Recordation and Review by the National People’s Congress Standing Committee under the Hong Kong Basic Law

Abstract

<p>This article explores the Recordation and Review Mechanisms anchored in art 17(2) and 17(3) of the Basic Law which provides for the obligation of Hong Kong to report enacted laws to the China’s National People’s Congress Standing Committee (NPCSC) for the record and the NPCSC’s corresponding powers to review and return any such laws. We argue that the Recordation and Review Mechanisms are an interconnected set of constitutional enforcement mecha¬nisms for the NPCSC to police the constitutional limits of Hong Kong’s auton¬omy. Furthermore, we highlight and examine two ambiguities in art 17(2) and 17(3), namely the lack of any mention of conditions under which the art 17(3) review process could be triggered and the ambiguous legal status of reported laws that have not been returned by the NPCSC. This article then undertakes a comparative study vis-a-vis the Chinese Filing and Review System, China’s key legislative supervisory system, which we argue is indispensable in fully understanding the operation of Hong Kong’s Recordation and Review Mechanisms and resolve the two ambiguities highlighted. We sketch, drawing on the Chinese Filing and Review System, how the review process could be activated and how NPCSC’s power of review could be reconciled with local courts’ jurisdiction of constitutional review through developing a framework elucidating the proper judicial responses to a “passive confirmation” by the NPCSC in not returning a submitted law under different circumstances.<br></p>