|LCQ13: CPG offices in HKSAR and their personnel shall abide by HK laws
Following is a question by the Hon Emily Lau and a reply by the Acting Secretary for Constitutional Affairs, Mr Clement Mak, in the Legislative Council today (July 4):
Article 22(3) of the Basic Law stipulates that all offices set up in the Hong Kong Special Administrative Region (HKSAR) by departments of the Central Government (CG's offices) and the personnel of these offices shall abide by the laws of the HKSAR. In this connection, will the Executive Authorities inform this Council:
(a) of the ordinances and subsidiary legislation of the HKSAR that explicitly bind the CG's offices in the HKSAR and their personnel;
(b) given that the HKSAR has already been established for four years, of the reasons why the Executive Authorities have hardly made any progress in amending legislation to stipulate that the CG's offices in the HKSAR are bound by it; and
(c) of the measures in place to remove the impression generally held by the community that the CG's offices in the HKSAR and their personnel are not required to abide by the laws of the HKSAR?
In Hong Kong, under the rule of law, no person or organization is above the law. The offices set up by the CPG in the HKSAR (CPG offices) are no exception. Article 22(3) of the Basic Law provides that:
"All offices set up in the Hong Kong Special Administrative Region by departments of the Central Government, or by provinces, autonomous regions, or municipalities directly under the Central Government, and the personnel of these offices shall abide by the laws of the Region."
Article 14(4) of the Basic Law provides that:
"In addition to abiding by national laws, members of the garrison shall abide by the laws of the Hong Kong Special Administrative Region."
It is clear that the CPG offices and their personnel shall abide by the laws of the HKSAR.
Our reply to the Member's questions is as follows:
(a) The 700-odd Ordinances in our statute books can be classified into four categories on the basis of whether they contain express references to the "Government" or "Crown";
(i) 17 Ordinances which expressly provide that they apply to the "Government" but are silent as to their applicability to the CPG offices;
(ii) 36 Ordinances which contain references to the "Government";
(iii) 53 Ordinances which contain references to the "Crown"; and
(iv) some 600 Ordinances which are silent as to their applicability to the HKSARG or CPG offices. The matters regulated under these Ordinances are mostly not relevant to the Government and the CPG offices.
Of the 53 Ordinances which contain references to the "Crown", 18 have been wholly or partly adapted so far. Four of these Ordinances have the references to the "Crown" adapted to references to the "State" while the other 14 Ordinances have the word "Crown" substituted by the "Government". As for the remaining Ordinances or provisions which have yet to be amended, they are to be construed in accordance with the Hong Kong Reunification Ordinance the relevant provisions of which have now been incorporated into the Interpretation and General Clauses Ordinance (Cap.1). In accordance with the relevant provisions in the Hong Kong Reunification Ordinance, the word "Crown" is to be construed as the "Government" or "the CPG or other competent authorities of the People's Republic of China", depending on the circumstances. The latter includes the CPG offices in Hong Kong. Although these Ordinances or provisions have yet to be adapted, the legal effect of these Ordinances or provisions has not been compromised.
(b) As for the 17 Ordinances which expressly apply to the Government but are silent as to their applicability to the CPG offices, the Administration conducted a review in 1998 and came to the view that, as a matter of policy, 15 of these Ordinances should be amended to apply to the CPG offices. The Administration subsequently informed the LegCo that the relevant Policy Bureaux and departments would take matters forward in respect of the 15 Ordinances once the necessary legislative amendments had been worked out.
The Arbitration Ordinance is one of the 15 Ordinances. The Administration introduced into the LegCo in 1999 the proposed legislative amendments to the Arbitration Ordinance which included a provision to extend the application of the Ordinance to cover all persons and organs. However, the Bills Committee considered that the drafting of the proposed application provision might not be perfect, and that there might be better ways to reflect the policy intention. The Administration undertook to continue to work on an appropriate formula. The Administration is considering how to formulate an appropriate application provision which could also be used in other ordinances as appropriate and is consulting the CPG.
As for the legislative work required for the other 14 Ordinances, apart from the need to incorporate a suitable provision to extend their application to the CPG offices, amendments to other relevant individual provisions will need to be worked out. The relevant Policy Bureaux and departments are now examining the relevant Ordinances and will accord priority to the legislative work concerned with a view to introducing the legislative amendments into the LegCo once an appropriate application provision has been worked out.
(c) As set out above, the relevant provisions in the Basic Law require that the CPG offices and their personnel shall abide by the laws of the HKSAR. At present, a number of Ordinances in our statute books already apply to the CPG offices. The fact of the matter is that the community recognises that the CPG offices and their personnel have been exemplary in abiding by the laws of the HKSAR.
End/Wednesday, July 4, 2001