ISE07/15-16

Introduction

• Article 18 of the Basic Law ("Article 18") states that the laws in force in the Hong Kong Special Administrative Region ("Hong Kong") shall be the Basic Law, the laws previously in force in Hong Kong^{1Legend symbol denoting The laws previously in force in Hong Kong, as stated under Article 8 of the Basic Law, are the common law, rules of equity, ordinances, subordinate legislation and customary law.}, and the laws enacted by the legislature of Hong Kong. National laws shall not be applied in Hong Kong except for those listed in Annex III to the Basic Law ("Annex III"). The laws listed therein shall be applied locally by way of promulgation or legislation by Hong Kong.
• During the recent discussions on the plan to implement arrangements for the co-location of Mainland and Hong Kong customs, immigration and quarantine facilities at the West Kowloon Terminus of the Guangzhou-Shenzhen-Hong Kong Express Rail Link, the Secretary for Justice said that the Administration was studying whether the inclusion of the relevant national laws into Annex III was needed to facilitate the implementation of the co-location arrangements.^{2Legend symbol denoting See the Secretary for Justice's reply to the oral question asked by Hon. Frederick FUNG regarding the Guangzhou-Shenzhen-Hong Kong Express Rail Link at the Council meeting of 9 December 2015.} This issue of Essentials explains the procedures and conditions laid down by the Basic Law regarding the application of national laws in Hong Kong, and the relevant legislative history of adding to or deleting from Annex III after 1997.

What are the circumstances under which national laws shall be applied in Hong Kong?

• Article 18 lays out the procedures and conditions to be followed, when the Standing Committee of the National People's Congress ("NPC Standing Committee") exercises its power to add to or delete from the list of laws in Annex III.
• Under Article 18, before a decision to add to or delete from the list of laws in Annex III is to be made by the NPC Standing Committee, the Basic Law Committee as well as the Hong Kong Government shall be consulted. Article 18 also requires that the laws listed in Annex III shall be confined to those relating to the following three areas: (a) defence; (b) foreign affairs and (c) other matters outside the limits of the autonomy of Hong Kong as specified under the Basic Law.
• Article 18 also provides that in the event that the NPC Standing Committee decides to declare a state of war or, by reason of turmoil within Hong Kong which endangers national unity or security and is beyond the control of the Hong Kong Government, decides that Hong Kong is in a state of emergency, the Central People's Government may issue an order applying the relevant national laws in Hong Kong.

What are listed in Annex III?

• When the Basic Law was promulgated in 1990, there were six pieces of national laws listed in Annex III which included laws and regulations covering issues such as the capital, national day and diplomatic privileges and immunities. Since 1997, the NPC Standing Committee has made a total of three decisions to add to or delete from the list.^{3Legend symbol denoting In a decision made on 1 July 1997, the NPC Standing Committee deleted the Order on the National Emblem of the People's Republic Of China Proclaimed by the Central People's Government, and its attachment, from Annex III to the Basic Law.} At present, Annex III contains 12 pieces of national laws. They include the Nationality Law of the People's Republic of China; the Law of the People's Republic of China on the Garrisoning of the Hong Kong Special Administrative Region; and the Law of the People's Republic of China on the Exclusive Economic Zone and the Continental Shelf.

What is the consultation procedure in Hong Kong?

• Article 18 specifies that the Hong Kong Government is a party to be consulted before a decision to add to or delete from the list of laws in Annex III is made. Following the NPC Standing Committee decision in November 1998 to add to the list in Annex III, Members of the Legislative Council raised questions regarding the mechanism and procedure for additions and deletions to Annex III, in particular how to determine whether a national law proposed to be applied was related to defence, foreign affairs or matters outside the limits of Hong Kong's autonomy. In an answer to an oral question raised at a Council meeting of 10 February 1999^{4Legend symbol denoting For details, see the oral and written replies of the Secretary for Constitutional Affairs given to an oral question on "Additions and deletions to Annex III to the Basic Law", asked by Hon. Martin LEE at the Council meeting of 10 February 1999.}, the then Secretary for Constitutional Affairs advised that in accordance with Article 18, the NPC Standing Committee would consult the Hong Kong Government whether a national law should be added to Annex III. Based on the nature and content of that national law in question, relevant bureaus and departments, as well as the Department of Justice, would examine whether that national law was related to the three areas as specified in Article 18. They would also consider whether that national law in question would have any practical or substantial effect on Hong Kong, for example whether it had any relation to the internal affairs of Hong Kong.
• As for the consultation mechanism with the Legislative Council, the then Secretary for Constitutional Affairs advised that the relevant Legislative Council Panels would be consulted if a national law proposed to be applied would have any practical or substantial effect on Hong Kong.^{5Legend symbol denoting For the Law of the People's Republic of China on the Exclusive Economic Zone and Continental Self which was decided by the NPC Standing Committee to be added to Annex III in 1998, the Hong Kong Government considered that the law, which aimed to regulate matters outside Hong Kong waters, had no practical effect locally. Hence, the Legislative Council had not been consulted.} In addition, the legal sector and other relevant parties concerned would also be consulted. Responding to a Member's concern on whether the Hong Kong Government had any right to object to a proposed application of a national law, the then Secretary for Constitutional Affairs advised that an opinion could be raised to the NPC Standing Committee, if it was found upon examination and consultation that the national law should not be added to Annex III. Regarding the consultation mechanism and procedure with the Basic Law Committee, the then Secretary for Constitutional Affairs advised that the Hong Kong Government had no information regarding the mechanism and manner of consultation as the Basic Law Committee was a working committee under the NPC Standing Committee.

Applying a national law: promulgation or local legislation?

• The application of a national law in Hong Kong requires either promulgation by the Chief Executive, or by way of local legislation. In the same reply to the oral question raised at the Council meeting of 10 February 1999, the then Secretary for Constitutional Affairs advised that if it was necessary for a piece of national law to be amended or adapted locally before it could be applied in Hong Kong, that law would be applied through local legislation. Otherwise, the law concerned would be applied by way of promulgation, sometimes complemented by local legislation at a later stage.
• The promulgation of listed national laws has been effected by way of a legal notice issued by the Chief Executive in the Gazette. Under this category, national laws are applied verbatim. Examples are the Law of the People's Republic of China on the Exclusive Economic Zone and the Continental Shelf and the Law of the People's Republic of China on the Territorial Sea and the Contiguous Zone.
• National laws may also be applied by way of local legislation. Examples include the National Flag and the National Emblem Ordinance which was enacted to implement the Law of the People's Republic of China on the National Flag and the Law of the People's Republic of China on the National Emblem in Hong Kong.^{6Legend symbol denoting The Government intends to implement the Law of the People's Republic of China on Judicial Immunity from Compulsory Measures Concerning the Property of Foreign Central Banks in Hong Kong by way of local legislation.} Sometimes, local legislation is also required to complement the application of a certain listed national law in Hong Kong. Examples are the Consular Relations Ordinance (Cap. 557) and the International Organizations (Privileges and Immunities) Ordinance (Cap. 558). According to the Government, this would facilitate appropriate adaptations to be made in the light of the local circumstances, thus catering for the differences in the legal systems and actual situation between the Mainland and Hong Kong.

Prepared by Ambrose LEUNG
Research Office
Information Services Division
Legislative Council Secretariat
30 December 2015