Hong Kong’s Legislature under China’s Sovereignty <UN> Chinese and Comparative Law Series Editorial Board Jacques deLisle (University of Pennsylvania) Lei Chen (City University of Hong Kong) C.H. (Remco) van Rhee (Maastricht University) Advisory Board Björn Ahl (University of Cologne) William P. Alford (Harvard University) Stéphanie Balme (Sciences Po Paris) Donald C. Clarke (George Washington University) Michael Faure (Maastricht University) Fu Hualing (University of Hong Kong) Fu Yulin (Peking University) Han Shiyuan (Tsinghua University) He Xin (City University of Hong Kong) Nicholas Howson (University of Michigan) Li Yuwen (Erasmus University Rotterdam) Bing Ling (Sydney Law School) Shan Wenhua (Xian Jiaotong University) Wang Liming (Renmin University of China) Margret Y.K. Woo (Northeastern University) Yu Xingzhong (Cornell University) VOLUME 3 The titles published in this series are listed at brill.com/ccls <UN> Hong Kong’s Legislature under China’s Sovereignty 1998–2013 By Gu Yu leiden | boston <UN> Library of Congress Cataloging-in-Publication Data Yu, Gu, 1981- author. Hong Kong’s legislature under China’s sovereignty 1998-2013 / by Gu Yu. pages cm. -- (Chinese and comparative law series ; volume 3) Includes bibliographical references and index. ISBN 978-90-04-27790-8 (hardback : alk. paper) -- ISBN 978-90-04-27628-4 (e-book) 1. Hong Kong (China). Legislative Council. 2. Legislative bodies--China--Hong Kong. 3. Hong Kong (China)--Politics and government--1997- I. Title. KNQ9348.3.Y84 2015 328.5125--dc23 2014049193 This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. issn 2213-4875 isbn 978-90-04-27790-8 (hardback) isbn 978-90-04-27628-4 (e-book) Copyright 2015 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper. <UN> In memory of my sister, qiqi Dedicated to my parents, Gu Kaike and Xu Xuejun and my husband Clement ∵ <UN> Contents Foreword xi Acknowledgements xiii List of Tables and Figures xiv List of Cases xvii List of Rulings of Presidents of the Legislative Council xviii List of Abbreviations xx 1 Assessing The Legislative Council Autonomy and Performance 1 Introduction 1 Functions of Legislatures: Do Legislatures Exist to Make Law? 6 Autonomy of Legislatures 9 Conclusion 14 2 External Environment and Internal Characteristics of Legco’s Autonomy 17 Autonomy of the Pre-1997 Legco 17 Separation from the Executive 17 Administrative and Financial Autonomy 18 Committee Autonomy 19 Political Parties of Legco in the Colonial Period 20 Legco in 1997 21 Autonomy of Post-1998 Legco 22 External Environment 23 Internal Characteristics: Rules, Committee Autonomy, Administrative Autonomy and Financial Autonomy 34 Conclusion 41 3 Scrutiny of Legislation 43 Private Member’s Bill Under Article 74 of Basic Law 43 Decline of Private member’s Bills 44 President’s Rulings on Private member’s Bills 45 Summaries 51 Scrutiny of Bills: Bills Committees 52 Bills Scrutinised by Bills Committees 53 Legislators’ Participation in bcs 55 Deliberation in bcs 57 viii contents Case Study: Bills Committee on the Interception of Communications and Surveillance Bill 59 Summaries 65 Scrutiny of Bills: Members’ Committee Stage Amendments to Government Bills 66 Restrictions on the Introduction of Members’ csas 66 Introduction of Members’ csas 71 Determinants of Members’ csas 73 Filibuster: An Unusual Procedural Weapon 82 Summaries 87 Study of Several Bills: Government’s Defeats 88 National Security (Legislative Provisions) Bill 88 Government’s Defeat in Race Discrimination Bill 96 Scrutiny of Subsidiary Legislation 98 Results of Subsidiary Legislation 99 Negative Vetting or Positive Vetting 101 Case Study: Country Parks (Designation) (Consolidation) (Amendment) Order 2010 105 Summaries 108 Conclusion 108 4 Scrutiny of Public Finance 110 Institutional Framework for Financial Scrutiny by Legco 112 Legco’s Power to Amend and Approve Public Expenditure 112 Restrictions of ‘Public Expenditure’ and ‘Charging Effect’ 114 Ex ante Scrutiny: Control over Budget and Public Expenditure 116 Examination of Budget Proposals 116 Examination of Other Financial Proposals 127 Collapsed Levies 129 Means of Scrutinising Budget and Taxation Issues 133 Ex post Scrutiny: The Public Accounts Committee 134 Objectives of the pac 135 Relation between Audit Commission and pac 136 Composition of the pac 137 pac Scrutiny of Public Expenditure 138 Impact of the pac 147 Expenditure Without Legco Approval 148 Conclusion 151 <UN> contents ix 5 Motions Without Legislative Effect 153 Restrictions on Moving a Motion or Amendment to a Motion 154 Determinants of Result of Members’ Motions 160 Introduction of Motions 162 Separate Voting Mechanism 164 Political Orientation and the Nature of the Issues 166 Government’s Response to Successful Motions 168 No Confidence Motions 170 No Confidence Motions in Early Days of the hksar 172 Recent Development of no Confidence Motions 175 Propriety of Introducing a No Confidence Motion 177 Motion for Adjournment of The Council 179 Conclusion 183 6 Questions 185 Notice and Number of Questions 186 Content of Questions 186 Questions to the Government 190 Chief Executive’s Question-and-Answer Session 193 Conclusion 195 7 Investigation Power Legislative Council (Powers And Privileges) Ordinance 197 Drafting History of the 1985 Legislative Council (Powers and Privileges) Ordinance 197 How Legco Uses its Investigation Power Under the ppo 200 Significance Of Investigation Power Under The ppo 205 Challenges To The ppo: Cheng Kar Shun Case 208 Conclusion 213 8 Conclusion 215 Level of Autonomy 215 External Environment 215 Internal Characteristics 218 Autonomy of Legco 221 Actual Impact of Legco 221 Interaction Pattern 222 Trends in Legco’s Actual Impact 223 Strategy Shift and New Rule After 2012 224 <UN> x contents Beijing’s New Strategy and Its Impact 224 Rule of Leung Chun Ying 226 Bibliography 231 Articles and Books 231 Selected Committee Minutes, Reports and Factsheets of Legco and Government Documents 236 Internet Sources 239 Index 241 <UN> Foreword The political evolution of Hong Kong from a British colony to a Special Administrative Region of the People’s Republic of China (prc) is a rare and interesting phenomenon in the history of colonialism and imperialism. From the Chinese point of view, the cessation of Hong Kong Island by the Qing Emperor to the British Empire in 1842 after China’s defeat in the ‘Opium War’ was the beginning of modern China’s history of oppression and humiliation by Western powers. The return of Hong Kong to China in 1997 was thus of great symbolic and psychological importance to the Chinese nation and its people, and was part and parcel of the project of the ‘great revival’ (weida fuxing 偉大 復興) of Chinese civilization. The reunification of Hong Kong with the Chinese mainland was not a pro- cess of simple absorption of the former colony by the motherland, or the sim- ple substitution of an official from mainland China appointed by the Beijing government for the governor of colonial Hong Kong appointed by London. Instead, the reunification was achieved on the basis of the concepts of ‘One Country, Two Systems’ and ‘Hong Kong people ruling Hong Kong’ developed by the late Chinese statesman Deng Xiaoping and enshrined in the Sino-British Joint Declaration on Hong Kong’s future signed in 1984. Hong Kong was to retain its pre-existing capitalism, including its legal and social systems, civil liberties and way of life, and the government of Hong Kong was to be staffed by Hong Kong people. This experiment in ‘One Country, Two Systems’ began in 1997. One of the major challenges faced by Hong Kong since the 1997 handover was the development of a political system that is appropriate for Hong Kong as a Special Administrative Region (hksar) of the prc. Before the Joint Declaration of 1984, Hong Kong had a reasonably sound legal system based on English common law, but it did not enjoy any democracy in terms of the politi- cal rights of the people to elect their government and legislators. Since the mid-1980s, the colonial government started to move Hong Kong towards ‘rep- resentative government’ by introducing elected elements into its Legislative Council. The project of democratization continued after 1997 on the basis of the Hong Kong Basic Law—the constitutional instrument enacted by the Chinese National People’s Congress in 1990 for the governance of the hksar. The present book is an in-depth study of the nature and operation of the constitutional and political system of the hksar as it has evolved since 1997, particularly from the perspective of its legislature and the relationship between the legislature and the executive branch of government.