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Co-location arrangement will leave freedoms intact

作者: 周八駿 【2017-12-28】 The Standing Committee of the National People’s Congress on Wednesday approved a cooperation arrangement for mainland law-enforcement departments to operate according to relevant laws inside the Guangzhou-Shenzhen-Hong Kong Express Rail Link terminal in West Kowloon. Commonly known as “co-location arrangement”, the law-enforcement cooperation plan is expected to see continued attempts by the opposition camp [...]

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周八駿,光大集團高級研究員、香港資深評論員,發表關於中國改革開放和香港問題的著作七部、評論逾千篇。

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【2017-12-28】
The Standing Committee of the National People’s Congress on Wednesday approved a cooperation arrangement for mainland law-enforcement departments to operate according to relevant laws inside the Guangzhou-Shenzhen-Hong Kong Express Rail Link terminal in West Kowloon. Commonly known as “co-location arrangement”, the law-enforcement cooperation plan is expected to see continued attempts by the opposition camp to delay its passage in the Legislative Council as long as they can. Members of the Hong Kong public across the social spectrum should understand the NPCSC decision not only ensures the city’s access to the nationwide high-speed railway network and further integration into the overall development of the country but also complies with the “one country, two systems” principle and spirit of the Basic Law.

When the Basic Law of the Hong Kong Special Administrative Region was drafted back in the 1980s no one could have foreseen the construction of a nationwide high-speed railway network or the need for “co-location” of law-enforcement operations in the same building. That is why the Basic Law has no specific provisions for the co-location arrangement. Zhang Xiaoming, director of the Hong Kong and Macao Affairs Office of the State Council, explained to the NPCSC last Friday that the co-location arrangement is a new development; the highest institution of State power and the nation’s top legislature needs to make it legally binding through an authoritative decision.

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The co-location arrangement for law-enforcement operations by both Hong Kong and mainland authorities inside the XRL terminus in West Kowloon must comply with the nation’s Constitution as well as the Basic Law. The Basic Law has no clause specifically dealing with the issue but does have some articles that provide legal ground for it.

Article 2 of the Basic Law stipulates: “The National People’s Congress authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of this Law”; while Article 7 stipulates: “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 and Article 119 require the HKSAR Government to boost economic development with appropriate policies.

According to those articles of the Basic Law, the NPCSC authorizes the SAR government to lease a limited space inside the XRL terminus to mainland law-enforcement departments for a number of years to clear mainland-bound passengers for boarding. The said space will be referred to as a “Mainland Port Area”. It must be noted the co-location arrangement will not in any way harm Hong Kong residents’ rights or freedoms.

There are two reasons for opposing the co-location arrangement in Hong Kong: One is mechanical understanding of the Basic Law, which does not mention the co-location arrangement; while the other views Hong Kong as an “enclave” within Chinese territory but completely outside China’s jurisdiction and therefore absolutely rejects it.

Of the opposition parties in Hong Kong few completely reject the co-location arrangement, as few of them openly advocate “local self-determination” or “Hong Kong independence”. Most of the “pan-democrat” groups chose to interpret the Basic Law mechanically. Their logic is this: The co-location arrangement allows mainland laws to be enforced in the HKSAR in violation of the Basic Law, which stipulates in Article 18(2) “National laws shall not be applied in the Hong Kong Special Administrative Region except for those listed in Annex III to this Law. The laws listed therein shall be applied locally by way of promulgation or legislation by the Region.” And Annex III of the Basic Law does not include the national laws to be enforced in the Mainland Port Area at the XRL terminus in West Kowloon.

That logic is faithful to Hong Kong’s high degree of autonomy to a fault, because it completely overlooks the “HKSAR Port Area” at Shenzhen Bay, where relevant Hong Kong laws are in force inside Shenzhen according to a similar arrangement approved by the NPCSC. Since no one has objected to the HKSAR Port Area at Shenzhen Bay, there is no ground for anyone to oppose the Mainland Port Area inside the XRL terminus in West Kowloon.

Some Hong Kong residents are concerned the co-location arrangement may result in their individual rights and freedoms protected by the Basic Law and local laws being affected somehow. And the opposition camp is using such concerns as an excuse to oppose the co-location arrangement. They have gone so far as to claim the arrangement will jeopardize Hong Kong’s rule of law by making it easier for mainland residents to enter Hong Kong.

The concerns about individual rights and freedoms are unnecessary because the mainland laws are in force only inside the confined Mainland Port Area at the West Kowloon terminus and only apply to passengers bound for mainland destinations or arriving at Hong Kong.

(The author is a senior research fellow of China Everbright Holdings)
(Published on Page12, China Daily Hong Kong Edition, December 28, 2017)

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