LCQ1: Laws added to or deleted from Annex III to Basic Law

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Following is a question by the Hon Martin Lee Chu-ming and a reply by the Secretary for Constitutional Affairs, Mr Michael Suen, in the Legislative Council today (Wednesday):

Question

With regard to the laws added to or deleted from Annex III to the Basic Law, will the Government inform this Council :

(a) of the number of times that laws have been added to or deleted from Annex III to the Basic Law since the passage of the Basic Law, and of the respective dates on which laws have been added or deleted, as well as the national laws involved;

(b) whether it knows the mechanism and procedure adopted by the Standing Committee of the National People's Congress (NPC) for consulting the Committee for the Basic Law and the SAR Government before determining on the addition or deletion of any law; and whether it has considered referring to the relevant Panel of this Council for discussion issues on which the SAR Government is being consulted; and

(c) of the legal status in the territory of the supplementary provisions of national laws listed in Annex III to the Basic Law, such as the "Explanations of some questions by the Standing Committee of the National People's Congress concerning the implementation of the Nationality Law of the People's Republic of China in the Hong Kong Special Administrative Region"; whether it knows if, before an additional supplementary provision is endorsed by the Standing Committee of the NPC, it is necessary to go through the relevant consultation procedure stated in Article 18 of the Basic Law, and if the additional supplementary provisions will be gazetted by the SAR Government?

Reply

(a) Since the adoption of the Basic Law, the Standing Committee of the National People's Congress (NPCSC) has twice decided on the addition to and deletion from Annex III to the Basic Law -

(i) The first decision, adopted at the 26th Session of the 8th NPCSC on 1 July 1997, was to add five to and delete one from the list of national laws. The five laws added were-

(1) Law of the People's Republic of China (PRC) on the National Flag;

(2) Regulations of the PRC concerning Consular Privileges and Immunities;

(3) Law of the PRC on the National Emblem;

(4) Law of the PRC on the Territorial Sea and the Contiguous Zone; and

(5) Law of the PRC on the Garrisoning of the HKSAR.

The one deleted was the Order on the National Emblem of the PRC Proclaimed by the Central People's Government. Attached : Design of the national emblem, notes of explanation and instructions for use, which was originally listed in Annex III to the Basic Law.

(ii) The second decision, adopted at the 5th Session of the 9th NPCSC on 4 November 1998, was to add one national law to the list, i.e. the PRC Law on the Exclusive Economic Zone and the Continental Shelf.

(b) Article 18 of the Basic Law provides -

"The Standing Committee of the National People's Congress may add to or delete from the list of laws in Annex III after consulting its Committee for the Basic Law of the Hong Kong Special Administrative Region and the government of the Region. Laws listed in Annex III to this Law shall be confined to those relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by this Law.

The laws listed therein shall be applied locally by way of promulgation or legislation by the Region."

The NPCSC has consulted the HKSARG in accordance with Article 18 of the Basic Law before deciding on the addition to and deletion from the list of laws in Annex III. After study, the HKSARG considered that the relevant national laws met the requirement of Article 18 of the Basic Law, i.e. they shall be confined to those relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by the Basic Law.

As to the arrangement for consultation with the Basic Law Committee, since the Committee is a working committee under the NPCSC, the HKSARG does not have information relating to the consultation mechanism and procedure between them.

The PRC Law on the Exclusive Economic Zone and the Continental Shelf, as added to Annex III to the Basic Law last year, regulates matters outside the HKSAR waters and has no practical effect in the HKSAR. In future, if any national law proposed to be added to Annex III to the Basic Law has any practical effect in the HKSAR, we will refer the issue to the relevant LegCo Panel for discussion.

(c) The "Explanations of some questions by the Standing Committee of the National People's Congress concerning the implementation of the Nationality Law of the People's Republic of China in the Hong Kong Special Administrative Region" ("NPCSC Explanations") as referred to in the question is a piece of "legislative interpretation" of the NPCSC on the Nationality Law of the PRC adopted under its power of interpretation set out in Article 67(4) of the PRC Constitution. The "NPCSC Explanations" is a component part of the Nationality Law of the PRC.

The consultation requirement stipulated in Article 18 of the Basic Law applies to supplementary provisions proposed to be applied in the SAR as it does to the corresponding national law. The NPCSC has consulted the HKSARG on the application of the "NPCSC Explanations" in the SAR and we understand that the Basic Law Committee has also been consulted.

The Gazette Notice which promulgated the Nationality Law of the PRC has referred to the "NPCSC Explanations" adopted by the NPCSC on 15 May 1996.

End/Wednesday, February 10, 1999

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