Local courts will not be able to challenge the Express Rail Link’s controversial joint checkpoint arrangement after it is passed by China’s top legislature, pro-Beijing heavyweight Maria Tam has said. The Standing Committee of the National People’s Congress will vote on the proposal next Wednesday.

Tam, a Hong Kong delegate to China’s top legislature, said in Beijing that the arrangement for the Guangzhou-Shenzhen-Hong Kong Express Rail Link was sent to the Standing Committee for approval on Friday.

She said the Standing Committee has to consider the arrangement’s legal basis. She said her personal view was that Articles 7, 118 and 119 of the Basic Law should be cited (full text below).

Maria Tam. File Photo: gov.cn.

“The Hong Kong government has the responsibility to develop our economy, co-ordinate the policies, and lease land under the high degree of autonomy in accordance with Article 7 of the Basic Law,” she said.

Pro-democracy groups and scholars have raised concerns over the arrangement, which they call a ceding of territory to China and a potential violation of the Basic Law. Article 18 of the Basic Law stipulates that mainland laws cannot be implemented in Hong Kong except those listed in Annex III – such as the national flag and emblem laws.

The arrangement will involve “leasing” land to the mainland and effectively giving up Hong Kong jurisdiction across a quarter of the West Kowloon terminus for faster immigration procedures performed by mainland law enforcement agents.

But Tam said she understood that Article 18 only prevents mainland laws being implemented in all of Hong Kong; it does not prevent mainland laws being implemented in a specific area for a specific group of people.

In September, the High Court declined applications for judicial review over the arrangement, saying such challenges were “clearly premature at this stage.”

Rejected legal basis

The government said it would use Article 20 of the Basic Law as a legal basis in asking the Standing Committee to grant Hong Kong power to lease land to the mainland. Article 20 stipulates that Hong Kong may enjoy other powers granted to it by the Standing Committee of the National People’s Congress or the central government.

Express Rail train. Photo: In-Media.

However, top Beijing official Li Fei said in November that there has yet to be a final decision on how to cite Article 20 in implementing the arrangement.

Rao Geping, another top member of Beijing’s Basic Law Committee, also cast doubts over citing Article 20 as it was supposed to increase Hong Kong’s autonomy.

“How does this rule apply to the joint checkpoint arrangement? Who grants power to whom in the joint checkpoint arrangement? I don’t have to answer – you will have the answer when you think about it,” he said.

Following their comments, Article 20 was not mentioned by the government when signing an agreement on the arrangement with Guangdong Province last month.

Justice Secretary Rimsky Yuen, Transport Secretary Frank Chan and Security Secretary John Lee on Friday attended group discussions over the arrangement at the Standing Committee’s meetings. It was the first time for Hong Kong officials to attend the Standing Committee’s meetings to answer questions since the Handover.

Basic Law articles

Article 7: The land and natural resources within the Hong Kong Special Administrative Region shall be State property. The Government of the Hong Kong Special Administrative Region shall be responsible for their management, use and development and for their lease or grant to individuals, legal persons or organizations for use or development. The revenues derived therefrom shall be exclusively at the disposal of the government of the Region.

Article 118: The Government of the Hong Kong Special Administrative Region shall provide an economic and legal environment for encouraging investments, technological progress and the development of new industries.

Article 119: The Government of the Hong Kong Special Administrative Region shall formulate appropriate policies to promote and co-ordinate the development of various trades such as manufacturing, commerce, tourism, real estate, transport, public utilities, services, agriculture and fisheries, and pay regard to the protection of the environment.

Kris Cheng

Kris Cheng is a Hong Kong journalist with an interest in local politics. His work has been featured in Washington Post, Public Radio International, Hong Kong Economic Times and others. He has a BSSc in Sociology from the Chinese University of Hong Kong. Kris is HKFP's Editorial Director.