TY - JOUR
AU - Wang, Shucheng
AB - Abstract The Legislative Council can, in principle, vote against the subsidiary legislation enacted by the Chief Executive. However, in the Hong Kong Basic Law, it is implied that the Chief Executive plays a dominant role in the constitutional regime. It is, therefore, unfair to state in absolute terms that the Legislative Council has no restraints on voting against the subsidiary legislation under an executive-led government. This article reveals that, as far as subsidiary legislation is concerned, the principle in the Hong Kong Basic Law has deviated from the principle stated in the Letters Patent that was enacted in the colonial era. The Interpretation and General Clauses Ordinance that was amended in 1993 before the handover states that ‘amend’ includes ‘repeal’. The subsidiary legislation that was enacted after the handover should be re-examined according to the principle in the executive-led government. The article further suggests that the Legislative Council should be deferential to the Chief Executive. In particular, this should be the case when a policy issue is involved or the negative vetting procedure is applied, so that it can strike a balance between the Chief Executive and the Legislative Council in the context of Hong Kong. 1. INTRODUCTION The term ‘subsidiary legislation’ has no definitive definition that has general applicability either in statute or from the judiciary. Rather, its meaning is embedded in different contexts with different constitutional arrangements. A number of alternatives, such as ‘administrative’, ‘secondary’, and ‘delegated’ legislation are in use. Sometimes, in order to overcome the uncertain boundary line between ‘legislative’ and ‘non-legislative’ instruments, terms such as ‘administrative rules’ and ‘executive law’ may be employed in practice.1 With regard to legislative-executive relations behind the subsidiary legislation, it is generally assumed that the Executive is subject to the legislature under the principle of parliamentary sovereignty. However, such an orthodox view does not have general applicability when placed in different constitutional contexts. Hong Kong, for example, has been attempting to transform its constitutional regime into an executive-led government since its handover in 1997. This is the case even though, in theory, the Chief Executive has less electoral legitimacy than the Legislative Council (LegCo) because currently the Chief Executive is chosen by a small, carefully vetted group.2 In this regard, legislative-executive relations in Hong Kong cannot be explained simply by previous colonial practice and the traditional British model of governance. As a result, the tension in legislative-executive relations or even the constitutional crisis behind the issue of subsidiary legislation has emerged as an issue under such an executive-led government over the last years. Such a tension can be illustrated by the controversy over the landfill plan in 2010.3 In order to develop a landfill plan, the Chief Executive made an order under section 14 of the Country Parks Ordinance (chapter 208). The order was made based on a consultation with the Executive Council for the purpose of amending the Country Park (Designation) (Consolidation) Order. This replaced the map that was originally approved in respect of the Clear Water Bay Country Park (CWBCP) with a new approved map showing the areas of the CWBCP to be approximately 5 ha less than those shown on the old map. The 5 ha excised from the CWBCP will form part of the 50 ha expanded area of the South East New Territories Landfill. This expansion order was made in the form of subsidiary legislation. However, after the order was published in the Government Gazette, lawmakers moved a motion at a LegCo meeting to repeal the order. The LegCo President Jasper Tsang Yok-sing gave a ‘nod’ to the repeal motion, stating that the LegCo had a constitutional duty to scrutinize any legislation and had the corresponding power to amend or repeal laws whenever it deemed it to be appropriate under Articles 66 and 73 (1) of the Hong Kong Basic Law.4 This provides that the LegCo should be the legislature of the Region and it should exercise the power and function to enact, amend, or repeal laws in accordance with the provisions of the Basic Law and legal procedures.5 It has also been argued that the LegCo must have effective oversight over the exercise of all legislative powers and relevant legislation that governs the exercise of lawmaking powers.6 The alternative would be even worse than a rubber stamp. Ultimately, the repeal motion was backed by 55 out of 59 lawmakers. Although there does not appear to be anything wrong with the premise of the argument by the LegCo, the Hong Kong government strongly opposed this action and stated that the LegCo had no power to repeal the order as the Chief Executive could not revoke the order after it had been approved. This is because to do so would be inconsistent with the intent of the Country Parks Ordinance. The government held the view that the same restriction should apply to the LegCo as well.7 In other words, both the Chief Executive and the LegCo should have no power to repeal an order after it comes into effect and is published in the Gazette. Moreover, even after the order was repealed by the LegCo, the dominant government still held that the repeal had no binding force in law and the designation order would remain in force.8 Needless to say, the overall veto has put the dominant government of Hong Kong into a very awkward position. Although the government decided not to seek a judicial review in order to avert a potential constitutional crisis, neither of them have solved the underlying issue of the extent to which the LegCo can scrutinize subsidiary legislation made by the Chief Executive under an executive-led government.9 Specifically, this issue is based on (i) whether it is proper for the LegCo to put an overall veto on subsidiary legislation made by the Chief Executive, (ii) the extent to which the LegCo can scrutinize the subsidiary legislation under an executive-led government in Hong Kong, (iii) the nature of the legislative-executive relations behind the subsidiary legislation under the Hong Kong Basic Law, and (iv) whether some convention exists in practice and, if so, what its implication is in respect of the parliamentary oversight of subsidiary legislation. Therefore, given that Hong Kong has been transformed from a British colony under the Hong Kong Letters Patent to an executive-led government with a higher degree of autonomy under the sovereignty of China, it is necessary to re-examine the issue of parliamentary scrutiny over subsidiary legislation. This will show how the mechanism of subsidiary legislation can be made compatible with the principles of the Hong Kong Basic Law. 2. PARLIAMENTARY SCRUTINY OF SUBSIDIARY LEGISLATION: A DEFERENTIAL APPROACH Subsidiary legislation was used for a long time in Hong Kong during its colonial era. According to section 3 of the Interpretation and General Clauses Ordinance (IGCO), ‘subsidiary legislation’ or ‘subordinate legislation’ (fushu fagui) refers to any proclamation, rule, regulation, order, resolution, notice, rule of court, bylaw, or other instrument made under or by virtue of any Ordinance that has legislative effect.10 In addition, Lord Lowry authoritatively outlined the general rules for using delegated legislation in Hanlon v. The Law Society. (1) Subordinate legislation may be used in order to construe the parent Act, but only where power is given to amend the Act by regulation or where the meaning of the Act is ambiguous. (2) Regulations made under the Act provide a Parliamentary or administrative contemporanea expositio of the Act but do not decide or control its meaning: to allow this would be to substitute the rule-making authority for the judges as interpreter and would disregard the possibility that the regulation relied on was misconceived or ultra vires. (3) Regulations which are consistent with a certain interpretation of the Act tend to confirm that interpretation. (4) Where the Act provides a framework built on by contemporaneously prepared regulations, the latter may be a reliable guide to the meaning of the former. (5) The regulations are a clear guide, and may be decisive, when they are made in pursuance of a power to modify the Act, particularly if they come into operation on the same day as the Act which they modify. (6) Clear guidance may also be obtained from regulations which are to have effect as if enacted in the parent Act.11 It is clear that subsidiary legislation is grounded in the delegation of an Act or Ordinance by relevant legislation. Moreover, subsidiary legislation is generally made in the form of statutory instruments, so, in principle, the legislature can certainly scrutinize its legality. However, in practice, the enactment or modification of most statutory instruments does not require the approval of the LegCo. When this is done, the ‘negative vetting procedure’ (NVP) is applied.12 Procedurally, subsidiary legislation is first published in the Gazette and then set out before the LegCo at one of its meetings. The LegCo may—‘by a resolution passed at a sitting of the LegCo held not later than 28 days after the sitting at which it was so laid, provided that such subsidiary legislation will be amended in any manner whatsoever that is consistent with the power to make such subsidiary legislation, and if any such resolution is so passed the subsidiary legislation will, without prejudice to anything done thereunder—be deemed to be amended as from the date of publication in the Gazette of such resolution’.13 The ‘vetting period’ for scrutinizing and amending may be extended by a resolution of the LegCo. An important point is that a piece of subsidiary legislation takes effect on the day when it is gazetted.14 If an ordinance states that subsidiary legislation requires the approval of the LegCo, the ‘positive vetting procedure’ (PVP) is used. The main feature of this procedure is that the LegCo may by a resolution approve or amend the proposed legislation. The legal basis for such a procedure is provided by section 35 of the IGCO. There is no specific ‘vetting period’ for this type of subsidiary legislation.15 Compared to the NVP that confers a much more discretionary power on delegated bodies, the PVP is of a much lower level of delegation. Nevertheless, in the ordinary course of delegation, the NVP is often used in order to effectuate sophisticated functions of legislation of other public entities, while the PVP is adopted only by explicit language. (A) Degree of Parliamentary Oversight Based on the non-delegation doctrine, there is no doubt that the LegCo has the strongest form of control of subsidiary legislation provided that the PVP is applied. In such a case, it is widely accepted that the LegCo can say no to the proposed subsidiary legislation by showing its disapproval or by amending it. It is also true that the LegCo can scrutinize the subsidiary legislation by amending it when the NVP is applied, as section 34 of the IGCO stipulates that the LegCo may provide that the subsidiary legislation will be amended in any manner whatsoever that is consistent with the power to make such subsidiary legislation.16 However, under an executive-led government, it is unclear that scrutiny by an overall veto on subsidiary legislation can be applied when NVP is applied. An example of this is the divergence between the LegCo and the Chief Executive on the landfill case mentioned above. The orthodox view is that legislation should originate in the legislative branch of a government, be enforced by an executive department, and be construed and adjudicated by a judiciary. However, the reality is that in the modern administrative state, the executive implements laws passively.17 This is because it is generally recognized that the broad use of delegation can save time and this benefits the legislature. By delegating power, regulations may be more easily and quickly made that are better able to cope with changing circumstances.18 Fiorina states that: Government has assumed increasing responsibility in an ever-expanding number of issue areas in the twentieth century, and Congress of necessity has delegated a great deal of authority vested in it by the Constitution to various parts of the executive branch. The sheer volume and technical complexity of the work are more than Congress, with its limited membership and staff, can manage alone.19 In this regard, with the rapid development of administrative procedural law in the 20th century, decision making has become more participatory and even ‘democratic’ in the sense that agencies usually ‘give advance notice of rules and regulations under consideration and afford all parties with even a tangential interest in the outcome a chance to speak their mind’.20 Furthermore, agencies generally respond to all suggestions and make sure that their eventual decisions are supported by a lengthy, specific record of their deliberations.21 Therefore, it is understandable that the lack of congressional involvement was seen as a positive development.22 It also seems necessary for the function of Congress to be adjusted accordingly. As Huntington claims, Congress should do ‘its best by restricting its role to constituency service, leaving detailed regulation to policy experts in the bureaucracy. Accordingly, mechanisms that insulated agencies from political control were seen as beneficial to the smooth functioning of government’.23 The American experience has been that: Following the passage of the 1946 Administrative Procedure Act (APA), which set out basic guidelines for agency decision making, scholarly attention focused on how bureaucrats could be made to follow Congress’s statutory intent and serve the public interest. The main answer was to make agencies look as much like (idealized) legislatures as possible.24 Therefore, because Congress is never able to supply every single detail pertaining to the execution of its laws, the executive will always have some freedom to specify the exact process by which legislative intent becomes reality.25 Thus, although such freedom is subject to the non-delegation doctrine in theory, it is legitimate and should be respected by other actors and even Congress in order to maintain coherent and harmonious legislative-executive relations. Following this line of reasoning, it seems that in the case of the NVP, Congress should not take an ‘all or nothing’ approach to scrutinizing subsidiary legislation mechanically. Rather, it should remain deferential to subsidiary legislation made by the executive provided that the latter does not act improperly in an administrative state. For example, in the landfill case, the subsidiary legislation incorporated some democratic and procedural elements through some flexible forms, such as public hearings, freedom of information, and consultations with the public in accordance with administrative law. Specifically, reasonable procedures were taken, such as consultation with the Executive Council, a professional assessment of the environmental impact of the proposed order, public inspection of the draft replacement for 60 days, and a public hearing on objections by the Country and Marine Parks Board. All these can be regarded as being part of a ‘Continuous Public Involvement’ approach in which Sai Kung District Council members, community organizations, and rural committee or village representatives were involved. Moreover, all sorts of public and participatory components were pursued to their full extent. Therefore, it is fair to say that public participation, procedural justice, and the expertise involved, which is not derived from the parliamentary delegation, can bring a certain degree of legitimacy to the subsidiary legislation made by the executive. Therefore, although the LegCo has ultimate authority over legislation, it cannot be concluded that it can scrutinize it in any manner that it wants. Rather, as discussed above, it should defer to the executive provided that prior public participation, professional involvement, or other administrative procedures have been undertaken properly in making the subsidiary legislation. (B) Mutual Checks under Subsidiary Legislation Against the above background, it can be perceived that parliamentary oversight of subsidiary legislation is not a unilateral mechanism that is dominated exclusively by the legislature but an interactive one between the legislature and the executive, provided that the NVP is applied.26 Such an interactive mechanism can also be implied from section 34 of the IGCO, which is the basis of subsidiary legislation in Hong Kong. Section 34 of the IGCO states that the LegCo may amend the subsidiary legislation in any manner whatsoever that is consistent with the power to make such subsidiary legislation. From this, it can be inferred that ‘the power to make such subsidiary legislation’ is exercised by the executive rather than the legislature. In other words, the executive has its own remit within the mechanism of subsidiary legislation, which cannot be taken over by others. To a certain extent, this is evident from the fact that the subsidiary legislation made by the executive, if the NVP is applied, is binding from the date of its publication in the Gazette without needing to be approved by the legislature. In other words, the executive, although subject to the non-delegation doctrine, has the freedom to make subsidiary legislation. However, in accordance with the non-delegation doctrine, subsidiary legislation made by the executive is subject to the scrutiny of the legislature. According to section 34 of the IGCO, the latter can ‘scrutinize the subsidiary legislation and amend it on condition that it is consistent with the power to make it’. It can be seen here that the LegCo has the power to amend it rather than the power to make it, which is exercised by the delegated authorities like the Chief Executive. Another power in the mechanism of subsidiary legislation is the power to make the subsidiary legislation come into effect. Provided that the PVP is applied, such a power belongs fully to the legislature, i.e. after approval from the legislature is obtained, the subsidiary legislation comes into effect. However, if the NVP is applied, such a power is substantially exercised by the delegated authority. This means that the subsidiary legislation takes effect immediately after it is gazetted by the executive although it is subject to subsequent parliamentary oversight. It can be observed that, provided that the NVP is applied, there is a balance between the power to make which rests with the executive and the power to amend which rests with the legislature. Although the latter has the prevailing authority to amend the decisions of the former, it should restrain itself from going too far and defer to the autonomy of the executive. Otherwise, the autonomous domain inhabited by the executive and the accompanying procedural justice under an administrative state, including professional assessment and public hearing, will be undermined. Furthermore, the internal checks that exist between the executive and the legislature will be destroyed because there will be no need to delegate the power at all and the legislature can make the law directly by itself. Thayer sees the role of judicial review as being in line with this. Although the judiciary in practice can decide whatever it wants, it must not step into the shoes of the lawmaker as this would result in a kind of judicial absolutism.27 Even though the legislature can veto the subsidiary legislation, as discussed above, it should defer to the power to make it which rests with the executive, particularly if the NVP is applied. (C) Convention of Parliamentary Deference The main issue with parliamentary deference is not about when the PVP is applied but about when the NVP is applied. When the NVP is applied, section 34 of the IGCO stipulates that the LegCo can amend the subsidiary legislation in any manner whatsoever that is consistent with the power to make such subsidiary legislation. In practice, about 70 percent of subsidiary legislation where a resolution was moved to amend them was passed smoothly at Council Meetings.28 A secondary issue is whether the LegCo could repeal the subsidiary legislation, given that the literal meaning of ‘amend’ is different from that of ‘repeal’ in terms of the degree of parliamentary oversight. By general definition, ‘amend’ means to improve, to change for the better by removing defects or faults, or to change, correct, and revise.29 In contrast, ‘repeal’ means the abrogation or annulment of a previously existing law by enacting a subsequent statute, which declares the former law to be revoked and abrogated (called ‘expressed’ repeal), or which contains provisions so contrary to or irreconcilable with those of the earlier law that only one of the two statutes can stand in force (called ‘implied’ repeal), or to revoke, to rescind, or abrogate by authority.30 According to the parliamentary deference discussed above, the LegCo in principle should not place an overall veto on subsidiary legislation provided that the NVP is applied. This can also be corroborated by the convention in practice. By analyzing cases between 2008 and 2012 of subsidiary legislation where resolutions were moved to repeal them, Table 1 shows that the LegCo generally took a deferential attitude and did not repeal subsidiary legislation that was published in the Gazette by the executive and tabled at legislative meetings, apart from the landfill case tabled on 9 June 2010. The LegCo in practice uses either ‘negatived’ or ‘not proceeded with’ to defer to the subsidiary legislation made by the executive. Table 1: Subsidiary legislation/other instruments with resolution moved to repeal them (2008–12) Date of tabling in Council  Subsidiary legislation/other instruments (Legal Notice No.)  Resolution moved at the Council meeting on  Voting results  26.10.11  Companies Ordinance (Exemption of Companies and Prospectuses from Compliance with Provisions) (Amendment) Notice 2011 (Legal Notice No. 143 of 2011)  14.12.11  Negatived  9.6.10  Country Parks (Designation) (Consolidation) (Amendment) Order 2010 (L.N. 72 of 2010)  13.10.10  Passed  17.11.10  Minimum Wage Ordinance (Amendment of Schedule 3) Notice 2010 (L.N. 145 of 2010)  5.1.11  Negatived  2.3.11  Public Revenue Protection (Dutiable Commodities) Order 2011 (L.N. 32 of 2011)  4.5.11  Negatived  2.3.11  Public Revenue Protection (Dutiable Commodities) Order 2011 (L.N. 32 of 2011)  4.5.11  Not proceeded with  2.3.11  Public Revenue Protection (Motor Vehicles First Registration Tax) Order 2011 (L.N. 33 of 2011)  4.5.11  Negatived  14.10.09  Rules of the High Court (Amendment) Rules 2009 (L.N. 186 of 2009)  2.12.09  Negatived  27.1.10  Land (Compulsory Sale for Redevelopment) (Specification of Lower Percentage) Notice (L.N. 6 of 2010)  17.3.10  Negatived  27.1.10  Land (Compulsory Sale for Redevelopment) (Specification of Lower Percentage) Notice (L.N. 6 of 2010)  17.3.10  Not proceeded with  4.3.09  Public Revenue Protection Order 2009 (L.N. 27 of 2009)  1.4.09  Negatived  Date of tabling in Council  Subsidiary legislation/other instruments (Legal Notice No.)  Resolution moved at the Council meeting on  Voting results  26.10.11  Companies Ordinance (Exemption of Companies and Prospectuses from Compliance with Provisions) (Amendment) Notice 2011 (Legal Notice No. 143 of 2011)  14.12.11  Negatived  9.6.10  Country Parks (Designation) (Consolidation) (Amendment) Order 2010 (L.N. 72 of 2010)  13.10.10  Passed  17.11.10  Minimum Wage Ordinance (Amendment of Schedule 3) Notice 2010 (L.N. 145 of 2010)  5.1.11  Negatived  2.3.11  Public Revenue Protection (Dutiable Commodities) Order 2011 (L.N. 32 of 2011)  4.5.11  Negatived  2.3.11  Public Revenue Protection (Dutiable Commodities) Order 2011 (L.N. 32 of 2011)  4.5.11  Not proceeded with  2.3.11  Public Revenue Protection (Motor Vehicles First Registration Tax) Order 2011 (L.N. 33 of 2011)  4.5.11  Negatived  14.10.09  Rules of the High Court (Amendment) Rules 2009 (L.N. 186 of 2009)  2.12.09  Negatived  27.1.10  Land (Compulsory Sale for Redevelopment) (Specification of Lower Percentage) Notice (L.N. 6 of 2010)  17.3.10  Negatived  27.1.10  Land (Compulsory Sale for Redevelopment) (Specification of Lower Percentage) Notice (L.N. 6 of 2010)  17.3.10  Not proceeded with  4.3.09  Public Revenue Protection Order 2009 (L.N. 27 of 2009)  1.4.09  Negatived  Source: http://www.legco.gov.hk/yr08-09/english/subleg/reso_mv.htm#toptbl. View Large Table 1: Subsidiary legislation/other instruments with resolution moved to repeal them (2008–12) Date of tabling in Council  Subsidiary legislation/other instruments (Legal Notice No.)  Resolution moved at the Council meeting on  Voting results  26.10.11  Companies Ordinance (Exemption of Companies and Prospectuses from Compliance with Provisions) (Amendment) Notice 2011 (Legal Notice No. 143 of 2011)  14.12.11  Negatived  9.6.10  Country Parks (Designation) (Consolidation) (Amendment) Order 2010 (L.N. 72 of 2010)  13.10.10  Passed  17.11.10  Minimum Wage Ordinance (Amendment of Schedule 3) Notice 2010 (L.N. 145 of 2010)  5.1.11  Negatived  2.3.11  Public Revenue Protection (Dutiable Commodities) Order 2011 (L.N. 32 of 2011)  4.5.11  Negatived  2.3.11  Public Revenue Protection (Dutiable Commodities) Order 2011 (L.N. 32 of 2011)  4.5.11  Not proceeded with  2.3.11  Public Revenue Protection (Motor Vehicles First Registration Tax) Order 2011 (L.N. 33 of 2011)  4.5.11  Negatived  14.10.09  Rules of the High Court (Amendment) Rules 2009 (L.N. 186 of 2009)  2.12.09  Negatived  27.1.10  Land (Compulsory Sale for Redevelopment) (Specification of Lower Percentage) Notice (L.N. 6 of 2010)  17.3.10  Negatived  27.1.10  Land (Compulsory Sale for Redevelopment) (Specification of Lower Percentage) Notice (L.N. 6 of 2010)  17.3.10  Not proceeded with  4.3.09  Public Revenue Protection Order 2009 (L.N. 27 of 2009)  1.4.09  Negatived  Date of tabling in Council  Subsidiary legislation/other instruments (Legal Notice No.)  Resolution moved at the Council meeting on  Voting results  26.10.11  Companies Ordinance (Exemption of Companies and Prospectuses from Compliance with Provisions) (Amendment) Notice 2011 (Legal Notice No. 143 of 2011)  14.12.11  Negatived  9.6.10  Country Parks (Designation) (Consolidation) (Amendment) Order 2010 (L.N. 72 of 2010)  13.10.10  Passed  17.11.10  Minimum Wage Ordinance (Amendment of Schedule 3) Notice 2010 (L.N. 145 of 2010)  5.1.11  Negatived  2.3.11  Public Revenue Protection (Dutiable Commodities) Order 2011 (L.N. 32 of 2011)  4.5.11  Negatived  2.3.11  Public Revenue Protection (Dutiable Commodities) Order 2011 (L.N. 32 of 2011)  4.5.11  Not proceeded with  2.3.11  Public Revenue Protection (Motor Vehicles First Registration Tax) Order 2011 (L.N. 33 of 2011)  4.5.11  Negatived  14.10.09  Rules of the High Court (Amendment) Rules 2009 (L.N. 186 of 2009)  2.12.09  Negatived  27.1.10  Land (Compulsory Sale for Redevelopment) (Specification of Lower Percentage) Notice (L.N. 6 of 2010)  17.3.10  Negatived  27.1.10  Land (Compulsory Sale for Redevelopment) (Specification of Lower Percentage) Notice (L.N. 6 of 2010)  17.3.10  Not proceeded with  4.3.09  Public Revenue Protection Order 2009 (L.N. 27 of 2009)  1.4.09  Negatived  Source: http://www.legco.gov.hk/yr08-09/english/subleg/reso_mv.htm#toptbl. View Large It can be perceived that the use of such a convention is not a mere coincidence but rather it is compatible with the principle of parliamentary deference.31 As illustrated by the landfill case, the alternative would be that a constitutional crisis could arise due to an imbalance created in legislative-executive relations. 3. INCLUSION OF ‘AMEND’ UNDER AN EXECUTIVE-LED GOVERNMENT IN HONG KONG Having discussed the theoretical and practical points of parliamentary deference that are relevant to subsidiary legislation, particularly when the NVP is applied, it is necessary to re-examine section 3 of the IGCO as doing so may lead to a different interpretative result with a different approach. Section 3 of the IGCO claims that ‘amend’ (xiuding) includes repeal, add to or vary, and the performance of all or any of these simultaneously or by the same ordinance or instrument. Therefore, if section 34 is interpreted in connection with section 3, it is clear that the LegCo can repeal subsidiary legislation, even when the NVP is applied. The subsequent issue is whether section 34 should be interpreted in connection with section 3 in a way that the term ‘amend’ can include ‘repeal’. Indeed, two possibilities of interpretation may arise here. One is in connection with section 3 where ‘amend’ includes ‘repeal’ and the other is where it does not. In order to identify which one is better, it is necessary to refer to Article 11 of the Hong Kong Basic Law that states that no law enacted by the legislature of the Hong Kong Special Administrative Region should contravene this Law. Furthermore, Article 160 provides that documents, certificates, contracts, and rights and obligations valid under the laws previously in force in Hong Kong will continue to be valid, recognized, and protected by the Hong Kong Special Administrative Region provided that they do not contravene this Law. Since section 3 of the IGCO was amended in 1993 before the Hong Kong Basic Law came into effect in 1997, it is important to take an interpretative approach in order to make sure that it is compatible with the Hong Kong Basic Law with renewed principles. The Hong Kong Basic Law was designed to establish an executive-led government under which the executive even has some authority over legislative powers at some respects.32 Such an executive-led government is different from a parliamentary sovereignty, such as Britain, which has absolute or prevailing authority over its executive. This can be seen from Article 62 that states that the government of Hong Kong will exercise the following powers and functions: ‘… (5) to draft and introduce bills, motions and subordinate legislation …’.33 In other words, the power to initiate legislation is conferred on the executive rather than the legislature. In this sense, the executive shares a certain degree of legislative power in the proposed phase of legislation according to the Hong Kong Basic Law. To some extent, the LegCo exercises the legislative power to review and approve proposed legislation. It appears that Hong Kong has not adopted the parliamentary supremacy principle found in Britain. In addition, Article 74 of the Hong Kong Basic Law states that ‘… [t]he written consent of the Chief Executive shall be required before bills relating to government policies are introduced’. This explicitly reserves an exclusive domain to the executive in the area of legislation, which pertains to policies.34 Although parliamentary scrutiny broadly takes two main forms: scrutiny over legality and scrutiny over policy, it does not generally examine statutory instruments on the merits of policy.35 It has been observed that with regard to congressional oversight-at-a-distance, it is almost impossible for a relatively uninformed Congress to control bureaucrats who are much more knowledgeable about their particular policy area.36 Furthermore, an executive-dominated government can also be implied from Article 76 of the Hong Kong Basic Law that prescribes that a bill passed by the LegCo may take effect only after it is signed and promulgated by the Chief Executive.37 The IGCO is not an ordinance that has general applicability to all cases automatically. Instead, some sections need to be interpreted according to the specific context in a way that may have a different meaning from the literature. An exception to this is the word ‘person’ since its meaning has sometimes been disputed in criminal cases that involve an unincorporated association or corporation. Care should be taken that the definition of a word given in this section does not apply for the purpose of a particular ordinance if the word is defined differently in that ordinance. In other words, a definition given in this section does not apply ‘where the contrary intention appears either from this Ordinance or from the context of any other Ordinance or instrument’.38 Therefore, according to the principles of an executive-dominated government enshrined in the Hong Kong Basic Law, it would be more reasonable to re-interpret section 34 of the IGCO with a narrow definition of the term ‘amend’, which does not include ‘repeal’, provided that the NVP is applied to scrutinize the subsidiary legislation. 4. CONCLUSION It has been shown that in the modern administrative state, the traditional relationship between the legislature and the executive has been transformed and that it is generally with the latter that the real governmental power now rests.39 It is true that in an executive-dominated system, the role of Parliament is limited. The main point about delegated legislation is that Parliament does not have to look at it closely, and it is certainly true that Parliament does not look at it very closely.40 Since its handover to China, Hong Kong has been transformed into an executive-led government according to the framework of the Hong Kong Basic Law. Such a transformation has deviated from the previous practice in place and is different to the traditional Westminster system. In terms of parliamentary scrutiny of subsidiary legislation, according to the principle of delegation, the LegCo certainly has the ultimate authority over the oversight of subsidiary legislation through either the PVP or the NVP. However, as illustrated above, the executive in a modern administrative state has gained a certain amount of autonomy. This is regarded as a positive development and as such should be respected by the legislature. In addition, the mutual checks between the executive and the legislature imply that the two have a share in the legislative power in subsidiary legislation but to a different degree, and the latter should principally defer to the former particularly in cases where the NVP is applied. Furthermore, over the past decade, LegCo has taken a deferential approach to scrutinizing the subsidiary legislation in the case of the NVP, with the exception of the landfill case in 2010, which almost resulted in a constitutional crisis in Hong Kong. Although the LegCo in the landfill case could have moved the resolution that repealed the subsidiary legislation de jure, it is right that it took a deferential attitude to the subsidiary legislation made by the Chief Executive in a way that was compatible with the executive-dominated government. To say that the legislature, in scrutinizing the subsidiary legislation, should defer to the executive or even avoid the overall veto of the subsidiary legislation in the case of the NVP is not to deny Parliament the authority to delegate. If the executive does not abide by administrative procedures or even pursues an illegal course of action, the legislature can certainly place a veto on it. In such cases, parliamentary deference aims to strike a balance between granting agencies too much leeway and constraining them so tightly that there is no room to incorporate bureaucratic expertise into policy outcomes.41 Broadly speaking, it must be borne in mind that Congress is not the only mechanism to scrutinize subsidiary legislation. The main thrust of administrative law has made agencies look like pluralistic enterprises that are not only open to the public but also reviewable by higher courts.42 1 See K Puttick, Challenging Delegated Legislation (Waterlow Publishers 1988) 3–4. 2 See A Chen ‘‘Executive-led Government’, Strong and Weak Governments and ‘Consensus Democracy’’ in J Chon and L Harris (eds) Hong Kong’s Constitutional Debates (Hong Kong Law Journal Ltd 2005) 9–14; WH Overholt ‘Hong Kong: The Perils of Semidemocracy’ (2001) 12 J Democr 9. 3 See C Lee and D Lee, ‘Lawmakers fume over landfill’ The Standard (06 October 2010). 4 See J Li, ‘Lawmakers given ‘nod’ for repeal motion’ China Daily (12 October 2010). 5 See Basic Law of Hong Kong Special Administrative Region, Art. 66 and 73. 6 See above n 4. 7 See above n 3. 8 Ibid. 9 The constitutional structure of Hong Kong is based on the separation of powers with the distinctive feature of the executive-led government. For more details about the executive-led government, see R Ip, ‘Hong Kong After 1997—Agony and Ecstasy’ Hong Kong J [April 2010]. <http://www.hkjournal.org/archive/2010_summer/3.htm> (20 October 2014). 10 See Interpretation and General Clauses Ordinance, section 3. 11 See BKY Wong and AYH Ho Hong Kong Statutory Interpretation Handbook (LexisNexis 2008) 193–94. 12 The control mechanisms present a perplexing variety, and they may also fall into other classes, such as ‘informative’ and ‘non-Parliamentary’, which are subject to no special control. See CK Allen Law and Orders: An Inquiry into the Nature and Scope of Delegated Legislation and Execution Powers in English Law (Stevens & Sons Limited London 1956) 145. 13 See Interpretation and General Clauses Ordinance, section 34. In fact, section 31 of the IGCO also provides the same principle concerning subsidiary legislation. This states that: (1) Where any Ordinance confers power to make any subsidiary legislation, expressions used in the subsidiary legislation shall have the same meaning as in the Ordinance conferring the power, and any reference in such subsidiary legislation to ‘the Ordinance’ shall be construed as a reference to the Ordinance conferring the power to make such subsidiary legislation (Amended 89 of 1993 section 14). (2) Where in subsidiary legislation there is a reference to a section or other provision by number, letter or combination of number and letter, and not in conjunction with the title or short title of other subsidiary legislation or an Ordinance, the reference shall be construed as a reference to the section or other provision of that number, letter, or combination in the subsidiary legislation in which the reference occurs (Added 89 of 1993 section 14). (3) Where in subsidiary legislation there is a reference to a subsection or other subdivision of a provision by number, letter or combination of number and letter, and not in conjunction with the number of any other section or provision of that subsidiary legislation or any other subsidiary legislation, the reference shall be construed as a reference to the subsection or other subdivision of a provision of that number, letter, or combination in the section or other provision in which the reference occurs (Added 89 of 1993 section 14). 14 See above n 11, Wong and Ho, at 19–20. 15 Id. 16 See above n 13. 17 See Montesquieu The Spirit of Laws (University of California Press 1977) 56–75. 18 See above n 11, Wong and Ho, at 19. 19 See M Fiorina Congress: The Keystone of the Washington Establishment (Yale University Press New Haven 1977) 48. 20 See D Epstein and S O’Halloran Delegating Powers: A Transaction Cost Politics Approach to Policy Making under Separation Powers (Cambridge University Press 1999) 20. 21 Id., at 20–21. 22 Id. 23 Id. 24 Id. 25 Id. at 18. 26 In contrast, if the PVP is applied, the subsidiary legislation will be subject to the approval of the LegCo. See Interpretation and General Clauses Ordinance, section 35. 27 See J Thayer ‘Origin and Scope of the American Doctrine of Constitutional Law’ (1893) 7 Harvard Law Rev 130, 132. 28 For more details, see ‘Subsidiary Legislation/Other Instruments with Resolution Moved to Amend Them’, <http://www.legco.gov.hk/yr11-12/english/subleg/reso_mv.htm#toptbl> (18 December 2014). 29 See Black’s Law Dictionary with Pronunciations (5th edn West Publishing Co. 1979) 74. 30 Id., at 1167. 31 According to the tradition of the rule of law, convention as customary law remains a key source of obligation, even in ‘modern’ and ‘mature’ legal system. For more details about how convention operates today, see DJ Bederman Custom as a Source of Law (Cambridge University Press 2010) 168–81. 32 In his 2005–06 Policy Address, the Chief Executive Mr Donald Tsang explained clearly that: ‘The political system established under the Basic Law envisions the Hong Kong SAR to practise “executive-led” government’. For detailed reference, <http://www.info.gov.hk/gia/general/200510/12/P200510120104.htm> (20 October 2014). 33 See The Basic Law of Hong Kong Special Administrative Region, Art. 62. 34 Art. 48 of Hong Kong Basic Law provides that the Chief Executive of the Hong Kong Special Administrative Region shall exercise the following powers and functions: …(4) to decide on government policies and to issue executive orders;…,which is interactive with Art. 74 and the principle of government-led regime. 35 See K Puttick Challenging Delegated Legislation (Waterlow Publishers 1988) 27. 36 See above n 20, Epstein and O’Halloran, at 24. 37 In addition, other related articles, such as Art. 48, 49, 50, 54, 56, and so forth, also explicitly illustrate the principle of executive-led regime in Hong Kong. 38 See above n 11, Wong and Ho, at 157. 39 See above n 12, Allen, at 185. 40 See EC Page Governing by Numbers: Delegated Legislation and Everyday Policy-Making (Hart Publishing Oxford 2001) 157. 41 See above n 20, Epstein and O’Halloran, at 27. 42 Id., at 21. © The Author 2014. 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TI - Parliamentary Scrutiny over Subsidiary Legislation under an Executive-led Government in Hong Kong
JF - Statute Law Review
DO - 10.1093/slr/hmu036
DA - 2015-06-01
UR - https://www.deepdyve.com/lp/oxford-university-press/parliamentary-scrutiny-over-subsidiary-legislation-under-an-executive-R0GfcqZpfN
SP - 111
EP - 122
VL - 36
IS - 2
DP - DeepDyve
ER -