Success of rail link from Hong Kong to China mainland hinges on joint immigration checkpoint
A legal puzzle about how local and mainland officers will operate at the high-speed railway terminus has worrying implications for some
On the drawing board, the plan for a high-speed railway link that can get you from the city into Guangzhou in 48 minutes seems uncontroversial.
Compare that with the current option of going by road, which will take you more than three hours, or by the existing rail network (an hour and 40 minutes), and the logic is impeccable.
But in recent years the project has run into a wall of opposition. While cost overruns and delays have exercised political minds, the most vexing issue is the legal implications of a joint immigration checkpoint.
To outsiders familiar with cross-border travel this might seem a no-brainer that can be resolved by harmonising logistical arrangements that respect the sovereignty of each side.
For example, on the Eurostar, passengers go through both French and British passport controls before boarding the train at the station in Paris and get off in London with minimum fuss. Co-location of checkpoints is also done for air travel. The United States conducts pre-clearance at 15 foreign airports in six countries including Canada.
But as legal scholars here point out, the joint checkpoint at the West Kowloon terminus is not an issue to be resolved between two sovereign states.
They refer to the need to preserve the principles of "one country, two systems" in navigating the relationship between mainland China and Hong Kong.
Added to that, a nagging fear - as with many things that have become politicised in the city - is whether mainland officials exercising immigration controls and security checks will be breaching the Basic Law, Hong Kong's mini-constitution. The subtext of that fear: if they can wield immigration powers, who is to say the long-arm of Chinese powers will not venture elsewhere.
"There are things that are allowed under Hong Kong law but illegal under mainland law. Hongkongers may break the law without knowing it," says lawmaker "Long Hair" Leung Kwok-hung, who has been barred from entering the mainland.
Critics like him cite mainland laws such as the one against "provoking quarrels and making trouble", which has been used against activists and human rights lawyers who write online posts critical of the government.
But Paul Tse Wai-chun, a Beijing-loyalist lawyer-lawmaker who supports funding for the railway, believes the legal conundrum can be overcome by authorising local officers to perform checks on behalf of their mainland counterparts.
Leung's fear, however, is shared by pan-democrats and political activists. While they insist they are not making political capital out of the issue, authorities on both sides have not helped by shrouding negotiations in secrecy and not disclosing the kinds of consultation, if any, being undertaken.
A working group was formed in 2010, but no information on its progress has been given over the years. Two weeks ago, Secretary for Justice Rimsky Yuen Kwok-keung said after a meeting in Shenzhen that both sides would come up with a solution before trains start operating in 2017.
Both sides maintain a joint checkpoint is vital because having counters on each side of the border would lengthen travel times and defeat the purpose of the high-speed railway.
The project, which will link the city to Shenzhen, Guangzhou and the national network of high-speed trains, was envisaged by the government to enable a "one-hour living circle" in the Pearl River Delta. More than two-thirds of it is completed. The MTR Corporation is expected this month to release the latest estimate of the cost, which has soared from HK$66.8 billion in 2010 to HK$71.5 billion last year.
The funding request will need only a simple majority to be passed. This means pan-democrats, who have said they may not support extra funding if the legal issue is not resolved, will not have enough votes to block it. Officials expect a new round of filibustering to stir Legco in a few months.
Civil society, once bitterly against the project, is also likely to return to the issue after the campaign over reform for the 2017 chief executive election is over.
Co-location agreements between sovereign states like that for the Eurostar cannot apply to the unique Hong Kong-mainland relationship governed by the Basic Law, says Margaret Ng Ngoi-yee, formerly the lawmaker representing the legal sector.
Article 18 says "national laws shall not be applied in Hong Kong" except for those listed in Annex 3 of the mini-constitution. Legislation that can be added to Annex 3, now with 12 laws, is confined to defence, foreign affairs and "other matters outside the limits of the autonomy".
"If you add a national law to the Annex 3 for the sake of expediency, you are opening a floodgate. It is game over for Hong Kong," Ng warns.
Her fear may not be unwarranted when seen against suggestions by Beijing loyalist Stanley Ng Chau-pei that the mainland's all-encompassing national security law, now at the drafting stage, be added to Annex 3. A plan to have such a law under the Basic Law was scrapped in 2003 after 500,000 people took to the streets.
While officials have yet to open up, the vice-chairwoman of the Basic Law Committee, Elsie Leung Oi-sie, has dropped hints. She says the Basic Law need not be changed and West Kowloon could follow the "precedent" of co-location at the Shenzhen Bay Port.
That arrangement was approved in 2006. Travellers between Shenzhen and Hong Kong get out of their vehicles in Shekou, Shenzhen, and go through the immigration counters of both sides, metres apart, inside the same building. Hong Kong is authorised to exercise jurisdiction over its own clearance zone, leased to it until 2047.
But Ng's counter is that the Shenzhen Bay facility is outside Hong Kong territory and so does not breach the "no mainland laws applied in Hong Kong" rule.
"If Leung says Shenzhen Bay was a precedent and West Kowloon should copy it, does she mean all mainland laws, including criminal law, will be applied to that part of Hong Kong?" Ng asks.
Another member of the Basic Law Committee, speaking on condition of anonymity, gives a different idea. He says a solution would be to rely on Article 22 so the mainland immigration department can "set up offices" in the terminus and that any relevant national laws should be included in Annex 3.
To avoid dispute, the member says: "The law [to be brought in] can simply be to empower the mainland officials to examine the individuals seeking entry to the mainland but with no authority to enforce the law in Hong Kong."
A government official with knowledge of the matter says a fugitive transfer agreement between Hong Kong and the mainland could solve the problems. But it is the southbound journey, rather than northbound, that holds tricky legal issues, he says.
"If a person boarding the train in Hong Kong is on the mainland's blacklist, the train company will not issue him a ticket," he says, adding that a similar mechanism was already in operation between airlines and some countries.
But southbound trips would entail more questions.
Ronny Tong Ka-wah, a Civic Party lawmaker and senior counsel, observes: "What if someone suspected of an offence that is subject to the death penalty on the mainland takes the train and arrives here?
"Does he have the right to apply for habeus corpus [a court order of protection] or prohibition to return on humanitarian grounds, which we have here?"
A fugitive transfer agreement would address Tong's concerns and spell out what rights such fugitives would possibly enjoy before being sent back, the official says. "Some compromise would have to be made. When 99 per cent of passengers will not find themselves in trouble, should there be a midway solution?"
Tong, who advocates a middle-of-the road approach to dealing with Beijing, says he opposes co-location but if there is no going back, the only way out is a tailor-made immigration law for Hong Kong officers to carry out checks for the mainland, with their power confined to returning them to the mainland.
"My point is co-location should be scrapped. Is it worth sacrificing our unique judicial status for the sake of economic development? I don't think so," Tong adds.
The Civic Party's Dennis Kwok suggests a change to the Basic Law can be avoided by letting mainland officers check passengers on board for long-haul journeys after the train crosses the border. But the journey time for short-haul trips will be too short for on-board checks, so checks before and after boarding will have to resume.
It is fine to explore creative ideas, Tong says, "but ultimately it is all up to whether the mainland can accept a limitation of their authority".
Veteran China watcher Johnny Lau Yui-siu says the issue is bound to be highly political.
"Given the tough stance stated by Beijing leaders that 'one country' is above 'two systems', the pan-democrats' fear and mistrust is understandable.
"But they have little understanding of China to know how to deal with it. A peaceful resolution looks unlikely," he says.
When the last transport minister urged pan-democratic lawmakers to support funding for the multibillion-dollar cross- border railway in 2010, she told them a joint checkpoint facility was "not a precondition" for the project's success.
In a letter dated January 14, 2010, a day before the Legislative Council's finance committee voted on the funding request, Eva Cheng Yu-wah wrote a reply to questions raised by Democrat Andrew Cheng Kar-foo.
"What's worth noting is … the projected economic gains [of the railway] have not taken into account co-location of immigration posts," Cheng said. "Co- location can maximise the gains but it is not a precondition."
Cheng said before co-location could come into practice, mainland officers would perform immigration checks at mainland stations; there would be a "compromise solution" for long-haul trips so passengers need not get off the train for checks.
But the promise of a "compromise solution" seems moot under a new administration.
The debate in Legco then focused on issues other than co- location. A key point of contention then was the displacement of farm villagers from Tsoi Yuen Tsuen to make way for the works.
It quickly became a social movement in which activists debated whether it was worth it for Hong Kong to only seek economic gain and integration with the mainland without regard for the preservation of traditional values and rural lifestyle. During the debate, thousands of citizens and the villagers ringed the former Legco building in protest.
The debate was also the first time in which all pan-democrats resorted to delaying tactics to object to the railway scheme.
However, unlike today's filibustering by a few pan-democrats seeking to prolong debates, most pan-democrats at that time filed questions covering all areas, from compensation to villagers to impact of the tunnel on underground water levels and on building safety along the way.
Today, these questions are not entirely resolved. The relocated villagers complain about the lack of utility services for their new homes, and farmers in other parts of the New Territories talk of the drying up of their wells due to the tunnel work.