Law Making Power
The Legislative Council has the full power and authority to enact law which takes priority over all other laws except for the Basic Law (Article 73). The NPC has no power to enact legislation for HK thus the reponsibility primarily fall on the LegCo. The LegCo is free to pass any legislation except for matters relating to foreign affair, defence and issues outside the limits of HK autonomy (Article 13). Those national law which are to apply in HK also need to be introduced through local ordinance or promulgation rather than direct application.
Despite the wide ranging power, the Basic Law has imposed various restrictions on the law making process.
In practice, majority of bills are initiated by the CE after consultation with the ExCo. This is because Article 74 of the Basic Law prohibits LegCo member to introduce bills relating to public expenditure, political structure or operation of the government. Bills in relation to government policy requires prior approaval of the Chief Executive. These restrictions have significantly deminish the function of private member bills as a policy tool by the LegCo to influence government policy. This tool is signified when Anna Wu tabled anti-discrimination bills resulted in the introduction of HK's first equal opportunities legislation by the HK government. In contrast, under the Basic Law, the law making powers can only be exercised in making laws proposed by the government.
Any bills or amedment to government bills moved by LegCo members are subejct to more stringent voting requirment under the split voting syste. While a government bill requires a simple majority to pass, bills or amenment moved by the LegCo members requires majority support from 2 groups of the members, being those members returned by functional constituencies and members return by direct election. (Annex II)
A bill passed by the LegCo requires sign off by the CE before taking effect. The CE can refuse to sign the bill on the ground that the bill is not compatible with the overall interest of HK under Article 49,76. However, CE's power of refusal is limited in the sense that if the LegCo passes the same bill by 2/3 majority, the CE is obliged to sign the bill or to dissolve the LegCo after consultation with Exco (50). If the CE insists on not signing the bill and decides to dissolve the LegCo, the CE is obliged to resign if the newly elected LegCo passes the same bill by 2/3 majority and CE still refuses to sign. (BL52) This mechanism is an example of the check and balance between the Executive and LegCo. However, Benny Tai suggested that the threat of dissolving the LegCo is sufficient for the LegCo to compromise and for the CE to get what he wants.
In addition to the requirement of CE's consent, all bills passed by LegCo must be reported to the NPCSC for the record (17(2)). More significantly, if the NPC considers the bill to be inconsistent with the BL, the NPC can return the bill and the bill would be invalidated. (17(3)) However, the NPC is not allow the amend the bill.
From above, it can be said that the law making power of LegCo is limited due to the involvment of the CE in both the initiating stage and the final stage of the law making process.
It is true that LegCo is the sole authority for enacting primary legislation in HK. However, Executives can make subordinate legislation under a parent ordinance (BL 62(5)).
Further comments
Add role of courts - Judicial review by the court on constitutionality of the legislation
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