Legalinstitutions
4.1 Legislative Council of the HKSAR
During colonial rule, the legislature ofHong Kong was comprised of the Governor and the Legislative Council acting together. In the new constitutional order, the Legislative Council of the HKSAR (LegCo) legislates by itself74 but all legislation still needs to be signed and promulgated by the ChiefExecutive.75
Bills are mainly drafted and introduced by the HKSAR Government.76 MemÂbers of the LegCo have rather limited power to introduce Bills.
Only Bills (includÂing amendments to Bills) which do not relate to public expenditure or political structure or the operation of the Government may be introduced individually or jointly by members of the LegCo. If a Bill relates to government policies, the members may even need to have the written consent of the Chief Executive before it can be introduced.77 A Bill has to be published in the Gazette before it is introduced into the LegCo. The LegCo considers a Bill through a process of three readings. The first reading is just a formality, with the short title of a Bill being read out at a LegCo meeting. The public officer or member of the LegCo who introduces the Bill starts the second reading of the Bill by moving a motion and explaining the purpose of the Bill. After the motion has been moved, the debate on it usually will be adjourned and the Bill is referred to the House ComÂmittee of the LegCo. A Bills committee specifically for the Bill will be set up by the House Committee to allow members of the LegCo to study the Bill further. All members, other than the President of the LegCo, may join any Bills commitÂtee. Government officials and members of the public may be invited to attend its meetings. A Bills committee will consider the general merits and principles72 HKSARvNgKung Siu [1999] HKCFA 10; FACC000004/1999,15 December 1999.
In deciding the constiÂtutionality of the criminal offence of desecrating the national flag in this case, the HKCFA avoided the issue. The offence is provided in the NationalFlag Ordinance which is the local ordinance applying a similar offence in the Law ofthe People^sRepublic ofChinaonthe NationalFlag.73 For more information on the CBL, see section 4.3 below.
74 BasicLaw,art66.
75 BasicLaw,art48(3).
76 BasicLaw,art62(5).
77 BasicLaw,art74.
of the Bill concerned as well as its detailed provisions. It may propose amendÂments relevant to the Bill. The number of meetings required for a Bills committee depends on the complexity of the Bill and whether the bill involves controversial matters. A Bills committee will notify the House Committee and advise the ComÂmittee in writing of its deliberations after it has completed the scrutiny of the Bill.
The debate on the second reading resumes at a subsequent LegCo meeting. All members may present their views on the general merits and principles of the Bill and may indicate their support or otherwise during the debate. Avote is then taken by the LegCo on the motion. The Bill cannot proceed further if the motion is not passed. If it is passed, the second reading of the Bill is completed and it proceeds to the committee stage during which the LegCo sits as a committee of the whole LegCo. It will go through the clauses of the Bill and amendments to the Bill. Amendments to the Bill may be proposed by the HKSAR Government or by individual members. Each amendment will be voted by the committee of the whole LegCo. After the Bill has passed through the committee of the whole LegCo, it is reported back to the LegCo for the Bill to be given the third reading.[209]
There is a different requirement for the passage of Bills or amendments to government Bills introduced by individual members of the LegCo. Other than just a simple majority vote of thewhole LegCo, theyrequire a simple majority vote of each of the two groups of members present: members returned by functional constituencies[210] (50 per cent of the seats of the LegCo) and those returned by geographical constituencies through direct elections (50 per cent of the seats of the LegCo).[211] In other words, such a Bill or amendment is not passed even if it gets the support of more than half of the members of the LegCo but fails to get the majority support in each of the two groups.
When a Bill has been given three readings, it becomes a piece of enacted law. It may take effect after it is signed by the ChiefExecutive and promulgated in the Gazette, unless a later date has been specified in the enacted law. The Chief Executive has three months to consider whether he or she will sign a Bill passed by the LegCo. If he or she considers that a Bill passed by the LegCo is not compatible with the overall interests of the HKSAR, he or she may return it to the LegCo for reconsideration within the three-month period.[212] If the LegCo passes the original Bill again by not less than a two-thirds majority of all the members, the Chief Executive must sign and promulgate it within one month, or dissolve the LegCo.[213] If the newly elected LegCo again passes, by a two-thirds majority of all the members, the original Bill in dispute, the ChiefExecutive must resign if he or she still refuses to sign it.[214]
The LegCo may designate an authority in a local ordinance to enact subsidiary legislation[215] with legislative effect to provide further details to the legislative scheme. The LegCo scrutinises the making of subsidiary legislation through either the negative vetting procedure or the positive vetting procedure. Subsidiary legislation scrutinised through the negative vetting procedure generally comes into operation at the beginning of the day onwhich it is published in the Gazette.[216] Itwill then be tabled at the LegCo. Within a prescribed time limit, the LegCo may by resolution amend or repeal an item of subsidiary legislation that has been tabled.[217] If an ordinance provides that subsidiary legislation shall be subject to the approval of the LegCo, then the scrutiny of subsidiary legislation will be through the positive vetting procedure. Such a subsidiary legislation will only be effective if the LegCo passes a motion approving it. Under both procedures, the House Committee may set up a subcommittee to study the subsidiary legislation in detail.
4.2 Courts of the HKSAR
As a common law legal system is maintained in the HKSAR, the courts continue to play a central role in the development of laws in the HKSAR. The table below outlines the structure and jurisdiction of the courts of the HKSAR.
| Name | Jurisdiction |
| Court of Final Appeal | It hears appeals on civil and criminal matters from the Court of Appeal and the Court of First Instance. |
| Court of Appeal | It hears appeals on all civil and criminal matters from the Court of First Instance and the District Court. It also hears appeals from Lands Tribunal and various tribunals and statutory bodies. The Court of Appeal and the Court of First Instance together form the High Court. |
| Court of First Instance | It has unlimited jurisdiction in both civil and criminal matters. It also hears appeals from Magistrates' Courts, the Small Claims Tribunal, the Obscene Articles Tribunal, the Labour Tribunal and the Minor Employment Claims Adjudication Board. For criminal trials, judges of the Court of First Instance sit with a jury of seven (nine on the special direction of the judge). |
| District Court | It hears civil disputes of a value over HK$50000 but not more than $1 million. Its criminal jurisdiction is limited to seven years' imprisonment. |
| Magistrates' Courts | There are seven Magistrates' Courts: Eastern, Kowloon City, Kwun Tong, Tsuen Wan, Fanling, Shatin and Tuen Mun. They exercise criminal jurisdiction over a wide range of indictable and summary offences meriting up to two years' imprisonment and a fine of HK$100 000. |
| Family Court | It deals mainly with divorce cases and related matters such as maintenance and the welfare of children. (cont. over page) |
| Name Lands Tribunal | Jurisdiction It deals with cases arising from tenancy disputes and matters in relation to building management. The Tribunal also hears applications for the determination of compensation arising out land resumption, and appeals against the assessment of rateable value/government rent or market value of property under the Housing Ordinance. |
| Labour Tribunal | It hears cases concerning employment where the amount of claim exceeds HK$8000 for at least one of the claimants in a claim or where the number of claimants in the claim exceeds 10. Hearings are informal and no representation by lawyers is allowed. |
| Small Claims Tribunal | It hears claims within its jurisdiction of up to HK$50 000. Hearings are informal and no representation by lawyers is allowed. |
| Obscene Articles Tribunal | It determines and classifies whether or not an article or other matter publicly displayed is obscene or indecent. |
| Coroner's Court Juvenile Court | It conducts inquests into unusual circumstances causing death. It hears charges against children and young persons under the age of 16, except in cases of homicide. It also has the jurisdiction to make care and protection orders in respect of young persons under the age of 18. |
Article 19 of the Basic Law provides that the courts of the HKSAR shall have jurisdiction over all cases in the HKSAR, except that the restrictions on their jurisdiction imposed by the legal system and principles previously in force in Hong Kong shall be maintained. Although stated in a negative manner, the intenÂtion of the Basic Law is clear that fundamental principles of the pre-handover legal system will be maintained.87 There is no question that the rule of law must be one of these principles even though the Basic Law does not expressly refer to it.
In the crudest way of expressing the principle of the rule of law, a government may only exercise those powers authorised by law and in the manner so provided in law. Derived from the rule of law principle, there is a related principle that there must be a mechanism to ensure a government will only exercise powers in accordance with law. Article 35 of the Basic Law provides that Hong Kong residents shall have the right to institute legal proÂceedings in the courts against the acts of the executive authorities and their personnel.Tobe an effective check on executive powers, the courts need two institutional arrangements. The first is independence of the judiciary. This fundamental prinÂciple is repeatedly stated in three articles of the Basic Law (arts 2, 19 and 85). Specific institutional requirements on the appointment (arts 88 and 92), disÂmissal (arts 89 and 90), terms of services (art 93) and judicial immunity (art 85) are also expressly provided in the Basic Law.
The second institutional arrangement is the power of judicial review. Judicial review has two aspects. The first aspect is the judicial authority to review adminÂistrative decisions and acts and invalidate those that are made not in accordance with law. This is not expressly provided for in the Basic Law. Article 19 only states
87 In addition, art81 oftheBasicLaw providesthat thejudicial system previouslypractised in Hong Kong shall be maintained.Article 87 provides that in criminal or civil proceedings in the HKsAr, the principles previously applied in Hong Kong and the rights previously enjoyed by parties to proceedings shall be maintained. that the courts of the HKSAR shall have jurisdiction over all cases in the HKSAR, except that the restrictions on their jurisdiction imposed by the legal system and principles previously in force in Hong Kong shall be maintained. The second aspect is the judicial authority to review legislative acts on their compatibility withtheBasicLaw. This is againnotexpresslyprovided in theBasicLaw. Article 11 simply provides that no law enacted by the legislature of the HKSAR shall conÂtravene the BasicLaw. It is generally accepted that the HKSAR courts have these two aspects of the power of judicial review.[218]
Under the new constitutional order, there is a new institutional arrangement added to Hong Kong's court system. It is the power of final adjudication. There is no substantial change to the structure of the HKSAR courts before and after handover except that a new court of final appeal has been established in Hong Kong. Before the transfer of sovereignty, cases in Hong Kong were appealed to the Judicial Committee of the Privy Council in London. Since the handover, the HKSAR enjoys the power of final adjudication.[219] It is exceptional for a regional court to enjoy the power of final adjudication. Since the HKSAR enjoys this power, the legal system of the HKSAR is separated from the legal system of mainland China.
Ininterpretingthe BasicLaw,the HKCFAfirstadoptedthepurposiveapproach:
In ascertaining the true meaning of the instrument, the courts must consider the purpose of the instrument and its relevant provisions as well as the language of its text in the light of the context. Context is of particular importance in the interpretation of a constitutional instrument. The purpose of a particular provision maybe ascertainable from its nature or other provisions of the Basic Law or relevant extrinsic materials including the Joint Declaration. The context of aparticular provision istobe found in the Basic Law itself as well as relevant extrinsic materials including the Joint Declaration. Assistance can also be gained from any traditions and usages that may have given meaning to the language used.[220]
The purposive approach of interpretation was later refined by the HKCFA as the common law approach of interpretation:
The courts' role under the common law in interpreting the Basic Law is to construe the language used in the text of the instrument in order to ascertain the legislative intent as expressed in the language. Their task is not to ascertain the intent of the law-maker on its own. Their duty is to ascertain what was meant by the language used and to give effect to the legislative intent as expressed in the language. It is the text of the enactment which is the law and it is regarded as important both that the law should be certain and that it should be ascertainable by the citizen. The courts do not look at the language of the article in question in isolation. The exercise of interpretation requires the courts to identify the meaning borne by the language when considered in the light of its context and purpose. This is an objective exercise. Whilst the courts must avoid a literal, technical, narrow or rigid approach, they cannot give the language a meaning which the language cannot bear. Once the courts conclude that the meaning of the language of the text when construed in the light of its context and purpose is clear, the courts are bound to give effect to the clear meaning of the language. The courts will not on the basis of any extrinsic materials depart from that clear meaning and give the language a meaning which the language cannot bear.[221]
In interpreting local ordinances, the statutory guideline is that â€?an ordinance shall be deemed to be remedial and shall receive such fair, large and liberal conÂstruction and interpretation as will best ensure the attainment of the object of the ordinance according to its true intent, meaning and spirit.'[222] The HKCFA once again adopted the purposive approach. â€?In construing a statute, the courts should adopt an interpretation which is consistent with and gives effect to the legislaÂtive purpose. An interpretation which is inconsistent with and does not serve that purpose should be avoided.'[223] The HKCFA considered that the purposive approach has been reflected in the statutory guideline.
4.3 Standing Committee of the NPC (SCNPC)
There is a special institutional arrangement in Hong Kong's legal institutions, making it unique among the common law legal systems in the world. In addition to the courts, there is an institution which enjoys the power to interpret the constitutional instrument of the HKSAR. This is the SCNPC.[224]
The SCNPC is not a judicial organ but a political institution. It is the highest law-making body in the Chinese constitutional system other than the NPC. The NPC sits only once every year and when it is not in session, the SCNPC plays the most important law-making role in China. Having a legislative body to interpret law is a special feature and an integral part of the Chinese legal system,[225] though it may be alien to common law legal systems. This feature is incorporated into Hong Kong's legal system through the Basic Law. Under the Chinese legal system, legislative interpretation by the SCNPC can be used to clarify or supplement laws.[226]
There are three situations in which the SCNPC may interpret the Basic Law.[227] This first situation is when there is ajudicial reference from the HKCFA. According to art 158 of the BasicLaw, if the HKCFAin adjudicating cases needs to interpret a provision of the Basic Law concerning affairs which are the responsibility of the CPG, or concerning the relationship between the central authorities and the HKSAR, and if such interpretation will affect the judgment on the case, the HKCFA is required to seek an interpretation of the relevant provisions from the SCNPC. Up to now, there has been no interpretation by the SCNPC in response to a judicial reference.
The second situation is upon its own motion. The SCNPC is recognised to have this general power to interpret the Basic Law based on art 67(4) of the Constitution.[228] The SCNPC has interpreted the Basic Law upon its own motion once.[229] The third situation is in response to a request from the Chief Executive via the State Council (that is, the CPG). The power of the ChiefExecutive to make such a request is not expressly provided in the Basic Law. However, it has been recognised by the SCNPC[230] that the power is derived from the general provisions of the Basic Law to the effect that the Chief Executive is the head of the HKSAR and is accountable to the CPG[231] and is responsible for the implementation of the Basic Law.[232] The SCNPC has twice interpreted the Basic Law in response to requests from the ChiefExecutive via the State Council.[233]
In interpreting the BasicLaw, the SCNPC has preferred to refer to the legislative intent. The SCNPC’s power to interpret the BasicLaw establishes an institutional link between the Hong Kong legal system and the Chinese legal system.
The SCNPC also has the power to return legislation enacted by the LegCo of the HKSAR if it considers that the legislation contravenes provisions of the BasicLaw relating to affairs within the responsibility of the central authorities or relating to the relationship between the central authorities and the HKSAR.[234] As mentioned above, the SCNPC has the power to extend the application of national laws to the HKSAR by amending Annex III of the Basic Law. In exercising the power to interpret the Basic Law, the power to return legislation enacted by the LegCo and the power to amend Annex III, the SCNPC will consult its committee, the CBL.[235] The CBL has 12 members, six members from the mainland and six from Hong Kong,[236] including persons from the legal profession. The members are appointed by the SCNPC for a term of office of five years.[237]
5