tim's experiment

Last week’s effort disappeared, as usual, into cyberspace with no sign that anyone who mattered had actually read it. However there is nothing to stop other people who have considered the same question coming to the same conclusion. So I was interested to see (and you had to look quite closely to see it, because the few newspapers that covered it did not make much of the story) the outcome of an application for judicial review of another matter, which came up last week.

The case was brought by a villager in Kwun Tong who wished to challenge a decision by the Legco Finance Committee to approve funding for development in the North East New Territories. I take it that the Kwun Tong concerned in this matter is not the same as the one with the MTR station of that name, which is a long way from the New Territories.

It seems that the chairman of the Finance Committee was asked to exclude a member of the committee because he had a vested interest in the matter. The chairman refused, and proceeded to put the matter to a vote, in which it was carried. The applicant for judicial review wanted this decision to be reconsidered.

The judge’s response (and in case anyone thinks I am shading this in a desired direction I quote from the China Daily here) was as follows: “Judge Au Hing-cheung said that whether or not the chairman dealt with the motion is within the scope of internal operations of LegCo and that the court should not intervene.”

Well quite. The lawyer for Legco also noted that “if the court accepts the judicial review of [the case] there will be many subsequent judicial review applications on details of Legco’s operation for the court to handle”.

Judge Au reserved his decision on whether to allow the judicial review to proceed or not. In the meantime it seems that at least in his court the situation is rather as I thought it was – the courts will not consider the internal workings of Legco, for the highly practical reason that if they did there would be an avalanche of attempts to overthrow particular decisions, and this would be bad news.

Quite how this expresses itself in legal detail remains an interesting question. According to the SCMP’s account of the attempt to protect Kwun Tong, the lawyer for Legco said that the courts should only intervene if Legco could be shown to have infringed the Basic Law.

The interesting thing about this is that the Legco lawyers presumably told the council’s new chairman the same thing. This would suggest that he should ignore the CE’s attempt to overrule his decision that members who fail in their first effort to take the oath should be given a second chance. The application for judicial review is based on the Oaths and Declarations Ordinance, which is not part of the Basic Law.

But looking at the Basic Law is a dangerous pursuit. We are all supposed to admire and obey the Basic Law. But reading it suggests, in many places, that it was compiled by a bunch of eager amateurs who had no idea what they were doing. This is not too surprising, of course. What mainland “legal expert” in the late 80s would have had any experience of reading, let along drafting, a democratic constitution?

Consider, for example, the matter of parliamentary privilege – that is to say the immunity of the legislature as a whole and its members individually from legal hazards. Article 77 says that “Members of the Legislative Council of the Hong Kong Special Administrative Region shall be immune from legal action in respect of their statements at meetings of the Council.” This is a clumsy and perhaps unnecessary way of saying that you cannot sue a member for libel as long as he or she demolishes your reputation as part of the proceedings.

Then we get to Article 78, which goes: “Members of the Legislative Council of the Hong Kong Special Administrative Region shall not be subjected to arrest when attending or on their way to a meeting of the Council.” This is enthrallingly ambiguous. Does it apply only to formal arrest by police, with application of handcuffs, warning by judges’ rules and a short trip to the nearest police station? This does not seem very helpful to members.

Does it mean that members once duly elected may not be prevented from attending – even if, presumably, they have not been sworn in yet – which would make efforts to exclude elected but unsworn young inspirers unlawful? Does it (actually this would make more sense but it is not what the article says) mean that they cannot be arrested for any action done in the chamber? The attraction of this interpretation is that it would be consistent with the situation in other Common Law jurisdictions. The disadvantage, from the government’s point of view, is that it would make the prosecution of “Mad Dog” unlawful.

Counsel for Lego seems to have had in mind the second half (the first half concerns the quorum) of Article 75  which says that “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.”  This may have been intended to limit the power of the courts to consider Legco decisions. If so it was not very well written. It appears to protect from judicial oversight only the rules, not the way in which they are applied in particular cases.

On the other hand protectors of legislative autonomy can still rely on Article 8: “The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.” The later section on the Legislative Council does not preserve the legislature from interference, but it does not authorise interference either.

Where does all this get us? Well it would be nice if Legco and its chairman were pushing a consistent line. If they wish to be immune to pressure from New Territories villagers then they should wish to be immune to pressure from the Chief Executive as well. Principles are principles and the law is the law. Different parts of the constitutional machinery have different functions. It is not rebellious or subversive to defend your patch.

I do not believe it is feasible, given the documents many deficiencies, to insist that people swearing to obey the Basic Law should believe this document to be incapable of improvement. After all it is a constitution written by people who did not really believe in constitutions. For a while we were treated to the services of four elderly former drafters in Beijing, who would occasionally announce what the drafters really intended when ambiguities surfaced. They are now all dead so we are on our own. China’s history and culture have many admirable features. Unfortunately a record of successful constitution-writing is not among them.