16 September 1998
Dr Hon LEONG Che-hung, JP
Review of 17 Ordinances binding on the Government
but not on relevant PRC organs
On behalf of the Panel on Administration of Justice and Legal Services, I write to you concerning the above review which was discussed at the Panel meeting on 15 September 1998.
Let me briefly explain the background to the review. The Adaptation of Laws (Interpretative Provisions) Bill was introduced into the Provisional Legislative Council on 25 February 1998. This caused deep concern in the public and among the legal profession. According to the Administration, the Bill sought to adapt the Interpretation and General Clauses Ordinance (Cap. 1) in order to ensure conformity with the Basic Law and with the status of Hong Kong as a Special Administrative Region of China. In the course of scrutinising the Bill, concern was expressed as to why certain ordinances should be binding on the SAR Government but not on relevant PRC organs. The Secretary for Justice undertook, in a letter dated 3 April 1998 to Members of the Provisional Legislative Council, to conduct a review of the 17 relevant ordinances that are expressed to be binding on the Government in order to decide whether "this difference in treatment can be justified". The same undertaking was repeated in the Secretary's speech delivered at the resumption of the Second Reading debate on the Bill on 7 April 1998. It was announced to the public at large.
To follow up on the matter, the Panel decided at its meeting on 14 July 1998 to invite the Secretary for Justice to brief the Panel on the review at the meeting scheduled for 15 September 1998. An invitation letter was sent to the Secretary on 15 July 1998, with a request that a paper on the subject be prepared for discussion by the Panel.
I personally spoke to the Secretary for Justice on the matter in the summer and was advised that the review would have been completed in August 1998.
The paper entitled "Review of the binding effect of 17 Ordinances" prepared by the Department of Justice for the Panel meeting on 15 September 1998 only sets out the relevant sections of the 17 Ordinances that impose obligations or liabilities, without any detailed analysis or conclusion on whether "the difference in treatment can be justified", as promised by the Secretary for Justice. According to the representatives of the Department of Justice attending the meeting, the relevant policy Bureaux have been requested in July to conduct the review from a policy point of view, and the paper prepared by the Department of Justice is merely a legal analysis of the 17 Ordinances to assist the Bureaux in the review. They are not in a position to advise the Panel on the progress of and the timeframe for completing the review, let alone the outcome of it. Apart from the lateness of the paper (which was received from the Administration in the afternoon on 14 September 1998) and the substance of the paper, members also find such a response very disappointing and totally unacceptable.
Since representatives from the Department of Justice have indicated that the matter exceeds their power and function, the Panel has agreed to request you to bring the unsatisfactory state of affair to the attention of the Chief Secretary for Administration. To ensure better co-ordination of the review, the Chief Secretary should also be requested to advise on which policy Bureau should be responsible for co-ordinating and collating the review if not the Secretary for Justice. The Panel will discuss the subject matter again at its next regular meeting to be held on 20 October 1998.
Thank you for your assistance in the matter.
Panel on Administration of Justice and Legal Services