United Nations Sanctions (Liberia) Regulation 2003

 

VIEWS ON THE UNITED NATIONS SANCTIONS (LIBERIA) REGULATION
2003



1. The UN Sanctions (Liberia) Regulation 2003 ('the Regulation') has been
made under section 3 of the UN Sanctions Ordinance, Cap. 537 (UNSCO) by
the Chief Executive (CE) on the instructions of the Ministry of Foreign
Affairs. A Legco sub-committee formed for the purpose of considering the
Regulation has raised a question of constitutionality about the process
under which the Regulation was made. It has asked the Bar Association
to consider the matter.

The United Nations Sanctions Ordinance, Cap. 537



2. UNSCO is a short ordinance. It enables sanctions imposed by the United
Nations to be translated into domestic law. That is its purpose: see Long
Title.

3. The word 'sanction' is defined in section 2(1) UNSCO
as including a complete or partial economic trade embargoes, arms embargoes,
and other mandatory measures decided by the Security Council of the [UN],
implements against a place outside the [PRC].'

4. The mechanism for translating sanctions into HK law
is a two-stage process.

5. In the first place there is a 'relevant instruction'
(See section 2(2) UNSCO) to the CE from the Ministry of Foreign Affairs,
the 'instructing authority' (section 2(1) UNSCO) to implement the sanctions
mentioned in the instruction. As noted above, the definition of 'sanction'
is not an exclusive definition and so is not strictly limited to those
measures decided upon by the Security Council of the UN.

6. Then the CE makes 'regulations' giving effect to the
instruction: s. 3(1). He has no discretion in the matter: 'The [CE] shall
make regulations to give effect to a relevant instruction.

7. The regulations in this case are the Regulation which
imposes restrictions on trade with Liberia. These restrictions are backed
up with penal measures, including fines and imprisonment that have their
source in section 3(3) UNSCO.

The Legislative Status of the Regulation



8. The word 'regulations' appearing in an ordinance normally attracts
the meaning given that word by section 3 Interpretation and General Clauses
Ordinance, Cap. 1 (IGCO) unless a contrary intention appears (section
2(1) IGCO). The meaning of 'regulations' in section 3 IGCO is 'has the
same meaning as subsidiary legislation and subordinate legislation'.

9. Those terms are defined elsewhere in section 3 and
they include regulations 'made under or by any Ordinance and having legislative
effect'.

10. There can be little doubt, given the nature of the
restrictions contained in the Regulation and the fact that it contains
criminal offences, that the Regulation has, and was meant to have, 'legislative
effect. It is 'subsidiary legislation' within the meaning of IGCO.

11. However, section 3(4) of UNSCO disapplies sections
34 and 35 IGCO which require, respectively, the placing of subsidiary
legislation before Legco for scrutiny (negative resolution) and the placing
of subsidiary legislation before Legco for approval (positive resolution).

12. This provision removes the traditional oversight by
Legco of delegated powers to make laws by a donee of those powers. The
question is whether this is constitutional.

The Making of the Regulation

13. The CE has purported to act on a 'relevant instruction'
within the meaning of section 2(2) UNSCO. That means that by making the
Regulation he has represented to Legco that he has received an instruction
from the instructing authority that conforms with the definition of 'relevant
instruction'.

14. The Administration will not produce the 'relevant
instruction' to Legco and have offered no explanation for the refusal.

15. The situation is therefore that Legco has to take
it on trust that the donee of the power to make regulations having legislative
effect has in fact understood the nature of the relevant instruction and,
in making the Regulation, has gone so far, and no further, to implement
the same.

16. The Bar Association assumes that the unwillingness
of the Administration to reveal the relevant instruction would be reproduced
if a judicial challenge to the Regulation were made in a judicial review.

17. The issue could arise in a case where administrative
or prosecutorial action were taken under the Regulation and a prima facie
case could be made out that the UN Resolution (1478 of 2003), the text
of which is freely available, only required measures to be applied in
respect of particular goods and services and the Regulation goes further
than the UN resolution. Given the non-exclusive nature of the definition
of 'sanction' at section 2(1) that is a possibility.

18. This person would, like Legco, presumably be refused
sight of the 'relevant document'. But seeing that document would be the
only the only way that he or she would know whether the measure was one
which was authorised by the relevant instruction. In other words he would
have to take it on trust that the Regulation was made lawfully.

19. Subsidiary legislation can, of course, be challenged
by judicial review on the ground that the delegate has exceeded his powers:
see Bennion, Statutory Interpretation, (4th edn) at pp. 208-215. It is
axiomatic that in such a challenge the court is able to scrutinise every
step taken by the donee of the power required by the law. That would mean
the court scrutinising the text of the 'relevant instruction' in order
to see whether it has been lawfully implemented.

20. Subsidiary or subordinate legislation is a type of
law recognized by the Basic Law (BL): see Articles 8, 56 and 62 where
it is specifically mentioned.



21. The Bar Association will assume that Legco can, consistently with
the Basic Law, enact a provision like section 3(5) UNSCO and deny to itself
the power to scrutinise subsidiary legislation. (Whether it ever should
do so is a different question.)

22. If Legco is able to donate the power to legislate
to the CE with no strings attached the later refusal to produce the relevant
instruction is at least consistent with that donation.

23. Of more concern would be a refusal to produce the
document to the court in a situation where, because of action of the kind
described above, the vires of the Regulation was in issue. The courts
have not relinquished any relevant power. In fact, consistent with Article
85 BL, they have a duty to exercise judicial power independently 'free
from any interference'.

24. The Bar Association does not wish to speculate on
whether the Administration would refuse to disclose a relevant instruction
to a court and if so, on what grounds. That is a matter for the Administration
to comment upon. However, the Bar Association can see a judge staying
a prosecution for an offence under the Regulation if it was not produced
to an accused person so that he or she could satisfy himself that a prosecution
commenced against him had a solid legal foundation.

25. It seems to the Bar Association that the Administration
needs to answer the question whether, upon a challenge to a court about
the lawfulness of the Regulation, it would say that the court is precluded
from examination of the relevant instruction. If a court is so limited
in its powers, the Administration needs to further explain the constitutional
basis of this limitation. If it accepts that a court could inspect the
document it needs to explain why, if there is no constitutional limitation
as regards courts at least, Legco cannot have sight of it.




Hong Kong Bar Association

16 March, 2004