High Court told Legco powers infringe rights

PUBLISHED : Friday, 21 August, 2009, 12:00am
UPDATED : Friday, 21 August, 2009, 12:00am

A legislature in which only the council sitting as a whole can exercise coercive powers to summon witnesses in an investigation is not only workable but also safeguards the rights of individuals, the High Court heard yesterday.

A system in which the power to summon witnesses is reserved to the whole of the Legislative Council, not its select committees, grants 'additional constitutional safeguards to individuals' and balances the need to hold the executive to account with the rights of individuals, a lawyer claimed.

Representing tycoon Henry Cheng Kar-shun in the judicial review challenging the power of select committees to issue summons and order the production of documents, Dinah Rose QC responded to the argument that without those powers the legislature as a whole would be ineffective.

Mr Cheng, chairman of New World Development, along with his executive director Stewart Leung Chi-kin, had been summoned to appear before the select committee regarding the hiring of Leung Chin-man, a former top housing official, as a New World China Land director.

They have appeared once but refused to appear a second time, arguing that the Basic Law states only the Legislative Council sitting as a whole with at least a quorum of half its lawmakers can exercise such powers.

Lawyers for the select committee, the respondents in the judicial review hearing, have argued such a literal interpretation of the Basic Law would mean 'imposing a straitjacket' on Legco, rendering it practically impossible to function in the public interest.

Mr Justice Andrew Cheung Kui-nung questioned how an investigation could be conducted effectively through a 'division of labour' whereby those willing to attend can be questioned by the select committee, while those who are unwilling, must be compelled to appear before the full council.

He added that most lawmakers sitting in council would merely be making up the numbers rather than be familiar with the case with appropriate questions.

Ms Rose said that such a scenario would not arise. If a witness was unwilling to appear, the select committee may obtain evidence through alternative sources or draw inferences from the refusal to attend.

Furthermore, the select committee may point out in its final report that certain issues could not be investigated because of the refusal to co-operate, at which stage it would be up to Legco as a whole to issue the summons, Ms Rose said.

'There is nothing absurd, nothing unworkable in this system,' she said, adding that it would reduce 'the risk of abuse of the power to summon for political ends'.

'There are good and coherent reasons for the choice made by the Basic Law,' she said.

Mr Justice Cheung has reserved judgment.