Po Jen Yap & Jiang Zixin on "Co-location is Constitutional" (HKLJ)

"Co-location is Constitutional"

Po Jen Yap and Jiang Zixin (JD 2018)

Hong Kong Law Journal 

2018, Vol. 48, Part 1, pp. 37-50

Abstract: In this comment, we argue that the co-location arrangement proposed by the Hong Kong Special Administrative Region Government is consistent with the Basic Law. Co-location does not engage art 18 of the Basic Law because, for the purpose of art 18, the land comprising the Mainland Port Area (MPA) would no longer be in Hong Kong. This is the legal consequence of the Government’s exercise of its power under art 7 of the Basic Law to relinquish legal control over land. Specifically, the Government has the implied power under art 7 to relinquish legal control over land comprising the MPA in favour of the PRC authorities for customs, immigration and quarantine procedures as (1) co-location is derivative of, and in service to, the Government’s power under art 7 of the Basic Law to lease land; (2) the Government’s aim of achieving efficient high-speed rail interconnectivity between Hong Kong and Mainland China is legitimate; (3) co-location is reasonably adapted to the attainment of this legitimate aim; and (4) co-location does not violate fundamental rights enjoyed by residents living in Hong Kong. Since the Government has the implied power under art 7 to relinquish legal control over land comprising the MPA for co-location, the provisions that deem the MPA outside Hong Kong are constitutional, and therefore, the land comprising the MPA would not be in Hong Kong for the purpose of art 18.