【本報訊】立法會議員梁國雄不滿立法會主席曾鈺成兩年前在立法會討論遞補機制時「剪布」而提出司法覆核，但先後在高院原訟庭和上訴庭敗訴，他其後上訴至終審法院，但於聆訊後亦被即時駁回，終院昨頒下書面判詞，解釋裁決原因。終院指出，《基本法》有關賦予立法會議員參與立法會立法程序權利的條文，並不是給予個別議員根據個人意願任意行使權利干擾會議。
參與立法屬立法會整體權利
代表梁國雄的律師早前向終院指，根據《基本法》第73（1）條，作為立法會議員的梁有參與立法會立法程序的權利，但該權利現被立法會主席剝奪。終院在判詞中則指出，有關條文是給予立法會整體的權利，而非給予個別議員根據個人意願任意行使權利干擾會議。而且根據《基本法》第72（1）條，立法會主席可行使其「主持會議」的權力，有權就辯論設定限制及終結辯論。至於主席有否恰當行使權力，判詞指並非法院可以干預。
梁國雄的律師曾引述以色列的案例，指當地亦曾有由法院干預立法機關的決定，由於香港與以色列同樣行使普通法，故認為香港亦應跟從。不過，終院判詞指出，以色列的情況及環境均與香港不同，香港毋須跟從以色列的案例。
案件編號：FACV 1/2014
[Chinese
Translation-中譯本]
新聞摘要
梁國雄
對
香港特別行政區立法會主席
及
律政司司長
終院民事上訴2014年第1號
（原高院上訴法庭民事上訴2012年第123號）
上訴人：梁國雄
指認答辯人：香港特別行政區立法會主席
指認介入人：律政司司長
主審法官：終審法院首席法官馬道立、終審法院常任法官李義、終審法院常任法官鄧國楨、終審法院常任法官霍兆剛及終審法院非常任法官梅師賢爵士
下級法庭：原訟法庭（高等法院原訟法庭法官林文瀚）；上訴法庭（高等法院首席法官張舉能、高等法院上訴法庭法官關淑馨及高等法院原訟法庭法官潘兆初）
判決：本院一致裁定駁回上訴
判案書：由終審法院頒發
聆訊日期：2014年9月10日
判決日期：2014年9月10 日
判決理由書頒發日期：2014年9月29日
法律代表：
資深大律師李柱銘先生、大律師潘熙先生及大律師詹鋌鏘先生（由張柱才律師事務所延聘）代表上訴人
資深大律師余若海先生及大律師陳浩淇先生（由羅文錦律師樓延聘）代表指認答辯人
資深大律師黃繼明先生及大律師鮑進龍先生（由律政司延聘）代表指認介入人
摘要：
1. 2012年2月8日，《2012年立法會（修訂）條例草案》（下稱「該條例草案」）給提交立法會進行首讀，並於2012年5月2日進行二讀。該條例草案旨在訂明，已辭去立法會議員席位的人，在其辭職後6個月内，喪失在立法會同一屆任期中舉行的補選參選的資格。於二讀前，兩位議員提出共1,306項對該條例草案的修訂。此乃上訴人及其他議員公開宣佈對該條例草案使用的「拉布」手段。
2. 2012年5月17日，辯論已持續超過33小時。在此期間，主席曾多次指出，上訴人及其他「拉布」議員的發言與草案條款及修訂無關。某位議員提及在其他立法議會設有的一項「終止動議」，並提議主席立即結束辯論。
3. 其後，主席在同日上午9時宣布他決定讓所有涉及的議員及官員發言至中午12時以結束辯論。他的決定是以《立法會議事規則》第92條規則為依據。該條規則規定，對於議事規則内「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。辯論按指示結束。議員對該條例草案提出的修訂便付諸表決，所有修訂均被否決。該條例草案最終於2012年6月1日成爲法律。
4. 本宗上訴帶出兩項爭議點：首先，在顧及《基本法》及《立法會議事規則》下，立法會主席在立法程序期間作出的決定，在何等情況下可被司法覆核？其次，在鑒於首項問題的答案下，立法會主席於2012年5月17日，宣稱以《基本法》第72(1)條及《立法會議事規則》第92條規則為依據，決定在全體委員會審議階段結束對該條例草案的修訂的辯論，該決定可否被司法覆核？
5. 關於首項爭議點，終審法院裁定，基於公共政策、《基本法》中就憲法上三權分立所訂立的規定，以及三權分立的法則和深扎在普通法中的不干預原則，本院只會行使司法管轄權以裁定立法會或其主席是否擁有某項權力、特權或豁免權，而非裁定某項權力、特權或豁免權的行使方式。
6. 關於次項爭議點，上訴人陳詞稱，立法會主席的決定可被司法覆核，因爲《基本法》第73(1)條賦予作爲立法會議員的上訴人參與立法會立法程序的權利，但該項權利被主席的有關決定剝奪；亦因爲《立法會議事規則》第92條規則沒有賦予主席結束辯論的權力。本院裁定，《基本法》第73條的目的，是賦予作爲立法機構的立法會而非個別的立法會議員若干職權。本院進一步裁定，固有或附帶於立法會主席在《基本法》第72(1)條下「主持會議」的權力，主席有權對辯論設定限制和終結辯論；至於主席有否恰當地行使權力，或主席的決定是否構成未經授權地訂立議事規則等問題，均非由本院考慮。
7. 據此，本院一致裁定駁回上訴。
FACV No.
1 of 2014
IN THE
COURT OF FINAL APPEAL OF THE
HONG
KONG SPECIAL ADMINISTRATIVE REGION
FINAL
APPEAL NO. 1 OF 2014 (CIVIL)
(ON APPEAL
FROM CACV No. 123 of 2012)
_____________________
Between
:
LEUNG
KWOK HUNG Appellant
and
THE
PRESIDENT OF THE LEGISLATIVE COUNCIL OF THE HONG KONG SPECIAL ADMINISTRATIVE
REGION Putative
Respondent
SECRETARY
FOR JUSTICE Putative
Intervener
_____________________
Before : Chief Justice Ma, Mr Justice Ribeiro PJ, Mr
Justice Tang PJ, Mr Justice Fok PJ, Sir Anthony Mason NPJ
Date of
Hearing & Judgment: 10 September 2014
Date of
Reasons for Judgment: 29 September 2014
____________________________________
REASONS
FOR JUDGMENT
____________________________________
The
Court:
1. On 10
September 2014 we dismissed this appeal at the end of the appellant’s argument,
without calling on the putative respondent and the putative intervener and
announced that our reasons for judgment would be published on a date to be
notified. We also ordered that the
parties file and serve written submissions as to costs within fourteen days of
the publication of our reasons. The
paragraphs which follow set out our reasons for judgment.
The
questions arising in the this appeal
2. This
appeal raises two questions of fundamental importance. They relate to the
amenability of the processes of the Legislative Council (“the LegCo”), in
particular decisions made by its President in the course of the legislative
process, to review by the courts of Hong Kong.
3. The
Appeal Committee of this Court granted the appellant, who is a member of the
Council, leave to appeal from a decision of the Court of Appeal on the basis
that the following two questions of great general or public importance are
involved in this appeal:
(1) Having regard to the Basic Law (“BL”) and the
Rules of Procedure (“the Rules”) of the LegCo, under what circumstances may a
decision of the President of the LegCo made during the legislative process be
judicially reviewed?
(2) In light of the answer to the 1st Question
above, is the decision of the President of the LegCo on 17 May 2012 to close
the debate of the committee of the whole Council on the amendments to the
Legislative Council (Amendment) Bill 2012 (“the Bill”), purportedly pursuant to
Article 72(1) of the BL and Rule 92 of the Rules, amenable to judicial review?
The
facts
4. For
the purpose of these reasons, it is sufficient to state the facts as they were
recorded in the judgment of Cheung CJHC.
5. The
Bill was introduced by the Administration into the LegCo for first reading on 8
February 2012. The object of the Bill
was to disqualify a person who has resigned as a member of the LegCo 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 the LegCo. 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 LegCo members had been given permission by the
President of the LegCo (“the President”) 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.
6. The
avowed intention of the two legislators and their ally, the appellant (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.
7. 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 lacked a quorum. 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.
8. The
debate took place at meetings of the Committee of the whole Council which were,
in accordance with the Rules, presided over by the President as chairman.
9. 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 appellant was one of them) which were irrelevant to the
clauses and amendments, and had made decisions and rulings accordingly. In this situation, a Legislative Councillor
made reference to the procedure called “closure motion” in other legislative
bodies and suggested the President should conclude the debate immediately.
10. 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 which relevantly provides that “in any matter not provided for” in
those rules, the practice and procedure to be followed shall be as decided by
the President. 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
proceedings in the courts below
11.
Aggrieved by the President’s decision to end the debate and thus the filibustering
exercise, the appellant 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,
before the passage of the Bill on 1 June 2012.
12. Lam
J refused leave to apply for judicial review, giving comprehensive reasons for
the refusal of leave. He rejected the
appellant’s argument that art 73(1) of the BL conferred a constitutional right
to participate in the legislative processes of LegCo on a member of LegCo and
also required the courts to exercise jurisdiction to review the procedural
regularity of those processes, and held that, even if the Appellant had a good
case for constitutional challenge, there was no reason for the court to
entertain it at the pre-enactment stage.
After consideration of written submissions lodged by the parties, his
Lordship ordered the appellant to pay the President’s costs of the application
and made no order as to costs between the appellant and the Secretary for
Justice.
13. The
appellant appealed to the Court of Appeal against the orders made by Lam
J. The appellant’s notice of appeal was
filed on 2 June 2012, the day after the passage of the Bill on 1 June
2012. A consequence of these events was
that the appellant’s challenge to the President’s decision to terminate the
debate was treated as having beenconverted from a pre-enactment challenge to
the President’s decision to close the debate under rule 92 to a post-enactment
challenge to the validity of the Legislative Council (Amendment) Act 2012 based
on the alleged invalidity of the President’s decision.
14. The
Court of Appeal unanimously dismissed the appeal and ordered the appellant to
pay the costs of both respondent and intervener. The principal judgment was
delivered by Cheung CJHC, with Kwan JA agreeing and Poon J agreeing in a short
separate judgment. In the Court of
Appeal, the appellant submitted, as he had submitted before Lam J, that, as a
member of LegCo, he had a right under the BL and the Rules to participate in
the processes of LegCo, that the President’s decision to close the debate
denied this right and that the superior courts of Hong Kong have jurisdiction
to review the processes of LegCo. The Court of Appeal rejected this submission,
as Lam J had done at first instance, rejecting the appellant’s arguments based
on art 73(1) of the BL and applying the principle that the courts do not
intervene to review the internal processes of the legislature. The Court of Appeal refrained from expressing
any view on rule 92 and the other rules referred to in argument.
The
appellant’s argument in this Court
15. Mr
Martin Lee, SC for the appellant submitted that art 73(1) confers on the
appellant as a member of LegCo a right to participate in the legislative
processes of LegCo and makes compliance with the provisions of the BL and the
Rules a condition of the validity of legislation enacted by LegCo. The next step in his argument was to say that
rule 92 conferred no power on the President to close the debate and that,
accordingly, non-compliance with the Rules vitiated the amendments which were
subsequently enacted because art 73(1) stipulates that laws be made “in
accordance with the provisions of this Law and legal procedures”.
16. The
appellant’s argument in this Court differs from the argument presented for the
appellant in the courts below in that the case presented here draws on the case
law of the Israeli High Court of Justice on the Israeli Basic Law: The Knesset
(1958) and the Israeli Basic Law: The Judiciary (1984). According to the appellant, the Israeli cases
show that Israel has recognized that a member of the Knesset, the Israeli
legislature, has a right to participate in the legislative processes of the
legislature and has rejected the English approach that parliamentary
proceedings are excluded from the range of judicial review. Instead, the Israeli High Court of Justice
has adopted as the test for judicial intervention in the legislative process
the question whether the defect that has occurred in the legislative process is
a defect that goes to the heart of the process.
There was in this case, so the appellant submitted, such a defect
because the President was not entitled to rely on rule 92.
17. On
the other hand, according to the printed cases of the putative respondent
(“respondent”) and the putative intervener (“intervener”) the appellant should
not be permitted to rely in this Court for the first time on the Israeli
jurisprudence and the recognition in that jurisprudence of the principle that
the courts will intervene to redress a defect that has occurred in the
legislative process which goes to the heart of the process. To permit the appellant to do so, so the
respondent and the intervener contended, would be to allow the appellant to
raise new matter which was not considered by the courts below. According to the printed cases of the
respondent and the intervener, the Israeli decisions should not be followed in
Hong Kong because they are at variance with accepted common law principle and
consequently both Lam J and the Court of Appeal were correct in rejecting the
appellant’s case.
18.
Because we came to the conclusion at the end of the appellant’s argument that
the appeal must fail, even if the appellant’s reliance on the Israeli
jurisprudence were taken into account, we did not call on the respondent and
the intervener. It follows that we did
not hear them in support of their preliminary objection to the use of the
Israeli materials by the appellant. It
is therefore important that we make the point that we have assumed, without
deciding, that those materials are properly before the court in support of the
appellant’s case. Later in these
reasons, we state the grounds for our conclusion that as a matter of common law
principle and public policy the case for the adoption of the Israeli jurisprudence
is not compelling.
Article
73(1): Does it confer a right on the appellant to participate in the
legislative processes of LegCo?
19. Art
73(1) provides :
“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”
The
expression “legal procedures” plainly includes the Rules.
20. In
seeking to extract from this provision the conferring of a right on an
individual member to participate in LegCo’s legislative processes, Mr Martin
Lee, SC argued that a grant of law-making power to LegCo necessarily gives to
its members an individual constitutional right to participate in its
legislative processes “in accordance with the provisions” of the BL “and legal
procedures”. This right, it was claimed, embraced the right to speak at LegCo
meetings but it did not include the right to engage in a filibuster, as Mr Lee
SC correctly conceded.
21. The
problem with this argument lies in the nature and language of art 73 taken as a
whole. The purpose of the article, as is
apparent from its language, is to confer certain powers and functions on LegCo
as a law-making body, that is, as an institution. The article is not directed to the powers,
let alone the rights, of individual members of LegCo. There is no reference in
art 73, as there is in art 74[1], to members in their individual capacities.
22. That
the purpose of art 73 is not to confer rights on individual members of LegCo to
participate in its processes is supported by art 75[2] which authorises LegCo
to make its rules of procedure “on its own” and by the extensive powers
conferred on the President by art 72.
The two articles indicate that LegCo is to have exclusive authority in
determining its procedure and that the President is to exercise his power to
“preside over meetings” under art 72 so as to ensure the orderly, efficient and
fair disposition of LegCo’s business.
23. The
consequences of the interpretation of art 73(1) advanced on behalf of the
appellant are so daunting as to invite, if not demand, its rejection. The appellant’s interpretation would open the
door to the courts so that any member of LegCo who was dissatisfied with the
way in which the Rules were applied to him, or with rulings of the President,
could seek relief from the courts by way of judicial review, not only
post-enactment, but more importantly, pre-enactment. This prospect would be extremely damaging to
the orderly, efficient and fair deliberations and working of LegCo. Its proceedings would be liable to
disruption, delays and uncertainties occasioned by applications for judicial
review, judgments and appeals.
24. This
point, which was well made by the Court of Appeal in this case, is supported by
the judgment of Binnie J who delivered the judgment of the Supreme Court of
Canada in Canada (House of Common) v Vaid[3] where a similar or related
question arose. Binnie J had this to
say:
“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.”
25.
Accordingly, we concluded that for the reasons already stated, art 73(1) does
not confer on a member of LegCo a constitutional right to participate in its
legislative processes by speaking. We
agree with the conclusion reached by the Court of Appeal on this point and with
Hartmann J in Leung Kwok Hung v President of the Legislative Council who said:
“The powers and functions
described in art 73 are not given to members of LegCo as individuals but to
LegCo itself sitting as a legislative body”[4]
Article
73(1): Does it mandate the exercise of jurisdiction by the Hong Kong courts to
ensure compliance with the Rules in the legislative processes of LegCo?
26. Mr
Martin Lee SC’s submission on this point was that the grant of law-making power
is conditioned by the words “in accordance with” on compliance with the Rules
and with rulings by the President pursuant to his powers. The answer to this submission is to be found
in the provisions of the BL and in the principles of the common law governing
the independence and autonomy of legislatures and the jurisdiction of the
courts to intervene in matters concerning the internal processes of such
law-making bodies.
27. It
is convenient to deal, first, with the relevant common law principles. Although these principles have their origin
in the power, privileges and characteristics of the Parliament, in particular
the House of Commons, in the United Kingdom and in the recognition by the
courts of the exclusive authority of the Parliament to determine its own
internal procedures, it is preferable now to regard the relationship between a
legislature and the courts as an outcome of the application of the doctrine of
the separation of powers. This doctrine
is a common law doctrine which, in the case of Hong Kong, is reinforced by the
constitutional separation of powers provided for by the BL. Sections 1 and 2 of Ch IV “The Political
Structure” set out the powers and functions of the Executive and Executives
Agencies while Sections 3 and 4 make similar provision for the Legislature and
the Judiciary. Art 2 of the BL also recognises the separation of powers in
providing:
“The National People's Congress
authorizes the Hong Kong Special Administrative Region to exercise a high
degree of autonomy and enjoy executive, legislative and independent judicial
power, including that of final adjudication, in accordance with the provisions
of this Law.”
28. In
construing and applying the provisions of the BL, it is necessary not only to
apply common law principles of interpretation but also principles, doctrines,
concepts and understandings which are embedded in the common law. They include the doctrine of the separation
of powers and, within it, the established relationship between the legislature
and the courts. This relationship
includes the principle that the courts will recognise the exclusive authority
of the legislature in managing its own internal processes in the conduct of its
business, in particular its legislative processes. The corollary is the proposition that the
courts will not intervene to rule on the regularity or irregularity of the
internal processes of the legislature but will leave it to determine
exclusively for itself matters of this kind (“the non-intervention
principle”)[5].
29. The
strength of this proposition rests not only on principle and authority but also
on public policy. In Hong Kong, LegCo
has as its primary responsibility its law-making function. It also has vested in it other important
powers and functions under art 73, for example:
“ (2) To examine and approve
budgets introduced by the government;
(3) To
approve taxation and public expenditure;
(4) To
receive and debate the policy addresses of the Chief Executive;
(5) To
raise questions on the work of the government;
(6) To
debate any issue concerning public interests;”
30. The
important responsibilities of LegCo, notably its law-making function, require,
as with other legislatures, that it should be left to manage and resolve its
own internal affairs, free from intervention by the courts and from the
possible disruption, delays and uncertainties which could result from such
intervention. Freedom from these
problems is both desirable and necessary in the interests of the orderly,
efficient and fair disposition of LegCo’s business.
31. The
adoption of the principle of non-intervention by the courts will reduce, if not
eliminate, the prospect of pre-enactment challenge to proceedings in
LegCo. It will also reduce, if not
eliminate, post-enactment challenges to the validity of laws made by LegCo
based on irregularity in its proceedings, unless such an irregularity amounts
to non-compliance with a requirement on which the validity of a law depends.
32. In
this respect it is important to recognise that the principle of
non-intervention is necessarily subject to constitutional requirements. The provisions of a written constitution may
make the validity of a law depend upon any fact, event or circumstance they
identify, and if one so identified is a proceeding in, or compliance with, a procedure
in the legislature the courts must take it under its cognizance in order to
determine whether the supposed law is a valid law[6]. In Australia, Cormack v
Cope was such a case. There s 57 of the
Australian Constitution provided a means of resolving a deadlock between the
two Houses of Parliament culminating in a joint sitting of the two Houses to
deliberate and vote upon a proposed law.
But the section prescribed a procedure to be followed and compliance
with that procedure was a condition of the validity of the proposed law when
enacted.
33.
Although the principle of non-intervention is directed to pre-enactment
judicial intervention in the legislative processes, the grounds on which the
principle is based have generated a strong related principle of interpretation
or presumption. That principle or
presumption is that the courts will lean against an interpretation of a
constitutional provision that makes compliance with procedural regularity in
the law-making processes of a legislature a condition of the validity of an
enacted law.
34. It
follows that art 73(1) is to be interpreted in the light of the foregoing
background of common law principle and policy considerations. In this respect,
we refer to the judgment of Lord Cooke of Thorndon P in Ah Chong v Legislative
Assembly of Western Samoa[7] where he said with reference to the principle of
non-intervention:
“…like all principles this one has
its limits and they are not always easily discernible. One limit must be that a
written constitution such as that of Western Samoa may place upon the Courts
some duty of scrutinising Parliamentary proceedings for alleged breaches of
constitutional requirements. Thus, while normally it is for a legislative
assembly to determine the effect of its own standing orders and to depart from
them if the assembly sees fit, a Constitution may displace that presumption by
making compliance with the standing orders a condition of the validity of the
legislation or, no doubt, of the validity of other steps taken by the assembly.
But we agree with McLelland J in Namoi Shire Council v Attorney-General for New
South Wales [1980] 2 NSWLR 639, 645, that the Court would lean against such an
interpretation, an approach also to be seen as suggested by the Niue Court of
Appeal in the judgment already cited. In the present case Sapolu CJ would have
required ‘irresistible clarity’. Possibly, in our respectful opinion, that puts
the test a little high, but certainly any real ambiguity would be resolved in
favour of non-intervention.”[8]
35. We
refer also to the decision of the Privy Council in The Bahamas Methodist Church
v Symonette because it illustrates the force of the interpretive principle
favouring an interpretation of a Constitution which does not make compliance
with procedural requirements in the legislative process a pre-condition of the
validity of a law. There art 59(1) of
the Constitution of the Bahamas enabled any member of the House, subject to the
Constitution and the rules of procedure to introduce a Bill, or propose a
motion for debate or present a petition.
The article also provided that any proceeding initiated by a member
should be debated and disposed of “according to the rules of procedure of the
House”. The Privy Council held that the
first provision did not make compliance with the rules a violation of the
Constitution and that the second provision did not deprive either House of the
power given by art 55(1) to regulate its own affairs. The Privy Council further held that clear
language would be required to justify an interpretation of art 59(1) which
opened to scrutiny the legislative processes of the House.
36. The
critical aspect of art 73(1) is that it makes no attempt to address the
question whether non-compliance with “legal procedures” will result in invalidity
of a law which is enacted after non-compliance with such procedures. Because non-compliance with provisions of the
BL will result in invalidity, it could be suggested that a similar consequence
follows from non-compliance with “legal procedures”. Such a consequence, however, could not have
been intended because it would entail the invalidity of a law enacted after a
trivial or relatively minor infringement of the relevant “legal procedures”.
37. One
possible answer to this problem would be to interpret the article so that
invalidity results only when the infringement of the “legal procedures” is
substantial, or to use the Israeli terminology, goes to “the heart” of the
legislative processes. In our view, neither
of these criteria is sufficiently precise to define the basis on which the
courts should exercise a jurisdiction to intervene in the legislative process
or to determine the validity of a law the enactment of which proceeds from
non-compliance with the relevant procedure.
In any event, it is a matter of conjecture to suggest that the intent of
art 73(1) was to mandate the application of any such criterion.
38.
Accordingly, we concluded that the provisions of art 73(1) are ambiguous on the
point under consideration and that they do not displace the principle of
non-intervention. Indeed, art 75 by
providing that Rules shall be made by LegCo “on its own” supports the
application of that principle here. Our
conclusion on art 73(1) is, however, subject to one important qualification.
39. This
qualification arises from the circumstance that, in the case of a written
constitution, which confers law-making powers and functions on the legislature,
the courts will determine whether the legislature has a particular power,
privilege or immunity. In R v Richards;
Ex parte Fitzpatrick v Browne[9], Dixon
CJ, speaking for the High Court of Australia and with reference to the two
Houses of the Australian Parliament, said:
“it is for the courts to judge of
the existence in either House of Parliament of a privilege, but, given an
undoubted privilege, it is for the House to judge of the occasion and of the
manner of its exercise”.[10]
40.
Adopting a similar approach, in a case concerning the privileges of the Nova
Scotia House of Assembly, McLachlin J said:
“It is for the courts to determine
whether necessity sufficient to support a privilege is made out.”[11]
McLachlin
J went on to say:
“The test of necessity is not
applied as a standard for judging the content of a claimed privilege, but for
the purpose of determining the necessary sphere of exclusive or absolute
‘parliamentary’ or ‘legislative’ jurisdiction. If a matter falls within this
necessary sphere of matters without which the dignity and efficiency of the
House cannot be upheld, courts will not inquire into questions concerning such
privilege. All such questions will instead fall to the exclusive jurisdiction
of the legislative body.
Thus the
test of necessity for privilege is a jurisdictional test.”[12]
The
learned judge also observed that, if the courts went on to examine particular
exercises of privilege,
“they would trump the exclusive
jurisdiction of the legislative body”
It
followed that the area for court review is “only at the initial jurisdictional
level”.[13]
41. In
referring to necessity, McLachlin J was addressing a situation in which it was
essential to show that the existence of a particular privilege was necessary
for a legislature to exercise its functions.
The foundation for the approach taken by McLachlin J was the famous
decision in Stockdale v Hansard[14].
42. In
Egan v Willis[15], Gaudron, Gummow and Hayne JJ referred to the two judgments
referred to in paragraphs 39 and 40 with evident approval and went on to apply
the principle enunciated in the two cases to the powers of a House of the New
South Wales Parliament[16]. McHugh J
likewise accepted the principle stated in the two judgments and applied it to
the powers of the New South Wales House[17]. Kirby J was of a similar, albeit
not precisely the same opinion[18], while Callinan J seems to have been of the
same opinion[19]. In the result, the
High Court of Australia held in Egan v Willis that a court may judge the
existence of a power, privilege or immunity in a House of Parliament but may
not examine the occasion and manner of its exercise and that a House of the New
South Wales Parliament has power to suspend for a limited time a member of the
House who refuses to produce a non-privileged document called for by the House.
43.
Accordingly, our conclusion on this point was that, although art 73(1) does not
make compliance with the Rules essential to the validity of the enactment of a
law by LegCo and that it is for LegCo itself to determine its own procedures
and how they will be applied, the courts will exercise jurisdiction to
determine the existence of a power, privilege or immunity of LegCo. We also arrived at the conclusion that the
courts will exercise jurisdiction to determine the existence of a power,
privilege or immunity of the President of LegCo. We arrived at this conclusion in the light,
not only of art 73(1), but also of the provisions of art 72 of the BL and the
important powers and functions which it confers on the President, particularly
the power to “preside over meetings”.
The courts, however, will not exercise jurisdiction to determine the
occasion or the manner of exercise of any such powers, privileges or immunities
either by LegCo or the President.
The
appellant’s argument that rule 92 did not authorise the President to put an end
to the filibuster and close the debate.
44. The
appellant’s case on this question was elusive, to say the least of it. The appellant’s principal argument was that
rule 92 could not authorise the President’s action because other rules, had
they been invoked or applied, would have justified the President’s decision to
close the debate. Rule 92 provides:
“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.”
According
to the President’s printed case, there is no rule which deals with a filibuster
or authorises him to take any action with respect to a filibuster, so rule 92
applies.
45. The
appellant contended that the President could have achieved the outcome which he
in fact achieved by recourse to rules 34, 38(1a), 41(1), 45(1) and (2) and
57(4) (a) and (b). The appellant’s
contention on this point was remarkable because it suggested that the dispute
in this case was academic in the sense that the only dispute was about the
basis for the decision taken by the President, not about the making of the
decision itself.
46. Be
this as it may, it is clear that the President has power to set limits to and
terminate a debate. The existence of the
power is inherent in, or incidental to, the power granted by art 72(1) to the
President to preside over meetings, quite apart from rule 92. The rules of procedure for which provision is
made by art 75, as far as they relate to the President and his powers and
functions, are necessarily subject to the provisions of art 72 setting out his
powers and functions. It is not for this
Court to consider whether or not the power was properly exercised. Nor is it for us to determine whether the
President’s decision constituted an unauthorized making of a rule of procedure,
although, in passing, we observe that the argument had nothing to commend
it. As for the rules which the appellant
suggested should have been applied, no doubt the President kept them in mind
for possible application to the situations to which they are addressed.
The
Israeli jurisprudence
47. Mr
Lee SC sought to support his interpretation of art 73(1) by reference to the
Israeli High Court of Justice decision in Israel Poultry Farmers Association v
Government of Israel[20] where Beinisch J said:
“22. The principle of
participation, according to which each Knesset member has a right to
participate in the legislative process, is also a basic principle in the
legislative process of democracies. The principle of participation is merely a
development of representative democracy and its application in parliamentary
law … the Knesset acts through the parties and through the Knesset members.
Therefore, in order to enable the Knesset to carry out its functions by virtue
of the principle of democratic representation, each Knesset member should be
allowed to participate in the parliamentary proceedings that are required in
order to carry out these functions.”[21]
48. The
recognition of the principle of participation, which seems to be
well-entrenched in Israeli jurisprudence, is inextricably linked with the
exercise by the Israeli High Court of Justice of a jurisdiction to intervene in
the legislative process at the pre-enactment stage when there is a “defect that
goes to the heart of the process”.
According to Mr Martin Lee, SC, the recognition of exercise of this
jurisdiction has evolved in a series of a cases, the principal decisions being
MK Sarid v Chairman of the Knesset[22], Litzman v Knesset Speaker[23] and the
Poultry Farmers Case[24] to which we have already referred in connection with
the principle of participation. These decisions
have rejected the English principle that parliamentary proceedings are excluded
from the range of judicial review and, instead, have recognised that the
Israeli High Court of Justice has jurisdiction to intervene in the legislative
process at the pre-enactment stage when there is “a defect that goes to the
heart of the process”.[25]
49. In
the Poultry Farmers Case, Beinisch J pointed out
“What is a ‘defect that goes to
the heart of the process’ is not decided in accordance with the classification
of the defect as a defect of ultra vires or as a formal violation of a certain
section in the Knesset Procedure Rules, but in accordance with the strength of
the violation that this defect causes to ‘major values of our constitutional
system’ or to basic values of our constitutional system that underlie the
legislative process…”[26]
Such an
approach, according to the learned judge, would restrict pre-enactment judicial
intervention, to “serious and rare defects”[27].
50.
There are other aspects of the Israeli jurisprudence which differ from the
traditional common law principles relating to judicial intervention in the
legislative processes. Breaches of
ordinary law, quite apart from breaches of the Israeli Basic Law, may prompt
judicial intervention. Further, a defect which goes to the heart of the
legislative process may not entail invalidity of the statute. It is said that one question which the Court
should examine is whether the defects would have been passed but for the
defect. It is also said that the Court
should take into account the degree of reliance on the legislation, the extent
of the reasonable expectations that it created and the consequences that will
arise from declaring it void[28].
51. In
the light of this brief and no doubt less than adequate summary of the Israeli
jurisprudence, based on the materials in the appellant’s printed case, we
concluded that the case for adoption by this Court of the Israeli jurisprudence
is less than compelling. In the first
place, the Israeli approach to judicial intervention in the legislative
processes is entirely at odds with the relevant and traditional principles of
common law constitutionalism and the public policy on which they are based.
Secondly, the principles governing such intervention by the Israeli High Court
of Justice seemed to us, with great respect, to be insufficiently precise to
offer firm guidance and to involve the making of judicial assessments of a kind
which common law courts do not usually make.
And we note that the appellant’s case contained no reference to a
decided case in which the Israeli High Court of Justice has exercised its
jurisdiction to intervene in the legislative processes.
52.
Accordingly, we declined to adopt the Israeli jurisprudence.
Conclusion
53. For
the foregoing reasons we made the order dismissing the appeal.
(Geoffrey
Ma)
Chief
Justice (R.A.V. Ribeiro)
Permanent
Judge (Robert Tang)
Permanent
Judge
(Joseph
Fok) (Sir Anthony Mason)
Permanent
Judge Non-Permanent Judge
Mr
Martin Lee SC, Mr Hectar Pun and Mr Carter Chim, instructed by JCC Cheung &
Co., for the Appellant
Mr
Benjamin Yu SC and Mr Anthony Chan, instructed by Lo & Lo, for the Putative
Respondent
Mr
Stewart K.M. Wong SC and Mr Jin Pao, instructed by the Department of Justice,
for the Putative Intervener
[1] Article 74 provides:
“Members of the Legislative Council of the
Hong Kong Special Administrative Region may introduce bills in accordance with
the provisions of this Law and legal procedures. Bills which do not relate to
public expenditure or political structure or the operation of the government
may be introduced individually or jointly by members of the Council. The
written consent of the Chief Executive shall be required before bills relating
to government policies are introduced.”
[2] Article 75 provides:
“The quorum for the meeting of the
Legislative Council of the Hong Kong Special Administrative Region shall be not
less than one half of all its members.
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.”
[3]
[2005] 1 SCR 667
[4]
[2007] 1 HKLRD 387 at §4
[5] See
the Bahamas Methodist Church v Symonette [2000] 5 LRC 196 at 207h-211a; Prebble
v Television New Zealand Ltd [1995] AC 321 at 332-333; Rediffusion (Hong Kong)
Ltd v Attorney General of Hong Kong [1970] AC 1136 at 1157; Cormack v Cope
(1974) 131 CLR 432 at 453-454
[6]Clayton
v Heffron (1960) 105 CLR 214 at 235; Bribery Commissioner v Ranasinghe (1965)
AC 172 at 197-198; Rediffusion (Hong Kong) Ltd v Attorney General Hong Kong
[1970] AC 1136 at 1156-1157; Cormack v
Cope (1974) 131 CLR 432 at 452, 473
[7]
[2001] NZAR 418
[8] ibid
at p 427
[9]
(1955) 92 CLR 157
[10]
ibid at 162
[11] New
Brunswick Broadcasting Co v Nova Scotia [1993] 1 SCR 319 at 382
[12]
ibid at 383
[13]
ibid at 384
[14]
(1839) 9 Ad & El, 112 ER 1112
[15]
[1998] 195 CLR 424
[16]
ibid at § 27
[17]
ibid at §§ 65-67
[18]
ibid at §§ 133-134
[19] At
§179
[20]
[2004] Isr LR 383
[21]
ibid at p 413, §22
[22] HCJ
652/81
[23]
[2004] Isr LR 363
[24]
[2004] Isr LR 383
[25]
ibid at §16 at pp 407-408
[26]
ibid; see also Litzman v Knesset Speaker [2004] Isr LR 363 at §16
[27]
[2004] Isr 383 at §16 at p 408
[28]
Israel Poultry Farmers Association v Government of Israel [2004] Isr LR 383 at
§17
