit of the co-location agreement will need to be submitted to the NPCSC for further discussions. Bearing in mind that the government is aimed at achieving the passage of local legislation before the summer recess of Legco next year to cater to the opening of the high-speed rail link in the third quarter of next year. So time is running out for the government to get things done.