PLC Paper No. CB(2) 1314

Ref: CB2/BC/12/97

Paper for the House Committee meeting on 27 March 1997

Report of the Bills Committee on Adaptation of Laws (Interpretative Provisions) Bill

Purpose

This paper reports on the deliberations of the Bills Committee on the Adaptation of Laws (Interpretative Provisions) Bill.

Background

2. The Interpretation and General Clauses Ordinance (Cap. 1) (the Ordinance) makes general provisions with regard to interpretation of laws, public officers, public contracts and civil and criminal proceedings. It is one of the laws previously in force in Hong Kong which has been adopted as a law of the Hong Kong Special Administrative Region (the HKSAR). Following the reunification, there is a need to make 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 to deal with the areas requiring adaptation, which may or may not have been taken care of by the HKRO.

The Bill

3. The Bill seeks to amend the Ordinance to bring it into conformity with the Basic Law and the status of Hong Kong as a Special Administrative Region of the People’s Republic of China (the PRC), and to make other amendments to the Ordinance to facilitate that purpose. The Bill also consequentially amends other enactments which refer to the Ordinance or rely upon definitions set out in section 3 of the Ordinance.

The Bills Committee

4. At the House Committee meeting held on 27 February 1998, Members agreed to form a Bills Committee to study the Bill. The Bills Committee first met on 13 March 1998 and Hon Kennedy WONG Ying-ho was elected Chairman. The membership list of the Bills Committee is at Appendix I.

5. The Bills Committee held two meetings with the Administration.

Deliberations of the Bills Committee

6. The main deliberations of the Bills Committee are set out in the following paragraphs.

7. The Bills Committee notes that the Administration has consulted the Hong Kong Bar Association, the Law Society of Hong Kong and a constitutional lawyer of the University of Hong Kong on an earlier draft of the Bill and has made a number of revisions to the Bill as a result. To facilitate members’ consideration of the Bill, the Administration has provided to the Bills Committee details of those comments which it has considered but not adopted, together with the reasons for not adopting them. Members note and accept the reasons provided.

8 Apart from examining the technical aspects of the clauses, the Bills Committee has deliberated in great detail the definition of "State" in clause 4(b) which is for adapting the reference to "Crown" in the Ordinance. The Bills Committee considers this adaptation of particular significance.

"State" and

9. Clause 4(b) sets out new and revised definitions to be added to the Ordinance, one of which is the term "State" which means -

"(a) the Government of the Hong Kong Special Administrative Region;

(b) the Central Authorities of the People’s Republic of China that exercise -

  1. executive functions;

  2. functions for which the Central People’s Government has responsibility under the Basic Law; or

  3. any combination of any of those functions; and

(c) subordinate organs of any of those Central Authorities that

  1. exercise any of those functions on behalf of those Central Authorities; and

  2. do not exercise commercial functions,

    when acting within the scope of the delegated authority, and the delegated functions, of the subordinate organ concerned."

10. 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 binding on "the State". In this connection, members note that the term "the Crown" is a common law expression of complex meaning because of the concept involved and that there is no statutory definition for it. "Crown" is a single indivisible entity in the Commonwealth and there is no such equivalent entity in the PRC. The Administration has therefore adopted a functional approach for arriving at the conclusion that the term "State" is the closest equivalent term capable of reflecting the legal position before 1 July 1997.

11. In order to facilitate their deliberations, members have asked the Administration to provide examples on provisions that bind "the State" and provisions that do not bind "the State" for their reference. In response to doubts expressed by some members regarding the choice of the word "State", the Administration has further explained that the word "State" in the English language also means "Country" and for the present context, the executive organ which possesses the sovereign authority. While the word "Crown" sums up the attributes of sovereignty, the word "State" also covers the same. Since the word "Crown" has a broader meaning of executive government and there is no equivalent institution in the PRC, whatever word is used to replace it will not by itself convey the whole concept. Nevertheless, at the Bills Committee’s request, the Administration has reviewed the expression and definition of "State" and in the light of comments made by members and will move an amendment to clarify its coverage.

12. Regarding the suggestion that an alternative expression be used, the Administration’s considered view is that that term "State" remains the most appropriate term to reflect the position after the reunification, without changing the pre-1 July 1997 position i.e. "the State (previously the Crown) acting in the right of certain organs". The Administration also considers it appropriate to include HKSAR Government (HKSARG) under the term as HKSAR is an integral part of the PRC. The President of the PRC, Central People’s Government (CPG), the Central Authorities of the PRC that exercise functions for which the CPG has responsibility under the Basic Law and the HKSARG etc. are "state organs" which make up, or are part of, the State.

13. The Administration also considers the most accurate and exact Chinese equivalent of "State" as they bear the same meaning in their respective languages. If "State" is used in the English text, , as its exact equivalent, should be used in the Chinese text of the legislation.

14. Except for one member who has expressed reservation about the need for defining "State", the Bills Committee accepts the term "State" and and the revised definition at Appendix II.

Chinese expression of "Central Authorities"

15. Members have also asked the Administration to consider the question as to whether "Central Authorities", as referred to in the proposed definition of "State", shall be rendered as

16. The Administration notes that "Central Authorities" is referred to in the Basic Law and paragraph 1(c) of Schedule 8 of the Ordinance and is rendered as . However, " Central Authorities" in the above contexts carries a broader meaning and is used in a collective sense. It includes the CPG and is used in the context of defining relationship between " Central" and the HKSAR. On the other hand, "Central Authorities" as mentioned in the proposed definition of "State" carries a narrower meaning and is for a different purpose. It means "Authorities" other than the CPG which should also be considered as "Central Authorities". The Administration therefore considers it more appropriate to render "Central Authorities in the proposed definition of "State". simply means responsible Authorities in this context.

Subordinate organs

17. Members have sought clarifications from the Administration as to what constitutes a subordinate organ and whether Xinhua News Agency will be a subordinate organ within the meaning of "State" as proposed in the Bill. Regarding the first question, the Administration has explained that a functional test is included in paragraph (c) of the definition of "State" in clause 4. Paragraph (c) of the definition provides that subordinate organs have to exercise any of those functions as set out in paragraph (b) on behalf of the 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. The Administration has also pointed out that nationalised industries and statutory bodies with commercial functions in the United Kingdom are not regarded as part of the Crown unless there is a specific express provision to that effect. Therefore the Administration has introduced a similar restriction in the definition. As regards Xinhua News Agency, since it was established by the State Council, it is a subordinate organ in fact but whether it is a subordinate organ within the meaning of the definition of "State" will depend upon what its official functions are, and also in any particular case, whether it is exercising those official functions or not. Therefore both the legal status and functions of a particular body and the particular functions that were being exercised at the relevant time will depend upon the facts established before the courts. On the question of how the relevant facts could be established, the Administration is considering whether a certification system should be provided.

Committee Stage Amendments (CSAs)

18. The Administration will move a CSA to revise the proposed definition of "State" in order to improve its clarity. It will also move a CSA to amend the reference to the "Supreme Court Ordinance" in the definition of "High Court" in clause 4(b), on the understanding that the Adaptation of Laws (Courts and Tribunals) Bill will be passed earlier. The draft CSAs are at Appendix II.

Recommendation

19. The Bills Committee recommends the resumption of the Second Reading debate on the Bill on 7 April 1998.

Advice Sought

20. Members are invited to support the recommendation of the Bills Committee in paragraph 19 above.


Provisional Legislative Council Secretariat
26 March 1998

Appendix I

Bills Committee on
Adaptation of Laws (Interpretative Provisions) Bill

Membership List

Hon Kennedy WONG Ying-ho (Chairman)

Hon WONG Siu-yee

Hon Ronald ARCULLI, JP

Hon Mrs Sophie LEUNG LAU Yau-fun, JP

Hon CHENG Kai-nam

Dr Hon Philip WONG Yu-hong

Hon IP Kwok-him

Hon Bruce LIU Sing-lee

Hon Mrs Miriam LAU Kin-yee, JP

Hon Ambrose LAU Hon-chuen, JP

(Total : 10 members)


Provisional Legislative Council Secretariat
16 March 1998