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.