浅析香港“一地两检”司法复核案

An analysis of the "One Site,Two Inspections" judicial review case in Hong Kong

2018年6月“一地两检”条例草案获香港立法会表决通过。针对此项决议,五名持异见人士先后向香港高等法院提交司法复核的申请,请求香港高等法院认定前述决定无效。申请人的申请主张直指香港立法会通过条例草案的决定违反《香港基本法》,侵害香港自治权。但香港高等法院却回避了从实体角度处理此核心争点,以该决定尚未进入法院司法审查的范围为由驳回了申请人的申请。从法律上看,香港特别行政区政府在《香港基本法》赋予的自治权范围内,有权为了促进香港的发展决定同广东省政府开展跨区域合作,并在香港区域内设立后者的特别机构以推动合作项目的顺利实施。鉴于香港立法会草拟并拟颁布的条例草案属于地方的自主立法行为,并未超出《香港基本法》赋予其的立法权行使范围,也没有侵犯香港在《香港基本法》下享有的高度自治权,故应该得到法院司法审查的认可。

The "One Site, Two Inspections" Bill has been approved by the Hong Kong Legislative Council.In response to this resolution, five dissidents submitted an application for judicial review to the Hong Kong High Court and requested the Court to conclude that the aforementioned resolution was invalid.The applicants claim that the decision of the Hong Kong Legislative Council to pass the Bill violates the Hong Kong Basic Law and violates Hong Kong's autonomy.However, the Hong Kong High Court has evaded this core dispute and chose to review the decision of the Hong Kong Legislative Council from the perspective of procedural determination, and rejected the applicants' application on the ground that the decision has not yet entered the scope of the judicial review by the court.The court considered the decision to be "intermediate" or "inconclusive" and also considered that the applicants' several matters are mainly related to public expenditure and administrative expediency, which did not fall within the scope of the court's functions. Within the scope of autonomy entrusted by the Hong Kong Basic Law, the Government of the Hong Kong Special Administrative Region has the right to conduct cross-regional cooperation with the Guangdong Provincial Government in order to promote the development of Hong Kong and to establish a special agency for the latter in the Hong Kong region to promote the smooth implementation of the cooperation projects. In view of the fact that the Bill drafted and proposed by the Legislative Council of Hong Kong is a local independent legislative act to tie in with the administration of the Special Administrative Region, and it does not go beyond the scope of the legislative power granted to it by the Hong Kong Basic Law. It does not infringe on the autonomy enjoyed by Hong Kong under the Basic Law, and it should be recognized by the judicial review of the court.