The common law interface of our constitutions: three constraints on executive legislation

The NPC’s proposal to “draft laws” for the HKSAR to preserve national security, raises novel questions about the interface of the Basic Law (BL) and PRC constitution. These questions persist regardless of the content of such laws. A close look, however, reveals that the common law method offers three layers of protection.

Articles 3 and 6

An English translation of the draft decision has been prepared by China Law Translate. It comprises a preamble and seven articles. The preamble observes that the decisions is made in accordance with articles 31 and 62 of the PRC constitution, as well as “relevant provisions” of the Basic Law, which are not specified.

This post focuses on articles 3 and 6, which propose, first, that Hong Kong shall complete its legislation related to national security as soon as possible, and, secondly, that the NPCSC will also draft laws related to national security and its enforcement in Hong Kong, and list them in Annex III of the Basic Law. Those laws would then be “promulgated and implemented locally” by Hong Kong:

III. … The Hong Kong Special Administrative Region shall complete legislation for preserving national security as provided for in the Basic Law of the Hong Kong Special Administrative Region as soon as possible …

VI. The [NPCSC] is authorized to draft laws related to the establishment and completion of the of the [Hong Kong’s] legal system and enforcement mechanisms for the preservation of national security, to effectively prevent, stop, and punish any conduct that seriously endangers national security, such as separatism, subversion of state power, or organizing implementation of terrorist acts, as well as activities by foreign and overseas forces that interfere in the affairs of [Hong Kong]. The [NPCSC] is to list the above-mentioned relevant laws in Annex III of the Basic Law … which will be promulgated and implemented locally by the … Region.

The nature and scope of law by promulgation

Despite some media reports to the contrary, the NPCSC does not appear to intend that the ‘laws’ it drafts will have direct effect in Hong Kong simply by virtue of them being listed in Annex III. Rather, they will be transposed into municipal law, in this case by ‘promulgation’ (see also Xinhua’s English summary). The Chief Executive (CE) is empowered to promulgate laws by BL48(3), and promulgation is one of the two means (the other being legislation) by which national laws can, exceptionally, be applied in Hong Kong under BL18(3). Promulgation of national law drafted specifically, indeed only for Hong Kong has not, however, been done before.

Thus, the NPCSC’s ‘laws’ will take effect in Hong Kong by municipal law authorised and constrained by the Basic Law. They will be executive pieces of legislation. They will not form part of the Basic Law itself and will thus not be subject to interpretation by the NPCSC. Further, they will be effected by the CE. Three important things flow from this. Each offers a potential source of protection.

1. Review on orthodox grounds of JR

First, the CE’s decision will properly be subject to judicial review not just for validity against the requirements of the Basic Law, but also on ordinary principles of administrative law – for improper motive, inadequate consultation, unreasonableness, ­­etc.

That is because, although the law will be in the nature of legislation, the passage and content of which is not subject to such principles, it will derive from her office which lacks representative character. Put simply, there is nothing in principle that bars administrative law from controlling executive acts, regardless of how legislative in nature such acts are.

An analogous question arose in R (Bancoult) v Sec State for Foreign and Commonwealth Affairs [2008] UKHL 61, [2009] 1 AC 453, where a prerogative order in council had sought to exile the indigenous population of the Chagos Islands. That order was primary legislation. Still, per Lord Hoffmann (also NPJ) at [35]:

the fact that such Orders in Council in certain important respects resemble Acts of Parliament does not mean that they share all their characteristics. The principle of the sovereignty of Parliament, as it has been developed by the courts over the past 350 years, is founded upon the unique authority Parliament derives from its representative character. An exercise of the prerogative lacks this quality; although it may be legislative in character, it is still an exercise of power by the executive alone … I see no reason why prerogative legislation should not be subject to review on ordinary principles of legality, rationality and procedural impropriety in the same way as any other executive action.

See also Lord Mance (in the minority, but not in this point) at [159]:

… there are fundamental differences between legislation enacted by the executive through Her Majesty in Council and legislation subject to democratic debate in Parliament [and for that reason the order may be reviewed on ordinary judicial review grounds].

Lord Hoffmann went on to repeat that the “ordinary principles of judicial review” applied [52] and interestingly noted obiter that, where a legislative body (such as the CE in this instance) seeks to change the law in a way that will deprive persons of an ability to protest, it will be “irrational” not to consider the consequences [53]. In other words, the effect of executive legislation on the enjoyment of fundamental rights is a mandatorily relevant consideration for the office holder considering implementation – which, put in that way, sounds refreshingly trite.

2. Hong Kong law for Hong Kong

Secondly, the CE will be obliged ‘wear both hats’ in determining the form and content of the promulgation. Her office is accountable to both the CPG and Hong Kong, by BL43(2), and the power to promulgate must be exercises for the good governance of Hong Kong (ie in Hong Kong’s interests): Lau Kwok Fai Bernard v SJ [2003] HKCFI 123, [25].

Acting in her capacity as ad hoc legislator, the CE will thus have to consider the peace and good order of Hong Kong, by reference to the (very different) legal landscape that obtains here. The law will supervise those considerations. This will not of course, involve the municipal courts determining the meaning of the PRC constitution pursuant to which the draft decision is to be made (which may not be possible). Rather, it will involve municipal courts construing the scope of the power to promulgate at BL 48(3), as they are duty bound to do (Ng Ka Ling [1999] HKCFA 72, (1999) 2 HKCFAR 4, [61]; CE of the HKSAR & Anor v President of LegCo [2016] HKCA 575, [2017] 1 HKLRD 460, [78], [87]).

3. The separation of powers

Thirdly, the CE in promulgating the law will be bound by the confines of the separation of powers. The separation of powers is given legal effect by the Basic Law, and determining the consequences of that principle is properly the province of the municipal courts (Lau Kong Yung [1999] HKCFA 4, (1999) 2 HKCFAR 300, [158]-[161]; Leung Kowk Hung v President of LegCo (No 1) [2014] HKCFA 74, (2014) 17 HKCFAR 68, [27]).

An attempt by the CE to legislate for matters properly the province of the legislature, or to adjudicate or punish being properly the province of the judiciary, would be ultra vires or otherwise incompatible with the Basic Law. Among other things, the separation of powers prohibits the executive from determining the punishment to be applied in a particular case: Hinds v The Queen [1977] AC 195 (PC), where provisions of an act that purported to vest a power to determine sentence-length with a review board were void for being ultra vires the separation of powers requirements of the constitution:

In the exercise of its legislative power, Parliament may, if it thinks fit, prescribe a fixed punishment to be inflicted upon all offenders found guilty of the defined offence … Or it may prescribe a range of punishments up to a maximum in severity, either with or, as is more common, without a minimum, leaving it to the court by which the individual is tried to determine what punishment falling within the range prescribed by Parliament is appropriate in the particular circumstances of his case.

Thus Parliament, in the exercise of its legislative power, may make a law imposing limits upon the discretion of the judges who preside over the courts by whom offences against that law are tried to inflict on an individual offender a custodial sentence the length of which reflects the judge’s own assessment of the gravity of the offender’s conduct in the particular circumstance of his case. What Parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body whose members are not appointed under Chapter VII of the Constitution, a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders … A breach of a constitutional restriction is not excused by the good intentions with which the legislative power has been exceeded by the particular law …”.

Takeaways

The upshot of all this is that the scope of the CE’s power to promulgate the NPCSC’s ‘draft laws’ is by no means unfettered simply because the NPCSC might be said (for want of a better conception) to be a superior body. The CE’s power will in fact be constrained by ordinary principles of administrative law, calibrated to the circumstances and context as necessary, an obligation to legislate in the interests of Hong Kong (as well as China, deduced from the NPCSC’s decisions), and an obligation to remain within the confines of her office’s power as head of the executive – not trespassing onto the judicial nor legislative branches.

This leaves much room for study and consideration on the CE’s part, and fertile ground for litigation in the event of a rushed or botched job. The view of the NPCSC members, voiced in the media in recent days, that the law can be ‘pushed through’ promptly is naïve at best. An executive that wished to insulate itself against such satellite proceedings would conduct an extended public consultation, formulate any criminal laws with precision, and harmonise the type and severity of penalties with those already found in Hong Kong (all this, before one even gets to the question of what conduct might amount to an offence).

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