Leung Kwok Hung v. The President of the Legislative Council of the Hong Kong Special Administrative Region and Another

Press Summary (English)

Press Summary (Chinese)

FACV No. 1 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2014 (CIVIL)

(ON APPEAL FROM CACV No. 123 of 2012)

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Between :

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REASONS FOR JUDGMENT

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The Court:

1.On 10 September 2014 we dismissed this appeal at the end of the appellant’s argument, without calling on the putative respondent and the putative intervener and announced that our reasons for judgment would be published on a date to be notified.  We also ordered that the parties file and serve written submissions as to costs within fourteen days of the publication of our reasons.  The paragraphs which follow set out our reasons for judgment. 

The questions arising in the this appeal

2.This appeal raises two questions of fundamental importance. They relate to the amenability of the processes of the Legislative Council (“the LegCo”), in particular decisions made by its President in the course of the legislative process, to review by the courts of Hong Kong.

3.The Appeal Committee of this Court granted the appellant, who is a member of the Council, leave to appeal from a decision of the  Court of Appeal on the basis that the following two questions of great general or public importance are involved in this appeal:

(1)  Having regard to the Basic Law (“BL”) and the Rules of Procedure (“the Rules”) of the LegCo, under what circumstances may a decision of the President of the LegCo made during the legislative process be judicially reviewed?

(2)  In light of the answer to the 1^st Question above, is the decision of the President of the LegCo on 17 May 2012 to close the debate of the committee of the whole Council on the amendments to the Legislative Council (Amendment) Bill 2012 (“the Bill”), purportedly pursuant to Article 72(1) of the BL and Rule 92 of the Rules, amenable to judicial review?

The facts

4.For the purpose of these reasons, it is sufficient to state the facts as they were recorded in the judgment of Cheung CJHC.

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

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

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

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

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

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

The proceedings in the courts below

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

12.Lam J refused leave to apply for judicial review, giving comprehensive reasons for the refusal of leave.  He rejected the appellant’s argument that art 73(1) of the BL conferred a constitutional right to participate in the legislative processes of LegCo on a member of LegCo and also required the courts to exercise jurisdiction to review the procedural regularity of those processes, and held that, even if the Appellant had a good case for constitutional challenge, there was no reason for the court to entertain it at the pre-enactment stage.  After consideration of written submissions lodged by the parties, his Lordship ordered the appellant to pay the President’s costs of the application and made no order as to costs between the appellant and the Secretary for Justice.

13.The appellant appealed to the Court of Appeal against the orders made by Lam J.  The appellant’s notice of appeal was filed on 2 June 2012, the day after the passage of the Bill on 1 June 2012.  A consequence of these events was that the appellant’s challenge to the President’s decision to terminate the debate was treated as having beenconverted from a pre-enactment challenge to the President’s decision to close the debate under rule 92 to a post-enactment challenge to the validity of the Legislative Council (Amendment) Act 2012 based on the alleged invalidity of the President’s decision.

14.The Court of Appeal unanimously dismissed the appeal and ordered the appellant to pay the costs of both respondent and intervener. The principal judgment was delivered by Cheung CJHC, with Kwan JA agreeing and Poon J agreeing in a short separate judgment.  In the Court of Appeal, the appellant submitted, as he had submitted before Lam J, that, as a member of LegCo, he had a right under the BL and the Rules to participate in the processes of LegCo, that the President’s decision to close the debate denied this right and that the superior courts of Hong Kong have jurisdiction to review the processes of LegCo. The Court of Appeal rejected this submission, as Lam J had done at first instance, rejecting the appellant’s arguments based on art 73(1) of the BL and applying the principle that the courts do not intervene to review the internal processes of the legislature.  The Court of Appeal refrained from expressing any view on rule 92 and the other rules referred to in argument.

The appellant’s argument in this Court

15.Mr Martin Lee, SC for the appellant submitted that art 73(1) confers on the appellant as a member of LegCo a right to participate in the legislative processes of LegCo and makes compliance with the provisions of the BL and the Rules a condition of the validity of legislation enacted by LegCo.  The next step in his argument was to say that rule 92 conferred no power on the President to close the debate and that, accordingly, non-compliance with the Rules vitiated the amendments which were subsequently enacted because art 73(1) stipulates that laws be made “in accordance with the provisions of this Law and legal procedures”.

16.The appellant’s argument in this Court differs from the argument presented for the appellant in the courts below in that the case presented here draws on the case law of the Israeli High Court of Justice on the Israeli Basic Law: The Knesset (1958) and the Israeli Basic Law: The Judiciary (1984).  According to the appellant, the Israeli cases show that Israel has recognized that a member of the Knesset, the Israeli legislature, has a right to participate in the legislative processes of the legislature and has rejected the English approach that parliamentary proceedings are excluded from the range of judicial review.  Instead, the Israeli High Court of Justice has adopted as the test for judicial intervention in the legislative process the question whether the defect that has occurred in the legislative process is a defect that goes to the heart of the process.  There was in this case, so the appellant submitted, such a defect because the President was not entitled to rely on rule 92.

17.On the other hand, according to the printed cases of the putative respondent (“respondent”) and the putative intervener (“intervener”) the appellant should not be permitted to rely in this Court for the first time on the Israeli jurisprudence and the recognition in that jurisprudence of the principle that the courts will intervene to redress a defect that has occurred in the legislative process which goes to the heart of the process.  To permit the appellant to do so, so the respondent and the intervener contended, would be to allow the appellant to raise new matter which was not considered by the courts below.  According to the printed cases of the respondent and the intervener, the Israeli decisions should not be followed in Hong Kong because they are at variance with accepted common law principle and consequently both Lam J and the Court of Appeal were correct in rejecting the appellant’s case.

18.Because we came to the conclusion at the end of the appellant’s argument that the appeal must fail, even if the appellant’s reliance on the Israeli jurisprudence were taken into account, we did not call on the respondent and the intervener.  It follows that we did not hear them in support of their preliminary objection to the use of the Israeli materials by the appellant.  It is therefore important that we make the point that we have assumed, without deciding, that those materials are properly before the court in support of the appellant’s case.  Later in these reasons, we state the grounds for our conclusion that as a matter of common law principle and public policy the case for the adoption of the Israeli jurisprudence is not compelling.

Article 73(1): Does it confer a right on the appellant to participate in the legislative processes of LegCo?

19.Art 73(1) provides :

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

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

The expression “legal procedures” plainly includes the Rules.

20.In seeking to extract from this provision the conferring of a right on an individual member to participate in LegCo’s legislative processes, Mr Martin Lee, SC argued that a grant of law-making power to LegCo necessarily gives to its members an individual constitutional right to participate in its legislative processes “in accordance with the provisions” of the BL “and legal procedures”. This right, it was claimed, embraced the right to speak at LegCo meetings but it did not include the right to engage in a filibuster, as Mr Lee SC correctly conceded.

21.The problem with this argument lies in the nature and language of art 73 taken as a whole.  The purpose of the article, as is apparent from its language, is to confer certain powers and functions on LegCo as a law-making body, that is, as an institution.  The article is not directed to the powers, let alone the rights, of individual members of LegCo. There is no reference in art 73, as there is in art 74[1], to members in their individual capacities.

22.That the purpose of art 73 is not to confer rights on individual members of LegCo to participate in its processes is supported by art 75[2] which authorises LegCo to make its rules of procedure “on its own” and by the extensive powers conferred on the President by art 72.  The two articles indicate that LegCo is to have exclusive authority in determining its procedure and that the President is to exercise his power to “preside over meetings” under art 72 so as to ensure the orderly, efficient and fair disposition of LegCo’s business.

23.The consequences of the interpretation of art 73(1) advanced on behalf of the appellant are so daunting as to invite, if not demand, its rejection.  The appellant’s interpretation would open the door to the courts so that any member of LegCo who was dissatisfied with the way in which the Rules were applied to him, or with rulings of the President, could seek relief from the courts by way of judicial review, not only post-enactment, but more importantly, pre-enactment.  This prospect would be extremely damaging to the orderly, efficient and fair deliberations and working of LegCo.  Its proceedings would be liable to disruption, delays and uncertainties occasioned by applications for judicial review, judgments and appeals.

24.This point, which was well made by the Court of Appeal in this case, is supported by the judgment of Binnie J who delivered the judgment of the Supreme Court of Canada in Canada (House of Common) v Vaid[3] where a similar or related question arose.  Binnie J had this to say:

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

25.Accordingly, we concluded that for the reasons already stated, art 73(1) does not confer on a member of LegCo a constitutional right to participate in its legislative processes by speaking.  We agree with the conclusion reached by the Court of Appeal on this point and with Hartmann J in Leung Kwok Hung v President of the Legislative Council who said:

“The powers and functions described in art 73 are not given to members of LegCo as individuals but to LegCo itself sitting as a legislative body”[4]

Article 73(1): Does it mandate the exercise of jurisdiction by the Hong Kong courts to ensure compliance with the Rules in the legislative processes of LegCo?

26.Mr Martin Lee SC’s submission on this point was that the grant of law-making power is conditioned by the words “in accordance with” on compliance with the Rules and with rulings by the President pursuant to his powers.  The answer to this submission is to be found in the provisions of the BL and in the principles of the common law governing the independence and autonomy of legislatures and the jurisdiction of the courts to intervene in matters concerning the internal processes of such law-making bodies.

27.It is convenient to deal, first, with the relevant common law principles.  Although these principles have their origin in the power, privileges and characteristics of the Parliament, in particular the House of Commons, in the United Kingdom and in the recognition by the courts of the exclusive authority of the Parliament to determine its own internal procedures, it is preferable now to regard the relationship between a legislature and the courts as an outcome of the application of the doctrine of the separation of powers.  This doctrine is a common law doctrine which, in the case of Hong Kong, is reinforced by the constitutional separation of powers provided for by the BL.  Sections 1 and 2 of Ch IV “The Political Structure” set out the powers and functions of the Executive and Executives Agencies while Sections 3 and 4 make similar provision for the Legislature and the Judiciary. Art 2 of the BL also recognises the separation of powers in providing:

“The National People's Congress authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of this Law.”

28.In construing and applying the provisions of the BL, it is necessary not only to apply common law principles of interpretation but also principles, doctrines, concepts and understandings which are embedded in the common law.  They include the doctrine of the separation of powers and, within it, the established relationship between the legislature and the courts.  This relationship includes the principle that the courts will recognise the exclusive authority of the legislature in managing its own internal processes in the conduct of its business, in particular its legislative processes.  The corollary is the proposition that the courts will not intervene to rule on the regularity or irregularity of the internal processes of the legislature but will leave it to determine exclusively for itself matters of this kind (“the non-intervention principle”)[5].

29.The strength of this proposition rests not only on principle and authority but also on public policy.  In Hong Kong, LegCo has as its primary responsibility its law-making function.  It also has vested in it other important powers and functions under art 73, for example:

“ (2) To examine and approve budgets introduced by the government;

(3) To approve taxation and public expenditure;

(4) To receive and debate the policy addresses of the Chief Executive;

(5) To raise questions on the work of the government;

(6) To debate any issue concerning public interests;”

30.The important responsibilities of LegCo, notably its law-making function, require, as with other legislatures, that it should be left to manage and resolve its own internal affairs, free from intervention by the courts and from the possible disruption, delays and uncertainties which could result from such intervention.  Freedom from these problems is both desirable and necessary in the interests of the orderly, efficient and fair disposition of LegCo’s business.

31.The adoption of the principle of non-intervention by the courts will reduce, if not eliminate, the prospect of pre-enactment challenge to proceedings in LegCo.  It will also reduce, if not eliminate, post-enactment challenges to the validity of laws made by LegCo based on irregularity in its proceedings, unless such an irregularity amounts to non-compliance with a requirement on which the validity of a law depends.

32.In this respect it is important to recognise that the principle of non-intervention is necessarily subject to constitutional requirements.  The provisions of a written constitution may make the validity of a law depend upon any fact, event or circumstance they identify, and if one so identified is a proceeding in, or compliance with, a procedure in the legislature the courts must take it under its cognizance in order to determine whether the supposed law is a valid law[6]. In Australia, Cormack v Cope was such a case.  There s 57 of the Australian Constitution provided a means of resolving a deadlock between the two Houses of Parliament culminating in a joint sitting of the two Houses to deliberate and vote upon a proposed law.  But the section prescribed a procedure to be followed and compliance with that procedure was a condition of the validity of the proposed law when enacted.

33.Although the principle of non-intervention is directed to pre-enactment judicial intervention in the legislative processes, the grounds on which the principle is based have generated a strong related principle of interpretation or presumption.  That principle or presumption is that the courts will lean against an interpretation of a constitutional provision that makes compliance with procedural regularity in the law-making processes of a legislature a condition of the validity of an enacted law.

34.It follows that art 73(1) is to be interpreted in the light of the foregoing background of common law principle and policy considerations. In this respect, we refer to the judgment of Lord Cooke of Thorndon P in Ah Chong v Legislative Assembly of Western Samoa[7] where he said with reference to the principle of non-intervention:

“…like all principles this one has its limits and they are not always easily discernible. One limit must be that a written constitution such as that of Western Samoa may place upon the Courts some duty of scrutinising Parliamentary proceedings for alleged breaches of constitutional requirements. Thus, while normally it is for a legislative assembly to determine the effect of its own standing orders and to depart from them if the assembly sees fit, a Constitution may displace that presumption by making compliance with the standing orders a condition of the validity of the legislation or, no doubt, of the validity of other steps taken by the assembly. But we agree with McLelland J in Namoi Shire Council v Attorney-General for New South Wales [1980] 2 NSWLR 639, 645, that the Court would lean against such an interpretation, an approach also to be seen as suggested by the Niue Court of Appeal in the judgment already cited. In the present case Sapolu CJ would have required ‘irresistible clarity’. Possibly, in our respectful opinion, that puts the test a little high, but certainly any real ambiguity would be resolved in favour of non-intervention.”[8]

35.We refer also to the decision of the Privy Council in The Bahamas Methodist Church v Symonette because it illustrates the force of the interpretive principle favouring an interpretation of a Constitution which does not make compliance with procedural requirements in the legislative process a pre-condition of the validity of a law.  There art 59(1) of the Constitution of the Bahamas enabled any member of the House, subject to the Constitution and the rules of procedure to introduce a Bill, or propose a motion for debate or present a petition.  The article also provided that any proceeding initiated by a member should be debated and disposed of “according to the rules of procedure of the House”.  The Privy Council held that the first provision did not make compliance with the rules a violation of the Constitution and that the second provision did not deprive either House of the power given by art 55(1) to regulate its own affairs.  The Privy Council further held that clear language would be required to justify an interpretation of art 59(1) which opened to scrutiny the legislative processes of the House.

36.The critical aspect of art 73(1) is that it makes no attempt to address the question whether non-compliance with “legal procedures” will result in invalidity of a law which is enacted after non-compliance with such procedures.  Because non-compliance with provisions of the BL will result in invalidity, it could be suggested that a similar consequence follows from non-compliance with “legal procedures”.  Such a consequence, however, could not have been intended because it would entail the invalidity of a law enacted after a trivial or relatively minor infringement of the relevant “legal procedures”.

37.One possible answer to this problem would be to interpret the article so that invalidity results only when the infringement of the “legal procedures” is substantial, or to use the Israeli terminology, goes to “the heart” of the legislative processes.  In our view, neither of these criteria is sufficiently precise to define the basis on which the courts should exercise a jurisdiction to intervene in the legislative process or to determine the validity of a law the enactment of which proceeds from non-compliance with the relevant procedure.  In any event, it is a matter of conjecture to suggest that the intent of art 73(1) was to mandate the application of any such criterion.

38.Accordingly, we concluded that the provisions of art 73(1) are ambiguous on the point under consideration and that they do not displace the principle of non-intervention.  Indeed, art 75 by providing that Rules shall be made by LegCo “on its own” supports the application of that principle here.  Our conclusion on art 73(1) is, however, subject to one important qualification.

39.This qualification arises from the circumstance that, in the case of a written constitution, which confers law-making powers and functions on the legislature, the courts will determine whether the legislature has a particular power, privilege or immunity.  In R v Richards; Ex parte Fitzpatrick v Browne[9],  Dixon CJ, speaking for the High Court of Australia and with reference to the two Houses of the Australian Parliament, said:

“it is for the courts to judge of the existence in either House of Parliament of a privilege, but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise”.[10]

40.Adopting a similar approach, in a case concerning the privileges of the Nova Scotia House of Assembly, McLachlin J said:

“It is for the courts to determine whether necessity sufficient to support a privilege is made out.”[11]

McLachlin J went on to say:

“The test of necessity is not applied as a standard for judging the content of a claimed privilege, but for the purpose of determining the necessary sphere of exclusive or absolute ‘parliamentary’ or ‘legislative’ jurisdiction. If a matter falls within this necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld, courts will not inquire into questions concerning such privilege. All such questions will instead fall to the exclusive jurisdiction of the legislative body.

Thus the test of necessity for privilege is a jurisdictional test.”[12]

The learned judge also observed that, if the courts went on to examine particular exercises of privilege,

“they would trump the exclusive jurisdiction of the legislative body”

It followed that the area for court review is “only at the initial jurisdictional level”.[13]

41.In referring to necessity, McLachlin J was addressing a situation in which it was essential to show that the existence of a particular privilege was necessary for a legislature to exercise its functions.  The foundation for the approach taken by McLachlin J was the famous decision in Stockdale v Hansard[14].

42.In Egan v Willis[15], Gaudron, Gummow and Hayne JJ referred to the two judgments referred to in paragraphs 39 and 40 with evident approval and went on to apply the principle enunciated in the two cases to the powers of a House of the New South Wales Parliament[16].  McHugh J likewise accepted the principle stated in the two judgments and applied it to the powers of the New South Wales House[17]. Kirby J was of a similar, albeit not precisely the same opinion[18], while Callinan J seems to have been of the same opinion[19].  In the result, the High Court of Australia held in Egan v Willis that a court may judge the existence of a power, privilege or immunity in a House of Parliament but may not examine the occasion and manner of its exercise and that a House of the New South Wales Parliament has power to suspend for a limited time a member of the House who refuses to produce a non-privileged document called for by the House.

43.Accordingly, our conclusion on this point was that, although art 73(1) does not make compliance with the Rules essential to the validity of the enactment of a law by LegCo and that it is for LegCo itself to determine its own procedures and how they will be applied, the courts will exercise jurisdiction to determine the existence of a power, privilege or immunity of LegCo.  We also arrived at the conclusion that the courts will exercise jurisdiction to determine the existence of a power, privilege or immunity of the President of LegCo.  We arrived at this conclusion in the light, not only of art 73(1), but also of the provisions of art 72 of the BL and the important powers and functions which it confers on the President, particularly the power to “preside over meetings”.  The courts, however, will not exercise jurisdiction to determine the occasion or the manner of exercise of any such powers, privileges or immunities either by LegCo or the President.

The appellant’s argument that rule 92 did not authorise the President to put an end to the filibuster and close the debate.

44.The appellant’s case on this question was elusive, to say the least of it.  The appellant’s principal argument was that rule 92 could not authorise the President’s action because other rules, had they been invoked or applied, would have justified the President’s decision to close the debate.  Rule 92 provides:

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

According to the President’s printed case, there is no rule which deals with a filibuster or authorises him to take any action with respect to a filibuster, so rule 92 applies.

45.The appellant contended that the President could have achieved the outcome which he in fact achieved by recourse to rules 34, 38(1a), 41(1), 45(1) and (2) and 57(4) (a) and (b).  The appellant’s contention on this point was remarkable because it suggested that the dispute in this case was academic in the sense that the only dispute was about the basis for the decision taken by the President, not about the making of the decision itself. 

46.Be this as it may, it is clear that the President has power to set limits to and terminate a debate.  The existence of the power is inherent in, or incidental to, the power granted by art 72(1) to the President to preside over meetings, quite apart from rule 92.  The rules of procedure for which provision is made by art 75, as far as they relate to the President and his powers and functions, are necessarily subject to the provisions of art 72 setting out his powers and functions.  It is not for this Court to consider whether or not the power was properly exercised.  Nor is it for us to determine whether the President’s decision constituted an unauthorized making of a rule of procedure, although, in passing, we observe that the argument had nothing to commend it.  As for the rules which the appellant suggested should have been applied, no doubt the President kept them in mind for possible application to the situations to which they are addressed.

The Israeli jurisprudence

47.Mr Lee SC sought to support his interpretation of art 73(1) by reference to the Israeli High Court of Justice decision in Israel Poultry Farmers Association v Government of Israel[20] where Beinisch J said:

“22. The principle of participation, according to which each Knesset member has a right to participate in the legislative process, is also a basic principle in the legislative process of democracies. The principle of participation is merely a development of representative democracy and its application in parliamentary law … the Knesset acts through the parties and through the Knesset members. Therefore, in order to enable the Knesset to carry out its functions by virtue of the principle of democratic representation, each Knesset member should be allowed to participate in the parliamentary proceedings that are required in order to carry out these functions.”[21]

48.The recognition of the principle of participation, which seems to be well-entrenched in Israeli jurisprudence, is inextricably linked with the exercise by the Israeli High Court of Justice of a jurisdiction to intervene in the legislative process at the pre-enactment stage when there is a “defect that goes to the heart of the process”.  According to Mr Martin Lee, SC, the recognition of exercise of this jurisdiction has evolved in a series of a cases, the principal decisions being MK Sarid v Chairman of the Knesset[22], Litzman v Knesset Speaker[23] and the Poultry Farmers Case[24] to which we have already referred in connection with the principle of participation.  These decisions have rejected the English principle that parliamentary proceedings are excluded from the range of judicial review and, instead, have recognised that the Israeli High Court of Justice has jurisdiction to intervene in the legislative process at the pre-enactment stage when there is “a defect that goes to the heart of the process”.[25]

49.In the Poultry Farmers Case, Beinisch J pointed out

“What is a ‘defect that goes to the heart of the process’ is not decided in accordance with the classification of the defect as a defect of ultra vires or as a formal violation of a certain section in the Knesset Procedure Rules, but in accordance with the strength of the violation that this defect causes to ‘major values of our constitutional system’ or to basic values of our constitutional system that underlie the legislative process…”[26]

Such an approach, according to the learned judge, would restrict pre-enactment judicial intervention, to “serious and rare defects”[27].

50.There are other aspects of the Israeli jurisprudence which differ from the traditional common law principles relating to judicial intervention in the legislative processes.  Breaches of ordinary law, quite apart from breaches of the Israeli Basic Law, may prompt judicial intervention. Further, a defect which goes to the heart of the legislative process may not entail invalidity of the statute.  It is said that one question which the Court should examine is whether the defects would have been passed but for the defect.  It is also said that the Court should take into account the degree of reliance on the legislation, the extent of the reasonable expectations that it created and the consequences that will arise from declaring it void[28].

51.In the light of this brief and no doubt less than adequate summary of the Israeli jurisprudence, based on the materials in the appellant’s printed case, we concluded that the case for adoption by this Court of the Israeli jurisprudence is less than compelling.  In the first place, the Israeli approach to judicial intervention in the legislative processes is entirely at odds with the relevant and traditional principles of common law constitutionalism and the public policy on which they are based. Secondly, the principles governing such intervention by the Israeli High Court of Justice seemed to us, with great respect, to be insufficiently precise to offer firm guidance and to involve the making of judicial assessments of a kind which common law courts do not usually make.  And we note that the appellant’s case contained no reference to a decided case in which the Israeli High Court of Justice has exercised its jurisdiction to intervene in the legislative processes.

52.Accordingly, we declined to adopt the Israeli jurisprudence.

Conclusion

53.For the foregoing reasons we made the order dismissing the appeal.

Mr Martin Lee SC, Mr Hectar Pun and Mr Carter Chim, instructed by JCC Cheung & Co., for the Appellant

Mr Benjamin Yu SC and Mr Anthony Chan, instructed by Lo & Lo, for the Putative Respondent

Mr Stewart K.M. Wong SC and Mr Jin Pao, instructed by the Department of Justice, for the Putative Intervener