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Following is the speech by the Acting Secretary for Justice, Mr Ian Wingfield, at the resumption of the Second Reading Debate on the Adaptation of Laws (Interpretative Provisions) Bill in the Provisional Legislative Council today (Tuesday):
Madam President,
On February 25, the Secretary for Justice introduced the Adaptation of Laws (Interpretative Provisions) Bill into this Council. The main purpose of the Bill is to adapt the Interpretation and General Clauses Ordinance (Cap.1) in order to ensure conformity with the Basic Law and with the status of Hong Kong as a Special Administrative Region of China.
I am grateful to Mr Kennedy Wong, the Chairman of the Bills Committee, and to the members of the Committee, for their thorough consideration of the Bill.
Many definitions in Cap. 1 are adapted by the Bill in order to reflect the reunification, without changing their substance. For example, the definition of "common law" is to be amended from "the common law of England" to "the common law in force in Hong Kong". Some definitions are added.
The Bills Committee has considered carefully the definition of "State" contained in the Bill. It is proposed that "State" (as defined) will replace the "Crown" in provisions relating to the binding effect of Ordinances. I wish to emphasize that there is no intention to replace all statutory references to the "Crown" with references to the "State". For example, in some contexts, the "Crown" will be replaced by the "Hong Kong Special Administrative Region Government".
The definition of the "State" in this Adaptation Bill has nothing to do with acts of state under Article 19 of the Basic Law. This definition in the Bill deals with the binding effect of individual ordinances.
Under the Bill, legislation that is expressed to be binding on the Crown" is to be construed as binding on the "State". The presumption that, in the absence of express words or necessary implication, Ordinances do not bind the "Crown" is to be adapted by replacing the "Crown" by the "State". The proposed definition of the "State" corresponds to what was previously covered by the "Crown". The effect is to reflect the reunification, but otherwise to maintain the legal position as it was immediately before, and after, the reunification. This is in line with the objective of ensuring the continuation of Hong Kong's legal system.
I must emphasize that this Bill is not an exercise in law reform. Some critics of the Bill would like the principle in section 66 to be reversed so that relevant organs would be bound by an ordinance unless expressly exempted. This was the view expressed by the Bar Association when it was consulted last year. It is true that the Bar Association was consulted on an earlier draft of the Bill. But in view of the Bar's comments on that draft, the Administration justifiably assumed that its view of section 66 would not change. This has proved to be the case. I repeat. This is not an exercise in law reform. The Bill does no more than retain and adapt the common law principle in section 66.
If an Ordinance provides that it binds "the Crown", the effect of the reunification (and of the Bill) is that the Ordinance now binds relevant organs of the People's Republic of China. If, however, an Ordinance provides that it binds "the Government", and therefore did not previously bind other parts of "the Crown", it has since reunification been binding on the Government of the Hong Kong Special Administrative Region, but not other organs of "the State". The Administration has provided the Secretariat of this Council with a list of over 90 Ordinances that bind or apply to the Crown or the Government in whole or in part. The principle that legislation does not bind the sovereign power unless it expressly says so or it appears by necessary implication that this was intended applies in almost all other common law jurisdictions. Examples are the United Kingdom, New Zealand and Australia.
The retention of that principle in Hong Kong is not, as some have suggested, based on the mistaken assumption that Hong Kong is a colony of China. Hong Kong is, of course, an integral part of China. The principle is retained not because it is a colonial law but because it is an aspect of the common law. Under the Basic Law, Hong Kong remains a common law jurisdiction. Moreover, the principle is not inconsistent with Article 22 of the Basic Law, which provides that offices set up in the Hong Kong Special Administrative Region by departments of the Central Government shall abide by the laws of the Region. Section 66 of Cap. 1 does not place anyone above the law. PRC organs which fall within the definition of "State" will continue to be bound by Hong Kong laws. The PLA Garrison is required to comply with the Garrison Law and relevant Hong Kong laws. CPG organs must comply with the Bill of Rights, the general criminal law, civil law and ordinances which bind the "Crown" (i.e. the "State" after the adaptation). All state-owned enterprises which perform commercial functions will be outside the definition of "State" and will have to abide by all the laws of Hong Kong.
The Bills Committee was satisfied with the substance of the definition of "State", but some Members suggested that another expression should be used instead of "State" and its Chinese equivalent. They queried whether it is appropriate to include the Government of the Hong Kong Special Administrative Region under that expression. Members were also concerned that the definition of "State" and its Chinese equivalent might not be an appropriate replacement for "Crown" in all contexts.
We have considered this question very carefully but have concluded that the expression "State" remains the most appropriate term to accurately reflect the position after reunification, without changing the status quo. We have considered a number of other alternatives, such as "Authorities" and "Government" to stand for "State". These however do not adequately reflect the parties covered by the expression. We also consider it appropriate to include the Government of the Hong Kong Special Administrative Region within the definition of "State" as the Region is an inalienable part of the People's Republic of China.
Members requested clarification as to what makes up the "State" as defined. As I mentioned earlier, we have defined the term to correspond to what was previously covered by the "Crown". Our intention is that the components of the "State" will be: the President of the People's Republic of China, the Central People's Government, the Government of the Hong Kong Special Administrative Region, 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, and certain subordinate organs when they act within the delegated authority and the delegated functions.
The definition of "State" in the Bill does not refer expressly to the President of the People's Republic of China, or to the Central People's Government, but instead refers to the Central Authorities of the People's Republic of China that exercise executive functions. After discussion with the Bills Committee, the Administration has decided that it would improve the clarity and precision of the definition if the President and the CPG were expressly referred to, and I will be moving a Committee Stage amendment to achieve this.
There have been some concerns on what constitute the "subordinate organs". A subordinate organ is within the definition if it is a subordinate organ of the Central People's Government or of those defined Central Authorities, and it satisfies three tests.
The first test is that the organ carries out executive functions of the CPG, or functions for which the CPG has responsibility under the Basic Law.
The second test is that it does not exercise commercial functions.
The third test is that the relevant organ must be acting within the scope of the authority and functions delegated to it by the Central People's Government or those Central Authorities as defined.
Some members asked how it will be decided whether a particular body is or is not a "subordinate organ" falling within the definition of "State". Ultimately, this will be a matter for the courts to decide, in the light of the evidence presented to it. This is no different from the position before reunification, when the courts were responsible for deciding whether particular authorities were part of the "Crown".
With regard to the concern that it may not be appropriate to replace all references to the "Crown" with references to the "State", as I have already said, the Administration does not propose to do this. Under the Bill, the proposed definition of "State" will apply only in respect of provisions relating to the binding effect of Ordinances.
There have been some public comments questioning the need for proceeding with the adaptation of Cap. 1, and particularly section 66, within this legislative session. These comments focus largely on the perceived effect of the adaptation of section 66 on certain Ordinances that are expressed to bind the "Government". I wish to respond to those comments.
Firstly, it is necessary to adapt Cap. 1 during this legislative session since that adaptation forms an essential foundation for the interpretation of all other Ordinances, and for the adaptation of all other Ordinances. For example, the long list of new definitions in the Bill will be of general application and will facilitate the drafting of all future adaptation Bills. The adaptation of section 66 is even more vital since, without it, there will be uncertainty as to the binding effect of many existing Ordinances, and the drafting of provisions relating to the binding effect of future laws will have no clear foundation to start from. The absence of any definition of the "State" would leave great uncertainty as to whether commercial organisations, such as State Owned Enterprises, and provincial and municipal authorities were within the principle in section 66.
Secondly, some concern has been expressed over the fact that the Personal Data (Privacy) Ordinance, and a number of other Ordinances, are binding on the "Government" but not on other parts of the "Crown". I wish to emphasize that the adaptation of section 66 will not change the current binding effect of those Ordinances. As I have said earlier, by virtue of the reunification, those Ordinances are already binding on the Government of the SAR, but not on other PRC state organs that are equivalent to the "Crown".
The Administration nevertheless is aware that there is public concern as to why certain Ordinances should be binding on the SAR Government but not on relevant PRC organs. In the light of that concern, the Administration is proposing to review all those Ordinances that are expressed to be binding on the "Government" in order to decide whether this difference in treatment can be justified. If, in relation to any particular Ordinance, the difference cannot be justified, the Administration will propose an amendment to its binding effect. The review will involve a total of 17 ordinances, the names of which have been given to Members.
This commitment to a review of relevant Ordinances underlines the fact that two issues need to be kept separate. The first issue is the adaptation of the general principle in section 66. The second issue is the extent to which those 17 Ordinances are binding. The concern of some members about the second issue has led to suggestions that the whole adaptation bill should be deferred for the first Legislative Council to consider. However, the concern in respect of the second issue can adequately be addressed by way of the review that I have just explained. Moreover, once the review is completed, the first Legislative Council will have the opportunity to discuss and address the issues of public concern which have recently arisen, in the context of the relevant Ordinance.
It is therefore unnecessary to defer the debate on the first issue, which is a separate matter. The adaptation of section 66 ought to be enacted now, since it is no more than a reflection of the reunification. Moreover, that adaptation will greatly assist the review of the 17 Ordinances, since it will clarify the options that exist in respect of their binding effect. I therefore call upon members for their support of that adaptation.
As I mentioned earlier, I will be moving a Committee Stage amendment to clarify the meaning of "State". There is another technical amendment that I shall move. That is to amend the reference to the "Supreme Court Ordinance" in the definition of "High Court" in clause 4(b) to read the "High Court Ordinance". This amendment reflects the change in title of that Ordinance effected when the Adaptation of Law (Courts and Tribunals) Bill received its third reading earlier today.
Madam President, the early adaptation of Cap 1, which contains provisions on the construction, application and interpretation of Hong Kong laws, is necessary for providing clear guidance in interpreting our laws in the light of the Hong Kong Reunification Ordinance. The adaptation of Cap 1 is therefore the foundation of the programme to adapt all other laws. Specifically as regards section 66, we need to proceed with the adaptation early as it affects the operation of the binding effect of the rest of the Ordinances, and its effect must be clear to avoid any possible confusion in the construction, application and interpretation of the relevant Ordinances. It is therefore essential that the Bill is enacted as soon as possible. I commend this Bill to Members for early passage into law.
End/ Tuesday, April 7, 1998
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