Conflict between the legislature and executive

* Conflict
between the
Legislature
and
Executive
Constitutional crisis in oath-taking 2017 in CE v President of LegCo (2017):
● CE sued President of LegCo who prepared to let Leung, Yau take oaths afresh
● Judicial review supposed to be a check on CE; but not as a tool for CE to sue the
legislative branch
● Judiciary unwittingly opened the floodgates to more (unnecessary) litigation and
embroiled itself in more political controversy
● Check ppt

LegCo composed of 35 geographical and 35 functional constituencies (~80000 individual vs 125 corporate)
-though exactly the same powers and privileges, great disparity in the distribution of voters
Classificatio
n of bills
Introducing
bills
-written
consent/
approval of
CE always
required
Public vs Private

Concern the pub interest/benefit/govt measure

Provides primarily for the particular interest/benefit of any
individual, association, body corporate, not govt measure
Government vs Private members’

Sponsored/ drafted by Dep/ Bureau of govt

Sponsored by an MLC/ grp of MLCs
● Relate to government policy → approval by CE required
● Relate to public expenditure / political structure / operation
of the government → cannot be introduced by MLC (even
if approval given)
● Introduction needs Law Draftman’s certificate, and vetted
by pred → whether in 3 categories / if public → approval
by CE
● Simple majority vs Split voting
○ Members’ bills harder to pass
● Govt bill’s take precedence
● Amendment to Govt bills proposed by MLCs rarely secure
enough vote
IGCO
BL 74: Scope of private
members’ bills
Annex II, BL
ROP Rule18
Three
readings
1st reading: reads out short title, no debate, then describes objectives
2nd reading: debate, votes
Committee stage: votes provision by council, and amendments
3rd reading: debates confined to bill’s contents and minor error corrections, then pass
Assent
1presentment
2promulgatio
n
● Bill passed take effect only after signed and promulgated
(published in Gazette) by CE, meaning CE has power to
stop a bill from taking effect as legislature.
● Indirect limitation on number of times CE refuses to sign,
but CE never used right to veto a bill.
BL 76
BL 49-52
Reporting to
NPCSC
● Report for the record, shall not affect entry into force
● Law not in conformity of BL regarding responsibilities
Central Authorities or its relationship with HKSAR, SC
may return without amend, and invalidated by
immediately.
● SC cannot disallow hk bills that deal with its internal affair
BL 17(2),(3)

Control of
subsidiary
legislation
Oversight by LegCo: negative and positive vetting
● Not subject to 3 readings procedure but vetting
● Negative vetting - passive: to be published in the Gazette
and laid on the table of LegCo
○ power may be pre-emptively ousted by ordinance
○ Empowers the CE to implement UN sanctions
under the Chinese Foreign Ministry's instructions
^28 days of add, vary or repeal by way of binding
resolution
● Positive vetting - active: Ordinance provides that approval
of LegCo needed
○ sometimes not vested on LegCo, e.g.