Letters from leaders of Hong Kong's political parties and government departments.
Happy Lunar New Year! While I still missed the dinner with you at China Town last year, the New Year has come in a flash. I am sure you know Hong Kong has gone through an eventful period in the last couple of years. “Co-location” arrangement at the West Kowloon Terminus is surely one of those. Although the juxtaposed co-location arrangement is very common worldwide with a lot of success in practice such as the Pre-clearance measures of the U.S immigration at the Canadian border and, the French Immigration checks at the London Central Station, it has become a highly politicized issue in Hong Kong.
In fact, we also have successful practice of co-location arrangement between Mainland China and Hong Kong at the Shenzhen Bay; yet, when it was vice versa, that Hong Kong leasing special zone for Chinese Immigration, it was always unacceptable to some people in Hong Kong. The key issue here is trust. If the two parties are lack of trust, good things turn bad.
A prominent mainland law professor Chen Duanhong, emphasized that immigration matters and policy of a country belong to sovereignty matters from the views of the Central government as who is allowed to leave, and enter China may affect the national security and foreign relations of China. Thus, whether Chinese immigration laws may pass the test in Annex III of the Basic Law , the answer must be ‘yes’. However, there may be more than 10 pieces of Chinese laws relating to customs, immigration and quarantine. Therefore, invoking Annex III is considered not a preferred choice for co-location arrangement in Hong Kong.
In fact, it is also complicated for China to examine all the relevant laws to be applied to HKSAR for this co-location arrangement. Nor is it worthwhile to do so vis-à-vis the political reaction it might cause to the community of Hong Kong.
Let’s look at the current situation; National People's Congress Standing Committee (NPCSC) officially passed the decision to approve the co-location arrangement agreed by the HKSAR and Guangdong Governments. This act of NPCSC has provided a strong constitutional and legal basis for the co-location arrangement. Under Chinese constitutional order, the NPCSC’s decision and its interpretation have the same legal status that is binding to Hong Kong court.
It is worthwhile to recollect the drafting process of the Hong Kong Basic Law that was finally passed by the National People’s Congress (NPC). By the fact that the Basic Law was passed by the NPC and its final interpretation power is vested upon NPCSC reflects that the HKSAR Basic Law not only carries the nature of common law, but also the nature of Chinese law, which are stated clearly in Article 18 as well as Article 158 in the Basic Law. In the past 20 years, most of the court cases in Hong Kong are adjudicated in accordance with common law tradition; however, when it comes to central-local relationship, it will reflect both the Chinese law tradition and common law tradition. It is the characteristics of the HKSAR Basic Law under the constitutional framework of One Country Two Systems since the HKSAR Basic Law was born.
Critics say that the co-location arrangement has breached Article 22 of the Basic Law, which stated that no individuals nor departments from the mainland should interfere with Hong Kong’s internal affairs. But this is a misconception. This co-location model is based on the concept of Shenzhen Bay Port model, of which Hong Kong officers were only allowed to execute their duties within the agreed zone area, but not allowed to enter into any other areas in the Mainland nor be given any opportunity to interfere with the Mainland authorities’ internal immigration matters.
It is undeniable that Hong Kong is part of China, and the HK Basic Law has to operate under the constitutional order of China with a high level of autonomy. The Co-location arrangement involves the relationship between central and local governments. With the approval of NPCSC, the Hong Kong SAR Government is entrusted to pass its own local legislation on the co-location arrangement with strong constitutional and legal grounds.
I understand that some people are concerned of the lack of legal basis for the collision between the two jurisdictions resulted from the co-location arrangement. I sincerely believe that the High Speed Rail is within the best interest of Hong Kong citizens, whereas the co-location arrangement has strong legal basis, protected by the HKSAR Basic Law within the constitutional framework of One Country, Two Systems.
Ricky, sorry to discuss so many legal concepts in this letter, but I am sure you would love to share this view with me. Thank you, and hope to see you soon.
Dear Hong Kong Citizens,
As you may have noticed, the grade one historic building in Tuen Mun known as the Hung Lau has been put into the spotlight recently due to the damages that it has sustained by developers. The attitude and efficiency the H.K. government exhibited (after the damages were known) was totally unacceptable, and calls into question how effective our current heritage conservation policy is in protecting historic monuments.
The Hung Lau, which means "Red House" in Cantonese, is historically important as it is said to be linked to Dr. Sun Yat-sen during the Chinese republican revolutionary days. Yet, trees surrounding the Hung Lau were chopped down, parts of the walls surrounding the building were torn down, even the water supply was cut off forcefully in February. I visited the site with Tuen Mun local residents as soon as I knew about these damages, and saw no sign that such work would stop. I wrote to Secretary of Development Eric Ma immediately, requesting him to declare the Hung Lau a ‘proposed monument’ under the Antiquities and Monuments Ordinance. On 1st of March, Antiquities Advisory Board, abbreviated as AAB, stated that it would not declare the building a ‘proposed monument’, and that it would only declare it as such, only if it should sustain any further damages in the future, a decision I find ill-informed and completely unreasonable. On 8th of March, multiple windows of Hung Lau were damaged and only then did the Antiquities and Monuments Office declare it a ‘proposed monument’. The way how things turned out not only showed how incapable the government is when protecting historic monuments, it also shows how little significance is attached to heritage conservation.
When a building that has not been declared a monument is about to be demolished, such work could only take place after permission from "Building Department" or "Lands Department" under the "Building Ordinance" (Cap12) and "Buildings Ordinance (Application to the New Territories) Ordinance". However, as seen in the case of the Hung Lau, when damages were reported and demolishing work started to take place, the only action taken by the authorities was Building Department issuing a Notice and putting it in an obvious spot, which fails to act as a deterrent. Lessons learnt from past examples have also shown the unavoidably repeated fate of demolition even if the monuments were given a grade one status, like that of Queen’s Pier and Star Ferry Pier. It is also worth mentioning that Ho Tung Gardens and the Complex of King Yin Lei at Stubbs Road were also granted a "proposed monument" status after they were damaged, which further demonstrates the government’s incapability of protecting ungraded historical buildings.
The Chief Executive appoints the chairman and members of the board of AAB (Antiquities Advisory Board), which explains why its members are all his supports and confidants, making the Broad as a consultative panel full of politicians and businessmen. Only four members of the board have archaeological and historical backgrounds, the rest of them are from fields such as planning, accounting, politics and information and technology. This undoubtedly questions the legitimacy of AAB Antiquities Advisory Board. Moreover, under such leadership, discussions inside Antiquities Advisory Board are inevitably driven by development and business interests. Heritage conservation is an important step towards achieving sustainable development, but such goal seems more difficult to achieve when the effectiveness of Antiquities Advisory Board is hampered by the way the CE appoints its members.
To ensure that buildings with historical significance are protected, the Historic Buildings Grading System should be added into the jurisdiction of the Antiquities and Monuments Ordinance, This would prevent private property owners from tearing down any buildings of historical value, and ensure that buildings that are not declared a monument could also be protected. In addition, the Antiquities and Monuments Office should increase its transparency and accountability by allowing public participation and the nomination of representatives from the corresponding fields. Lastly, the government should also consider setting up an Architectural Heritage Fund that is responsible for conserving historic buildings and monuments.
Even though the Hung Lau is currently declared a ‘proposed monument', the building is only safe for a year. Thus, I hope the building will be declared a monument, so that the public can know more about the building and its history in the future. Like many fellow citizens, I also hope the publicity this series of events has generated can help raise the public’s awareness to Hong Kong’s heritage conservation policy.