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Hong Kong high-speed rail

Joint checkpoint must pass legal tests

Officials must show that the principles enshrined in the Basic Law are met to ease concerns about mainland officials being stationed at the West Kowloon terminus for high-speed rail link to Guangzhou

PUBLISHED : Thursday, 27 July, 2017, 3:06am
UPDATED : Thursday, 27 July, 2017, 12:38pm

The long-awaited release of government plans for an express railway linking Hong Kong to the mainland’s high-speed network was always going to be controversial. It requires pragmatism but also raises important legal issues. The HK$84.4 billion project will allow passengers to travel swiftly between Hong Kong, Shenzhen and Guangzhou. It will provide easy access to high-speed trains heading for Beijing, Shanghai and elsewhere. But the rail link only makes sense if passengers can quickly and easily pass through both Hong Kong and mainland border controls at West Kowloon station.

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The plan, therefore, is to create a mainland port area in Hong Kong. Passengers will be processed at Hong Kong and mainland control points before boarding a train at the station. They will then be free to travel to mainland stations, without the need for further checks. The speed and convenience this offers is vital if the project is to be a success. Without it, the rail link will become a big white elephant.

There are, however, concerns about the legal implications. The problem is that the so-called “co-location arrangement” necessarily involves mainland officials operating in Hong Kong – and applying mainland laws here. This is not easy to reconcile with the city’s mini-constitution, the Basic Law, which sets out clear procedures for the application of national laws in Hong Kong.

The government’s solution, after almost a decade of studying the issue, is to declare the mainland port area at West Kowloon and the trains travelling in Hong Kong to be part of the mainland. This, they say, means inconvenient articles of the Basic Law relating to Hong Kong will not apply. The plans will be set out in an agreement between Hong Kong and the central government, to be approved by the National People’s Congress Standing Committee. They will then be implemented through the passing of local legislation.

This approach is similar to that used for the application of Hong Kong law in the Shenzhen Bay port area. But the legal questions concerning West Kowloon cannot be easily sidestepped. The government’s explanations are, so far, not convincing enough. More needs to be done to show the arrangements are consistent with the Basic Law. The filing of legal challenges to the plans underlines the need for full transparency and the clearing of legal doubts.

Legal challenge to mainland’s rail terminus lease ‘nearly impossible’

There is also a need for trust. The request for this rail link came from Hong Kong. It has the potential to greatly benefit the city and its residents. The co-location border controls are needed to make it a success. But it must be done in a way that is consistent with the law and the “one country, two systems” concept. This is the time for careful consideration of the plans and rational debate, to ease concerns and to ensure this ambitious project stays on track.