Restrictions will clip Legco's wings
It is no secret that the Basic Law sets severe limits on the power of the elected legislature. What comes as a surprise is that, even so, the SAR Government does not feel safe.
Under the guise of legal opinion offered by Solicitor-General Daniel Fung Wah-kin to make sure Legco's Rules of Procedure (standing orders) do not contravene the Basic Law, the Government is inventing new, absurd restrictions which would make Legco virtually inoperable.
For example, Article 74 preserves Legco members' pre-handover power to introduce private members' bills, but they can only do so if the bills do not fall into any one of three categories: relating to public expenditure, political structure or the operation of the Government.
In a fourth area, relating to Government policies, private members' bills can only be introduced with the written consent of the Chief Executive.
Considering that these are the four areas in which most members are likely to want to introduce bills if the Government fails to respond to public opinion, the restrictions in Article 74 are severe.
Still, if this is what the Basic Law lays down, then Legco has to accept it. Accordingly, provisions have been made in the Rules of Procedure to implement these restrictions.
However, the Solicitor-General suggests the rules still contravene the Basic Law as the four restrictions apply not only to private members' bills, but also amendments brought by members on government bills. The word 'bills' in Article 74 should be read to include members' committee stage amendments (CSAs).
This is totally unwarranted. The language of the Basic Law is specific. It distinguishes between 'bill', 'motions' and 'amendments' to government bills. For example, in the now well-known Annex II on voting procedure, it is expressly stated that the stringent bicameral voting applies to 'motions, bills or amendments to government bills introduced by individual members'. The drafter does not leave it to chance or to implication. So where only 'bills' are mentioned, there is no basis to expand it to cover other things.
Further, the Solicitor-General suggests whether a particular bill falls into the category of 'government policies' should not be decided by the president of Legco as the Rules of Procedure provide, but by the Chief Executive, even though in the past, the president was always the person who decided whether a bill or an amendment had the effect of committing government funds and so required the governor's consent under the Royal Instructions. The Solicitor-General's basis for his view is that the Chief Executive is 'the best person' to decide, and that to leave the decision to the president 'defeats the purpose' of Article 74.
To say this is tantamount to calling into question the bona fides of the president of the council, and to suggest he is willing to pronounce black to be white. If the president is such a person, then surely he must be trusted to an even smaller degree with stopping bills in the first three categories from being introduced.
In fact, where the president makes any incorrect decision, the aggrieved party can always call on the court.
It cannot be disputed that the Basic Law envisages a degree of checks and balances between Legco and the executive while preserving an 'executive-led' government. Article 74 thus sets a balance between the two: Legco can introduce amendments to government bills (subject to the recognised limits of not committing government funds without the Chief Executive's consent, and of not falling outside the scope of the original bill), such amendments being passed only if a majority vote is secured in both the groups of members. But greater restrictions still are imposed on an entirely self-initiated private member's bill under Article 74.
If the Solicitor-General's suggestions were accepted, the joint effect would be that all amendments to all government bills, as well as all private member's bills, would have to be vetted by the Chief Executive before they could even be raised.
Past experience shows that for major bills, large numbers of amendments are regularly brought by members as a result of their scrutiny in bills committees. It is this process that has allowed the most fruitful give and take between the elected legislature and the executive. Even more astonishing, the Solicitor-General suggests motion debates have to have the approval of the Chief Executive if they touch on revenues or expenditure of the Government.
The motion debate on 'alleviating the hardship of the people' by tax refunds and reductions, etc, moved by Chan Kam-lam of the Democratic Alliance for the Betterment of Hong Kong last Wednesday, certainly had no such approval.
According to the Solicitor-General, that would make it contravene the Basic Law on the grounds that, under Article 48 (10), the Chief Executive has the power and function 'to approve the introduction of motions regarding revenues or expenditure to the Legislative Council'.
Little wonder that, in the sitting following the Solicitor-General's suggestion, unionist legislator Leung Yiu-chung put a point of order to the president before she called on Democrat Andrew Cheng Kar-foo to start his motion debate - did she have the power to do so or had she obtained the Chief Executive's approval? Her answer was that she had power under Article 73(6), namely, that Legco has the power and function 'to debate any issue concerning public interests'.
Since Cheng's motion had nothing to do with revenue or expenditure, perhaps Leung was a little confused. But not as confused as the Solicitor-General: Article 48 (10) clearly relates to the Chief Executive's power to approve an official's bringing a money motion to Legco.
Such motions have legally binding effects. He can have no such power to approve a Legco member doing so, given Article 74 - unless the Solicitor-General argues that 'bills' must be extended to cover 'amendments', but must exclude 'motions'.
Whatever the technical means of doing it, taking autonomy from Legco does not necessarily mean a compliant Legco. It will force Legco to resort to extremes, blocking the Government's bill and finance proposals altogether. The relationship between executive and legislature will be in for a rough ride.
Nor should the Government be too sure of a reliable, permanent majority. Parties sooner or later will have to go for direct election. Nobody can risk these sort of political bad marks.
In any event, under Article 75, the rules of procedure of Legco are to be made by the Council on its own, provided they do not contravene the Basic Law. The Secretary for Justice's last resort, as she frankly reveals, is to take Legco to court by way of judicial review.
Supposing she does so, it is most unlikely that she would succeed on the reasoning advanced so far. Rules of procedure which paralyse Legco cannot be either reasonable or the real intention of the Basic Law. That the Government should, on such improbable grounds, attempt to interfere with Legco cannot but be extremely regrettable.