Legislation in Special Administrative Regions

In China some administrative regions are also called Special Administrative Regions, and these have been placed directly under the Central Government, under the guidance of “one country, two systems” and based on the Constitution so as to reasonably settle the issues of Hong Kong, Macao, and Taiwan. The Special Administrative Regions enjoy a high degree of self-government. They are different from other local administrative regions in China in terms of their basic social system. These regions will maintain a capitalist system for a long period of time.

Hong Kong returned to the motherland on July 1, 1997 and it became a special administrative region. Macao became another special administrative region of China on December 20, 1999. Taiwan will eventually also become a special administrative region through the arrangement of “one country, two systems.”

Legislation in the special administrative region described in this chapter only refers to legislation in the Hong Kong Special Administrative Region (HKSAR).

 There is a big difference between legislation in the HKSAR and that of other places in China. The main characteristics are a high degree of self-government, which is fully reflected in the legislative system in the HKSAR.

(1) The legislative body in the HKSAR

The legislative body in the HKSAR is called a legislative organ, whereas in other places it is called a power organ.

The legislative organ in Hong Kong is the Legislative Council of the Hong Kong Special Administrative Region. The Legislative Council consists mainly of Chinese citizens who are permanent residents in the HKSAR, without the right of residence in foreign countries. Permanent foreign residents in Hong Kong without Chinese citizenship and permanent residents in Hong Kong who have the right of residence in foreign countries can be also elected to the Legislative Council, but their proportion cannot exceed 20 percent of the total number of the council members.

The Legislative Council is established through elections. The procedures for forming the Legislative Council are arranged in accordance with “The Procedures of Establishment and Voting for the Legislative Council in the Hong Kong Special Administrative Region” attached to the Basic Law of the Hong Kong Special Administrative Region. “The Procedures of Establishment and Voting” demonstrates the following principle: the establishment of the Legislative Council should follow a principle of taking into consideration actual situations and a step-by-step process that will eventually lead to all council members being elected through general elections.

The term of the Legislative Council is four years, except that the term of the first council is two years. In accordance with the stipulations in the Basic Law of the Hong Kong Special Administrative Region, if the chief executive officer dissolves the Legislative Council, an election will be held within three months. The chairman of the Legislative Council is elected by members of the Legislative Council. The post of chairman shall be held by a permanent Chinese citizen who is over 40 years of age, has lived in Hong Kong for more than 20 years, and who has no right of residence in a foreign country.

(2) The Legislative power of the HKSAR

The legislative power of the HKSAR comes from the special authorization of the basic law made by the National People’s Congress. The Basic Law of the Hong Kong Special Administrative Region clearly specifies that the HKSAR enjoys the right of legislation. No region in China other than Hong Kong has obtained legislative power through this means.

The legislative power in the HKSAR is exercised by the Legislative Council. In accordance with Article 73 of the Basic Law of the Hong Kong Special Administrative Region, the functions and powers of the Legislative Council include the following:

1) To make, amend and abrogate laws in accordance with relevant laws;

2) To examine and approve financial budgets according to proposals of the government;

3) To ratify tax collection and public expenses;

4) To listen to and debate about the working report made by the chief executive office;

 5) To raise questions about the work of the government;

 6) To debate about any issues related to public interest;

 7) To approve the appointment of judge of the Court of Final Appeal and chief judge of the High Court;

 8) To accept appeals from Hong Kong residents and to make decisions about these;

 9) To put forward requests for impeachment and to request a Central Government decision should the chief executive officer seriously violate the law or engage in misconduct in office, but does not resign; and

 10) When necessary, to request that the people concerned be present as witnesses and provide evidence, while exercising the above functions and powers.

The stipulations on the functions and powers of the Legislative Council in the HKSAR regarding the Basic Law cover two aspects. First, the Legislative Council in the HKSAR has the power to make, amend, and abrogate laws, while other regions can only make local rules and regulations and cannot make, amend, or abrogate laws. Second, the scope of the functions of the Legislative Council is the scope of its legislative power. If the Legislative Council wishes to exercise such functions and powers through legislation, then it can make laws on matters enabling it to exercise such functions and powers.

Besides, relevant articles in the Basic Law of the Hong Kong Special Administrative Region explicitly stipulate that the HKSAR has the power to make laws on other matters. For example, Article 23 in the Basic Law stipulates that the HKSAR should make laws on its own to prohibit any activities of treason and separation of the country, instigation of rebellions, subversion of the Central Government, and stealing of state secrets, so as to prohibit any foreign political organizations or groups from engaging in political activities in the HKSAR, and to prohibit political organizations or groups in the HKSAR from establishing contacts with foreign political organizations or groups. For another example, Articles 24-42 stipulate that the HKSAR has the power to make laws on a series of matters concerning the basic rights and obligations of residents in Hong Kong.

Legislative procedures in the HKSAR

The legislative procedures in the HKSAR include the following activities:

1) Motions.  The right to put forward motions is exercised by the government and members of the Legislative Council in the HKSAR. In accordance with the Basic Law of the Hong Kong Special Administrative Region, bills are put forward according to established procedures. The government exercises the functions and powers of drafting and putting forward bills, motions, and attached rules and regulations. A council member can individually or together with other members put forward proposals as long as they are not related to public expenses, political systems or government operations. Motions concerning any matters related to governmental policies should be submitted with written approval and be signed by the chief executive officer. Bills put forward by the government enjoy the priority of being put on the agenda.

2) Examinations. Bills are examined by the Legislative Council. The chairman of the Legislative Council presides over meetings of the Legislative Council, decides on the agenda for examination and the convening of the meetings, and can summon urgent meetings when the Legislative Council is not in session. The quorum for the meetings of the Legislative Council should not be less than half of the total number of the council members. Speeches made by members at the meetings of the Legislative Council are not subject to legal investigation and council members should not be arrested at the council meetings or on their way to council meetings.

3) Voting. Bills put forward by the government can be passed if more than half of the votes from council members are in favor. Bills and amendments to governmental bills put forward by individual council members can be passed if more than half of the votes are favorable from each of the following two groups of council members participating in the meetings, namely those elected by functional groups on one hand, and those elected directly from districts and the voting committee on the other.

All bills passed by the Legislative Council in the HKSAR shall come into force after the signing and promulgation by the chief executive officer.

(4) Legislative supervision in the HKSAR

The systems of legislative supervision in the HKSAR consist of the following two types.

The first is the system of supervision by the central legislative body. Legislation in the HKSAR is a type of local legislation with a high degree of self-government, but it is still an important part of the legislative system in China. It is closely related to and supervised by the central legislative body. According to the Basic Law of the Hong Kong Special Administrative Region, the supervision system includes the following:

Any laws made by the legislative body in the HKSAR shall not be in contradiction with the Basic Law of the Hong Kong Special Administrative Region made by the National People’s Congress and should be filed with the Standing Committee of the National People’s Congress. The request for filing does not prevent the law from coming into force.

If after making enquiries to the Basic Law Committee of the Hong Kong Special Administrative Region, the Standing Committee of the National People’s Congress does not think that a law made by the legislative body in the HKSAR is in conformity with articles in the Basic Law concerning matters under the administration of the central authorities or the relationship between the central authorities and the HKSAR, it can return the law without making any amendments. The returned law immediately loses its effect. Except for the fact that the laws in the HKSAR have other stipulations, the nullity of this law cannot be retroactive.

The second is the internal system of legislative supervision in the HKSAR. The HKSAR exercises the system of separation of the legislative, executive, and judicial powers. With regard to the legislative supervision system shaped by the separation of administrative and legislative powers, it mainly consists of the following, in accordance with the Basic Law:

1) Bills passed by the legislative body in the HKSAR will become laws only after being signed and promulgated by the chief executive officer.

2) If the chief executive office does not believe that a particular bill passed by the Legislative Council is in line with the whole interests of the HKSAR, he can send the bill back to the Legislative Council for re-examination within three months. If the Legislative Council then passes the previous bill by no less than two-thirds of the majority of all council members, the chief executive officer must sign it within one month for promulgation. If the chief executive officer refuses to sign the bill passed a second time by the Legislative Council, or the Legislative Council refuses to pass important bills put forward by the executive branch of the government, the chief executive officer can dissolve the Legislative Council when no consensus can be reached after consultation. Before the chief executive officer dissolves the Legislative Council, he must listen to the opinions of the Executive Council. The chief executive officer can dissolve the Legislative Council only once during his one term of office.

3) If the chief executive twice refuses to sign a bill passed by the Legislative Council and dissolves the Legislative Council, or the chief executive refuses to sign a previously disputed bill passed with a two-thirds majority of all council members in the re-elected Legislative Council, or the chief executive dissolves the Legislative Council because it refuses to pass an important bill of the executive branch of the government, or the re-elected Legislative Council continues to refuse to pass the previously disputed bill, the chief executive has to resign.

4) The executive branch of the government has the power to send delegates to sit at meetings of the Legislative Council and make speeches on behalf of the executive branch of the government.

5) The executive branch of the government must obey the laws and be responsible to the Legislative Council.

6) The Legislative Council must be re-elected within three months after being dissolved by the chief executive officer.