向凡：An Examination of the Power of the Central People’s Government to Issue Directives to the Chief Executive under the Hong Kong Basic Law
向凡：An Examination of the Power of the Central People’s Government to Issue Directives to the Chief Executive under the Hong Kong Basic Law
期刊名：《Hong Kong Law Journal》（SSCI），2023年第53卷第3期
ABSTRACT：This article explores the power of the Central People’s Government (CPG) to issue directives to the Chief Executive (CE) under art 48(8) of the Hong Kong Basic Law (BL). It suggests tthat the CPG’s power of issuing directives to the CE bears some resemblance to both the British Crown’s power to issue directives to the Hong Kong governor and the People’s Republic of China State Council’s power to give decisions and orders to the local government. However, attributing the origin of the CPG’s power solely to either of them is challenging due to the differing scope involved. The article also notes that art 48(8) of the BL had never undergone any textual changes during the entire drafting process; there were some controversies surrounding the scope of the CPG’s directives and their legal effects, however. Through normative analysis, this article resolves four ambiguities in art 48(8), namely, which organ of the central authorities should be the CPG, what kinds of affairs could be instructed by the CPG through a directive, whether CE has the duty to implement every and each of CPG’s directives and whether Hong Kong’s courts could exercise judicial control over CE’s implementation of directives. Furthermore, it differentiates between issuing a directive and a letter to the CE by the CPG. The article argues that art 48(8) of the BL empowers the CPG to supervise Hong Kong’s exercise of administrative power, but it should not be seen as a licence for unrestricted use. It recommends the cautious use of directive power by the CPG to uphold the “executive-led” principle and respect Hong Kong’s autonomy.
（来源 深圳大学港澳基本法研究中心）
