《香港特別行政區基本法》中的行政命令制度淵源、流變與反思

《香港特別行政區基本法》第48（4）條確立的行政命令制度自香港回歸以來基本上處於沉睡狀態，鮮少實踐應用或理論研究。從港督職權或中國內地行政權設置兩個路徑來追溯其淵源，只能看到些許的印跡或影子，無法探知明確的制度承繼關係。從起草過程來看，行政命令制度經歷的文本變遷甚少，其爭議焦點主要在於範圍的界定和權力的限制。從行政長官發佈的關於公務員和秘密監察的兩次行政命令的實踐應用來看，法院通過正面肯定前案、反面否定後案而初步確立了行政命令制度的性質、適用範圍與效力，即其為由行政長官發佈的，形式上以《基本法》第48（4）條為制定依據，實質上適用于行政機關內部公務人員，具有行政性而非立法性效力的行政管理工具。這與制度設計初衷產生了某種程度的背離和流變，有必要反思目前司法實踐對其的界定。

Since the handover, the system of Executive Orders provided for in Article of 48 (4) of the Basic Law of the Hong Kong Special Administration Region has been basically dormant. Trying to trace its origins from the Governor's power and Mainland China's administrative system, we can spot some resemblence yet without any definitive lineage. According to the Basic Law's drafting process, the text of the provision on Executive Orders had undergone little change during the process, and the main dispute had been the limitation of the scope of Executive Orders and the restriction of the power to issue them. Reviewing the two Executive Orders issued by the Chief Executive to regulate Public Service and Covert Surveillance Procedure respectively, the HKSAR courts have preliminarily defined the nature, scope and legal effect of Executive Orders by offering positive affirmation in the former case and negative delineation in the latter case. Thus, Executive Orders are now regarded as administrative instruments without any legislative effect, which are issued by the Chief Executive under Article 48 (4) of the Basic Law and are used essentially to regulate public servants. This might be contrary to the intention of the system, and the system has evolved to some extent. The fundamental principle behind the system is the principle of legal reservation, but it is necessary for the courts to review its definition.