Passing China joint rail checkpoint bill would breach our vows, Hong Kong lawmakers say

Hong Kong lawmakers on Tuesday said the government was asking the impossible by requesting they pass a bill to station mainland Chinese officers in the city for a rail checkpoint, because by voting for the law they would be breaching their vows to uphold the mini-constitution.

The local legislature’s pro-democracy camp sparked off a heated debate in the chamber just a day after the professional body that represents lawyers in Hong Kong came out against the bill for a second time, firing salvoes at the government’s attempts to push it through.

In a statement released on Monday, the Hong Kong Bar Association argued the bill had “no constitutional foundation” and could not be enacted “save in contravention of the Basic Law”.

“The Legislative Council has no authority to enact, and it cannot and may not pass an ordinance that contravenes the Basic Law,” it said.

A high-speed rail line linking Hong Kong to the mainland cities of Shenzhen and Guangzhou is due to open later this year. Under the bill, the West Kowloon terminal for the HK$84.4 billion (US$10.8 billion) line will house a facility for both local and mainland authorities to carry out immigration and customs procedures.

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A designated area, which will include two office floors, the waiting hall for departing passengers, station platforms and the connecting passageways and escalators, as well as the compartments of the trains, will be subject to the jurisdiction and laws of mainland China.

Article 18 of Hong Kong’s mini-constitution states no mainland laws shall apply to the city except those stipulated in Annexe III.

In December, the National People’s Congress Standing Committee, China’s top legislative body, approved the plan. But the Bar Association soon afterwards said it was “appalled” by that decision and believed it to be inconsistent with both the Basic Law and the Chinese constitution.

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“This plainly amounts to an announcement by the NPCSC that the cooperation agreement complies with the constitution and the Basic Law ‘just because the NPCSC says so’,” a statement from the association in late December said.

Monday’s statement went further, claiming the bill was trying to “de-establish” a section of Hong Kong’s territory through the formation of the mainland-designated area.

The association insisted the NPCSC decision had not conferred any constitutional foundation on the so-called “co-location” arrangement.

“In conclusion, the association is of the firm view that the bill is not Basic Law-compliant. It would be wrong for Legco to disregard such non-compliance and take the attitude that it should first pass and enact the bill and then wait for a court ruling,” the statement said. “This would not be a responsible approach to take in the legislative process.”

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At a Legco bills committee meeting on Tuesday, barrister and Civic Party lawmaker Dennis Kwok asked the government to rethink its position.

“Legco simply can’t pass a law that contravenes the Basic Law. We can’t do that,” he said.

Lawmaker Raymond Chan Chi-chuen also weighed in, saying: “If we pass a law with the knowledge that it contravenes the Basic Law, we are breaching our Legco oaths.”

Secretary for Justice Teresa Cheng Yeuk-wah stood firm against those assertions however, insisting the co-location arrangement did not contravene the mini-constitution because Hong Kong enjoyed the autonomy to enact its own laws to meet special social needs.

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“I respect the views of the Bar Association, but this bill does not contravene the Basic Law. We need to view the Basic Law and its context as a whole,” she said. “This arrangement can only be implemented after Legco’s passage of the bill.”

She argued that Article 18 did not apply to the joint checkpoint facility. She stopped short however of addressing whether other, similar arrangements could be introduced to Hong Kong on the pretext of fulfilling a special social purpose.

Meanwhile, Secretary for Security John Lee Ka-chiu and a number of pro-establishment lawmakers rejected requests by pan-democrats to reveal the entire layout plans for the mainland-designated area, citing security concerns.