The second issue is whether the decision of NPCSC is a national law, if it is, whether it should be add into Annex III of Basic Law. According to Constitution People's Republic of China Article 56 and 57, NPC is the highest organ of the state and has legislative power. NPCSC is the permanent body of NPC which can exercise most of the NPC's power, including a limited legislative power. But the concept of law has not been clearly defined in Mainland; base on some legal professional's opinion, which is well accepted nowadays in Mainland, the three following documents can be regarded as national law:
Basic laws enact by NPC Other laws other than basic laws enact by NPCSC, and Resolutions or decisions which are regularly in nature made by NPC or NPCSC12 Obviously, according to the definition given above, if the decision of NPCSC on Shenzhen Bay Port is regularly in nature, it will be regarded as a national law. Hong Kong Government held the opinion that the decision of NPCSC is obviously regularly in nature; therefore it is a national law.
However, the Government insists this decision can be enacted in Hong Kong without adding into Annex III even though it is regard as national law for the following reasons: "The NPCSC's Decision is intended to confer, for the purpose of Article 20 of the Basic Law, additional powers on the HKSAR so that it may exercise its jurisdiction over the HKPA in accordance with Hong Kong laws; Whether the above intended effect of the NPCSC's Decision can be achieved would hinge on: Whether the NPCSC's Decision was validly made;
Whether the HKSAR is competent to acquire the additional powers conferred; Regarding above, the NPCSC's Decision was validly made by the NPCSC according to its powers under the Constitution Regarding above, the HKSAR is competent to acquire the additional powers under Article 20; Further, the NPCSC's Decision, as an authorizing instrument, is clearly directed to, and intended to be applicable in, the HKSAR. It does not contain any provision which suggest that its coming into force is conditional upon its inclusion in Annex III to the Basic Law;
Hence, for the effective operation of the NPCSC's Decision, there is no requirement for its inclusion in Annex III. "14 Though these reasons given by the Government seem to be persuasive, the Pandora's Box has been opened and it is the first time a national law enacts in Hong Kong not listed in Annex III. Basic Law Article 18 says "… National laws shall not be applied in the Hong Kong Special Administrative Region except for those listed in Annex III to this Law… " This article protects the independent jurisdiction of Hong Kong which is one of the bases of the "one country two system" policy.
However, it seems the Hong Kong Government broke such a significant rule only for its convenience and the Government's reasons have no basement on any judgments of Hong Kong courts or NPCSC's interpretation. If a significant rule can be broken so easily by the Government, other rights listed in Basic Law can also easily be broken in other ways, and the Basic Law will become a piece of waste paper. Besides, judicial reviews may be raised in the future and, if Hong Kong Government loses, the Shenzhen Bay Port will have to be closed, causing enormous damages to both Hong Kong and Mainland.
Therefore, I personally think the Hong Kong Government should quest NPCSC to add its decision into Annex III in order to solve this problem once and for all, especially it is not a difficult thing for the Government to do. The last issue of the Ordinance is the ownership of natural resources. Section 5 of the Shenzhen Bay Ordinance states that: (1) Except in so far as otherwise provided by an enactment enacted, or (in the case of subsidiary legislation) made, on or after the Relevant Date, the laws of Hong Kong apply in the Hong Kong Port Area.
For the purpose of applying the laws of Hong Kong in the Hong Kong Port Area, the Hong Kong Port Area is regarded as an area lying within Hong Kong. (3) If an enactment applies- (a) only to a specific area in Hong Kong; or (b) by reference to different areas in Hong Kong, then, for the purpose of determining whether the Hong Kong Port Area is included in such an area, the Hong Kong Port Area is regarded as an area known by its name that lies within the New Territories and outside New Kowloon.
Hong Kong Government clearly stated that the phrase "laws of Hong Kong" in this section has the same meaning as "law" defined in Interpretation and General Clauses Ordinance Section 515, which says "'law' means any law for the time being in force in, having legislative effect in, extending to, or applicable in, Hong Kong". Thus, in accordance with the definition of "law" in IGCO, Basic Law is one of the laws in Hong Kong, and applies to SBPHKPA under the Shenzhen Bay Ordinance Section 5. Basic Law Article 7 states: "The land and natural resources within the Hong Kong Special Administrative Region shall be State property.
The Government of the Hong Kong Special Administrative Region shall be responsible for their management, use and development and for their lease or grant to individuals, legal persons or organizations for use or development. The revenues derived therefrom shall be exclusively at the disposal of the government of the Region. " According to Basic Law Article 7, all natural resources within the land of Shenzhen Bay Port should belong to Hong Kong Government. 16 However, in the lease made between Hong Kong and Shenzhen Government, they all agreed that "The ownership of the land to be leased by the Hong Kong side shall rest with the State.
The underground natural resources of the land and anything buried under it shall not be subject to the land use right acquired by lease. Obviously, this clause of the contract is contravening Basic Law, and the ownership of natural rescores becomes an arguable question. In my opinion, NPCSC's decision only authorized HKSAR to exercise its jurisdiction in Shenzhen Bay Port, and this decision was made only for the purpose that HKSAR could administrate some territories outside of Hong Kong.
Though HKSAR can exercise its jurisdiction in SBPHKPA, this area is still a part of Mainland, not HKSAR, and only necessary laws for administrating a Port should be applied here. However, section 5 of the Ordinance tries to apply all laws of Hong Kong to the Port and it exceeds Hong Kong Government's authority, as a result, causes this contradiction and problem. One argument of this contradiction is section 8 of the Ordinance limits the right of Hong Kong Government, in the other words, limits the Article 7 of Basic Law.
I cannot agree with this idea because the Basic Law, which is a "mini constitution" of HKSAR, cannot be and should not be limited by a local ordinance. I think the best way to solve this problem is changing the Ordinance and excluding the laws which are unnecessary for a port administration. The Dual-Jurisdiction Problems HKSAR was authorized by NPCSC to exercise its jurisdiction in Shenzhen Bay Port, and the Hong Kong Government held the idea that only HKSAR had the jurisdiction in the SBPHKPA.
The documents provided to Legislative Council by Hong Kong Government states: "The NPCSC's Decision clearly states that the HKSR is authorized to exercise jurisdiction over the HKPA according to the laws of the HKSAR. By necessary implication of the above authorization, Mainland laws shall not apply to the HKPA, as if it were a part of the HKSAR… Mr. Qiao Xiaoyang, vice Chairman of the Law Committee of the NPC, made it clear that upon the implementation of the Co-location Arrangement, only Hong Kong laws would apply in the SBPHKPA…under the Co-location
Arrangement, the HKSAR would be able to exercise jurisdiction over the SBPHKPA as fully as it were a part of Hong Kong. However, Hong Kong Government's opinion does not support by any decisions or declaration of NPCSC because NPCSC has never mentioned Mainland gives up its jurisdiction in SBPHKPA in any places. Besides, Both Hong Kong Government and Mainland accepted that the SBPHKPA is not part of the HKSAR though section 6 of the Ordinance reads
"Notwithstanding that the land use right of the Hong Kong Port Area is acquired by way of a lease as mentioned in paragraph (3)(b) of the preamble, land within the Hong Kong Port Area is regarded, for the purpose of applying the laws of Hong Kong in the Hong Kong Port Area, as part and parcel of the Government land lying within Hong Kong" Because SBPHKPA is a part of Mainland, national laws should be applied in SBPHKPA like they applied in other parts of Mainland. According to Criminal Law Article 6 of PRC19, Mainland has jurisdiction in SBPHKPA because it is part of Mainland.
In my opinion, Mainland will not try to exercise its jurisdiction nor try to arrest people inside SBPHKPA after NPCSC's decision, but since national laws are applied in the area, Mainland can still exercise its jurisdiction on crimes committed inside SBPHKPA if the accused is arrested by mainland police outside SBPHKPA. For example, murder is regarded as a crime both in Hong Kong and Mainland, if someone commits it inside the SBPHKPA and is arrested by the Hong Kong Police, Mainland would not try to exercise its jurisdiction in this case and this person will be tried in Hong Kong.
But if he is arrested by Mainland Police inside Mainland, probably he will be tried in Mainland. Besides, Mainland can also send someone to trial even though the act he committed is only regarded as a crime in Mainland, such as treason. It is not a good idea for both Mainland and HKSAR have jurisdiction in SBPHKA, especially no extradition agreement has been made between Mainland and HKSAR. To solve this problem, NPCSC can make another decision in which clearly gives up its jurisdiction in SBPHKA. If it cannot be done, at least the NPCSC should give a clear guideline on the situations in which Mainland will exercise its jurisdiction.
Otherwise, when Mainland tries to exercise its jurisdiction, a debate will certainly be raised in Hong Kong, like it did in the "Big Spender" case and "Luk Yu Teahouse" case, and some Hong Kong people will even think this is a breach of the "one country two systems" policy. Moreover, since PRC courts will not be bound by the Shenzhen Bay Port Ordinance which is a local ordinance in Chinese legal system and only has effect in HKSAR, the boundary of HKSAR which PRC courts will follow is the boundary decided in No. Order of State Council, and this order has never been changed by NPCSC's decision.
However, the courts of HKSAR will be bound by the Ordinance Section 5 which considered the SBPHKPA as a part of HKSAR, and a lot troubles will be caused by this conflict between Mainland and HKSAR in some situations. For example, if a baby is born in SBPHKPA and either of his parents has Chinese Nationality, he will be regarded as a Hong Kong Permanent Resident under Basic Law Article 24(1), which states that a person is HKPR if he is born in HKSAR with Chinese Nationality, by Hong Kong Government and courts of Hong Kong because SBPHKPA is considered to be part of HKSAR by Section 5 of the Ordinance.
However, because the Mainland Government and courts of Mainland are not bound by the Ordinance, and the definition of HKSAR in Basic Law Article 24(1) does not include SBPHKPA in Mainland, when the boy goes to Mainland, he will probably not be regarded as a HKPR by the Mainland Government and courts of Mainland. To solve this problem, either the NPCSC can make a decision that SBPHKPA should also be regarded as a part of HKSAR in Mainland or Section 5 of the Ordinance should exclude Basic Law.
If NPCSC makes such a decision, Mainland will also lose its jurisdiction in SBPHKPA because Basic Law Article 18, which states national laws of PRC shall not be applied in HKSAR, will be applied in SBPHKPA. Therefore, I personally prefer the first solution because it can also solve all of the dual-jurisdiction problems once and for all. Conclusion In conclusion, the One Spot Two Examinations system is a further development of the one country two systems policy, and comparing to other similar systems, this system has a lot of advantages such as fully administration by Hong Kong Government and flexibility.
However, since this system has never been use by the Hong Kong and Mainland Government before, it is inevitable that some legal issues will be occurred in this system, for example, the issues of dual-jurisdiction and the issue of the Shenzhen Bay Port Hong Kong Port Area Ordinance. Despite these issues, the One Spot Two Examinations system is nevertheless worth to be use. After solving these legal issues, this system can also be applied to other new ports, such as the port in the terminus of the Guangzhou-Shenzhen-Hong Kong Express Railway, and shows a bright future.