Leung Kwok Hung v. The President of the Legislative Council of the Hong Kong Special Administrative Region
Read the full judgment text of HCAL 64/2012 on BabelCite. This High Court CFI judgment was delivered on 19 May 2012.
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.
Cited by 2 cases · Cites 5 cases
|
HCAL 64/2012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 64 OF 2012 ____________
____________
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,
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,
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,
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,
15.A legislator queried whether this would become a precedent. The chairman responded,
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,
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,
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,
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,
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,
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,
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,
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,
34.In a jurisdiction like Hong Kong which has a written constitution, there is a modification. At p 208i to 209a,
35.Lord Bingham referred to the exception at p 209c, and Mr Lee relied strongly on it,
36.In my judgment, the relevant principles can be stated as follows,
37.Applying these principles in the present case, the crucial issues are,
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,
39.The constitutional provision relied upon by Mr Lee is Article 73(1) of the Basic Law. It reads as follows,
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,
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,
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.
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 [1] See the discussion of historical developments in the United Kingdom and the United States in an article by Josh Chafetz in Vol 43, Connecticut Law Review, p 1003 at p 1017 to 1028. Please refer to CACV123/2012 for the relevant appeal(s) to the Court of Appeal. | |||||||||||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under HCAL 64/2012