香港立法会调查权限分析

On the Limits of Investigation Power of Hong Kong Legislative Council:A Comparative Perspective

从各国的法治经验来看,立法机关可以基于行使自身职能的需要而通过其所属的委员会行使一定的调查权,通过要求当事人出席而获取相关的证据或材料。对于立法机关调查权的界限,由于制度差异而存在诸多争论。立法机关调查权界限的确定并没有可统一适用的标准,而要根据各国制度的不同特点区别对待。基于香港政制的特殊性,香港立法会调查权界限的确立,也应该在逻辑上与之相契合。通过比较英国、美国议会调查权的实践并参照其他国家的相关经验,可以认为,以香港独特的行政主导制为基础,依据香港《基本法》的具体规定,香港立法会调查权的行使应该遵循授权性、辅助性、谦抑性、可审查性等原则,从而达到香港政制中行政权、立法权与司法权的有机平衡。

From the experience of rule of law adhered to in various countries, legislative body may exercise certain investigation power through its own committees in the light of needs to perform its function, and by requiring the party concerned be present, it can obtain relevant evidences or materials. However, owing to different systems, there are many controversies over the limits of investigation power of legislative body. There lacks a generally applicable standard as how to define the limits of investigation power; rather, the limits are set forth on the basis of diversified characteristics of various systems. Hong Kong now is following the system of executive-led government under the framework of ＂One Country, Two systems . Taking into consideration the particu- larity of the political structure of Hong Kong, the establishment of investigation power of Hong Kong Legislative Council should correspond to such system logically. By a comparative study on practices of legislative powers exercised by British Parliament and American Congress and in the light of relevant experiences of other countries, one can conclude that the exercise of investigation power by Hong Kong Legislative Council shall abide by principles of authorization, assistance, deference and availability of judicial review according to specific provisions of Hong Kong Basic Law and on the basis of the system of executive-led government, thus achieving a balance between administrative power, legislative power and judicial power.