Trading autonomy for convenience: The Express Rail Immigration Colocation Bill

Share on facebook
Share on twitter
Share on linkedin
Share on whatsapp

After a five-month debate, Hong Kong’s Legislative Council finally passed the controversial co-location bill which will allow mainland laws to be enforced in the Special Administrative Region for the first time. It raises concerns over Hong Kong’s continuing autonomy within the framework of the Basic Law.

The Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Ordinance was passed by 40 to 20 votes in June. As Acting Chief Executive Matthew Cheung has signed the legislation, the ordinance will be officially written in Hong Kong’s law.

As the Greater Bay Area initiative is in full swing, governments of the eleven cities in the Pearl Delta area are striving to promote a freer flow of people. The government claims the Express Rail Link will take Hong Kongers straight to Guangzhou from West Kowloon in 48 minutes. Service is set to commerce in the third quarter of this year.

To make the process even faster and easier, the ordinance is designed to allow for passengers to clear both Hong Kong and mainland border checks at the same location.

According to the ordinance, an area is declared as “the West Kowloon Station Mainland Port Area”.

“A train compartment of a passenger train in operation on the Hong Kong section of the express rail link is to be regarded as an area lying outside Hong Kong but within mainland China.”

Not everyone is happy

The arrangement ha been deemed unconstitutional by the lawyers at the Hong Kong Bar Association (HKBA).

According to Article 18 of the Basic Law, Hong Kong’s mini constitution, national laws shall not be applied in Hong Kong unless it is related to defense, foreign affairs as well as other matters outside the limits of the autonomy of Hong Kong.

“The suggestion that [Chinese] mainland laws would not apply to all persons is flawed. 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 HKBA says in its statement.

“It affects all persons in Hong Kong each of whom has the right to make the above choice, as they cannot choose to enter a part of Hong Kong without being subject to the jurisdiction of the Mainland,” the association notes.

But pro-establishment lawmakers said this arrangement can maximize the economic benefits of the express rail link and enhance Hong Kong’s competitiveness. Given plans for more complete integration among Chinese cities, pro-establishment lawmakers argue that Hong Kong should not be left out.

Pro-democracy lawmakers have already filed judicial reviews at the High Court. They worry that the arrangement will set a precedent for China to erode Hong Kong’s autonomy and jurisdiction.

“[Judicial review] is the only resolution to this issue, because whether the application of the mainland law is unconstitutional is a matter of the court,” says Philip Dykes, chairman of the HKBA.

Mr Dykes notes that judicial review may lead to the interpretation of the Basic Law by the Standing Committee of the National People’s Congress.

Democratic lawmaker Wu Chi-wai says the interpretation may trigger an amendment to Article 18 for Beijing to exercise overall jurisdiction over Hong Kong, impeding the “one country, two systems” principle.

“The Basic Law gives us legal protection. Now it turns out that we cannot rely on the Basic Law for protection but those who are in power to restrict themselves,” says Eric Cheung Tat-ming, a principal lecturer at the University of Hong Kong’s law faculty.

(Printer – R&R Publishing Limited, Suite 705, 7/F, Cheong K. Building, 84-86 Des Voeux Road Central, HK)