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Hong Kong high-speed rail

Late chief negotiator for Hong Kong handover would have ‘jumped up and down’ in anger at basis of checkpoint plan

Pro-democracy heavyweight Martin Lee says people would have called him ‘crazy’ if he had suggested to Basic Law Drafting Committee that part of city could be exempt from mini-constitution

PUBLISHED : Tuesday, 02 January, 2018, 1:57pm
UPDATED : Tuesday, 02 January, 2018, 10:32pm

The legal basis of a joint checkpoint plan for a cross-border rail terminus in Hong Kong would have made a late Chinese chief negotiator in handover talks “jump up and down” in anger, a pro-democracy heavyweight who helped draft the city’s mini-constitution said on Tuesday.

Martin Lee Chu-ming insisted that the Basic Law must be applied to Hong Kong as a whole, and that no one on the drafting committee would ever have thought that any part of the city could be exempt.

“People would have called me crazy back then if I ever proposed such an idea … if I asked Lu Ping, he would be jumping up and down,” Lee said on a radio interview on Tuesday. Lu was the chief Chinese delegate during the 1980s negotiations with Britain over the transfer of Hong Kong’s sovereignty. He died in 2015.

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“[Hong Kong’s] ‘one country, two systems’ principle is meant to be applied in every corner, including your home and my home,” Lee said, referring to the model under which China governs Hong Kong, guaranteeing the city a high degree of autonomy.

But a pro-Beijing legal scholar argued that the National People’s Congress Standing Committee (NPCSC), China’s top legislative body, had a “broader understanding” of the Basic Law when it recently gave the nod to the so-called co-location plan.

Albert Chen Hung-yee said he believed the legal viewpoints used to justify the plan would stand up in Hong Kong’s courts.

The controversial arrangement stems from a HK$84.4 billion rail link that connects Hong Kong to Guangzhou, due to begin operations by September this year.

While Hong Kong is part of China, the city practises its own laws in its own jurisdiction, meaning everyone must pass through border clearance twice when they travel to the mainland. The proposed arrangement would allow train passengers to complete both sets of procedures under one roof, and officials have long argued it would be vital for the project.

The plan’s legality has been the subject of heated debate for months. Pro-democracy politicians who oppose the plan say they cannot see how the scheme would work without violating the Basic Law.

Beijing’s policies regarding Hong Kong after the handover are stipulated in a document called the Sino-British Joint Declaration, Lee said, and such policies “could not be tampered with”.

But Chen, a constitutional law expert and a member of the Basic Law Committee, said the NPCSC had approved the plan after careful consideration, including taking into account Article 18 of the Basic Law, which states that national laws do not apply in Hong Kong unless 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.

“Mainland experts and officials have studied Article 18 in detail … they interpreted it not just from its literal meaning but in a broader sense than those from Hong Kong’s legal sector,” he said.

Ongoing row over legality of joint checkpoint plan sees Hong Kong’s ex-justice minister and mainland scholars enter the fray

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.

Mainland officials and pro-Beijing Basic Law experts have insisted that the plan did not contravene Article 18 because national laws would apply only to a designated zone at the West Kowloon terminus and not to the whole of the city. They also said the designated area was “deemed” to be part of the mainland, not Hong Kong.

The NPCSC decision was condemned by Hong Kong’s Bar Association, which labelled the move as the most retrograde step in the implementation of the Basic Law since 1997, the year of the city’s return to Chinese rule.

Chen agreed that the NPCSC’s viewpoints had no binding power in Hong Kong’s courts, which practise common law. However, “the common law would also consider the persuasiveness of viewpoints by authoritative bodies”, he said, adding that such views would be considered if the arrangement were to be challenged in court.