Subject: Press release
Adaptation of Laws (Interpretative Provisions) Bill:
The Application of Ordinances to the 'State'
6 April 1998
1. The Adaptation of Laws (Interpretative Provisions) Bill was published by the Hong Kong Special Administrative Region Government (HKSARG) on 13 February 1998. It has been discussed in the Bills Committee of the Provisional Legislative Council. It is due to be debated by the Provisional Legislative Council this week with a view to its enactment.
2. Considerable controversy has arisen over the proposed definition of the expression the 'State'. The controversy has arisen in the context of the application of ordinances to the government of the HKSAR and the Central Authorities of the PRC. Section 66 the Interpretation and General Clauses Ordinance (which the proposal seeks to replace), provides that: No Ordinance shall in any manner whatsoever affect the right of or be binding on the Crown unless it is therein expressly provided or unless it appears by necessary implication that the Crown is bound thereby.
3. The result of this provision is that the 'Crown' is not bound by any Ordinance unless the Ordinance itself applies it to the Crown or it is clear from the context of the ordinance that it binds the Crown. (There are no clear rules which determine whether the Crown is bound by necessary implication; and there seems to be no case in Hong Kong which has held that the government is bound by an ordinance on this ground.)
4. In order to adapt this section to the new status of the HKSAR, the government is proposing that the expression 'the Crown' should be replaced by the expression 'the State'. In the Bill 'the State' is defined as:
(a) the government of the Hong Kong Special Administrative Region;
(b) the Central Authorities of the People's Republic of China that exercise-
(i) executive functions;
(ii) functions for which the Central People's Government has responsibility under the Basic Law; or
(iii) any combination of any of those functions; and
(c) subordinate organs of any of those Central Authorities that-
(i) exercise any of those functions on behalf of those Central Authorities; and
(ii) do not exercise commercial functions, when acting within the scope of delegated functions, of the subordinate organ concerned.
5. Under this definition HKSAR ordinances would not apply to Central Authorities or their subordinate organs unless they were applied to them expressly or by necessary implication. This was considered by many people as conferring an unnecessarily wide immunity on Central Authorities or their organs from the application of HKSAR law. There is no restriction on immunity to functions that are necessarily to be performed by the Central Authorities in the HKSAR. The Central Authorities may perform 'executive functions' which are not related to their responsibilities under the Basic Law, including commercial functions. The exclusion of immunity for commercial functions applies only to subordinate organs. There is no definition of subordinate organs or how they are to be identified.
6. The government has justified the wide immunity to Central Authorities on the basis that 'the Crown' had no specific definition and referred to an indivisible entity throughout the Commonwealth. In fact is it is unlikely that its view of what the Crown meant is correct. When legislation in a state or province refers to 'Crown' in this kind of context, it means the 'Crown in respect of that state or province'. Neither under the common law or statute, is the Crown any longer regarded as indivisible. The reference is to the government of the state or province which enacts the legislation.
In Hong Kong's case, it referred to the government of Hong Kong and, because Hong Kong was a colony, the UK government in so far as it operated in the colony. It would not have covered subordinate bodies, whether they were performing commercial or other functions. There is thus little doubt that the definition of 'State' does not reflect a straightforward adaptation, or 'mirror provisions' as the government has said.
7. The government has also said that the adaptation of the Interpretation Ordinance in this wide form is necessary under the Basic Law. In fact, there is no such requirement in the Basic Law. Neither the Basic Law nor the National People's Congress Standing Committee (NPCSC) Decision of 23 February 1997 on the Adoption of Laws requires that there should be this mechanical substitution of the Central Authorities for 'the Crown'. Such a mechanical substitution would in fact be against the Basic Law, for the relationship between the HKSAR and the Central Authorities is fundamentally different from that which existed between Hong and the United Kingdom. The NPCSC Decision recognised this in its statement that some times 'the Crown', might be substituted simply by 'the Government of the HKSAR'.
8. The width of immunity that would be conferred on subordinate bodies of the Central Authorities was highlighted when the government clarified that it would apply to the New Chinese News Agency as it is set up by the State Council (one of the Central Authorities). However, its status under the law of the HKSAR is unclear and it does not perform (or not only) functions under the Basic Law. Under public pressure the government has agreed to change the definition of the 'State' to include only: (a) the President of the People's Republic of China; (b) the Central People's Government (CPG);
(c) the Government of the Hong Kong Special Administrative Region (HKSARG);
(d) the Central Authorities of the People's Republic of China that exercise functions for which the Central People's Government has responsibility under the Basic Law; (e) subordinate organs of the Central People's Government or other Central Authorities that perform the functions of the CPG under the Basic Law and do not exercise commercial functions.
9. This definition is an improvement on that in the Bill in that it restricts the immunity of subordinate bodies to the performance of responsibilities that the Central Authorities have under the Basic Law. But in other respects it enlarges the area of immunity, by referring to the President and adding what seems a new concept of 'Central Authorities'.
Moreover the definition of subordinate organs that are entitled to immunity is confusing and shows all the signs of hasty drafting.
10. The Hong Kong Human Right Monitor considers that the issues raised by the proposed definition are difficult and complex. They require more time than is now available for a proper and careful deliberation. They are concerned with the Rule of Law and the proper role and application of the law as well as the autonomy of the HKSAR. The Monitor considers that there is no need to rush this proposal through the legislative proposal at this speed. After all this Administration suspended and repealed many ordinances passed by the 1995 LegCo on the alleged ground that they were enacted without proper scrutiny or discussion.
11. The Monitor believes that more time is needed because of the following reasons:
(a) The Monitor considers that the immunity proposed to be given to the government of the HKSAR and the Central Authorities from the application of laws is contrary to the Basic Law which states the Central Authorities and the HKSARG must abide by the law (arts. 22 and 64 respectively);
(b) that once the amendment is enacted, it would be impossible for future LegCo to change them as it concerns the operation of government on which the LegCo cannot initiate legislation (art. 74);
(c) The Monitor believes that such an amendment exceeds the power of the Provisional LegCo which was established to take only such measures as were essential to establish the SAR. The general principles for the adaptation of law were set out by the NPCSC in February 1997 which have now been included in the Reunification Ordinance. These principle are sufficient to deal with any legal issues that might arise, pending a statutory clarification by an elected LegCo., to which this responsibility properly belongs.
(d) The Monitor is convinced that this hasty piece of drafting has not been thought through and is likely to raise difficult issues and lead to undesirable consequences, which appear not to have been addressed. For example it is unclear what the implication of the new definition is for the application of the criminal law; or for numerous laws which used the expression 'the Crown'. The proposed definition of the 'State' will be used more generally and is not confined to section 66 (which deals with the application of ordinances). A careful review of all ordinances which use the expression the 'Crown' is necessary before any general definition of 'state' can be formulated consistently with the autonomy of the HKSAR.
(e) The Monitor is opposed to the principle inherent in section 66 quite regardless of how the 'State' or the 'Crown' was defined. We believe that such wide immunities to official bodies create two systems of law, and breach the fundamental principle of the Rule of Law that the law applies equally to residents and governments. Instead of broadening the definition of 'state', the government should address the desirability of the very principle of such immunity. The Monitor recommends that section 66 should be amended to provide that all ordinances bind the state (which term should be defined more carefully and narrowly than at present) unless a specific ordinance is expressly disapplied--for good reasons.
END
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