Co-location ‘complies with Basic Law’: Albert Chen
Hong Kong SAR Basic Law Committee member and law professor Albert Chen Hungyee says the co-location of boundar y control facilities, including a Mainland Port Area inside the West Kowloon Terminus, complies with the Basic Law.
He b e l i e v e s p e o p l e w h o abide by the law do not need t o w o r r y ; m o r e o v e r, m o s t citizens will find the express trains and co-location services fast and convenient.
In an exclusive interview with China Daily, Chen said the Basic Law does not explicitly permit a co-location system. But he said the Hong Kong government can rely on Article 20 as the predominant legal basis by obtaining National People’s Congress Standing Committee (NPCSC) approval to run a co-location system and its authorization for the Legislative Council to enact a law for this purpose.
He says Article 20 provides a safe legal basis against judicial challenges because the arrangement has been thoroughly discussed by mainland and Hong Kong authorities. “Regardless of legal challenges, I don’t think the court will order injunction to stop the co-location system from functioning or the express trains from operating,” he said.
Chen has observed that the “pan-democrats” oppose the co-location arrangement, yet without offering a workable solution. Also, he dismisses their claim that a Mainland Port Area in West Kowloon Terminus amounts to “ceding a piece of land”. He said this is sparking fears among citizens who have never visited the mainland or gone through any immigration control points.
Article 20 of the Basic Law says: The Hong Kong Special Administrative Region may enjoy other powers granted to it by the National People’s Congress, the NPCSC or the Central People’s Government.
Chen explained: “The Basic Law is a constitutional document, which is written as a framework and is not as detailed as a piece of legislation. When it was drafted in the 1980s, express rail links and co-location systems did not exist.”
“However, Article 20 offers room for unexpected things from a purpose approach. So, whether things not mentioned in the Basic Law can be done depends on whether an appropriate legal basis can be found in the Basic Law.”
Chen backs the co-location proposal that the Mainland Po r t A r e a c o v e r s w a i t i n g areas, platforms and trains because once passengers have comple ted depar ture procedures with Hong Kong authorities, they are deemed to have entered the mainland. They are therefore subject to mainland jurisdiction.
“Mainland officers working in the Mainland Port Area in West Kowloon Terminus shall have full power of law enforcement on top of customs, immigration and quarantine laws. Otherwise, they cannot handle northbound passengers suspected of other crimes and prevent suspects wanted by mainland authorities from fleeing to Hong Kong.
“The opposition camp argues co-location is against
It is hard for them (mainland officers deployed in the SAR) to work in closed underground compounds, returning to the mainland the same day after work.”
the Basic Law but I think it is compliant. The Mainland Port Area is not ‘ceded land’ because it is located on the underground levels of West Kowloon Terminus in Hong Kong, not in Shenzhen. It is not a bad precedent, knowing the purpose of the area is for the benefit of the passengers and it is not possible to have many Mainland Port Areas in future because strict procedures are involved.
“The Hong Kong government ’s ‘ three-step process’ reflects a high degree of autonomy. After the NPCSC approves the cooperation a g r e e m e n t b e tw e e n Ho n g Kong and Shenzhen, the colocation arrangement still has to be implemented by Hong Kong legislation,” he pointed out.
Chen said people should show understanding to mainland officers deployed in West Kowloon Terminus.
He said: “It is hard for them to work in closed underground compounds, returning to the mainland the same day after work. It is more appropriate to say they provide services to the passengers than law enforcement. They are not like soldiers stationed here, and still the soldiers have caused no problems over the past 20 years.”
West Kowloon Terminus, the 11-hectare underground station of the Hong Kong section of Guangzhou-Shenzhen-Hong Kong Express Rail Link, is currently under construction.
Albert Chen Hung-yee,