• Fri
  • Dec 26, 2014
  • Updated: 3:10pm

HOW MAINLAND BODIES MAY PROVE EXEMPT FROM CERTAIN LOCAL LAWS

PUBLISHED : Sunday, 29 March, 1998, 12:00am
UPDATED : Sunday, 29 March, 1998, 12:00am
 

WHAT THE BILL SAYS 'No Ordinance (whether enacted before, on or after 1 July 1997) shall in any manner whatsoever affect the right of or be binding on the State unless it is therein expressly provided or unless it appears by necessary implication that the State is bound thereby.' The bill then defines 'State' as the Government of the SAR plus the central authorities of the People's Republic of China or their subordinate organs, acting within the scope of their authority and not exercising commercial functions. It adds that previous references to 'Crown' should now be read as 'State'.


But the Personal Data (Privacy) Ordinance states 'This Ordinance binds the Government'.


WHAT THAT MEANS This duplicates the pre-handover provision that the Crown is not bound by laws unless expressly stated in the text. Many laws expressly state: 'This ordinance binds the Crown'.


In previous bills which say they 'bind the Crown', this means they will apply to the Foreign Ministry and other mainland bodies in Hong Kong.


This law will therefore not bind anything that counts as 'the State' and is outside the SAR Government. This would appear to include Xinhua, the Foreign Ministry, the Visa Office and possibly more. The Post has identified at least 13 ordinances with this wording which will then no longer apply to mainland bodies - mostly legislation passed during the Patten governorship, such as laws on discrimination and the environment.


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