POLS 7040

Law & Public Affairs

Lecture 5
HK Legislature

Jason Law
 Content
• Historical development
• Formation
• Electoral Reform 2021
• Sources of Powers
• Powers and Duties
• Check and Balance
• Legislative Procedures
• Class discussion: The extent and Limit of LegCo Members’ Immunity
 Historical development
4 official members (官守議員) + 2 unofficial members
(非官守議員)
Established by the First LegCo
Letters Patent (定例局) 29 official members + unofficial members
(英皇制誥) Meeting
1843 1844 1850 1984
Green Paper
On Political Reform

1884
First Chinese
unofficial member
 Historical development

Governor ceased to
Be a Member of
LegCo

1985 1991 1993

1st Election held -Deputy Chairman appointed
-Indirect Election -1st Direct Election
 Historical development

-No more appointed

LegCo Councilor
-NO through train -Provisional LegCo
(臨時立法會)established 3 elections
(直通車)!

1995 1996 1997 1998 - 2004

Hand-over
 Historical development

Passed 2012 HK Political Disqualifications of

Reform, increased members Localist and
From 60 - 70 Pan-dem LegCo Members

2008 2010 2016-17

-4th election
-NPCSC rejected
Universal suffrage (普選)
 Historical development

2020 2021
-DQ 4 Pan-dem -Electoral Reform
LegCo Members
-Pan-dem camp
resigned
 Formation of LegCo
Composition 1997- 1998- 2000-04 2004-12 2012-2020 2021-
of LegCo 98 2000
Geographical 0 20 24 30 35 20
Constituenci
es (地區議席)

Functional 0 30 30 30 35 30
Constituenci
es (功能組別)
Election 60 10 6 0 0 40
Committee
(選舉委員會)
 Electoral Reform 2021
• Disqualification of LegCo members and 2021 HK Electoral Changes
• Amendment to Annex II of BL (Election of LegCo Members)
• Freedom of expression and Rights to participate in an election?? (Art. 26, 27)
• CANNOT be JR
• https://en.wikisource.org/wiki/Basic_Law_of_the_Hong_Kong_Special_Admi
nistrative_Region/Annex_II_(2021) **Art. 5**

Views by Democratic camp; CE and CPG

• https://www.youtube.com/watch?v=kcAY3-ujaqM

• https://www.youtube.com/watch?v=AodPqDeVXAg
• https://www.youtube.com/watch?v=bNH1glfPYrU
 Sources of Powers
• Section 3, Chapter IV, Basic Law
• https://www.basiclaw.gov.hk/en/basiclaw/chapter4.html
• Art. 17(1) and 66
• HKSAR shall be vested with legislative power and the LegCo shall be the legislature of the
Region

• Legislative Council Ordinance (Cap. 542)

• https://www.elegislation.gov.hk/hk/cap542!en-zh-Hant-HK?INDEX_CS=N
 Functions – Art. 73
• Enact, amend or repeal laws
• E.g. 2021 – Crimes (Amendment) Ordinance 2021
• Crimes (Amendment) Ordinance 2021 comes into effect (info.gov.hk)

• 2023 – District Councils (Amendment) Ordinance 2023

• District Councils (Amendment) Ordinance 2023 comes into effect today (info.gov.hk)
 Functions – Art. 73
• Examine and approve budgets (財政預算案) & Approve taxation and public
expenditures
• Legislative Council of the Hong Kong Special Administrative Region - Council Meeting
(Agenda) 22 February 2023 (legco.gov.hk)

• cm20230503.pdf (legco.gov.hk)
 Functions – Art. 73
• To receive and debate the police addresses (施政報告) of CE
• LegCo Webcasting System - Council meeting (The Chief Executive delivers the Policy
Address)

• LegCo Webcasting System - Council meeting (The Chief Executive's Question and Answer
Session on the 2022 Policy Address)

• Legislative Council of the Hong Kong Special Administrative Region - Official record of
proceedings (legco.gov.hk)
 Functions – Art. 73
• Raise questions on the work of govt
• Legislative Council of the Hong Kong Special Administrative Region - Questions
(legco.gov.hk)
 Functions – Art. 73
• Debate any issue concerning public interests
• Legislative Council of the Hong Kong Special Administrative Region - Panels and
subcommittees (legco.gov.hk)
 Functions – Art. 73
• Endorse the appointment and removal of CFA judges and High Court Chief
Judge
• Legislative Council of the Hong Kong Special Administrative Region - Other subcommittee
under the House Committee (legco.gov.hk)

• hc20210618cb4-1112-e.pdf (legco.gov.hk)
 Functions – Art. 73
• Receive and handle complaints from citizen
• Legislative Council of the Hong Kong Special Administrative Region - Handling of cases
received under the Redress System (legco.gov.hk)
 Functions – Art. 73
• Impeach CE
• Art 73(9), Basic Law

5 stages:
(1)Initiate a motion by one-fourth of LegCo Members charging the Chief
Executive with serious breach of law or dereliction of duty;
(2)Pass a motion for investigation with a simple majority of each of the
groups of members present, i.e. members of the Election Committee, and
members of the functional constituencies and geographical constituencies;
(3)Carry out investigation by an independent investigation committee;
(4)Pass a motion of impeachment by a two-thirds majority;
(5)Report to the Chinese Government for decision
 Functions – Art. 73
• Impeach CE
• Art 73(9), Basic Law

5 stages:
(1)Initiate a motion by one-fourth of LegCo Members charging the Chief
Executive with serious breach of law or dereliction of duty;
(2)Pass a motion for investigation with a simple majority of each of the
groups of members present, i.e. members of the Election Committee, and
members of the functional constituencies and geographical constituencies;
(3)Carry out investigation by an independent investigation committee;
(4)Pass a motion of impeachment by a two-thirds majority;
(5)Report to the Chinese Government for decision
 Leader Date Motion Proposer Result

Vote of no confidence
Cheung Man-kwong
Chris Patten 12 July 1995 in the Governor of 17–35–4 Defeated
(Democratic)
Hong Kong

Calling for the

resignation of the Albert Chan 14–11–0 (GC)
14 May 2003 Defeated
Chief Executive, Mr (Ind.) 5–24–0 (FC)
TUNG Chee-hwa

Tung Chee-hwa

Calling on the Chief

Executive Mr TUNG Emily Lau 16–9–0 (GC)
8 October 2003 Defeated
Chee-hwa to step (Frontier) 5–22–0 (FC)
down

Vote of no confidence Tanya Chan 14–7–2 (GC)

Donald Tsang 19 April 2012 Defeated
in the Chief Executive (Civic) 4–11–3 (FC)
 Vote of no confidence Wu Chi-wai 18–14–1 (GC)
12 December 2012 Defeated
in the Chief Executive (Democratic) 9–20–4 (FC)

Motion under Article Leung Kwok-hung 18–14–0 (GC)

9 January 2013 Defeated
73(9) of the Basic Law (LSD) 9–23–0 (FC)
Leung Chun-ying
Vote of no confidence Kwok Ka-ki 17–15–1 (GC)
16 October 2013 Defeated
in the Chief Executive (Civic) 9–17–5 (FC)

Motion under Article Alvin Yeung 17–12–0 (GC)

8 June 2017 Defeated
73(9) of the Basic Law (Civic) 11–22–0 (FC)

Vote of no confidence Andrew Wan 15–18–0 (GC)

29 May 2019 Defeated
in the Chief Executive (Democratic) 8–22–0 (FC)

Motion under Article Alvin Yeung 16–14–0 (GC)

5 December 2019 Defeated
73(9) of the Basic Law (Civic) 10–22–0 (FC)
Carrie Lam

No confidence in the
Fifth Term Government
Dennis Kwok
N/A of the Hong Kong Not debated
(Civic)
Special Administrative
Region
 The Legislative Council (Powers & Privileges)
Ordinance (Cap. 382) (立法會(權力及特權)條例)
 The Legislative Council (Powers & Privileges)
Ordinance (Cap. 382) (立法會(權力及特權)條例)
• Powers to Order attendance of Witnesses
• S. 9: The Council may…order any person to attend before the Council or such
committee and to give evidence or to produce any paper, book, record of
document in the possession or under the control of such person

• S. 12: power to issue warrant to compel attendance (can be arrested!)

 The Legislative Council (Powers & Privileges)
Ordinance (Cap. 382) (立法會(權力及特權)條例)
• Examples
• Nov 1993 – the investigation of the termination of ex-ICAC Deputy
Commissioner (Ops) Alex Tsui
• Confidential documents produced
• Tsui and 3 others were called
• After investigation à reasonable decision
 The Legislative Council (Powers & Privileges)
Ordinance (Cap. 382) (立法會(權力及特權)條例)
• Examples
• June 1996 à Early retirement of the former Director of Immigration

• Laurence Leung Ming-yin

• July 1996 à Forced to retire early (55 years old)

• Closely connected to PRC officials??

• Money Laundry?

• Secretary for Civil Service (Lam Woon-kwong) etc

• Reasonable
 The Legislative Council (Powers & Privileges)
Ordinance (Cap. 382) (立法會(權力及特權)條例)
• Examples
• July 1998 à Problems relating to the new HK International Airport
• Flight info display system shut down

• Cargo communication link went down

• “This was meant to be a first-class project, but

It has turned into a ninth-class airport and
Disgrace, our airport has become the laughing
Stock of the world”

Select Committee Inquiry Report on the New Airport (legco.gov.hk)

 The Legislative Council (Powers & Privileges)
Ordinance (Cap. 382) (立法會(權力及特權)條例)
• Examples
• Feb 2001 à Short piling scandals (短樁案) in 4 public housing estates

• 70 inquiries, 115 meetings, 85 witnesses

• 13 recommendations
 The Legislative Council (Powers & Privileges)
Ordinance (Cap. 382) (立法會(權力及特權)條例)
• Examples
• Oct 2003 à how government and Hospital Authority handled SARS
• Select Committee to inquire into the handling of the Severe Acute Respiratory Syndrome
outbreak by the Government and the Hospital Authority (legco.gov.hk)
 The Legislative Council (Powers & Privileges)
Ordinance (Cap. 382) (立法會(權力及特權)條例)
• Examples
• Nov 2008 à Selling of Lehman Brothers Minibond
• Subcommittee to Study Issues Arising from Lehman Brothers-related
Minibonds and Structured Financial Products (legco.gov.hk)
 The Legislative Council (Powers & Privileges)
Ordinance (Cap. 382) (立法會(權力及特權)條例)
• Examples
• Feb 2008 à Former Permanent Secretary for Housing, Planning and Lands
Leung Chin Man being appointed by New World China Land after retirement
• Before retirement à sold a piece of Land to New World
Below market price

• Dismissed by New World in Aug 2008

• Secretary for Civil Service who approved the appointment

Was reprimanded by CE
 The Legislative Council (Powers & Privileges)
Ordinance (Cap. 382) (立法會(權力及特權)條例)

• March 2012 à then CE candidate CY Leung acted as one of the judges for the
West Kowloon District Development Competition (conflict of interest?)

• Limitations: Only available > 50% of functional and geographical

constituencies vote for engaging the power

• E.g.
• 2015 HK Heavy Metal in drinking water incidents
• Shatin to Central Link (Hung Hom Station Scandal)
 The Legislative Council (Powers & Privileges)
Ordinance (Cap. 382) (立法會(權力及特權)條例)
• Immunity and Privileges (免於起訴及特權)
• s. 3 – Freedom of speech and debate
• Shall not be liable to be questioned in any court or place outside the Council
• s. 4 – Immunity from legal proceedings
• No civil or criminal proceedings shall be instituted for words spoken; or written in a report to,
the council or a committee or by reason of any matter brought by him therein by petition, Bill,
resolution, motion or otherwise
• s. 5 – No member shall be liable to arrest…for any criminal offence whist attending at
a sitting of the Council or a committee
• s. 7 – evidence of proceedings in the Council or any committee not to be given
without leave

• Check and Balance!

 Restrictions of Powers
• By NPCSC
• Art. 17: (i) Report to NPCSC for record; and (ii) If NPCSC considers that any law
enacted regarding affairs within the responsibility of CPG or regarding
relationship between CPG and HKSAR, NPCSC may return the law in question
but shall not amend it. Any law returned shall immediately be invalidated

• By CE
• Art. 74: written consent of CE shall be obtained before bills relating to
government policies are introduced
 Check and Balance
1. All bills passed by LegCo must be signed by CE (Art. 48)
2. CE may dissolve LegCo (Art. 50)

1. CE must resign if new LegCo passes same bill or refuses to pass budget (Art. 52(2) - (3))
2. Impeachment of CE (Art 73(9))
3. Government must be accountable to LegCo (Art 64)
4. Powers and Functions (Art 73 (2) – (6); (10))
 Private Bills (私人條例草案)
• Art. 74
• Must not relate to public expenditure; political structure or the operation of
government

• Can be introduced individually or jointly

 Legislative Procedures – Setting Agenda
Government Bills Members’ Bills

Consultation -By relevant policy bureau -Consult the relevant LegCo Panel
-Consult relevant LegCo panels -Consult Public
-Consult public

Law Drafting -Give drafting instructions and comments -Member initiating the bill has the duty to draft
received to DoJ for drafting -Obtain certificate issued by DoJ

Introduction -Submit to Executive Council -Member sends the Notice to the Clerk
-Notice of Govt’s intention to present the -Private Bills: 2 gazette + 2 newspaper notice
bill is sent to clerk of LegCo -Public Bills: Clerk à Gazette
-Clerk à Gazette -Ruled by President of LegCo
Legislative Procedures
 Class discussion
• Extent and Limitation of LegCo Members’ Immunity

• Leung Kwok Hung case

• Other jurisdictions? E.g. Taiwan, Japan, Ukraine

The World's Biggest Political Brawls - YouTube