China's Trojan Train Into Hong Kong

Lian Yi-Zheng

Lian Yi-Zheng   November 26, 2017

Construction on the West Kowloon railway terminus station in Hong Kong, slated to open in late 2018. Plans are underway to place an immigration and customs checkpoint inside that would be operated by mainland China security personnel and enforce Chinese law.

Not that slowly and very steadily, the Chinese government is making political inroads in Hong Kong.

Over the past year or so, it maneuvered to expel pro-democracy legislators from Hong Kong¡¦s lawmaking body, sidelined a popular candidate for the city¡¦s top post to give the job to a proven hard-liner and got local high schools to beam to their students an ideologue¡¦s speech about the Chinese Communist Party¡¦s latest national congress. Now it is demanding that the Hong Kong legislature, known as LegCo, pass a law, modeled after one in force on the mainland, to enforce respect for the Chinese national anthem.

Worse, under the guise of an innocuous train-transit project, the Chinese government is trying to exercise a form of extraterritoriality in the very heart of the city ¡X an apparent dry run for eventually passing security laws limiting political freedoms in Hong Kong.

Starting in late 2018, high-speed trains will connect Hong Kong to Guangzhou, a megacity on the mainland, and there is a plan to place inside the terminus in Hong Kong an immigration and customs checkpoint that would include Chinese security personnel enforcing Chinese law, with search-and-arrest authority. The proposed arrangement is known in Chinese as ¡§one location, two checkpoints¡¨ ¡X an ominous play on ¡§one country, two systems,¡¨ the principle supposed to guarantee a measure of self-rule for Hong Kong.

Some supporters of this 1L2C scheme compare it, speciously, to the customs preclearance procedure that the United States government has set up in several Canadian airports. They also praise the new setup¡¦s efficiency, arguing that, at least on some routes, one hour or more could be shaved off a trip that currently takes two.

But 1L2C endangers the city¡¦s formal autonomy. It clearly runs against Hong Kong¡¦s mini-constitution, known as the Basic Law, which promised the city a high degree of self-governance after Britain handed it back to China in 1997. Article 18 of the Basic Law, for example, states that no mainland laws, except those pertaining to foreign relations and national defense, can be applied in Hong Kong barring an emergency.

Yet Carrie Lam, the city¡¦s chief executive since July, seems eager to get a 1L2C bill passed by LegCo, especially now that the body is stacked with government supporters. The challenge she faces is how to violate the Basic Law without appearing to be.

For several years, supporters of the Hong Kong government have strained, and failed, to demonstrate that 1L2C is legal ¡X arguing, for example, that Hong Kong did not have subsurface property rights and so China should be allowed to control any underground train terminus.

More recently, the justice secretary and other Hong Kong officials have peddled another bizarre argument: If implementing 1L2C requires authority beyond what the local government currently has, Beijing could simply give it more under Article 20 of the Basic Law, which states that Hong Kong ¡§may enjoy other powers granted to it by the National People¡¦s Congress.¡¨

Some analysts call this reasoning perverse. One has said it is akin to ¡§asking Beijing to give Hong Kong the power to give Beijing the power to do what Beijing doesn¡¦t currently have the power to do in Hong Kong.¡¨ Another critic has called the construction ¡§a self-castrating Oedipal scheme.¡¨

The case for 1L2C is as weak as the stakes of the debate are high: The Hong Kong authorities seem to be hoping that implementing 1L2C will finally break the resolve of local democrats and pave the way for more political encroachment from China in the future ¡X most likely under the Basic Law¡¦s notorious Article 23.

That provision allows Hong Kong ¡§to enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central People¡¦s Government¡¨ ¡X or, potentially, to invoke China¡¦s national security interests in order to muffle political dissent in the city or the local separatist movement (an offshoot of the 2014 Umbrella Revolution). Just a few days ago, Cheung Chi-kong, a confidant of a previous chief executive, wrote in the local newspaper Ming Pao that 1L2C was merely a ¡§soft maneuver¡¨ (µê©Û) in preparation for eventually implementing Article 23.

Any legal challenge to 1L2C already seems dead in the water, partly because Ms. Lam is moving fast to get the project through, using unusual strong-arm tactics.

On Nov. 15, with help from the government-friendly majority in LegCo, she rammed through a nonbinding motion affirming the concept of 1L2C. A few days later, she signed an agreement with the governor of neighboring Guangdong Province to jointly pursue the project. That was the first step in her much advertised three-step plan to implement 1L2C ¡X a plan she wouldn¡¦t ballyhoo so loudly unless she was quite certain it was agreeable to the Chinese government.

Ms. Lam¡¦s next move will be to secure approval for the agreement from the rubber-stamping Standing Committee of the National People¡¦s Council, China¡¦s top-level legislative body. This is expected to happen next month. Ms. Lam will then need to get LegCo to pass implementing legislation ¡X which could be done as soon as February.

The political opposition seems largely powerless to push back, even though 22 legislators (out of a total of 70) have vowed to filibuster any 1L2C bill. And after the National People¡¦s Council speaks, no Hong Kong court is likely to seriously consider any legal challenge to 1L2C. The local judiciary has become compliant: In a protracted controversy over the oaths of office taken by legislators-elect, the High Court endorsed Beijing¡¦s view and disqualified members of the opposition from taking their seats.

And so it may be too late to stop 1L2C. But so be it. The real battle is over Article 23 anyway.

To get any security legislation through LegCo, the government needs only a simple majority. But it currently has that ¡X and it¡¦s revealing, therefore, that it hasn¡¦t yet moved to implement Article 23.

A previous administration tried to do just that in 2003, but dropped its proposed bill after half a million Hong Kongers poured into the streets in protest. Subsequent chief executives have all seemed wary of triggering any such demonstrations again, and Ms. Lam is no exception.

Hong Kong democrats should take heart at this reluctance, however momentary: It is a reason for the opposition ¡X especially the younger generation steeled by the Umbrella Revolution ¡X to regroup and for the public to get ready to rally again in defense of Hong Kong¡¦s freedoms.

Yi-Zheng Lian, a commentator on Hong Kong and Asian affairs, is a professor of economics at Yamanashi Gakuin University, in Kofu, Japan.