曾 鈺 成 「 剪 布 」 長 毛 申 禁 令

2012年5月17日，曾鈺成在立法會下令「剪布」，中止議員就議席出缺方案的辯論。「長毛」即日向高等法院申請司法覆核，法官召開緊急聆訊後決定不受理申請，認為沒有特殊情況容許法庭偏離一般原則，干預立法機關運作。

法庭若「踩過界」不符公眾利益

　高等法院法官林文瀚於5月25日頒布書面判辭時指出，立法會制定法律職權，若提升至議員有「拉布」的憲法權利，是荒謬說法。林官的書面判辭指，《基本法》之下，立法會有權自行制定《議事規則》，立法會主席職權是主持會議。

　林官並引用三權分立原則，強調法庭必須尊重立法過程完整性，若輕易「踩過界」干預，會嚴重損害及中斷立法會正常運作，並不符合公眾利益。

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 64 OF 2012

____________

     

IN THE MATTER of an Application by LEUNG KWOK HUNG for Leave to Apply for Judicial Review Order 53 rule 3 of the Rules of the High Court Cap 4A

     

and

     

IN THE MATTER of Articles 72 and 75 of the Basic Law of the Hong Kong Special Administrative Region

     

and

     

IN THE MATTER of Rule 92 of the Rules of Procedure of the Legislative Council of the Hong Kong Special Administrative Region

____________

BETWEEN

      LEUNG KWOK HUNG     Applicant

and

      THE PRESIDENT OF THE LEGISLATIVE COUNCIL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION     Respondent

____________

Before: Hon Lam J in Court

Dates of Hearing: 17 and 18 May 2012

Date of Decision: 19 May 2012

Date of Judgment: 25 May 2012

_______________

J U D G M E N T

_______________

1.  On 19 May 2012, after hearing submissions from the parties, I refused leave to apply for judicial review in this matter for reasons to be handed down later. Here are my reasons.

The controversy

2.  The Legislative Council (Amendment) Bill 2012 [“the Bill”] has a chequered history.  The Bill consists of 3 clauses.  The substance of the amendments proposed under the Bill is in Clause 3.  It amends section 39 of the Legislative Council Ordinance to the effect that a person who has resigned as a member of the Legislative Council is prohibited from standing for election in a by-election to be held within the 6 months after the resignation.  In mid-April 2012, resumption of the Second Reading of the Bill was scheduled to take place on 2 May 2012.  Two legislators proposed 1,232 and 74 amendments to the Bill.

3.  The nature of the amendments was described by the Secretary General of the Legislative Council at para 6 of her affidavit as follows,

    “6. The Committee Stage amendments proposed by the Government makes a drafting improvement to clause 3 of the Bill. The Committee Stage amendments proposed by Hon WONG Yuk Man seek to amend clause 1(1) and (2) and clause 2 of the Bill to make improvements to the language of the their Chinese texts. The Committee Stage amendments proposed by Hon Albert CHAN can be grouped around 6 themes as follows:

    (a) the disqualification does not apply if the resigning Member agrees to pay a certain percentage of the cost of the by-election;

    (b) the disqualification does not apply if the Member has resigned because he is held in custody in a foreign country;

    (c) the disqualification provision will expire after a certain period of time;

    (d) the disqualification period is reduced from 6 months to a lesser period;

    (e) the disqualification does not apply if the Member has resigned because he is diagnosed as suffering from a certain disease but is found later to have been wrongly diagnosed; and

    (f)   the disqualification does not apply if only a certain number of functional constituency/geographical constituency Members resign.”

4.  It is not the role of this court to comment on these amendments.  I simply annex to this judgment summaries of the amendments prepared by the Legislative Council Secretariat.  My purpose is to provide background information for a rational and objective assessment on the reasonable time required for a proper debate on these amendments.  As events turned out, the Committee of the Whole Council spent 36.5 hours on such debate before it was halted pursuant to a ruling made by the President.

5.  As a matter of practicalities, given the procedural requirement that each amendment has to be separately voted upon, it was estimated that voting on all these amendments would take another 30 hours or more.

6.  The motion for the Second Reading was passed after a debate of 8 hours and 39 minutes on 2 May 2012.  20 members of the Council spoke in that debate.  The proceedings of the Bill continued on 3 May and it entered into the Committee stage.  Due to the lack of a quorum on that date, the meeting was adjourned.

7.  The debate resumed on 9 May.  A legislator moved to adjourn the proceedings pursuant to Rule 40(4) of the Rules of Procedure of the Legislative Council.  That motion for adjournment was debated for 4 hours 29 minutes.  The motion was voted upon on 10 May and it was negatived.  The President as chairman of the Committee indicated that there would be a joint debate of all the amendments proposed by the two legislators.  There was no objection.

8.  The joint debate on these amendments started on 10 May.  It continued up till 8:35 pm on 11 May when the meeting was adjourned due to absence of a quorum.  The debate resumed on 16 May and it continued overnight.

9.  At about 4 am of 17 May 2012, a legislator invited the chairman to conclude the joint debate.

10.  The chairman enquired whether any member who had not spoken at the committee stage would like to speak on the amendments.  When no-one indicated he or she wished to speak, the chairman reviewed the situation. He said,

    “黃宜弘議員提出一項問題。事實是，本會由5月2日起就現時這項條例草案恢復二讀辯論，在5月3日進入全體委員會審議階段至現時這一刻，我們已經用了超過42小時。正如黃宜弘議員指出，全委會亦已用了超過33小時，其中發言的議員集中在三、四位議員。根據秘書處的統計，黃毓民議員發言20次、陳偉業議員發言28次、梁國雄議員發言27次，他們的“拉布”可說是相當成功。

    秘書處根據我們的會議紀錄，替我做了一項統計，在議員發言期間，我曾超過75次指出議員的發言離題，多次指出議員的發言冗贅煩厭，重複論點。黃宜弘議員要求立即中止辯論，亦提出在其他議會是有一個所謂closure motion，即是由議員動議中止辯論，立即進行表決的議案。

    我同意一些議員指出，我們所謂的“拉布”在很多其他議會亦是一個並不罕見的政治手段，即是說，在其他議會的議事規則亦容許“拉布”的空間，但我在批准兩位議員提出一千三百多項修正案時，亦進行了廣泛研究，很多其他議會既有“拉布”空間，同時亦設有中止“拉布”的機制，即黃宜弘議員剛才所說的closure motion，還有一些其他的手段，包括限定會議時間等。

    各位議員，如果當天我認為在批准這一千三百多項修正案後，是會引發一個我不可能控制的辯論、不可能終結的辯論，我是不可能批准這些修正案的，因為我一定要保障議會中少數人表達意見，甚至是少數人利用《議事規則》容許的方法來向政府爭取；但同時，我亦有責任保證立法會作為一個機構的有效運作。

    所以，如果我做了一件事情，是會產生出一個沒法完結的辯論，我是不可能這樣做的。在我們的《議事規則》中，是沒有外國國會所謂closure motion的程序，但我小心研究過我們的《議事規則》，這個全體委員會審議階段是否可以無窮無盡，沒完沒了地延續下去呢？我認為不是的。我容許議員在全體委員會審議階段發言多於一次，是根據《議事規則》第38條，大家留意，《議事規則》第38條是一條限制性條文，條文首先指出議員的發言不得多於一次，但亦有例外情況，其中第一項例外便是在全體委員會審議階段。在全體委員會審議階段，議員是不受發言只限一次的限制，但這樣不等於賦予議員權利無限次發言。我想指出這是並不正確的。

    全體委員會審議階段之所以讓議員重複發言，我在以往亦提過，並不是讓議員可以把一篇無限長度的演辭分開若干個15分鐘來發言，而是在辯論中可以讓議員有多次交鋒，以弄清楚大家對條文的意見。可是，大家也看到，我們進行了33小時30分鐘的辯論是否達到這個目的呢？我相信所有客觀的觀察者也看到並不是。所以，我認為我們的辯論應該要結束了。”

11.  As he said, the debate had already been conducted for 33.5 hours and most of the time speeches were made by members who avowedly adopted what is known as filibustering tactics.  The Applicant was one of those.  He had spoken for 27 times whilst the other two members were those proposing these amendments.  The chairman also referred to the fact that during the course of the debate he had ruled over 75 times that a speech was irrelevant and many times that a speech was repetitious.

12.  He took the view that he needed to balance the interest of the minority to express their views and to use tactics permitted by the Rules of Procedure to contest with the Government on the one hand and his responsibility to ensure the effective conduct of its business by the Legislative Council on the other.  Even though there was no procedure for a closure motion in the Rules of Procedure, he opined that the debate at Committee Stage should not continue indefinitely.  His assessment of the situation was that objectively speaking the debate was not serving the proper objective of a debate.  He considered that the debate should come to an end.

13.  When he was about to address the question whether he could do so under the Rules of Procedure, another legislator invited the chairman to adjourn for a short period of time to give the opportunity to other legislators to reflect their views to the chairman in private.  He acceded to that suggestion.  Before he adjourned, the chairman explained that he could exercise his power under Rule 92 of the Rules of Procedure of the Legislative Council to stop the debate.  He said,

    “合併辯論在我們的《議事規則》内，沒有就進行的程序作出明文規定。現在我們的做法，我剛才說，就是讓議員可以反覆發言。但是我認為如何結束，我們應該有一個安排。如果《議事規則》內沒有訂明如何結束這個全體委員會審議階段的辯論，那麼，《議事規則》第92條便適用。

    《議事規則》第92條訂明，對於本議事規則內未有作出規定的事宜，立法會所須遵循的方式及程序是由立法會主席決定，以及該條第二款亦訂明，如果立法會主席認為適合，是可以參照其他立法機關的慣例和程序來處理。正如黃宜弘議員指出，在其他立法機關，我們看到是有一個稱為即時中止辯論，付諸表決的議案。

              可是，我們只是參考，並非跟隨這做法。我認為經過這三十多小時的辯論，我們來到這一刻是應該作結了。所以，我打算讓提出修正案的議員及官員作總結發言後，便結束辯論。”

14.  After hearing the views of the other legislators, the chairman resumed the proceedings of the committee at about 9:00 am.  He decided as follows,

    “在今早清晨4時30分，當黃宜弘議員提出要求我參考其他地方議會的即時終止辯論的議案後，我對大家說，我打算讓提出修正案的議員和官員在作出總結發言後，辯論便告結束。其後，當然有不同議員表示有不同的意見，當時我決定暫停會議，然後跟各方的議員商量一個最好的辦法。當我聽取各方面的意見後，我決定我仍須結束這項辯論。但是，在結束前，由於我亦聽到有提出修正案的議員表示他們其實仍有許多內容還想提出，如果只有一次15分鐘的發言，是無法完成的。我現在決定在會議恢復後，我會請提出修正案的議員和官員發言，並會按我們的發言規定，每人每次發言15分鐘。但是，我會把這個發言時間一直延至今天正午12時，如果提出修正案的議員覺得仍有許多內容想提出，我希望他們能夠利用這段時間，組織好他們的資料，能夠充分表達出來。如果到了12時或12時前已沒有委員和官員表示想發言，我們便結束這項辯論，進入修正案逐項表決的階段，這個是我的決定。”

15.  A legislator queried whether this would become a precedent.  The chairman responded,

    “全委會主席：所謂先例，只是在具體情況下才發生。就這個所謂先例，為何我可以運用《議事規則》第92條賦予立法會主席的權力，是因為《議事規則》內，對於在全體委員會審議階段的合併辯論程序應如何進行，以及在全體委員會審議階段可以如何終結，未有作出規定。

    由於在這些事宜上，《議事規則》未有作出規定，所以，根據第92條，我們要如何進行合併辯論、如何結束這個辯論，立法會主席有責任作出一個決定。

    如果日後就這些問題經過討論後，有一些新的決定，經大會通過《議事規則》有關規定的話，那麼，當然大家以後會按大會的決定來行事。”

16.  The chairman also agreed to produce a written ruling explaining his decision.

17.  The debate at committee stage therefore resumed at 9 am on 17 May and it ended at noon.  Thereafter, the amendments to the Bill proposed by the legislators were put to vote.

18.  The Applicant considered that the President did not have the power to stop the committee debate on the amendments.  By this application he sought the following relief,

    “1. An order for Certiorari to bring up and quash the ruling of the President dated 17 May 2012 closing the debate on the Second Reading of the Bill pursuant to Rule 92 of the Rules of Procedure of the LegCo; and

    2. A Declaration that the President acted ultra vires in closing the debate on the Second Reading of the Bill pursuant to Rule 92 of the Rules of Procedure of the LegCo; and

    3. Any interim relief as the court may provide; and

    4. If leave is granted, an expedited hearing of this Application; and

    5. Such further and other relief as the court may provide; and

    6. An order for costs.”

In the course of the hearing on 18 May, the Applicant confirmed through his counsel that he would not seek injunctive relief.

19.  When he moved for ex parte leave on 17 May, Mr Lee SC, counsel for the Applicant, told the court that the challenge was confined to one single question: whether Rule 92 gives such power to the President.  After hearing Mr Lee, by reason of the potential disruption to the business of the Legislative Council if interim relief is to be granted, this court directed an inter partes hearing be held on 18 May.

The Rule and the President

20.  Rule 92 is in the following terms,

    “In any matter not provided for in these Rules of Procedure, the practice and procedure to be followed in the Council shall be such as may be decided by the President who may, if he thinks fit, be guided by the practice and procedure of other legislatures.”

21.  The Rules of Procedure [“the Rules”] were made by the Legislative Council on 2 July 1998 pursuant to Article 75 of the Basic Law.  The relevant part of that article provides,

    “The rules of procedure of the Legislative Council shall be made by the Council on its own, provided that they do not contravene this Law.”

22.  As regards the office of the President of the Legislative Council, Article 71 provides for his qualifications.  The President is to be elected by and from the members of the Legislative Council.  Article 72 sets out the powers and functions of the President,

    “(1) To preside over meetings;

    (2) To decide on the agenda, giving priority to government bills for inclusion in the agenda;

    (3) To decide on the time of meetings;

    (4) To call special sessions during the recess;

    (5) To call emergency sessions on the request of the Chief Executive; and

    (6) To exercise other powers and functions as prescribed in the rules of procedure of the Legislative Council.”

23.  Thus, one of the functions of the President is to preside over meeting.  By necessary implication, he is also given the necessary power in the performance of such function.  As observed by A Cheung J (as he then was) in Cheng Kar Shun v Li Fung Ying [2011] 2 HKLRD 555, by reason of the nature of the Basic Law, its wording is necessarily large and general.  At para 162, His Lordship said,

    “As Mr Thomas put it during submission, being a document which is essentially there to deliver political aims and purposes, the language of the Basic Law can be expected to be expressed in terms of general statement of principle, or in broad-brush terms, not condescending to particularity of position, not matching the standards of a parliamentary draftsman, more descriptive of powers and functions than prescriptive of the limits and the nature of those powers. In general terms, what the Basis Law seeks to do is simply to assign the powers to the appropriate bodies because, in that way, the devolution of power settles in the right hands. As counsel described, the Basic Law is here to provide a view of a landscape showing the great outlines. What it is not is an ordnance survey map, precisely laying out the details of the ground.”

24.  The same approach should be adopted in construing the function and power of the President in presiding over the meeting of the Legislative Council.  This approach, together with Rule 3 of the Rules, provides the answer to Mr Lee’s submission based on the distinction between the President and the Chairman of the Committee.

25.  Presiding over meeting does not mean simply sitting at the seat of President listening to the speeches of the legislators. It also entails exercising proper control over the process.  Whilst the substantial merits of a debate in the proceedings of the Council are in the hands of the legislators (which would ultimately be decided by the votes cast by them), the orderly, fair and proper conduct of the proceedings is within the province of the President. 

26.  One should therefore consider the power of the President under Rule 92 against this light: the President has the constitutional function and power to preside over the meetings of the Legislative Council.  By reason of the constraint in Article 75 that the Rules must be Basic Law compliant, the Rules cannot negate the power of the President to preside over meetings as his authority to do so comes from Article 72.

27.  This does not mean the President can exercise his power without regard to the Rules.  Though the legal authority of the President to preside over meeting is derived from the Basic Law, his political authority to do so comes from the members of the Legislative Council.  Thus, in the exercise of his power, he would need to have regard to political as well as legal consequences.  As mentioned, the President is elected by the members and if the members are dissatisfied with his decision, they could make him accountable by political means.  One of the alternatives open to members is to pass resolutions expressing their views on the decision of the President.  Of course, in taking those courses, the members themselves would also be politically accountable to their voters.  Moreover, the President himself has to be an elected member of the Legislative Council.  Thus, he is, like other members of the Legislative Council, politically accountable to the voters.  But these are political considerations.  This court, as a court of law, is only concerned with the legal authority of the President.

28.  As I said, as a matter of strict legal analysis, the President’s power to preside over meetings comes from Article 72 instead of the Rules.  In the present proceedings, this court is only concerned with the law.  The court is neutral as regards matters which should be the subject of political debate.  Thus, whether the President should exercise his power in the manner as he did and whether filibustering should be allowed as a matter of politics (as distinct from the legal question, which I shall consider below, whether the Basic Law confers a right upon an individual legislator to filibuster) could not be the subjects of debate in court proceedings.

Separation of powers and parliamentary privilege

29.  Since the challenge of the Applicant is directed at the conduct of proceedings of the Legislative Council, the court must have regard to its constitutional role and the role of the Legislative Council in deciding whether it is appropriate to intervene.  An important principle (derived from a long line of authorities) was summarized by A Cheung J (as the Chief Judge then was) in Cheng Kar Shun v Li Fung Ying [2011] 2 HKLRD 555 at para 220,

    “… the courts of the Hong Kong Special Administrative Region do not, as a rule, interfere with the internal workings of the Legislature. Exceptionally, where questions of whether the Legislative Council, in going about its business, has acted in contravention of the provisions in the Basic Law arise, the courts do have jurisdiction to intervene. But the jurisdiction must be exercised with great restraint, having regard to the different constitutional roles assigned under the Basic Law to different arms of the Government.”

30.  A similar statement can be found in the speech of Lord Morris in Pickin v British Railways Board [1974] AC 765 at p 790,

    “It must surely be for the Parliament to lay down the procedures which are to be followed before a Bill can become an Act. It must be for Parliament to decide whether its decreed procedures have in fact been followed. It must be for Parliament to lay down and to construe its Standing Orders and further to decide whether they have been obeyed; it must be for Parliament to decide whether in any particular case to dispense with compliance with such orders … It would be impracticable and undesirable for the High Court of Justice to embark upon an inquiry concerning the effect or the effectiveness of the internal procedures in the High Court of Parliament or an inquiry whether in any particular case those procedures were effectively followed.”

31.  Of course, as mentioned by A Cheung J, the Legislative Council is subject to the Basic Law and the courts of the Hong Kong Special Administrative Region do have jurisdiction to determine whether the practice of the Legislative Council complies with the Basic Law.  However, whether such jurisdiction should be exercised is another matter.  In general, there must be very exceptional circumstances before the court can deem it appropriate to intervene in the legislative process.  See also Hartmann J in Leung Kwok Hung v President of Legislative Council [2007] 1 HKLRD 387 paras 31 to 32.

32.  There are good practical reasons for this principle which is a facet of the doctrine of separation of powers.  As I said in the course of the hearing on 18 May, the court must respect the integrity of the legislative process.  If the court were to intervene lightly, this would cause great damage and disruption to the proper functioning of the Legislative Council, to whom the constitutional role of a legislature is assigned under the Basic Law.  That would not accord with the public interest.  The judicial process, built in with it the right and mechanism for two tiers appeal, takes time.  Final judicial determination cannot be achieved within a matter of weeks. If rulings made by a chairman or the President were to be readily reviewed in court, the whole legislative process could be easily disrupted and there would be inevitable delay.

33.  Mr Lee did not argue against this principle.  However, by reference to some dicta of Lord Bingham in The Bahamas District of the Methodist Church v Symonette [2000] 5 LRC 196, he contended that the exceptional circumstances in the present case warrant intervention by the court.  In that case, Lord Bingham reiterated the general principle, at p 208b,

    “The second general principle is that the courts recognize that Parliament has exclusive control over the conduct of its own affairs. The courts will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions … The law-makers must be free to deliberate upon such matters as they wish. Alleged irregularities in the conduct of parliamentary business are a matter for Parliament alone. … The principle is essential to the smooth working of a democratic society which espouses the separation of power between a legislative Parliament, an executive government and an independent judiciary. The courts must be ever sensitive to the need to refrain from trespassing, or even appearing to trespass, upon the province of the legislators …”

34.  In a jurisdiction like Hong Kong which has a written constitution, there is a modification.  At p 208i to 209a,

    “Likewise, the second general principle must be modified to the extent, but only to the extent, necessary to give effect to the supremacy of the Constitution. Subject to that important modification, the rationale underlying the second constitutional principle remains as applicable in a country having a supreme written constitution as it is in the United Kingdom where the principle originated.”

35.  Lord Bingham referred to the exception at p 209c, and Mr Lee relied strongly on it,

    “This is no place for absolute and rigid rules. Exceptionally, there may be a case where the protection intended to be afforded by the Constitution cannot be provided by the courts unless they intervene at an earlier stage. For instance, the consequences of the offending provision may be immediate and irreversible and given rise to substantial damage or prejudice. If such an exceptional case should arise, the need to give full effect to the Constitution might require the courts to intervene before the Bill is enacted. In such a case parliamentary privilege must yield to the courts’ duty to give the Constitution the overriding primacy which is its due.”

36.  In my judgment, the relevant principles can be stated as follows,

    (a) By reason of its role as the judicial authority in Hong Kong under Articles 85 and 158 of the Basic Law, the court has jurisdiction to interpret provisions of the Basic Law in adjudicating cases within the limits of the autonomy of the Hong Kong Special Administrative Region;

    (b) That jurisdiction can be exercised in respect of the acts of the legislature by reason of the supremacy of the Basic Law over the Legislative Council and the courts’ constitutional duty to uphold the Basic Law.  Thus, the court has in the past entertained challenges to the constitutionality of the legislations passed by the Legislative Council;

    (c) At the same time, the court also recognizes that the Legislative Council is the authority under the Basic Law (Article 73) to enact, amend or repeal laws and the President is the authority to preside over meetings of the Legislative Council (Article 72);

    (d) Having regard to the obvious undesirability of the court’s interference in the legislative process and the doctrine of separation of powers, whilst the court does have jurisdiction to examine the constitutionality of the proceedings in the Legislative Council, the jurisdiction should not be exercised in a manner that would trespass on the province of the legislators;

    (e) Thus, the court will generally decline to entertain questions on the constitutionality of a bill in terms of its contents at the pre-enactment stage even though, after a piece of legislation has been passed, it would entertain challenges to the same question;

    (f) A discrete aspect of this exercise of discretion is that, subject to challenges on procedural constitutionality (by that I mean a challenge to the validity of a procedure adopted in the Legislative Council based on the Basic Law), the Legislative Council is regarded as the master of its own procedures given its autonomy enshrined in the case law and reinforced by Article 75(2);

    (g) Even in cases of challenges on procedural constitutionality, the court may decide that such challenges should not be entertained at the pre-enactment stage.  The court will only exercise its discretion at pre-enactment stage where immediate and irreversible consequences giving rise to substantial damages and prejudice;

    (h) There is a distinction between a challenge on procedural constitutionality and a challenge based on irregularity stemming from non-compliance with the internal rules of the Legislative Council like the Rules of Procedure.  By reason of the principle that the Legislative Council should be the master of its own rules (and the Rules can be amended from time to time) and the constitutional role of the President to preside over meetings of the Legislative Council, irregularity falling short of constitutional infraction is capable of being redressed by subsequent proceedings in the Legislative Council and other political process.  I have already alluded to some political considerations of such matter at the beginning of this judgment and explained why the court should not be involved in such debate, lest the political impartiality of the court be compromised;

    (i) In other words, in dealing with these challenges, the court will consider the matter strictly from a legal point of view without any regard to the political undertone at the background.  The court must adhere to its independence and impartiality.

37.  Applying these principles in the present case, the crucial issues are,

    (a) Given that the Applicant’s case against the President is a procedural challenge, is there a reasonably arguable case on constitutional challenge?

    (b) If the Applicant has a reasonably arguable constitutional challenge, whether it should be entertained at the pre-enactment stage in light of the criteria set out above for exceptional cases.

The constitutional challenge

38.  Mr Lee submitted that the Applicant’s challenge is based on his constitutional right to participate in the work of the Legislative Council as a legislator.  He said the Applicant’s right to speak at the committee stage has been infringed.  The immediate right of the Applicant is curtailed and the court has a duty to act to protect his constitutional right.  He referred to Lord Bingham’s judgment at p 210d,

    “Their Lordships have already expressed the view that pre-enactment relief should be granted only when, exceptionally, this is necessary to enable the courts to afford the protection intended to be provided by the Constitution. When that state of necessity exists, to deny the courts power to intervene would, ex hypothesi, be a failure to safeguard citizens’ rights under the Constitution. When that state of necessity exists, the threatened enactment of legislation, which will be void under the Constitution but nevertheless cause irreparable damage, is a sufficient foundation (or ‘cause of action’) for the complainant’s application to the court.”

39.  The constitutional provision relied upon by Mr Lee is Article 73(1) of the Basic Law.  It reads as follows,

    “The Legislative Council of the Hong Kong Special Administrative Region shall exercise the following powers and functions:

    (1) To enact, amend or repeal laws in accordance with the provisions of this Law and legal procedures;”

40.  Mr Yu SC and Mr Pao said this Article refers to the powers and functions of the Legislative Council as a collective entity.  It does not confer any constitutional right on individual legislator.

41.  Mr Lee did not agree.  He submitted that since the functions and powers of the Legislative Council have to be performed by the legislators, by necessary implication Article 73(1) safeguards the rights of individual legislators to participate in the legislative process.

42.  Though I agree that the functions and powers of the Legislative Council must be performed by the legislators, I do not think Article 73(1) is of any avail to the Applicant in overcoming the principle of parliamentary privilege.  The facts of the Bahamas case illustrate the point.  There were two different challenges in that case: one based on the constitutional right against deprivation of property; the other based on procedure irregularity in the passing of the bill in question.  As regards the latter (which is more relevant for our purposes), the challenge failed.  One can glean that from para (4) in the headnotes,

    “(4) Parliament had a duty to ensure that private Bills introduced in Parliament did not unfairly prejudice others. Thus, the introduction of such a Bill had to follow the procedural requirements set out in r 15 of the Rules of the House of Assembly. However, irregularity in the conduct of parliamentary business was a matter for Parliament, not for the courts. Moreover, art 59(1) of the Constitution, which provided that Bills were to be ‘debated and disposed of according to the rules of procedure of that House’ was not intended to make it a constitutional requirement to follow those rules or to deprive either House of the power given by art 55(1) to regulate its own affairs. Thus, whether, in the introduction of a private Bill, the safeguards were properly applied was a question for Parliament to resolve and was not a question for the courts. It followed from this that the Bill could not have been challenged on the procedural ground (see pp 213-216, post). Dicta of Lord Campbell in Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 Cl & Fin 710 at 725 applied.”

43.  The issue was considered in the judgment of Lord Bingham at p 213h to 214g.  In essence, the approach was as follows: the starting point is the principle of parliamentary privilege, “irregularity in the conduct of parliamentary business is a matter for the Parliament, not the courts”.  The issue is whether the constitutional provision in question “has the effect of displacing these principles by making compliance with the rules of procedure of the House of Assembly … a constitutional requirement.” It is a question of interpretation of the relevant constitutional provision.

44.  In the context of the Basic Law, the autonomy of the Legislative Council in respect of its own procedure, subject to compliance with the Basic Law, is enshrined in Article 75(2).  Such autonomy is buttressed by Section 23 of the Legislative Council (Powers and Privileges) Ordinance Cap 382 and Article 77 of the Basic Law.  It is impossible to construe Article 73(1) as negating that autonomy.  As Lord Bingham said in the context of the Bahamas case, “clearer language would be required before it would be right to construe this provision as having the far-reaching effect of opening up to court scrutiny the procedures followed in Parliament on all Bills, motions and petitions initiated by members”.

45.  Further, even assuming that Article 73(1) can somehow be construed as protecting the right of an individual legislator to participate in the legislative process, it cannot be elevated to a constitutional right to continue with filibustering.  On any view, given the factual matrix of this case, ample opportunity had been afforded to the Applicant and the other legislators to have a proper debate with regard to these amendments, bearing in mind the time that had been given, the number of speeches made by the legislators who wished to comment on the amendments and the subjects of these amendments.  What the Applicant and other legislators participated in filibustering wished to achieve is not the proper expression of their views.  Rather they wished to continue with the committee debate of the amendments indefinitely to obstruct the legislative process.

46.  The President did not stop the debate abruptly. Rather, he allowed the debate to continue for another 3 hours until noon.  And the debate was only a debate at the committee stage on amendments.  After the amendments are voted upon, there would still be opportunity to speak on the Bill at the Third Reading.

47.  Thus, this is not a case where a legislator is deprived of the opportunity to speak on a legislative item.  With the greatest respect, as a matter of legal analysis, I find what the President said with regard to the proper purpose of debate in this context legally unassailable: the purpose is to allow exchange of opinions on the draft provisions in question.  Of course, as the President also remarked, one must also safeguard the right of the minority to express their opinions.  But it would be absurd to elevate the right to express opinions to a constitutional right to filibuster.

48.  If there is a right to filibuster, the proceedings of the Legislative Council could be hijacked by a handful of legislators for an indefinite period of time.  The legislative process could come to a grinding halt and the Legislative Council would not be performing its constitutional function under Article 73.  Giving Articles 73(1) and 75(2) a purposive interpretation, they cannot encompass a constitutional right to filibuster.

49.  Since it is my conclusion that there is no constitutional displacement of the principle of parliamentary privilege in the Basic Law, I agree with Mr Yu that the court should observe the non-intervention approach both before and after the completion of the legislative process.

50.  The adoption of such an approach does not mean the rule of law is compromised.  Rather, it is the recognition by the court as to the difference between the judicial process and the political process and the acknowledgment of the constitutional role of the Legislative Council as the master of its own practice and procedure in the application of the doctrine of separation of powers which underlies the Basic Law.

51.  Mr Lee submitted since the Rules permitted filibustering, the Applicant was entitled to engage in such tactics by way of exercise his right to speak in the Legislative Council.  Counsel referred to Rules 38(1)(a), 34(6) and 58(3) and submitted that, reading them together, a debate at committee stage cannot be ended until no more member indicates further intention to speak.

52.  This is also his main plank in arguing why Rule 92 is not applicable: since the matter (viz when would committee debate be stopped) has been provided for, there is no scope for the exercise of the power under Rule 92 by the President.

53.  On the other hand, Mr Yu argued that Rule 34(6) only mandates the President or Chairman to put the question to vote immediately after no member indicates further intention to speak instead of adjourning the proceedings.  The rule, counsel said, does not pre-empt a debate being closed under other circumstances.

54.  There are provisions in the Rules which show it is not intended that the business of the Legislative Council should be thwarted by irrelevant and repetitious speeches or vexatious debates: Rules 36(5), 38 and 41(1), 45(1), 57(4).  Given human ingenuity, written rules cannot deal with all the eventualities.  History elsewhere demonstrates that measures like closure orders in the Parliament of the United Kingdom were adopted to meet such crisis before the making of any standing orders to such effect[1].  Of course, there are differences in the political landscape and circumstances in different jurisdictions.  Historical developments elsewhere may not be applicable in Hong Kong.

55.  As far as Hong Kong is concerned, in the context of our Basic Law, I do not see any room for suggesting that there is a constitutional right to filibuster.  In the exercise of his authority to preside over meeting under Article 72, the President has a constitutional duty to ensure that proper conduct of business in the Legislative Council is not derailed.  How such duty is to be performed, how the power of the President is to be exercised and the relationship between the President and the members as a whole (balancing the interests of different political Parties in the Legislative Council) are matters of politics.

56.  The existence of powers to deal with irrelevant, repetitious or vexatious debates demonstrates that the right of a legislator to speak in meetings is not unchecked and therefore it is not possible to contend for an absolute constitutional right to speak.  It also demonstrates that rulings by the President (or a chairman) often have the effect of regulating the right to speak in meetings.  It needs hardly be said that proceedings in the legislature would come to halt if every decision having the effect of curbing or regulating a legislator’s right to speak is liable to be challenged in court on the ground that it curtails the immediate constitutional right of a legislator under Articles 73 or 75(2).  Mr Lee’s constitutional argument cannot be right.

57.  In light of my above conclusion on the proper interpretation of Articles 73(1) and 75, I do not think the rules cited by Mr Lee can give rise to a constitutional right to filibuster.

58.  As regards the proper interpretation of Rules 34(6), 38 and 92, it follows from the principle of parliamentary privilege that these are matters for the Legislative Council and the President in the exercise of his authority under Article 72. 

Pre-enactment intervention

59.  I can deal with the second issue briefly.  Even assuming for the sake of discussion that a constitutional right is involved and the Applicant has a good case for procedural constitutional challenge, I do not think there is sufficient reason for the court to entertain a challenge at the pre-enactment stage.  As I have explained in張德榮對政制及内地事務局局長 HCAL 45 of 2011, 11 July 2011, even if the Bill were to be passed, there would still be time for a procedural constitutional challenge to be mounted before it could bring about any irreversible consequences which would give rise to substantial damages and prejudice.

60.  In short, the criteria for pre-enactment intervention cannot be satisfied.

Result

61.  For these reasons, the court should not intervene in the present case.  I therefore refused leave in this application for judicial review. 

Costs

62.  Parties invited this court to make a costs order nisi.  The general principle is that costs should only be ordered in a leave application in exceptional cases, see Ho Mei Ling (No 2) [2012] 1 HKC 400.  Having regard to the factual circumstances of the present case, instead of acceding to the invitation of the parties, I wish to have written submissions on the costs implications of the following features before I make any decision on costs, such submissions shall be lodged with the court within 14 days,

    (a) The application for interim relief (until its withdrawal at the middle of the hearing on 18 May) and its potential impact on the business of the Legislative Council;

    (b) The Applicant’s awareness of the principle as to parliamentary privilege (as he was the applicant in Leung Kwok Hung v President of Legislative Council [2007] 1 HKLRD 387) and the court’s allusion to that principle at the ex parte hearing on 17 May;

    (c) The constitutional importance of the issues decided in this judgment and the extent to which the Applicant can rely upon the principle as regards public interest litigation discussed in Chu Hoi Dick v Secretary for Home Affairs (No 2) [2007] 4 HKC 428 and Chan Noi Heung v Chief Executive in Council CACV 197 of 2007, 16 March 2009.

63.  Lastly, I wish to thank counsel and all involved in the preparation of the evidence placed before the court for their assistance. The case has been heard at short notice and parties have to work under immense pressure as to time.  Without their co-operation, the court would not be able to dispose of the matter within the time frame as it did.  In particular, the court should commend counsel on all sides for properly confining their submissions to legal issues even though there is a huge public interest and much public discussion on the political aspects of these events outside court.  In so doing, counsel contribute to the upholding of the integrity and the independence of the judicial process.

        (M H Lam)

Judge of the Court of First Instance

High Court

Mr Martin Lee, SC, Mr Hectar Pun and Ms Doris Li, instructed by Lam & Lai, for the Applicant

Mr Benjamin Yu, SC, instructed by Lo & Lo, for the Respondent

Mr Jin Pao, instructed by the Department of Justice, for the Secretary for Justice

 

【本報訊】立法會議員「長毛」梁國雄不滿立法會主席曾鈺成於去年五月，在立法會會議上「剪布」終止替補機制修例的辯論而提出司法覆核，惟在原審及上訴均敗訴而回，他再接再厲昨向上訴庭申請終審上訴許可，被上訴庭即時駁回，並下令他支付有關訟費予曾鈺成和律政司，但未有透露金額。梁現時仍有最後一次直接向終院申請終審上訴許可的機會。上訴庭裁決指，梁提出的舊理據，只是重複已被上訴庭拒絕的論點，即使他提出中英聯合聲明及立法會主席要不偏不倚作新理據，但該些同樣不屬於「可合理地爭辯」的論點，故駁回其申請。

CACV 123/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 123 OF 2012

(ON APPEAL FROM HCAL 64/2012)

____________

BETWEEN

      LEUNG KWOK HUNG

        Applicant

(Appellant)

      and

       

      THE PRESIDENT OF THE LEGISLATIVE COUNCIL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION

        Putative Respondent

____________

Before: Hon Cheung CJHC, Kwan JA and Jeremy Poon J in Court

Date of Hearing: 10 January 2013

Date of Judgment: 1 February 2013

_______________

J U D G M E N T

_______________

Hon Cheung CJHC:

The facts

1.  This is an appeal from the refusal of Lam J (as Lam JA then was) to grant leave to apply for judicial review and the judge’s consequential order of costs against the applicant.

2.  The facts of this case and the reasons for the judge’s decisions have been fully set out in his two judgments dated 25 May 2012 ([2012] 3 HKLRD 470) and 18 July 2012. It is only necessary to give a very brief summary here.

3.  The Legislative Council (Amendment) Bill 2012 (“the Bill”) was introduced by the Administration into the Legislative Council for first reading on 8 February 2012.  In gist, the Bill sought to disqualify a person who has resigned as a member of the Legislative Council from standing for a by‑election to be held within 6 months of his resignation.  After the second reading of the Bill was moved, it was adjourned under rule 54(4) of the Rules of Procedure of the Legislative Council (“the Rules of Procedure”).  The Bill was then referred to the House Committee, which set up a Bills Committee to study the Bill.  The debate on the Bill before the Council was scheduled to resume on 2 May 2012.  In the meantime, two Legislative Council members had been given permission by the President of the Legislative Council to move respectively 1,232 and 74 committee stage amendments to the Bill at the resumed debate.  The 1,232 amendments proposed by the first member dealt with six themes – five were concerned with situations where the disqualification would not apply and the sixth proposed a reduction of the disqualification period.  As for the 74 amendments proposed by the second member, they sought to improve on the language of the Chinese text of the Bill.

4.  The avowed intention of the two legislators and their ally, the applicant (also a legislator), for the introduction of these numerous amendments was to filibuster the Bill, which they opposed and which they apprehended would otherwise be passed by the majority in the Council.

5.  The motion for the second reading of the Bill was passed on 2 May 2012 after a debate that lasted 8 hours 39 minutes.  The Committee stage of the Bill before the whole Council commenced the next day at 9:00 am but was adjourned as the meeting was inquorate.  The Committee of the whole Council resumed to deal with the Bill in the late afternoon of 9 May 2012.  There was a motion to adjourn the proceedings of the Committee which was eventually negatived after a debate that took 4 hours and 29 minutes and straddled two days.  The Committee then proceeded to debate on the clauses of the Bill and all the committee stage amendments.

6.  The debate took place at meetings of the Committee of the whole Council which were, in accordance with the Rules of Procedure, presided over by the President as chairman.

7.  By 4:30 am on 17 May 2012, the debate had gone on for over 33 hours and still no end to the debate was in sight.  The President had on numerous occasions considered the speeches made by the filibusters (the applicant was one of them) irrelevant to the clauses and amendments, and had made decisions and rulings accordingly.  Under those circumstances, a Legislative Councillor made reference to the procedure called “closure motion” in other legislative bodies and suggested the President should conclude the debate immediately.

8.  The President reviewed the situation and indicated his inclination to allow the members and the Government official who had also proposed a committee stage amendment to give concluding speeches and then end the debate.  After hearing views from members further, the President announced his decision to that effect at 9:00 am on the same day (17 May 2012), and gave all those involved until 12:00 noon to conclude the debate.  He based his decision on rule 92 of the Rules of Procedure which relevantly provides that “in any matter not provided for” in those rules, the President (as chairman) may decide the practice and procedure to be followed (etc).  The debate duly ended at noon time.  Thereafter, the amendments to the Bill proposed by the legislators were put to vote.  They were all defeated.  The voting itself took several days to complete.  The Bill eventually became law on 1 June 2012.

The decisions below

9.  Aggrieved by the President’s decision to end the debate and thus the filibustering exercise, the applicant sought leave to apply for judicial review of the President’s decision on the same day.  After an urgent oral hearing attended by all parties concerned (including the Secretary for Justice as interested party) on 17 and 18 May 2012.  Lam J announced his decision to refuse leave on 19 May 2012.  He gave his written reasons on 25 May 2012.  As noted, the Bill was passed on 1 June 2012.

10.  The judge considered that the President’s power to preside over meetings came primarily from article 72 of the Basic Law, rather than the Rules of Procedure, and said that by necessary implication, the orderly, fair and proper conduct of the proceedings is within the province of the President.  The judge then looked at the question of separation of powers and parliamentary privilege and set out the relevant principles regarding the privilege and non‑intervention by the court in paragraph 36 of his careful judgment.  He then applied those principles to the facts and rejected the applicant’s arguments based on article 73(1) of the Basic Law.  He firmly rejected any suggestion that there is a constitutional right to filibuster. He further rejected the applicant’s arguments based on article 75(2) of the Basic Law.  He therefore concluded that parliamentary privilege applied in the present case and the court would not intervene.  He observed that the proper interpretation of the relevant provisions in the Rules of Procedure is a matter for the Legislative Council and the President in the exercise of his authority under article 72, and therefore did not give any interpretation of his own.  He further said that there was no good reason for entertaining a pre‑enactment challenge in any event.

11.  After considering the parties’ written submissions on costs which he directed them to lodge, the judge gave the costs of the unsuccessful application for leave to the putative respondent, the President, whilst making no order in relation to the costs of the Secretary for Justice (as interested party).

The appeal

12.  From the judge’s decisions, the applicant appealed.

13.  In this appeal, Mr Martin Lee SC (Mr Hectar Pun and Mr Carter Chim with him) for the applicant, essentially argued that the President’s decision contravened articles 73(1) and 75(2) of the Basic Law. First, it infringed the constitutional right of the applicant, as an individual legislator, under article 73(1) to speak in the Council in accordance with its Rules of Procedure when the Council was exercising its power and function to enact, amend or repeal laws.  Secondly, article 75(2) was also contravened because by his decision, the President was, in effect, making a new rule of procedure of the Council, which could only be made by the Council in accordance with that article.  In those circumstances, counsel argued, the judge had a constitutional right and duty to intervene in the legislative process; and at this post‑enactment stage, the court has such right and duty to grant declaratory relief against the amendments to the Legislative Council Ordinance (Cap 542) brought about by the Bill as being void for unconstitutional irregularity in the legislative process.  Mr Lee contended that the usual parliamentary privilege that attaches to the business of the legislature had been displaced by the constitutional infringements.

14.  Counsel argued that these were reasonably arguable matters, and leave to apply for judicial review ought to be granted.

15.  Mr Lee also pointed out that at this post‑enactment stage, the judge’s original ground (amongst others) for refusing leave that the applicant’s challenge was a premature one is no longer relevant, and as mentioned, he invited the court to grant leave for the applicant to seek declaratory relief against the amendments made to the Legislative Council Ordinance by the Bill.

16.  In any event, Mr Lee argued that costs should not have been awarded against the applicant even if one were to assume that his application for leave had been correctly refused.

17.  Both the President and the Secretary for Justice disagreed and put forward respective submissions in support of the judge’s decisions.

The general principles of law

18.  It is useful to set out first the relevant principles of law.  They can be found in leading overseas authorities including: The Bahamas District of the Methodist Church v Symonette [2000] 5 LRC 196; British Railways Board v Pickin [1974] AC 765; Ah Chong v Legislative Assembly of Western Samoa [2001] NZAR 418; Prebble v Television New Zealand Ltd [1995] 1 AC 321; R v Chaytor [2011] 1 AC 684; Cormack v Cope (1974) 131 CLR 432; and in local cases such as Leung Kwok Hung v President of Legislative Council [2007] 1 HKLRD 387 and Cheng Kar Shun v Li Fung Ying [2011] 2 HKLRD 555.

19.  First and foremost, under common law, the courts do not interfere with the internal workings of the legislature.  The legislature has exclusive control over the conduct of its affairs.  Alleged irregularities in the conduct of legislative business are a matter for the legislature alone.

20.  This “parliamentary privilege” is an established principle of law of seminal importance and high constitutional significance. It is derived from or justified by historical development, functional necessity, the constitutional doctrine of separation of powers and (in the United Kingdom) the sovereignty of Parliament.  As Mr Jin Pao, for the Secretary for Justice, submitted, it is an element of our law which deals with an important aspect of the interrelationship between the legislative and judicial branches of government.

21.  In particular, the privilege extends to the procedures which are to be followed before a Bill can become law.  It is for the legislature to lay down and to construe its relevant procedures and further to decide whether they have been obeyed.  It is also for the legislature to decide whether in any particular case to dispense with compliance with such procedures.  The position has been firmly stated by Lord Morris in British Railways Board v Pickin at p 790C‑E as follows:

    “It must surely be for Parliament to lay down the procedures which are to be followed before a Bill can become an Act. It must be for Parliament to decide whether its decreed procedures have in fact been followed. It must be for Parliament to lay down and to construe its Standing Orders and further to decide whether they have been obeyed; it must be for Parliament to decide whether in any particular case to dispense with compliance with such orders. It must be for Parliament to decide whether it is satisfied that an Act should be passed in the form and with the wording set out in the Act. It must be for Parliament to decide what documentary material or testimony it requires and the extent to which Parliamentary privilege should attach. It would be impracticable and undesirable for the High Court of Justice to embark upon an inquiry concerning the effect or the effectiveness of the internal procedures in the High Court of Parliament or an inquiry whether in any particular case those procedures were effectively followed.” (emphasis supplied)

22.  In short, the legislature is the master of its own house.  The necessary check and balance is achieved not in the courts, but politically.

23.  Secondly, where, as here, there is a written constitution, the common law position is modified to the extent intended and required by the provisions in the constitution.  Article 8 of the Basic Law specifically says that the common law continues to apply in this jurisdiction “except for any that contravene[s] [the Basic Law]”.  In this regard, it should be noted that the Basic Law enshrines the principle of separation of powers: Lau Cheong v HKSAR (2002) 5 HKCFAR 415, para 101.  Moreover, whilst the Legislative Council as the legislature of the Hong Kong Special Administrative Region is not supreme (but the Basic Law is), still the Basic Law recognizes the Legislative Council to be a sovereign body under that law: Leung Kwok Hung at para 10.

24.  All this means that in the local context, the courts are empowered and indeed required to inquire into the internal workings of the Legislative Council if and when, but only to the extent that, the Basic Law so requires.  It is, in other words, all a matter of interpretation of the Basic Law and of the true intention behind its relevant provisions.  One possible area of intervention is where the Basic Law places upon the courts some duty of scrutinizing legislative proceedings for alleged breaches of constitutional requirements.  Another possible example is where the Legislative Council has conducted its business in such a way as to infringe the constitutionally protected right of an individual which is intended by the Basic Law to be enforceable in a court of law, overriding parliamentary privilege.  A third example that can be given is where (which is not the case here) the Rules of Procedure, made by the Legislative Council pursuant to article 75(2), are said to be in contravention of the Basic Law: Leung Kwok Hung at paras 24 to 32.

25.  However, as a matter of interpretation of the Basic Law, a court would lean against an interpretation displacing parliamentary privilege, and any real ambiguity would be resolved in favour of non‑intervention: Ah Chong at p 427.

26.  Thirdly, even assuming that on the proper interpretation of the relevant provisions of the Basic Law, parliamentary privilege is displaced in a particular case so that the courts have jurisdiction to intervene, exercising that jurisdiction at the pre‑enactment stage is a totally different matter.  A court should, “so far as possible”, avoid interfering in the legislative process.  Conceivably, however, there may be a case where the protection intended to be afforded by the Basic Law cannot be provided by the courts unless they intervene at an early stage to grant immediate declaratory or other relief, in which event pre‑enactment intervention may exceptionally be justified.  The Bahamas at p 209a/b – e/f.

27.  This rule of self‑restraint in the case of pre‑enactment challenge makes good commonsense.  If it were otherwise, the legislative business would be liable to delays, disruption, uncertainties and costs.  Moreover, without knowing the outcome (that is, whether the Bill in question would eventually be passed into law), the challenge would, save in the most exceptional circumstances, usually be premature and unnecessary.

28.  These considerations of great constitutional as well as practical significance do not apply when the challenge is a post‑enactment one.  Nonetheless, a court must still be satisfied that parliamentary privilege is displaced by the relevant provisions in the Basic Law before it may intervene.  The intervention, it should be noted, at this post‑enactment stage, would no longer be directed at the legislative process as such which, by definition, has already completed, but at the product of that process, namely, the relevant piece of legislation.

The present case

29.  Bearing these general principles in mind, I approach the facts and arguments in the present case.  It should be remembered, however, that when the challenge first came before Lam J, it was a pre‑enactment challenge.  By the time of this appeal, the Bill has become law.  We are therefore concerned not only with whether Lam J’s rejection of the pre‑enactment challenge was correct, but also (and perhaps more importantly) whether a post‑enactment challenge can be mounted.

30.  There can be no doubt that leaving aside any relevant provisions in the Basic Law, the President’s decision to close the debate on 17 May 2012 at the Committee meeting of the whole Council is a matter squarely covered by parliamentary privilege.  It relates solely to the procedure to be followed by the Legislative Council in going about its own business of law‑making.  It is a typical matter that the courts under common law would not interfere with.

31.  In particular, under the common law described above, the courts will not entertain any debate on the proper interpretation of the relevant rules of procedure or their application to any given circumstances.  Those are matters for the Legislative Council to decide. Likewise, it is for the Council to decide whether the relevant rules of procedure have been followed or whether in any particular case to dispense with compliance with them.  In all these matters, a court, under common law, will not intervene.

32.  Is parliamentary privilege displaced by the Basic Law in the present case?  As mentioned, Mr Lee, for the applicant, argued for an affirmative answer.  He relied on articles 73(1) and 75 of the Basic Law.

The applicant’s arguments under article 73

33.  Article 73 sets out the powers and functions of the Legislative Council, and there are ten of them.  Article 73(1) reads:

    “To enact, amend or repeal laws in accordance with the provisions of this Law and legal procedures”.

34.  Mr Lee made two arguments out of it.  First, Mr Lee accepted that article 73 gives the Legislative Council as a body the power to make law etc.  However, since the Legislative Council is composed of its members and exercises its powers and functions through them, article 73(1) therefore gives the applicant, as a member of the Council, a constitutional right to participate in the legislative process of the Legislative Council to enact, amend or repeal laws “in accordance with … legal procedures”, that is, the Rules of Procedure made by the Legislative Council under article 75(2): Leung Kwok Hung at para 7.  That right includes the right to speak at the meetings of the Council which cannot be unconstitutionally curtailed or compromised.

35.  In the present case, the President closed the debate purportedly pursuant to rule 92 of the Rules of Procedure (which only applies when no other rules are applicable) when, according to Mr Lee, there were applicable rules of procedure to deal with the filibustering situation. Counsel therefore argued that the legislative process was derailed as a result, and the applicant’s constitutional right to participate in the legislative process to make or amend laws “in accordance with … legal procedures”, including his right to speak at the relevant meetings accordingly, was infringed.

36.  Secondly, Mr Lee submitted that in any event, at this post‑enactment stage, since the amendments made to the Legislative Council Ordinance have not been made by the legislature in accordance with article 73(1) in that the relevant legislative process was not “in accordance with … legal procedures”, the amendments are null and void and of no effect.

37.  I will deal with each of these arguments in turn, which obviously overlap with each other to a significant extent. However, it should be appreciated that the alleged constitutional right of the applicant as legislator to participate in the legislative process in accordance with the Rules of Procedure under Mr Lee’s first argument was an important plank for the applicant to mount his pre‑enactment challenge.  If he had only relied on the second argument described above, there would have been nothing to justify his pre‑enactment challenge, for the second argument could always be relied on to mount a post‑enactment challenge.  However, in relation to the first argument, that is, the applicant’s alleged constitutional right as an individual legislator to participate in the legislative process, if the court were to refuse to intervene at the pre‑enactment stage, any post‑enactment intervention would be quite meaningless from the perspective of protection of the applicant’s constitutional right – thus the significance of the first argument to the pre‑enactment challenge before the judge.

38.  Although the matter has now become academic since at this appellate stage, one is concerned with a post‑enactment challenge, it is right that this court should make clear its views on the first argument.

Does article 73(1) give a legislator a constitutional right to participate etc?

39.  I will put aside that part of the first argument which relates to “in accordance with … legal procedures” for the time being and focus first on the alleged constitutional right of the applicant as legislator under article 73(1).

40.  Read in its context, article 73 is about the powers and functions of the Legislative Council (including its committees, panels, sub‑committees etc) as a body.  It is not about the rights of an individual legislator.

41.  Indeed, a purposive interpretation of the Basic Law goes directly against any such interpretation.   If there really were the suggested right of an individual legislator to participate in the legislative process of law‑making in accordance with the Rules of Procedure, this would open the floodgate of litigation by disgruntled legislators who are dissatisfied, in one way or another, with the way the Rules of Procedure are interpreted or applied in meetings of the Legislative Council.  And, as explained, given the nature of the suggested right, the court would be urged, on each of these occasions, to intervene at the pre‑enactment stage.  This would have a serious impact on the smooth workings of the Legislative Council. Indeed the proceedings in the Legislative Council would grind to a halt if any decision of the President that curtails a legislator’s speech or participation in the proceedings is liable to be reviewed by the courts.  This can hardly have been the intention of the drafters of the Basic Law.  The drafters of the Basic Law must be taken to have been fully conversant with the common law doctrine of parliamentary privilege and its fundamental constitutional significance.

42.  In Canada (House of Commons) v Vaid [2005] 1 SCR 667, a case concerning parliamentary privilege, Binnie J, giving the judgment of the Supreme Court of Canada, gave this example, which is analogous to what we are faced with in the present case, to illustrate how the privilege works and its importance:

    “20 … It would be intolerable, for example, if a member of the House of Commons who was overlooked by the Speaker at question period could invoke the investigatory powers of the Canadian Human Rights Commission with a complaint that the Speaker’s choice of another member of the House discriminated on some ground prohibited by the Canadian Human Rights Act, or to seek a ruling from the ordinary courts that the Speaker’s choice violated the member’s guarantee of free speech under the Charter. These are truly matters ‘internal to the House’ to be resolved by its own procedures. Quite apart from the potential interference by outsiders in the direction of the House, such external intervention would inevitably create delays, disruption, uncertainties and costs which would hold up the nation’s business and on that account would be unacceptable even if, in the end, the Speaker’s rulings were vindicated as entirely proper.

    21.       Parliamentary privilege, therefore, is one of the ways in which the fundamental constitutional separation of powers is respected …”

43.  As mentioned, the court would lean against any interpretation to displace parliamentary privilege, and in case of real ambiguity, it would resolve in favour of non‑intervention.  All this, as explained, is for very good reasons.  In my view, the present case is nothing near a real ambiguity.  Rather, the position is very clear – the suggested constitutional right under article 73(1) of the Basic Law simply does not exist.

44.  Moreover, as the judge observed, any such constitutional right to participate in the legislative process in accordance with the Rules of Procedure cannot possibly include the right to filibuster.  Indeed there is much to be said for the view that the very continuance of a filibustering exercise would be contrary to the proper exercise and discharge of the powers and functions of the Legislative Council provided under article 73 of the Basic Law, and would constitute an infringement of other legislators’ constitutional rights (according to the applicant’s own argument) to participate in the legislative process in a meaningful manner.

45.  In any event, any such right to speak or participate must be read with, and subject to, the power of the President to preside over meetings under article 72(1), to which I will presently turn.

46.  With respect, the applicant’s contention is unarguable.

“in accordance with … legal procedures”

47.  I now turn to the remainder of Mr Lee’s first argument and his second argument, that is, “in accordance with … legal procedures”.  It is necessary to consider articles 72 to 75 together to see the whole picture.

48.  Article 72 sets out the powers and functions of the President of the Legislative Council.  Article 72(1) states that the President shall exercise the power and function “to preside over meetings”.  Article 72(6) reads:

    “To exercise other powers and functions as prescribed in the rules of procedure of the Legislative Council”.

49.  As mentioned, article 73(1) refers to “in accordance with … legal procedures” and “legal procedures” has been interpreted to mean or include the Rules of Procedure.

50.  Article 74 says that members of the Legislative Council may introduce bills “in accordance with the provisions of this Law and legal procedures”.

51.  Article 75(2) provides that the rules of procedure of the Legislative Council shall be made by the Council on its own, provided that they do not contravene the Basic Law.  As mentioned, the Council has made the Rules of Procedure.

52.  A number of points can be made here.  First, the President has, amongst other things, the constitutional power and function to preside over meetings under article 72(1) (“主持會議”).  That must, as a matter of interpretation or necessary implication, include the power and function to exercise proper authority or control over the process, as the judge pointed out in paragraph 25 of his judgment.  The orderly, fair and proper conduct of proceedings must be within the province of the President.

53.  Secondly, his power under article 72(1) is supplemented, article 72(6) provides, by other powers and functions as prescribed in the Rules of Procedure.  In other words, the powers given to the President in the Rules of Procedure are to be supplementary to his power, given under article 72(1) of the Basic Law, to preside over meetings.  Put another way, the Rules of Procedure are there to give the President additional powers, rather than to take away from him his power, given under the Basic Law, “to preside over meetings”.

54.  Thirdly, in this regard, it must be noted that article 75(2) specifically provides that the Rules of Procedure cannot contravene the Basic Law, and that must include article 72 relating to the President’s powers and functions.

55.  Fourthly, looking at the matter from the perspective of the Legislative Council, the phrase “on its own” in article 75(2) echoes or reflects the well‑known common law background that the legislature is the master of its own house.  It is for the legislature itself to determine what rules of procedure it wishes to follow (Leung Kwok Hung at para 10), so long as those rules do not conflict with the Basic Law.

56.  Fifthly, the stipulation under article 73(1) that the Legislative Council has the power and function to enact, amend or repeal laws in accordance with its own rules of procedure must therefore be read in the light of the legislature’s power, given under article 75(2) to regulate, and therefore to change at any time it pleases, its own rules of procedure, so long as they do not conflict with the Basic Law.

57.  All these points, when considered together, can only lead to one relevant answer, that is, the reference to “in accordance with … legal procedures” in article 73(1) in the context of the Legislative Council’s law‑making process cannot possibly be a constitutional requirement that displaces parliamentary privilege. Far from evincing an intention to displace parliamentary privilege by imposing a constitutional requirement on the legislative process, the Basic Law actually intends to leave it to the Council to decide for itself how it should go about its legislative business.

58.  In other words, the Basic Law does not require or empower any court intervention in the case of the legislature’s non-compliance with its own rules of procedure for the time being when making laws etc, in the absence of any suggestion that the non-complying procedure actually adopted is otherwise in contravention of the Basic Law.    For after all, the bottom line is that the legislature can always achieve what it wants by changing the relevant rules of procedure pursuant to article 75(2) (absent any question of contravention of the Basic Law), and pass the same law by the same procedure again.  The price for requiring or permitting any court intervention in the meantime would be wholly out of all proportions to the problem created by any non-compliance with the existing rules of procedure.  The legislature, under the constitutional framework laid down in the Basic law, is fully capable of putting its own house in order in the type of situation under discussion. Any court intervention is neither necessary nor warranted.

59.  Moreover, where, as here, the relevant rules of procedure involve the President’s power and function to preside over meetings, a further reason for rejecting the argument that compliance with the relevant rules of procedure constitutes a constitutional requirement is that so far as controlling meetings is concerned, the President’s right to preside over and, as explained, to exercise proper authority or control over meetings, is constitutionally stipulated, whereas rules of procedure are, by definition, subject to the Basic Law including article 72(1).

60.  Mr Lee submitted, in his written submissions, that the combined effect of rules 34(3) and (6), 38(1)(a) and 58 of the Rules of Procedure is that legislators may speak “again and again” in a debate in the Committee of the whole Council until no or no other legislator indicates his intention to speak.  Whatever may be the effect of those rules interpreted on their own, it must be read subject to the constitutional power and function of the President under article 72(1) to preside over meetings.

61.  Furthermore, as mentioned, the courts lean against an interpretation of the constitution to displace parliamentary privilege, and in case of real ambiguity, it will be resolved in favour of non‑intervention. Even assuming (for the sake of argument) that Mr Lee managed to raise a real ambiguity in the present case in relation to the requirement of “in accordance with … legal procedure”, I would still resolve it in favour of non‑intervention by construing the requirement as a non‑constitutional one.

62.  The present situation is not unlike that faced by the Privy Council in The Bahamas, where article 59(1) in the Bahamas Constitution provides that a private Bill “shall be debated and disposed of according to the rules of procedure” of the Senate or (as the case may be) the House of Assembly.  Each of the two Houses has been given the power under article 55(1) of the Constitution to “regulate its own procedure and for this purpose [to] make rules of procedure”. In giving the advice of the Privy Council, Lord Nicholls stated that the relevant provisions were not intended to be restrictive, so as to found a claim for violation of the Constitution if a member were permitted to introduce a Bill etc in breach of the rules of the House.  In particular, the judge did not think that the reference to the rules of procedure of the two Houses was intended to deprive either House of the power given under the Constitution to regulate its own affairs.  “Clearer language” would be required before it would be right, according to the judge, to construe the provision as having the “far reaching effect of opening up to court scrutiny the procedures followed in Parliament”: The Bahamas at p 214e/f to g/h.

63.  Mr Jat SC (Mr Anthony Chan with him), appearing for the President, was right in saying that the applicant’s reliance on Cormack v Cope, supra, was misplaced. There, the High Court of Australia was concerned with article 57 of the Commonwealth Constitution which sets out the constitutional requirements to be followed for the enactment of laws following a deadlock between the Senate and the House of Representatives.  Similarly, in Doctors for Life International v Speakers of the National Assembly [2006] ZACC 11, a case also relied on by Mr Lee, the South African Constitutional Court intervened in the legislative process because the National Council of Provinces had failed to discharge its national obligation under section 72(1)(a) of the Constitution to facilitate public involvement in the legislative process and section 167(4)(2) of the Constitution confers exclusive jurisdiction on that court to decide disputes concerning a failure by Parliament to fulfil a constitutional obligation.  On the facts, as Mr Jat submitted, these two cases are very different from the present one where precisely the issue is whether “in accordance with … legal procedures” constitutes a constitutional requirement in the first place.  In both overseas cases, however, there were clear constitutional provisions which made compliance with procedure a constitutional requirement, thereby engaging the courts’ jurisdiction.

64.  For these reasons, I also reject Mr Lee’s argument that compliance with the Rules of Procedure constitutes a constitutional requirement under article 73(1).

Article 75(2)

65.  Mr Lee also relied on article 75(2) of the Basic Law.  His argument was essentially that the President was effectively making a new rule of procedure when he closed the debate in the way he did, purportedly pursuant to rule 92 (which, according to counsel, was not triggered because other rules were applicable to deal with the filibustering situation).  Counsel pointed out that article 75(2) provides for rules of procedure to be made by the Legislative Council on its own, rather than by the President.  What the President did in the present case therefore amounted to a usurpation of the power and function of the Legislative Council and constituted a contravention of article 75(2).

66.  Even assuming, for the sake of argument, that the President’s decision could not be supported by rule 92, it does not follow that he was therefore making a new rule of procedure.  Plainly, he did not.  On the evidence, the President certainly did not purport to make any new rule regarding filibustering and, in my view, he did not do so.  What he did was to close the debate at the meeting he was then presiding.  His decision affected the meeting in question and nothing else.  The fact that the President’s ruling might have some future reference value does not make his ruling in a specific case equivalent to a rule of procedure of general application, in the absence of a system of precedent.  Furthermore, what the President did was clearly covered by article 72(1) anyway and he did not have to, and simply did not, make any new rule.  The power of the President to preside over meetings under article 72(1) must include the power to end debates in appropriate circumstances and put matters to vote.  That precisely was what the President did.

67.  In any event, I fail to see how an alleged contravention of article 75(2) can, on its own, justify the court’s intervention.  In the context of the present discussion, that is, the displacement of parliamentary privilege by a constitutional requirement, Mr Lee’s contention on article 75(2) cannot be run separately from his earlier arguments based on article 73(1), that is, his arguments on “in accordance with … legal procedures”, which I have already rejected.

68.  For these reasons, Mr Lee’s submission based on article 75(2) also fails.

The President vs the legislature?

69.  Mr Lee vaguely suggested that there is a distinction between the President and the legislature.  Whatever privilege there may be under common law attaches only to the legislature, not the President.  The court’s non‑intervention is directed at the internal workings of the Legislative Council, but not the acts or inaction of the President.

70.  I reject the argument.  In so far as the President was performing his role as President or Chairman to preside over meetings of the Legislative Council, what he did or did not do constituted part of the internal workings of the Legislative Council and is therefore covered by parliamentary privilege.

71.  That being the case, in my view, the judge was right to reject the pre‑enactment challenge before him, and so far as this court is concerned, the post‑enactment challenge must also be rejected.

The proper interpretation of the relevant rules of procedure

72.  It is therefore unnecessary to express any views on the arguments regarding the scope of application of rule 92, or for that matter, the ambit of rules 41(1), 45 and 57(4) relied on by Mr Lee to say that rule 92 was not applicable (because these other rules were applicable).  In my view, the judge rightly declined to entertain the debate.

73.  Under common law, an important part of parliamentary privilege, as explained, is that it is for the legislature, not the courts, to construe its own rules and procedures, and further to decide whether they have been obeyed.  This is so even if, in the eyes of the court, the legislature’s interpretation of its own rules should be erroneous – the court would still not interfere with the matter directly or indirectly: Bradlaugh v Gossett (1884) 12 QBD 271, 280‑281.  Where at issue is whether a rule of procedure made by the legislature purportedly pursuant to article 75(2) is in contravention of some provisions in the Basic Law, the proper interpretation of that rule of procedure is ultimately a matter for the courts, not the legislature (assuming that the matter cannot be resolved satisfactorily by the legislature itself): Leung Kwok Hung at paras 24 to 28.  The common law position is to that extent modified.  However, this is not such a case.  There is no suggestion of any relevant contravention of the Basic Law.  The present case is covered entirely by the common law principles described at the beginning of this paragraph.

74.  Indeed this is reinforced by the Basic Law’s bestowing on the Legislative Council the power to make, and therefore change, “on its own”, its rules of procedure.  This must be the bottom line of the matter, in terms of whether the Basic Law intends to leave it to the legislature to interpret and apply its own rules and procedures insofar as its internal workings are concerned (absent any suggestion that the rules are not Basic Law-compliant).

75.  With respect, this constitutional arrangement accords with good commonsense.  If it were otherwise, it would only encourage attempts to challenge the validity of legislation already passed by the legislature by arguing that in one way or another the legislation had not been enacted by the Legislative Council in accordance with the Rules of Procedure.  This would be contrary to the public interest, undermine certainty and be detrimental to good administration.  Again, I do not believe that it was the intention of the drafters of the Basic Law to open the floodgate of litigation by tampering with the well‑tested common law doctrine of parliamentary privilege absent a compelling reason.

76.  This is not to say that the President can disregard the Rules of Procedure as he pleases.  Article 72 sets out specific matters that are within his powers and functions.  For those matters not covered by article 72(1) to (5), he has to resort to the Rules of Procedure.  And if he breaches the Rules of Procedure, there are certainly remedies available within the legislature.  After all, the President is elected by and from among the members of the Legislative Council: article 71 of the Basic Law.  Moreover, as an elected legislator himself, the President must eventually be answerable to the electorate.  But none of this requires one to construe a constitutional requirement displacing parliamentary privilege in the context of the present case out of the Basic Law when none exists.

A ground of appeal not pursued

77.  In the notice of appeal, it is also said that the judge was wrong in finding that “ample opportunity had been afforded to the applicant and the other legislators to have a proper debate” with regard to the proposed amendments to the Bill.  At the hearing of the appeal, this was no longer pursued by the applicant, and I need say no more about it.

Disposition of the substantive appeal

78.  I would therefore dismiss the substantive appeal.

The appeal on costs

79.  As regards Mr Lee’s appeal against the order of costs made below on the alternative basis that the judge was right to reject his pre‑enactment challenge, it must be remembered that this court takes a very restrained approach to appeals on costs: Hong Kong Civil Procedure 2013, vol 1, para 62/2/11.

80.  The judge’s reasons for his decision on costs were fully set out in his judgment dated 18 July 2012.  He correctly followed the decision of this court (differently constituted) in Sky Wide Development Ltd v Building Authority [2011] 5 HKLRD 202 which was binding on him to the effect that in an unsuccessful leave application for judicial review, costs should only be awarded in favour of the putative respondent or interested party in exceptional cases.  He found that there were exceptional circumstances for awarding costs in favour of the putative respondent (the President) but he did not find it appropriate to award costs in favour of the Secretary for Justice (by way of a separate set of costs).

81.  Having reviewed those reasons, I fail to see on what basis this court can legitimately interfere with the judge’s exercise of discretion.  Certainly, Mr Lee has not, in his detailed oral submissions, pinpointed any.  Rather, in my view, given that the pre‑enactment challenge – which, as analysed above, essentially turned on the first of the two arguments run by Mr Lee based on article 73(1) which was, with respect, wholly unarguable, it was an important factor for the judge to take into account which he did.

82.  I also agree with the judge’s assessment that the applicant had his own political agenda in mind in pursuing the pre‑enactment challenge (whether one agrees with his political views on the amendments or with the filibustering exercise is neither here nor there).  His insistence on applying for interim injunctive relief until the tail end of Mr Lee’s opening speech at the hearing on 18 May 2012 was also something that the judge could and did take into account.

83.  The judge also rightly took into account the fact that in the papers he filed in support of his leave application, the applicant did not refer the court to two leading local authorities, in which he was personally involved, on parliamentary privilege (Leung Kwok Hung; Cheng Kar Shun).  He also rightly rejected his argument based on lack of resources.

84.  All in all, I find no justification for interfering with the judge’s exercise of discretion on costs.

85.  The possibility that the Court of Final Appeal may in a later case give authoritative guidance on the question of costs when a leave application fails is not a good reason to adjourn the present appeal on costs.  I see no reason why this court should not decide the costs appeal on the law as it stands.

86.  I would dismiss the appeal on costs.

The costs of this appeal

87.  Finally, as regards the costs of this appeal, the applicant had already had the benefit of the two judgments of the learned judge which I would uphold, when he lodged the present appeal.  His arguments at this post‑enactment stage are no better than those at the pre‑enactment stage before the judge.  They are not reasonably arguable.  I see no reason why costs should not follow the event.  As presently advised, I would order him to pay the costs of the putative respondent in this appeal.

88.  I can understand why the judge declined to order the costs of the Secretary for Justice against this applicant.  However, this appeal involves a post‑enactment challenge directed at the amendments which are already law.  The Secretary for Justice is a necessary party to this appeal to defend the legal validity of the amendments.  At present, I see no reason why his costs should not be borne by the applicant.

89.  I would therefore make a costs order nisi that the applicant pay to the putative respondent and to the Secretary for Justice respectively their costs of the appeal, to be taxed if not agreed, together with a certificate for two counsel.  Any application to vary the costs order nisi will be dealt with on paper.

Hon Kwan JA:

90.  For the reasons given by the Chief Judge, I agree with him the substantive appeal and the appeal on costs should be dismissed.  I agree also with him on the costs order nisi of this appeal.

Hon Poon J:

91.  I agree with the judgment of the Chief Judge.  I too would dismiss the substantive appeal and the appeal on costs.  I also agree with the costs orders that the Chief Judge has made.  I would like to emphasize one particular point only.

92.  Stripped of all the niceties of legal submissions, the stark facts before Lam J were these.  When the filibustering tactics that the applicant and his political allies in the Legislative Council deployed against the Bill failed because the President ended the debate, he rushed to court to seek the court's immediate intervention in the legislative process.  But, as explained by Lam J and the Chief Judge, on the facts of this case, there was simply no basis whatsoever for the court to disregard the parliamentary privilege and intervene in the internal workings of the Legislative Council.  In my view, the application for judicial review was no more than a further but futile attempt by the applicant to delay the legislative process of the Bill.  Put bluntly, he wanted to pursue something in the court which he had already failed to achieve in the political arena.  It is only right that leave was refused lest the court's process would be used (or abused to be more precise) by the applicant for his own political agenda.

Hon Cheung CJHC:

93.  We accordingly dismiss the appeal.  We also make a costs order nisi as set out in paragraph 89 above.

(Andrew Cheung)

Chief Judge of the

High Court     (Susan Kwan)

Justice of Appeal

      (Jeremy Poon)

Judge of the Court of First Instance

Mr Martin Lee SC, Mr Hectar Pun and Mr Carter Chim, instructed by Lam and Lai, for the applicant

Mr Jat Sew Tong SC and Mr Anthony Chan, instructed by Lo & Lo, for the putative respondent

Mr Jin Pao, instructed by the Department of Justice, for the Secretary for Justice

Frank Ching

The appearance in the Hong Kong legislature of filibustering — the practice of allowing one or more members to delay or prevent a vote on a proposal by limitless speechifying — signals the danger that the former British colony may embrace extreme forms of democracy without the rules and regulations that Western parliaments have developed.

Until discussion was cut off last Thursday by Jasper Tsang, the president of the Legislative Council, a handful of pro-democracy legislators had staged marathon sessions for two weeks to prevent passage of a government proposal that lawmakers who resign midterm cannot stand in a by-election within six months.

This is a proposal on which reasonable people may differ, but is it really appropriate to dub the proposition “draconian,” as some radicals have done? Should elected legislators be free to resign and run for the same seats repeatedly, at great cost to the taxpayer? The bill is an attempt by the government to plug what it sees as a loophole.

There is a danger that pan-democrats in Hong Kong, which is scheduled to hold its first elections for chief executive by universal suffrage in 2017, will reject anything they see as contaminating the purity of democracy.

Thus, they are calling for the abolition of all elections by a limited franchise, such as the current system of “functional constituencies” under which, for example, lawyers elect a lawyer, teachers elect a teacher and bankers elect a banker to serve as legislators.

Some democrats are also opposed to a bicameral system as somehow less democratic. Certainly, the Canadian system, under which members of the upper house are appointed rather than elected, would never pass muster in Hong Kong.

While filibusters have historically been held in certain countries, various parliaments have taken action to limit the right of a tiny minority to frustrate the will of the majority of legislators. Australia, for example, has adopted rules on how long legislators may speak, thus making it impossible to filibuster.

In the United States, filibustering not allowed in the House though it is allowed in the Senate. However, even in the Senate, filibustering can be halted by a vote by three-fifths of all senators, or 60 out of 100.

Hong Kong, however, has no rules regarding how a filibuster can be ended. Such rules are clearly needed.

But Hong Kong's radical democrats have charged headlong into the filibustering exercise without first working out the rules of the game.

n the absence of such rules, Council President Tsang, in cutting off debate, invoked Article 92 of the council's rules of procedure, which empowers the president “in any matter not provided in these rules of procedure” to be “guided by the practice and procedures of other legislatures.”

Outraged pan-democrats responded by calling the decision “the darkest day in the history of the Legislative Council.”

The president's decision was challenged by Legislator Leung Kwok-hung, better known as “Long Hair,” who applied for judicial review in the High Court. His lawyer argued that a legislator has a “constitutional right to speak” and that it is “very important to safeguard” this right. But the court rejected the application.

This episode underlines the need for checks and balances in any democratic system.

It is fine to defend principles such as the freedom of legislators to speak. But while each legislator has the right to speak, it is illogical to argue that the exercise of an individual's right is more important than the ability of the legislature to carry out its intended function of making laws.

In an ideal world, it may be true that all rights should be absolutely upheld. In the real world, such a stance would mean the crippling of all institutions designed to serve the needs of the people.

It is already evident that the most developed democracy in the world — the United States — is paralyzed by gridlock precisely because different parties believe in giving priority to their own rights without regard to the welfare of the larger community.

As Hong Kong moves towards full democracy in the coming years, it is vital that those who espouse its cause recognize that democracy is not the end but the means to delivering good governance.

This is the ultimate test of any system of government. If those who advocate democracy do not keep this ultimate objective in mind and go even further than what mature western democracies deem to be wise, they will be doing a grave disservice not only to Hong Kong but to democracy itself.

Frank.ching@gmail.com

曾鈺成「剪布」所依據的相關基本法及議事規則條文

　　基本法第72條
　　香港特別行政區立法會主席行使下列職權：
　　（一）主持會議；
　　（二）決定議程，政府提出的議案須優先列入議程；
　　（三）決定開會時間；
　　（四）在休會期間可召開特別會議；
　　（五）應行政長官的要求召開緊急會議；
　　（六）立法會議事規則所規定的其他職權。
　　基本法第73條
　　香港特別行政區立法會行使下列職權：
　　（一）根據本法規定並依照法定程序制定、修改和廢除法律；
　　（二）根據政府的提案，審核、通過財政預算；
　　（三）批準稅收和公共開支；
　　（四）聽取行政長官的施政報告並進行辯論；
　　（五）對政府的工作提出質詢；
　　（六）就任何有關公共利益問題進行辯論；
　　（七）同意終審法院法官和高等法院首席法官的任免；
　　（八）接受香港居民申訴並作出處理；
　　（九）如立法會全體議員的四分之一聯合動議，指控行政長官有嚴重違法或瀆職行為而不辭職，經立法會通過進行調查，立法會可委托終審法院首席法官 負責組成獨立的調查委員會，並擔任主席。調查委員會負責進行調查，並向立法會提出報告。如該調查委員會認為有足夠證據構成上述指控，立法會以全體議員三分 之二多數通過，可提出彈劾案，報請中央人民政府決定；
　　（十）在行使上述各項職權時，如有需要，可傳召有關人士出席作證和提供證據。
　　議事規則第92條
　　對於本議事規則內未有作出規定的事宜，立法會所須遵循的方式及程序由立法會主席決定；如立法會主席認為適合，可參照其他立法機關的慣例及程序處理。