a. CE appointing CS: CE’s appointment of CS – convention or must? If convention no need to amend BL. See 48(5) (CS is a “Secretary”) Art 15 CPG appointment – can we force the CPG to appoint any particular person? b. CS’s power to nominate POs: Only mention of CS in art 53; CS and PO’s powers: Day-to-day operation – Ch 4, section 2. But BL did not prohibit CE from heeding CS’s advice on who should become PO – no need to amend BL c. Overlapping membership – prohibited in article 79(4) (‘public servant” includes POs; when BL was drafted there was no accountability system, all POs were civil servants). Amendment needed. d. CE exercise formal powers on recommendation of CS – norm only, no need amend e. Vote of non-confidence – not binding at the moment – legco no such constitutional powers – art 73(5)&(9) – need to amend f. CE can request CPG to dismiss CS – currently CE responsible for recommending to CPG the appointments and removal under art 48(5) 4
g. CE retains power to refuse to sign bill or budget passed by legco and to dissolve legco in accordance with BL (see arts 49-52) – no amendment needed 2. Executive led government contradicted? Allow executive-led form of governance be implemented? a. Executive-led governance hampered, as Legco can force executive to listen to Legco by forcing CS / cabinet to resign – further constraints on how executive can formulate policies. Executive have to yield to legislature – more like parliamentary govt b. But if majority of legco remains loyal to executive (like now), then not of much difference. Cos difficult for motion of non-confidence to pass anyway, the motion poses no real threat to CS/cabinet members c. Also, executive led elements retained: i. under proposal, executive branch retains powers of setting budget, policy making, bill proposal and policy implementation – govt bills also passed with simple majority (annex 2) ii. Also CE retains power to dissolve Legco. CE can dismiss CS / cabinet. If there’s a conflict between CE (likely heeds CPG’s wishes) and CS/cabinet (likely heeds Legco’s wishes), CE’s will prevails 3. Improve relationship? a. At present executive can’t always secure support of Legco – e.g. article 23; inherent feature of presidential system. Filibustering by small minority of legco members delays policies. b. Answer to question depends on how one defines ‘improve’ – can define it to mean less antagonistic and more harmonious relationship, legco provides some checks and balances, but two branches will not always end up in deadlock c. Can improve relationship: overlapping membership – help lobbying, can vote in support of govt policy; Majority of legco support CS, who then formulates policy, legco will likely support policy as well; CS and cabinet in order stay in power will try to please legco d. Cannot improve relationship: depends on how much support this CS has (what is meant by CS supported by legco) (simple majority or 2/3 majority?) If simple majority then no difference from now; the proposal is not a real parliamentary system – cos no party loyalty, can support CS at first, but not
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- Fall '17
- Chan Cora Sau Wai, Benny Tai