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。
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