PLC Paper No. LS 99
Paper for the House Committee Meeting
of the Provisional Legislative Council
on 27 February 1998
Legal Service Division Report on
Adaptation of Laws (Interpretative Provisions) Bill
Object of the Bill
To amend provisions of the Interpretation and General Clauses Ordinance (Cap. 1) ("the Ordinance") relating to the construction, application and interpretation of laws to ensure conformity with the Basic Law of the Hong Kong Special Administrative Region ("the HKSAR") of the Peoples Republic of China ("the PRC") and with the status of Hong Kong as a Special Administrative Region of the PRC.
Provisional LegCo Brief Reference
2. CSO/ADM CR13/3231/97(98) Pt. 7 issued by the Chief Secretary for Administrations Office in February 1998.
Date of First Reading
3. 27 February 1998.
4. The Ordinance makes general provision with regard to interpretation of laws, public officers, public contracts, and civil and criminal proceedings. The Ordinance is in force before 1 July 1997 and adopted as laws of the HKSAR. In light of the change of sovereignty, there is a need for making certain adaptations to provisions of the Ordinance with regard to the construction, application and interpretation of Hong Kong laws. In this respect, the Hong Kong Reunification Ordinance (110 of 1997) ("the HKRO") has already made certain amendments to the Ordinance by adding new section 2A (relating to laws previously in force) and new Schedule 8 (relating to construction on and after 1 July 1997 of words and expressions in laws previously in force). The Bill seeks further to deal with the areas requiring adaptations, which have not been taken care of by the HKRO.
5. Apart from certain technical amendments, there are provisions of the Bill, notably the definition of "State", which have significant implications for the HKSAR constitutional law and legal system. Clause 4(b) sets out new and revised definitions to be included in the Ordinance. One of the new definitions therein is the term "State" which means-
- the Government of the Hong Kong Special Administrative Region;
- the Central Authorities of the Peoples Republic of China that exercise-
- executive functions;
- functions for which the Central Peoples Government has responsibility under the Basic Law; or
- any combination of any of those functions; and
- subordinate organs of any of those Central Authorities that-
- exercise any of those functions on behalf of those Central Authorities; and
- do not exercise commercial functions, when acting within the scope of the delegated authority, and the delegated functions, of the subordinate organ concerned."
6. The Bill seeks to replace the reference to "the Crown" with "the State" in the context that legislation which is expressed to be binding on "the Crown" is to be construed as binding on "the State" (clause 24). The term "the Crown", as defined by an academic, means the Queen in her public capacity either (a) acting on her own discretion (as when dismissing the Prime Minister), (b) acting on the advice of Ministers (as when opening Parliament), (c) acting through or by means of Ministers (such as making treaties or granting the prerogative of mercy), or (d) when Ministers act on the Queens behalf. "The Crown" thus generally means the executive government of the state. It needs careful scrutiny of whether the meaning of "State" changes the meaning of "Crown", bearing in mind the exercise of adaptation of laws should, as far as practicable, adopt the substantive meaning of the previous term sought to be replaced with.
7. The amendments made by the Bill, upon its enactment, will be retrospective to 1 July 1997. The reason for this is to ensure that there is consistency in interpretation of all laws on and after 1 July 1997. The retrospectivity will not apply to criminality.
8. Paragraph 9 of the PLC Brief states that the Administration has consulted the Law Society and the Bar Association, as well as a constitutional lawyer at the University of Hong Kong on an earlier draft of the Bill. The PLC Brief further states that their comments have been reflected in the Bill where appropriate. But it appears that those parties involved have not been consulted on the present version of the Bill.
Consultation with the Provisional LegCo Panel
9. No PLC Panel has been consulted on the content of the Bill.
10. As discussed in paragraphs 5 and 6 above, the Bill involves adaptation of some important constitutional and legal concepts which merit members detailed scrutiny. It is recommended that a Bills Committee be formed. In the meantime, the Legal Service Division will continue scrutinizing the legal and drafting aspects of the Bill.
Lam Ping-man, Stephen
Assistant Legal Adviser
Provisional Legislative Council Secretariat
25 February 1998