Parliamentary scrutiny over subsidiary legislation under an executive-led government in Hong Kong

The Legislative Council can, in principle, vote against the subsidiary legislation enacted by the Chief Executive. However, in the Hong Kong Basic Law, it is implied that the Chief Executive plays a dominant role in the constitutional regime. It is, therefore, unfair to state in absolute terms that the Legislative Council has no restraints on voting against the subsidiary legislation under an executive-led government. This article reveals that, as far as subsidiary legislation is concerned, the principle in the Hong Kong Basic Law has deviated from the principle stated in the Letters Patent that was enacted in the colonial era. The Interpretation and General Clauses Ordinance that was amended in 1993 before the handover states that 'amend' includes 'repeal'. The subsidiary legislation that was enacted after the handover should be re-examined according to the principle in the executive-led government. The article further suggests that the Legislative Council should be deferential to the Chief Executive. In particular, this should be the case when a policy issue is involved or the negative vetting procedure is applied, so that it can strike a balance between the Chief Executive and the Legislative Council in the context of Hong Kong.