LCQ11: Principle of checks and balances enshrined in Basic Law
Following is a question by the Hon Lee Wing-tat and a written reply by the Secretary for Constitutional Affairs, Mr Stephen Lam, in the Legislative Council today (June 8):
Article 50 of the Basic Law stipulates that if the Chief Executive of the Hong Kong Special Administrative Region refuses to sign a bill passed the second time by the Legislative Council, or the Legislative Council refuses to pass a budget or any other important bill introduced by the Government, and if consensus still cannot be reached after consultations, the Chief Executive may dissolve the Legislative Council. In this connection, will the Government inform this Council of:
(a) the bills referred to as "any other important bill" in the above article, and how "important bill" is defined;
(b) the procedure and the parties involved in the "consultations" referred to in the above article; and
(c) the procedure that the Chief Executive is required to follow for dissolving the Legislative Council, and whether the Chief Executive is only required to publish a notice of such a decision in the Gazette?
The question raised by the Hon Lee Wing-tat is primarily about Article 50 of the Basic Law (BL). To understand in a more thorough manner the constitutional arrangement designed for resolving major conflicts between the executive and legislative authorities in the BL, we should consider BL50 together with Articles 49 and 52 of the BL.
BL49 provides that if the Chief Executive (CE) considers that a bill passed by the Legislative Council (LegCo) is not compatible with the overall interests of Hong Kong, he may return it to the LegCo within three months for reconsideration. If the LegCo passes the original bill again by not less than a two-thirds majority, the CE must sign and promulgate it within one month or act in accordance with the provisions of BL50.
BL50 provides that if the CE refuses to sign a bill passed the second time by the LegCo, or the LegCo refuses to pass a budget or any other important bill introduced by the government, and if consensus still cannot be reached after consultations, the CE may dissolve the LegCo. The CE must consult the Executive Council (ExCo) before dissolving the LegCo. The CE may dissolve the LegCo only once in each term of his or her office.
BL52 provides that the CE must resign under three circumstances. Two of the circumstances are: (1) when, after the LegCo is dissolved because he twice refuses to sign a bill passed by it, the new LegCo again passes the original bill in dispute, but he still refuses to sign it; and (2) when, after the LegCo is dissolved because it refuses to pass a budget or any other important bill, the new LegCo still refuses to pass the original bill in dispute.
According to the above BL provisions, a CE is vested with the power to dissolve the LegCo under certain specified circumstances, while a CE must resign under certain specified circumstances involving the LegCo. This reflects the principle as enshrined in the Basic Law that the executive and legislative authorities should cooperate with one another while keeping each other in check. However, the dissolution of the LegCo by the CE and the resignation of a CE involving the LegCo are governed by stringent requirements in the BL. It is not easy to trigger the mechanism. When a CE decides to dissolve the LegCo, he will need to consider the possibility that this may result in his resignation eventually. If the LegCo passes again the bill returned to it by the CE for reconsideration or if it refuses to pass a budget or any other important bill introduced by the government, LegCo will also have to consider the possibility of dissolution. This arrangement of checks and balances ensures that the CE will not exercise his power to dissolve the LegCo lightly; likewise, the LegCo will not pass again the bill returned for reconsideration or refuse to pass a budget or any other important bill lightly.
Regarding the first part of the question, BL 50 contains no further elaboration on what "other important bill" entails. It would, thus, not be appropriate to add further requirements or restrictions on the term "important bill" beyond the current provision of the Basic Law. In determining whether a bill is an "important bill", we expect that the CE will consider the circumstances of each case and the overall interests of Hong Kong.
Regarding the second part of the question, BL50 contains no further explanation on the procedures and people to be involved in the process of "consultations". The purpose of consultations is to provide an opportunity for the executive and legislative authorities to resolve their differences on the budget or the relevant important bill, before the CE decides whether or not the power to dissolve LegCo should be exercised. Depending on the actual need and circumstances pertaining, we believe that both sides will consider using all possible communication channels between the executive and legislative authorities for the purpose. These may include the relevant bills committee which involves LegCo Members and officials of the SAR Government.
Regarding the third part of the question, BL50 empowers the CE to dissolve the LegCo under certain specified circumstances. This article provides that the CE must consult the ExCo before dissolving the LegCo. There is no other procedural requirement stipulated in the BL.
Ends/Wednesday, June 8, 2005