SAR gov­ern­ment ex­plains co-lo­ca­tion ar­range­ment

China Daily (Hong Kong) - - COMMENT -

Dif­fer­ent views have been ex­pressed in re­cent days by in­di­vid­u­als and groups in so­ci­ety about the de­ci­sion adopted by the Stand­ing Com­mit­tee of the Na­tional Peo­ple’s Congress on Dec 27 on the im­ple­men­ta­tion of co-lo­ca­tion ar­range­ment at the West Kowloon Sta­tion of the Guangzhou-Shen­zhen-Hong Kong Ex­press Rail Link and the ex­pla­na­tions on the draft de­ci­sion pro­vided by Di­rec­tor of the Hong Kong and Ma­cao Af­fairs Of­fice of the State Coun­cil Zhang Xiaom­ing. Among these views is the state­ment is­sued by the Hong Kong Bar As­so­ci­a­tion as well as views ex­pressed by in­di­vid­ual mem­bers of so­ci­ety via the me­dia. In re­sponse to me­dia en­quiries on these views, the HKSAR Gov­ern­ment pro­vides the fol­low­ing re­sponse:

First, the HKSAR Gov­ern­ment fully re­spects the rule of law. At the same time, it re­spects the Con­sti­tu­tion of the Peo­ple’s Repub­lic of China, the pol­icy of “one coun­try, two sys­tems” as well as the Ba­sic Law of the HKSAR. The HKSAR Gov­ern­ment re­it­er­ates that in the course of the con­sul­ta­tions on the co-lo­ca­tion ar­range­ment, both sides have al­ways agreed that the co-lo­ca­tion ar­range­ment must be con­sis­tent with “one coun­try, two sys­tems” and must not con­tra­vene the Ba­sic Law. HKSAR Gov­ern­ment of­fi­cials have also stated in the past that “one coun­try, two sys­tems” will not be harmed or the Ba­sic Law con­tra­vened just for the sake of pro­mot­ing con­ve­nience or en­hanc­ing eco­nomic ben­e­fits and ef­fi­ciency. It is pre­cisely for this rea­son that the two sides have over the past pe­riod of time re­peat­edly stud­ied dif­fer­ent co-lo­ca­tion ar­range­ment op­tions as well as the le­gal is­sues in­volved, in­clud­ing the dif­fer­ent views in so­ci­ety on rel­e­vant pro­vi­sions of the Ba­sic Law such as Ar­ti­cles 7, 18, 19, 20 and 22. There­fore, there is ab­so­lutely no ques­tion of the Con­sti­tu­tion, the Ba­sic Law or “one coun­try, two sys­tems” be­ing dis­re­garded or dis­re­spected just be­cause the sub­ject mat­ter con­cerns “a good thing”.

On the con­trary, on the ba­sis of re­spect­ing the Con­sti­tu­tion, the Ba­sic Law and “one coun­try, two sys­tems”, the SAR and the main­land have adopted the “Three-step Process” in tak­ing for­ward the co-lo­ca­tion ar­range­ment. Step one of the “Three-step Process” re­flects the en­joy­ment of a high de­gree of au­ton­omy by the SAR. It also re­flects the fact that nei­ther the SAR nor the main­land can im­ple­ment co-lo­ca­tion ar­range­ment on its own. Step two, apart from re­spect­ing the PRC Con­sti­tu­tion and the con­sti­tu­tional sta­tus of the NPCSC, can also en­sure that the co-lo­ca­tion ar­range­ment is ul­ti­mately con­sis­tent with the Ba­sic Law. Step three, through the lo­cal leg­isla­tive process, fully re­flects the au­ton­omy of the SAR in han­dling co-lo­ca­tion ar­range­ment.

Sec­ond, views have been ex­pressed that the de­ci­sion made by the NPCSC does not ex­plain the le­gal ba­sis or is lack­ing in it. How­ever, both the de­ci­sion it­self and the ex­pla­na­tions of Di­rec­tor Zhang Xiaom­ing have ex­plained the le­gal ba­sis of the de­ci­sion. Chair­man of the HKSAR Ba­sic Law Com­mit­tee un­der the NPCSC, Li Fei, fur­ther ex­plained the le­gal ba­sis of the de­ci­sion at the press con­fer­ence held af­ter the adop­tion of the de­ci­sion. Le­gal ex­perts often have dif­fer­ent views on the same is­sue. So it is nat­u­rally un­der­stand­able that dif­fer­ent peo­ple may have dif­fer­ent views about the le­gal rea­son­ing be­hind the de­ci­sion, but this does not mean the de­ci­sion has no le­gal ba­sis.

Third, co-lo­ca­tion ar­range­ment in­volves en­abling main­land per­son­nel to con­duct pro­ce­dures for exit and en­try on high-speed rail pas­sen­gers at the West Kowloon Sta­tion Main­land Port Area. Some have queried whether such ar­range­ment would con­tra­vene Ar­ti­cle 18 of the Ba­sic Law. Al­though Ar­ti­cle 18 of the Ba­sic Law stip­u­lates that na­tional laws shall not be ap­plied in the HKSAR ex­cept for those listed in An­nex III to the Ba­sic Law, the ex­pla­na­tions and Chair­man Li Fei have ex­plained the two main rea­sons why the co-lo­ca­tion ar­range­ment does not con­tra­vene Ar­ti­cle 18 of the Ba­sic Law:

(1) What Ar­ti­cle 18 of the Ba­sic Law pre­scribes is the ex­ten­sion and ap­pli­ca­tion of na­tional laws in the en­tire HKSAR. In short, the area of ap­pli­ca­tion of the rel­e­vant na­tional laws stip­u­lated in Ar­ti­cle 18 of the Ba­sic Law is the en­tire HKSAR; they are im­ple­mented by the HKSAR it­self and they are ap­pli­ca­ble to all per­sons in the HKSAR. How­ever, the sit­u­a­tion of colo­ca­tion ar­range­ment is clearly dif­fer­ent from that pre­scribed un­der Ar­ti­cle 18 of the Ba­sic Law. When im­ple­ment­ing co-lo­ca­tion ar­range­ment, the area of ap­pli­ca­tion of the na­tional laws is only con­fined to the Main­land Port Area at the West Kowloon Sta­tion. The na­tional laws are im­ple­mented by the rel­e­vant main­land au­thor­i­ties and they are mainly ap­pli­ca­ble to high-speed rail pas­sen­gers present in the Main­land Port Area.

(2) The co­op­er­a­tion ar­range­ment ex­pressly pro­vides that, for the pur­poses of the ap­pli­ca­tion of the laws of the main­land and the de­lin­eation of ju­ris­dic­tion, the West Kowloon Sta­tion Main­land Port Area will be re­garded as “be­ing sit­u­ated in the main­land”. There­fore, as a mat­ter of law, Ar­ti­cle 18 of the Ba­sic Law no longer ap­plies. Sim­i­lar pro­vi­sion has been used for the colo­ca­tion model at the Shen­zhen Bay Port Hong Kong Port Area, and “deem­ing pro­vi­sions” of a sim­i­lar na­ture can also be found in other le­gal con­texts from time to time. More­over, since the NPCSC has ap­proved the co­op­er­a­tion ar­range­ment, this also pro­vides le­gal ba­sis for the above pro­vi­sion.

There are also views in so­ci­ety that the present de­ci­sion amounts to an an­nounce­ment that the co­op­er­a­tion ar­range­ment com­plies with the Con­sti­tu­tion and the Ba­sic Law “just be­cause the NPCSC says so”, and there are even views that this amounts to the “rule of man”. The HKSAR Gov­ern­ment and mem­bers of so­ci­ety un­der­stand that un­der ev­ery sys­tem, there will be (and must be) an or­gan of high­est and ul­ti­mate au­thor­ity. Un­der “one coun­try, two sys­tems”, the HKSAR en­joys a high de­gree of au­ton­omy in ac­cor­dance with the Ba­sic Law, but it must also re­spect the PRC Con­sti­tu­tion as well as the sta­tus and pow­ers of the NPCSC un­der the con­sti­tu­tional order of the State.

The NPC is the high­est or­gan of State power, whereas the NPCSC is the NPC’s per­ma­nent body. The en­tire process lead­ing to the adop­tion of the present de­ci­sion by the NPCSC, which in­volves the SAR sign­ing the co­op­er­a­tion ar­range­ment with the main­land, fol­lowed by sub­mis­sion by the State Coun­cil to the NPCSC for ex­am­i­na­tion, and then, fol­low­ing de­lib­er­a­tions in group meet­ings, the adop­tion of the de­ci­sion by the NPCSC by vot­ing, is fully con­sis­tent with the con­sti­tu­tional process of the State. In other words, the present de­ci­sion is a de­ci­sion made en­tirely pur­suant to the PRC Con­sti­tu­tion and re­lated pro­ce­dures. It has le­gal ef­fect and is not a mere ex­ec­u­tive de­ci­sion as sug­gested by some. Nor is it a case of “just be­cause some­one says so”, not to men­tion a case of “rule of man” or a ret­ro­grade step in the im­ple­men­ta­tion of the Ba­sic Law. More­over, in the course of the lo­cal leg­isla­tive process un­der the third step, Leg­isla­tive Coun­cil mem­bers and dif­fer­ent sec­tors of so­ci­ety will have the op­por­tu­nity to dis­cuss the rel­e­vant is­sues, and it is ul­ti­mately up to Leg­isla­tive Coun­cil mem­bers to de­cide whether to en­act the lo­cal leg­is­la­tion thereby im­ple­ment­ing co-lo­ca­tion ar­range­ment.

Fi­nally, co-lo­ca­tion ar­range­ment is a mat­ter that must be dealt with in light of the de­vel­op­ments in the com­mu­ni­ca­tion and trans­porta­tion sys­tems. For the high-speed rail pas­sen­gers who use the pro­ce­dures for exit and en­try un­der co-lo­ca­tion ar­range­ment, the pro­ce­dures and their rights are ba­si­cally the same as those un­der the tra­di­tional “sep­a­rate lo­ca­tion” ar­range­ment. The main dif­fer­ence is that co-lo­ca­tion ar­range­ment is more con­ve­nient and ef­fi­cient. It is hoped that mem­bers of so­ci­ety can un­der­stand co-lo­ca­tion ar­range­ment and re­lated mat­ters in an ob­jec­tive, prag­matic and well­rounded man­ner.

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