Co-location plan legally sound

Few doubt that a co-location arrangement is necessary for the Guangzhou-Shenzhen-Hong Kong Express Rail Link (XRL) to achieve its full economic benefits and make the HK$84.4 billion mega infrastructure facility worth the investment. This is common sense and readily understood by almost everyone. Opponents of the proposed co-location arrangements - specifically radical members of the opposition camp - have picked their fight in a legal battlefield.

The main argument is that the plan would violate Article 18 of the Basic Law, which states "national laws shall not be applied in the Hong Kong Special Administrative Region except for those listed in Annex III to this Law". But the fact is that mainland authorities would only enforce national laws within a very defined and restricted area inside the West Kowloon Terminus. This area will be called the "Mainland Port Area" (MPA); the MPA is legally regarded as outside the territorial boundary of the Hong Kong Special Administrative Region by virtue of the three-step process the proposed co-location arrangement involves.

The practice of Hong Kong leasing out a portion of the terminus to mainland authorities for the purpose of setting up the MPA is constitutionally sound. The argument that setting up the MPA is tantamount to ceding Hong Kong territory to the mainland doesn't hold water, because Article 7 of the Basic Law stipulates that the land and natural resources within the SAR shall be State property.

Furthermore, Article 7 also states that the SAR government is responsible for management, use and lease of its land and natural resources. This is to say that the SAR government can lease out the spaces in question to any party, including the mainland authorities of course. What it needs to do to render the co-location arrangement plan implementable is completing the necessary local legislation. And Article 20 of the Basic Law provides the legal basis for the Legislative Council to enact such a law because it allows the National People's Congress Standing Committee (NPCSC) to confer such a power to the SAR.

Moreover, joint checkpoints are not a rare phenomenon. A similar arrangement has been effectively implemented in the Shenzhen Bay Control Point on the Shenzhen side. There, immigration and customs officers from Hong Kong have been conducting their duties according to Hong Kong laws for more than a decade. Similar arrangements have also been implemented among other jurisdictions such as those between the United States and Canada.

The crusade against co-location arrangements has been waged under the guise of upholding the law. The fact is that it has nothing to do with the law but very much with an anti-mainland sentiment - one that abhors any move to bring Hong Kong and the mainland any closer either physically or mentally. We have witnessed such a pernicious sentiment taking its toll on other cross-boundary projects and initiatives such as the Hong Kong-Zhuhai-Macao Bridge and national education plans.

(HK Edition 07/27/2017 page8)