Hong Kong Basic Law

Joint checkpoint plan heralds new era of Hong Kong-mainland China integration

Tian Feilong says the proposal to allow mainland immigration authorities to operate within Hong Kong is legally sound and is another step towards the gradual integration of the two systems

PUBLISHED : Tuesday, 08 August, 2017, 7:49pm
UPDATED : Tuesday, 08 August, 2017, 8:08pm

Discussion on a joint immigration checkpoint for Hong Kong’s high-speed railway to Guangzhou has been going on for a while, yet when the government formally unveiled its proposal last month, opponents still raised a hue and cry against the unreasonable “ceding of Hong Kong land”, the “violation of the Basic Law” and the “undermining of Hong Kong’s autonomy”.

Hong Kong takes pride in its rule of law, and major decisions are generally made only after extensive public consultation. But differences are not always bridged.

The co-location plan is provocative precisely because, at one stroke, it allowed the state power that had always been kept outside the SAR’s borders to legally enter its domain. The plan thoroughly ruined the opposition camp’s idea of an imaginary, fully autonomous Hong Kong, and suggests what it will become – a city increasingly integrated with the mainland.

In this future, once the express railway is operational, Hong Kong will become ever more reliant on the mainland economy, and the people of both sides ever more connected. As integration proceeds apace in the Greater Bay Area and the economic sphere created by the “Belt and Road Initiative”, Hong Kong would soon be folded into the nation’s political and economic order.

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While such a prospect excites people who love the country and Hong Kong, it only fills members of the opposition camp with fear and dread. The fundamental cause of this difference in attitude lies in the opposition’s negative views about the nation, which have not changed 20 years after the handover.

By objecting to such a plan, the opposition camp proves that their loyalties lie not with the greater good of Hong Kong

The co-location proposal is a sound one. It not only accords with the “one country, two systems” principle and the Basic Law, but could also help to maximise Hong Kong’s interests. By objecting to such a plan, the opposition camp proves that their loyalties lie not with the greater good of Hong Kong, but with their own narrow views of the nation and a value system framed by radical localism.

The co-location plan is on firm legal ground. Article 7 of the Basic Law clearly states that the land and natural resources within Hong Kong is state property and that the SAR government is simply responsible for their management. This means that the fully autonomous Hong Kong of the opposition camp’s imagination has no basis in the Basic Law.

Rather, Hong Kong’s autonomy derives from the power of the central government. Thus, Beijing certainly has the right to redesignate how certain spaces are used in Hong Kong, as long as it is in accordance with the Basic Law, so as to ensure the stability and prosperity of the city. A claim about “ceding Hong Kong land” therefore makes no legal sense.

Similarly, criticism that the co-location plan breaches the Basic Law and harms Hong Kong’s autonomy is also based on partial understanding of the provisions in the Basic Law (such as Articles 18 and 22).

Besides resorting to these arguments, the opposition camp has also tried to derail the plan through judicial reviews. Members think that if they win the legal battle, both the government’s proposal and any legislation on it (Legco is considering a bill on the plan) would become invalid.

This stems from their belief that Hong Kong is a fully autonomous jurisdiction, where the judiciary reigns supreme over the legislative and executive bodies. For years now, the opposition has been fighting at every opportunity to strengthen the city’s judicial independence and rule of law, with the unspoken agenda of resisting the state’s power of supervision.

In most cases, there’s no problem with Hong Kong’s judiciary being independent. But if such independence is used as a tool to confront the state, it would deviate from the original intent of the Basic Law, and exaggerate the constitutional position and actual capacities of the judiciary.

As we have seen, the various interpretations of the Basic Law and decisions by the National People’s Congress since Hong Kong’s handover have been attempts to set boundaries on the powers of the Hong Kong judiciary, in a way that allows it to perform the primary function of maintaining order under the Basic Law without compromising the sovereignty, security and developmental interests of the state.

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The opposition camp should understand that Hong Kong courts are merely the organ of a locally autonomous region, bound by the Basic Law. It should also recognise how the city’s jurisprudence has been continually fine-tuned over the past 20 years through the various NPC interpretations and decisions, to take into consideration national interests. This is obvious in the court rulings on the Legislative Council oath-taking saga and the Mong Kok riot.

In the case of the co-location plan, the opposition camp’s judicial challenge is unlikely to succeed. This is because the NPC is due to issue guidelines on the cooperation between Guangdong and Hong Kong on the plan, in accordance with Article 20 of the Basic Law. The decision would have an impact similar to the NPC’s “August 31 decision” that in 2014 set out the framework for the city’s 2017 chief executive election. The NPC guidelines would effectively deal with compatibility problems with the constitutional systems of the two places during their economic and social integration.

Knowing what is to come, Hong Kong’s courts would carefully handle the judicial review applications. And once the guidelines are announced, the courts will have to base their ruling on these guidelines.

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In sum, the co-location arrangement is primarily an economic issue, and a natural consequence of the gradual integration of the two systems. Although it is a win-win plan for the people on both sides, the opposition camp opposes it, citing a host of political and legal reasons that are partial, narrow-minded and unsound.

As part of a national policy for cross-border integration, the co-location plan pierces the fantasy of a fully autonomous Hong Kong, and ruins the opposition camp’s false hopes for a localist constitution, even Hong Kong independence. The plan signals an end to the separatist leanings of the “one country, two systems” of old, and heralds a new era of integration and nationalisation.

Tian Feilong is an associate professor at Beihang University’s Law School in Beijing, and a director of the Chinese Association of Hong Kong and Macau Studies