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Hong Kong high-speed rail

Bar Association raps officials for ‘flawed’ argument, says mainland laws at joint checkpoint will affect all Hongkongers

This is because everyone in city is a potential passenger of the high-speed rail, it argues, rebutting authorities’ claim that legal arrangement will apply only to travellers

PUBLISHED : Friday, 30 March, 2018, 7:00am
UPDATED : Friday, 30 March, 2018, 10:52am

All individuals in Hong Kong – not just travellers at the West Kowloon terminus of the cross-border rail link to Guangzhou – would be affected by a controversial arrangement for mainland officials to enforce national laws in part of the station, the city’s Bar Association said on Thursday.

In a statement, the professional organisation of barristers said “everyone is a potential passenger of the high-speed rail” and therefore the government’s efforts to push through a bill on the joint checkpoint plan centred on a “flawed” argument. Authorities had insisted such laws would only apply to travellers in a designated area of the terminus.

“The fact that a law may not have immediate practical consequences for a person unless they step into a particular arena does not mean that the law does not apply to all persons,” the association added.

Hong Kong Bar Association ‘appalled’ by approval of joint checkpoint plan, saying it ‘irreparably’ breaches Basic Law

Its comments on Thursday were in response to the latest legal arguments made by the government to lawmakers currently scrutinising the bill in the Legislative Council.

The association, led mostly by liberal-minded lawyers, has repeatedly argued that having mainland Chinese police and customs officials handle immigration for travellers in both directions in one section of the West Kowloon terminus contravenes the Basic Law, Hong Kong’s mini-constitution.

The Basic Law states no mainland Chinese law shall be applied in the city except for those relating to defence, foreign affairs and “other matters outside the limits” of Hong Kong’s autonomy.

But members of Chief Executive Carrie Lam Cheng Yuet-ngor’s administration, including justice chief Teresa Cheng Yeuk-wah, had argued that under the bill, the laws of the “mainland port area” would apply only to those who chose to enter certain areas of the terminus to use the rail service, and not to the whole of the city.

They stressed that Hongkongers should judge the rail link based on the economic benefits it would bring the city, and noted the joint checkpoint would save time and spare travellers from the hassle of going through border inspection twice.

Last December, China’s top legislative body, the National People’s Congress Standing Committee, approved the arrangement following an agreement between Lam and Guangdong provincial governor Ma Xingrui.

The Hong Kong government then gazetted the bill in January, and said it hoped Legco – where pro-establishment lawmakers form the majority – would vet and push through draft legislation by July.

During lawmakers’ discussions of the bill in recent weeks, it was explained that Hong Kong courts would not be responsible for criminal or commercial disputes, except when it came to train maintenance or contractual arrangements with train staff. In fact, officials admitted, the power of the courts could be “reasonably restricted”.

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

In its statement on Thursday – its third on the matter in four months – the association said the government’s point that those in the mainland port area were entering another jurisdiction also went against the Basic Law, which states that Hong Kong courts have legal authority over all cases in the city.

It would require “the strongest justifications to oust the jurisdiction of the [Hong Kong] court” from the mainland port area, it noted, and “mere convenience or political expediency” could hardly be used as reasons.

“Nor is there anything to suggest that the economic benefits of the high-speed rail could not be achieved by alternative means that do not contravene the Basic Law, such as an amendment to the Basic Law or an amendment to the boundary of [Hong Kong],” it said, adding that officials had failed to provide “arguable constitutional and legal basis” for the bill.