3
THE LEGAL SYSTEM
THE law of Hong Kong generally follows that of England and Wales. The Application of English Law Ordinance was passed in 1966 to declare the extent to which English law applies force in the territory. Section 3 provides that the common law of England and the rules of equity shall be in force in Hong Kong so far as they are applicable to the circumstances of Hong Kong or its inhabitants, subject to such modifications as such circumstances may require. The ordinance applies some English Acts to Hong Kong, such as the Justices of the Peace Act of 1361 and the Distress for Rent Act of 1689.
On-occasions, United Kingdom laws are applied to Hong Kong either directly or by order of Her Majesty in Council. The power to make all such law as may appear necessary for the peace, order and good government of the territory is expressly recited by Article IX of the Letters Patent. In practice, this is largely confined to matters which have a bearing on Hong Kong's international position. For example, the Outer Space Act 1986 (Hong Kong) Order 1990 is an Order in Council implementing in Hong Kong a treaty to which the United Kingdom is a party.
In order to ensure that by 1997 Hong Kong will possess a comprehensive body of law which owes its authority to the Legislature of Hong Kong, it is necessary to replace such United Kingdom legislation by local legislation on the same topics. A legislative programme has been adopted to achieve this. The Hong Kong Act 1985 provides for the Hong Kong legislature to replace English laws in specified fields with Hong Kong ordinances, and the Hong Kong (Legislative Powers) Order 1986 specified the fields of civil aviation, merchant shipping and admiralty jurisdiction.
A further order was made in 1989 conferring similar powers to enact legislation to give effect to international agreements which are applicable to Hong Kong.
The Governor, acting with the advice and consent of the Legislative Council, has plenary powers to enact ordinances for the peace, order and good government of Hong Kong. Most of the legislation applicable in Hong Kong is, and has been since its earliest days, enacted in this form or as subsidiary legislation made under an ordinance. Such legislation is usually initiated by one of the branches of the Government Secretariat.
The process of enactment of local legislation (that is, ordinances passed by the Legislative Council and assented to by the Governor) usually starts with one of the policy branches of the Hong Kong Government. After consultation with relevant government departments and, if appropriate, with interested public groups, drafting instructions are prepared for the Drafting Division of the Attorney General's Chambers. After a bill has
37