Chief executive subject to Hong Kong laws which only Legco can change

PUBLISHED : Tuesday, 27 October, 2015, 4:26pm
UPDATED : Tuesday, 27 October, 2015, 4:26pm

Regina Ip Lau Suk-yee has a short memory. In her column ("Separation of fact from fiction", October 18 ) she assures us that we have all been labouring under many misconceptions these last 18 years, concerning the real meaning of the Basic Law and our constitutional relationship to China. But we remember more accurately than she does.

She concludes her article by faithfully reporting the head of the central government's liaison office in Hong Kong, Zhang Xiaoming's key message, that "courts may be independent and the legislature may 'check and balance' the executive branch, but all powers are, ultimately, subject to the overriding authority of the sovereign power, of which the chief executive is the agent".

Here, she is the myth-maker. She confuses ultimate sovereign authority with legal power exercisable in Hong Kong day to day.

It is simply not true that the chief executive is or can be "the agent for the overriding authority of the sovereign power", because the chief executive is subject to Hong Kong's laws, which cannot be changed except by the Legislative Council. So even if he purported to declare that his word was law, it wouldn't be true or enforceable.

China could in principle alter the Basic Law, to grant the chief executive absolute powers to change all of Hong Kong's internal laws as he wanted, sidelining Legco, but that is not the case today.

Article 16 of the Basic Law says that the Hong Kong SAR will "on its own, conduct the administrative affairs of the region in accordance with…this Law". Article 18 says, "The laws in force in the Hong Kong SAR shall be this Law, the laws previously in force…and the laws enacted by the legislature [Legco]. National laws shall not be applied" in the SAR.

Article 43 says that the chief executive will be accountable to the central government and the Hong Kong SAR "in accordance with the provisions of this law". Therefore, it is clear that the chief executive's authority is under the Basic Law, which expressly prohibits the application of national laws here (except those listed in Annex III), so the chief executive has no lawful "agency-based overriding power" - though, provocatively, he sometimes acts as if he did.

Paul Serfaty, Mid-Levels