LCQ4: Co-location Arrangement of Hong Kong Section of Guangzhou-Shenzhen-Hong Kong Express Rail Link
On December 27 last year, the Standing Committee of the National People's Congress made a decision (the Decision) to approve the Co-operation Arrangement between the Mainland and the Hong Kong Special Administrative Region on the Establishment of the Port at the West Kowloon Station of the Guangzhou-Shenzhen-Hong Kong Express Rail Link for Implementing Co-location Arrangement (the Co-operation Arrangement) signed between the Government of the Hong Kong Special Administrative Region and the Mainland authorities on November 18 last year. The explanations made by the Director of the Hong Kong and Macao Affairs Office of the State Council on the Decision (the Explanations) pointed out that Articles 2, 7, 118 and 119 of the Basic Law had provided the legal basis for the Co-operation Arrangement. The Government will commence the domestic legislative exercise for implementing the co-location arrangement. In this connection, will the Government inform this Council:
(1) given that reference to a number of Basic Law articles was made in a paper submitted by the Government to this Council in July last year in relation to the co-location arrangement, but Articles 7, 118 and 119 were not mentioned, when the Government came to know that these three articles would be among those articles providing the legal basis for the Co-operation Arrangement, and why the Government has not submitted at an earlier time a supplementary paper on this issue to this Council; whether the Government and the Mainland authorities have studied the implementation of the co-location arrangement by interpreting or amending the Basic Law through invoking Article 158 or Article 159;
(2) whether the Legal Policy Division under the Department of Justice has studied the legal effects of the Decision and the Explanations in the judicial system of Hong Kong, and whether such instruments and the co-location arrangement comply with the Basic Law and the legal doctrines (especially in relation to Hong Kong courts' power to inquire into the constitutionality of laws) enunciated by the courts of Hong Kong in their judgments; if so, whether the Government will give this Council a detailed account of the outcome of the study; and
(3) whether the "facilities and equipment provided by the Mainland authorities stationed at the Mainland Port Area themselves or exclusively used by them in carrying out duties and functions pursuant to this Co-operation Arrangement" as mentioned in Article 7(2) of the Co-operation Arrangement include detention rooms and weapon storerooms; if so, of the details?
My consolidated reply to the Hon Tanya Chan's question is as follows:
Construction works of the Hong Kong Section of the Guangzhou-Shenzhen-Hong Kong Express Rail Link (XRL) which started in 2010 are now roughly 98 per cent complete. The project is expected to commission in the third quarter this year. Should co-location arrangement be implemented at the West Kowloon Station (WKS), it will enable passengers to travel to and from different destinations across the country conveniently, and allow Hong Kong to provide direct high-speed rail service to an increasing number of Mainland cities in the days to come in order to cater for future demands for railway service. The co-location arrangement is a facilitation measure for cross-boundary transport and a livelihood issue by nature, and its objective is to fully unleash the benefits of the XRL and maximise convenience to passengers.
Throughout the consultations on co-location arrangement between the Government of the Hong Kong Special Administrative Region (HKSAR) and the Mainland, both sides have always agreed and insisted 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 clearly 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, for the past period of time, repeatedly studied different co-location arrangement options as well as the legal issues involved. Since the Basic Law has to be construed as a whole, the two sides have considered many provisions of the Basic Law, including Articles 2, 7, 22, 118, 119 and 154 etc. which are relevant, as well as the different views in society on the relevant provisions of the Basic Law. The "Three-step Process" was proposed by the two sides in taking forward the work relating to the co-location arrangement following in-depth study, with a view to providing a sound legal basis for the co-location arrangement.
As the HKSAR Government explained in the Annex to the discussion paper provided to the Legislative Council (LegCo) on July 25, 2017, the Basic Law of the Hong Kong Special Administrative Region is not only a national law but is also the constitutional document of the HKSAR which provides for the implementation of "one country, two systems" in the HKSAR. The Basic Law is the legal safeguard for implementing the "one country, two systems" policy in Hong Kong and for maintaining the long-term prosperity and stability of Hong Kong. It has a solemn status and should not be amended lightly. Having studied the matter in detail, the HKSAR Government and the relevant central authorities were of the view that the proposed "Three-step Process", an approach other than amending the Basic Law, can appropriately implement the co-location arrangement.
At the same time, pursuant to Article 158 of the Basic Law, the Standing Committee of the National People's Congress (NPCSC) has the ultimate power to interpret the Basic Law. However, the procedures for interpreting the Basic Law under Article 158 of the Basic Law should also be invoked with care. On December 27, 2017, the NPCSC has made the Decision on Approving the Co-operation Arrangement between the Mainland and the Hong Kong Special Administrative Region on the Establishment of the Port at the West Kowloon Station of the Guangzhou-Shenzhen-Hong Kong Express Rail Link for Implementing Co-location Arrangement approving the Co-operation Arrangement and confirming that the Co-operation Arrangement is consistent with the Constitution of the People's Republic of China and the Basic Law of the Hong Kong Special Administrative Region. The second step of the "Three-step Process" has formally completed. The HKSAR Government is now forging ahead with the remaining third step of the "Three-step Process", namely the enactment of local legislation to implement the co-location arrangement. The HKSAR Government has no plans to request the NPCSC to issue an interpretation of the Basic Law pursuant to Article 158(1) of the Basic Law with respect to the co-location arrangement.
As mentioned above, the relevant bureaux and departments of the HKSAR Government, including the Department of Justice, are now actively taking forward the work relating to the local legislative process with a view to implementing the co-location arrangement upon the commissioning of the Hong Kong Section of the XRL in the third quarter this year, in order to fully unleash the transport, social and economic benefits of the XRL and maximise convenience to passengers. The Department of Justice has been working closely with the relevant bureaux and departments in the course of the legislative drafting process in providing legal advice on the co-location arrangement and different aspects concerning the bill. The HKSAR Government is now actively working towards the aim of introducing the bill into LegCo no later than early February this year. LegCo Members can further discuss the bill and related matters.
Under the co-location arrangement, passengers will need to undergo Hong Kong and Mainland customs, immigration and quarantine procedures in the WKS respectively. Mainland Authorities Stationed at the Mainland Port Area will only perform duties and functions in the WKS Mainland Port Area. "Facilities and equipments provided by the Mainland Authorities Stationed at the Mainland Port Area themselves or exclusively used by them in carrying out duties and functions pursuant to this Co-operation Arrangement" as mentioned in Article 7(2) of the Co-operation Arrangement refer to the apparatus necessary for the Mainland personnel to perform duties in daily operation (e.g. luggage inspection machines, computer systems, communication equipment, health inspection machines etc.), and do not refer to the specific rooms of the Mainland Port Area. Since these facilities and equipments will be provided and exclusively used by the Mainland Authorities Stationed at the Mainland Port Area, they will not be matters under the jurisdiction of the HKSAR in accordance with the Co-operation Arrangement.
Ends/Wednesday, January 17, 2018
Issued at HKT 14:46
Issued at HKT 14:46