Experts say co-location decision is ‘legally sound’

The country’s top legislature’s decision on approving the co-location arrangement for the city’s high-speed rail terminus was made with a “sound legal basis” and after thorough consideration, legal experts in Hong Kong argue.

The legal veterans also dismissed recent arguments which claimed the decision threatened the special administrative region’s high degree of autonomy, explaining that such concerns were “incorrect” and “unnecessary”.

On Dec 27, the National People’s Congress Standing Committee approved the joint-checkpoint plan for the Express Rail Link connecting Hong Kong with Guangzhou and Shenzhen, allowing onestop Hong Kong and mainland customs and immigration clearance at the West Kowloon terminus.

Mainland laws apply in a designated area within the terminus, according to the plan.

Hong Kong SAR Basic Law Committee member and law professor Albert Chen Hungyee said the co-location plan, put forward by the SAR government, actually demonstrates the high degree of autonomy which Hong Kong enjoys.

The city has the right to make arrangements on its immigration policies. This is because the Basic Law clearly stipulates that the SAR government is authorized to apply its own immigration controls, explained Chen.

In addition, Chen noted that the original intent of Article 18 of the Basic Law did not prohibit arrangements such as the co-location plan, which allow mainland law to apply in a restricted area. The NPCSC has just made a decision in accordance with the original intent of the law, Chen added.

Article 18 of the Basic Law stipulates that national laws shall not apply in the Hong Kong SAR except for those listed in Annex III of the Basic Law.

He felt that legal professionals who criticized the decision had looked at the issue only from the perspective of the common law system.

Barrister and the Executive Council Chairman of Hong Kong Legal Exchange Foundation Lawrence Ma Yan-kwok said the NPCSC’s decision has supplemented and clarified Article 18 of the Basic Law.

This means mainland law is only applied to the designated area within the terminus — not to the whole city; therefore it does not need to be included in Annex III.

Ma said the co-location plan serves as a “necessary condition” for letting Hong Kong tap into the mainland’s railway system, and maximize the railway’s economic and social benefits, not an excuse the central government made to apply national law in the city.

Tam Yiu-chung, an NPC deputy-elect, said an accurate understanding of the co-location plan should refer not only to the existing Basic Law articles, but also necessary supplements to the law, since the law develops as society progresses.