Why Hong Kong’s justice minister Rimsky Yuen is so sanguine about joint checkpoint for express rail link

Jason Y. Ng says the logic behind Rimsky Yuen’s support for immigration co-location at West Kowloon is unsound, but the justice minister’s confidence stems from knowing that Beijing always has the last word

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Rimsky Yuen, Hong Kong’s justice secretary, at a press conference on co-location arrangements at the West Kowloon terminal station of the Guangzhou-Shenzhen-Hong Kong express rail link, on July 25. Photo: Sam Tsang

Published: 3:20pm, 28 Jul 2017Updated: 6:08pm, 28 Jul 2017

Seven years after Donald Tsang Yam-kuen’s administration rammed a funding bill through the legislature to bankroll the cross-border rail link, the Hong Kong government this week unveiled a long-awaited proposal to resolve the border control conundrum.

At issue is whether carving out certain areas at the West Kowloon terminal station where mainland officers are given broad criminal and civil jurisdiction will run afoul of the Basic Law, Hong Kong’s mini-constitution.

It is an 84-billion-dollar question that can make or break the controversial infrastructure project. If the government’s proposal falls through, every time-saving and convenience advantage to justify the rail link’s dizzying price tag is put at risk. But if the plan prevails, it may create a foreign concession of sorts in Hong Kong and open a Pandora’s box of extraterritorial law enforcement.

The central question is a straightforward one: is the joint checkpoint proposal constitutional?

The answer can be found in Chapter II of the Basic Law, which governs the relationship between mainland China and Hong Kong. Articles 18 and 22 prohibit national laws from being applied in Hong Kong (with the exception of matters relating to defence and foreign affairs) and forbid Chinese authorities from interfering in the special administrative region’s affairs.

The pros and cons of different solutions to Hong Kong’s express rail checkpoint issue

In addition, Article 19 grants Hong Kong courts exclusive jurisdiction over cases that occur anywhere within the territory. That means any attempt to enforce Chinese law on Hong Kong soil – no matter the location or size of the area – is on the face of it in breach of at least three provisions of the Basic Law.