Legislative Council

LC Paper No. LS97/98-99

Object(s) of the Bill

To make provisions for the implementation in Hong Kong of the privileges and immunities of the international organizations and of persons connected with such organizations under international agreements, and for matters connected therewith and incidental thereto.

LegCo Brief Reference

2. CSO/ADM CR 1/2071/98 Pt.2 issued by the Chief Secretary for Administration's Office on 21 January 1999.

Date of First Reading

3. 10 February 1999

Comments

4. The main aim of the Bill is to replace the part of the existing International Organizations and Diplomatic Privileges Ordinance (Cap. 190) which deals with privileges, immunities and legal capacities of certain international organizations. This is achieved by (a) giving the Chief Executive in Council power to declare, by order in the Gazette, the provisions relating to the status, privileges and immunities of an international organization (defined in the Bill) and of persons connected with such an organization, contained in an international agreement to have the force of law in Hong Kong ¹; and (b) by repealing the similar provisions contained in Cap. 1902. Such repealing will have the effect of also repealing the 17 Orders made under Cap. 190 ². The Administration has informed the Legal Service Division that after the passage of the proposed Ordinance, new Orders would be made under the proposed Ordinance to replace the existing Orders. The repealing provisions would only come into operation when such new Orders have wholly replaced the existing Orders.

5. The existing Orders made under Cap. 190 are subsidiary legislation subject to negative vetting by the Legislative Council. Under the Bill, Orders made by the Chief Executive in Council are expressly excluded from the application of section 34 of the Interpretation and General Clauses Ordinance (Cap. 1) ³, and are therefore not subject to the scrutiny of the Legislative Council. The Administration is of the view that the arrangement is in accord with the Basic law as these privileges and immunities are matters of foreign and external affairs.

6. The Bill also gives the Chief Secretary for Administration power to issue certificates certifying whether or not a person is entitled to a privilege or immunity under an Order to be made under the proposed Ordinance ⁴. Such certificates are conclusive evidence of fact (i.e. may not be challengeable in a court of law) and may only be contradicted by a certificate obtained under the third paragraph of Article 19 of the Basic Law ⁵.

7. It is specified in the Bill that the proposed Ordinance shall not prejudice the operation of and shall be construed subject to and as consistent with the Regulations of the People's Republic of China Concerning Diplomatic Privileges and Immunities ⁶ and the Regulations of the People's Republic of China Concerning Consular Privileges and Immunities ⁷. Both Regulations are national laws which apply to Hong Kong by promulgation under Article 18 of the Basic Law. The two Regulations provide for diplomatic privileges and immunities of embassies and consulates respectively and are not directly related to the international organizations as defined in the Bill. According to the Administration, they are mentioned in the Bill to avoid any possible conflict.

8. Amongst the consequential amendments intended by the Bill, it is noteworthy that a sub-paragraph is added to each of the paragraphs (a) and (b) of section 43(3) of the Stamp Duty Ordinance (Cap. 117) to give exemption from taxation to premises and persons respectively exempted by an Order made under the proposed Ordinance ⁸.

Public Consultation

9. According to the LegCo Brief, there has not been any public consultation on the Bill.

Consultation with LegCo Panel

10. No consultation with any LegCo Panel on the Bill has been carried out.

Conclusion

11. The Bill is for the implementation of international agreements on the status as well as privileges and immunities to be afforded to international organizations and persons. Subject to the Members' views on the comments above, the Bill is ready for Second Reading.


Prepared by

KAU Kin-wah
Assistant Legal Adviser
Legislative Council Secretariat
24 February 1999


¹ Clause 3(1)(a) of the Bill.
² Clauses 11 & 12 of the Bill.
³ Clause 3(2) of the Bill.
⁴ Clause 4(1) of the Bill.
⁵ Clause 4(2) of the Bill.
⁶ See Schedule 5 to the Promulgation of National Laws 1997 (L.N. 379 of 1997).
⁷ See Schedule 3 to the Promulgation of National Laws (No. 2) 1997 (L.N. 386 of 1997).
⁸ Clause 8 of the Bill.