Controversial joint checkpoint plan approved for high-speed rail link as Hong Kong officials dismiss concerns over legality

Beijing on Wednesday formally approved a controversial plan for mainland officials to enforce national laws in part of a station on the Hong Kong side for a cross-border rail link under construction, presenting a done deal to the city amid an ongoing row over its legality.

Officials dismissed concerns about Hong Kong’s autonomy being undermined by the move, stressing that only a designated zone leased to mainland authorities would be subject to national laws, after the proposal to implement the so-called co-location arrangement was tabled by China’s cabinet, the State Council, and passed by the National People’s Congress Standing Committee (NPCSC).

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“The co-location arrangement, which complies with the constitution and the Basic Law, carries constitutional authority … it is an important constitutional judgment which cannot be challenged,” Li Fei, a top Beijing expert on the city’s mini-constitution, said, stressing the finality of the decision and the central government’s authority to have the last word on its legality.

The Hong Kong government’s plan now is to table relevant local legislation by February for approval by the Legislative Council, with the long-delayed and over-budget Guangzhou-Shenzhen-Hong Kong Express Rail Link scheduled to start running from the third quarter of next year.

The resolution passed by the NPCSC explained that the plan to allow police and customs officials from across the border to handle immigration procedures for travellers in both directions was in line with Hong Kong’s mini-constitution.

Li, head of the NPCSC’s Basic Law Committee, held a press conference on Wednesday to explain the legal justification for the arrangement, stating that it “reflects the high degree of autonomy Hong Kong has, and not that Hong Kong has given up its high degree of autonomy like some people have said”.

He stressed that national laws would only apply to a designated zone at the West Kowloon terminus and not the whole of the city.

Pro-Beijing figures and the local government have previously advanced the argument that only users of the HK$84.4 billion high-speed rail link would be subject to mainland criminal and civil laws in the leased zone, which would include parts of the platform and trains.

On Wednesday, Li said: “If Hong Kong residents do not feel comfortable, they can use other checkpoints [to enter the mainland].

“[You] can choose not to take the high-speed rail. In that case, the co-location arrangement would not apply to you. But you need to know which [mode of transport] is more convenient and which is not.”

Secretary for Justice Rimsky Yuen Kwok-keung said both Hong Kong and mainland authorities had looked into different proposals, including implementing co-location through Article 20 of the Basic Law – which states that the local government may “enjoy other powers” granted to it by the central government – but the idea was dropped after listening to different views in the community.

“Upon full consideration … the more appropriate option is to have the NPCSC approve the cooperation arrangement,” he said.

“[The NPCSC] resolves the issue from a constitutionally higher level, and can thereby avoid disputes such as questions over authorisation, and can be regarded as a more prudent way of dealing with the matter.”

When asked whether this would set a precedent, Chief Executive Carrie Lam Cheng Yuet-ngor replied that only something “negative” should not be repeated, but this was something good for the development of Hong Kong.

“The mainland government is willing to use many ways help us achieve this good thing. Why do we want to stop this idea?” she said.

However, opposition lawmakers and some legal experts in the city remained unconvinced, seeing it as a violation of the Basic Law and citing Article 18, which states that, barring a few exceptions, national laws should not be applied in the city.

University of Hong Kong principal law lecturer Eric Cheung Tat-ming, responding to Li’s point about national law only applying to a designated area at the terminus, said: “If part of Hong Kong could be [ring fenced] from local jurisdiction … the protection [for Hongkongers] designated by the Basic Law would then be all gone.”

He added that the arrangement was unprecedented, as even the People’s Liberation Army garrison and Beijing’s liaison office in the city were under local jurisdiction, as stipulated in Article 22 of the Basic Law.

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Li was asked why Article 20 – which allows the NPCSC to grant the Hong Kong government powers not yet enshrined in the Basic Law – was not used to justify the arrangement, as the city’s justice minister had suggested previously.

That suggestion was shot down by pan-democrats and Peking University law professor Rao Geping, with both saying Article 20 was for Beijing “to give Hong Kong an additional power”, not for the city to lease land to mainland authorities.

Li said there was no single article that the NPCSC had relied on to make its decision, as the Basic Law, drafted more than 20 years ago, could not have envisaged future developments such as this.

“Let me just say that the ‘one country two systems’ principle was unprecedented,” he said. “The Basic Law … cannot be so clear as to explain everything, and to foresee everything that could happen.”

The NPCSC resolution, however, did acknowledge that the arrangement reflected Article 7, which states that while land and natural resources belong to the state, Hong Kong is responsible for managing, developing and using those resources.

In this case, Hong Kong and mainland authorities had come together to make arrangements for the joint checkpoint, the document added.

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The NPCSC’s endorsement was widely expected, with senior mainland officials in recent weeks saying the Basic Law allowed for co-location, without giving specifics.

Under Article 18 of the Basic Law, the exceptions to national laws being applied in Hong Kong are if they are listed in Annex III of the mini-constitution and have to do with defence, foreign affairs and “other matters outside the limits” of the autonomy given to the city. The national laws would then be promulgated – imported automatically – or adapted through local legislation.

Civic Party lawmaker Tanya Chan, convenor of the co-location concern group, slammed the latest development, saying critics were hamstrung as local legislation was likely to be passed and the courts would not challenge the NPCSC’s decision.

She urged the public to be aware of the seriousness of the issue as it affected their freedoms.