Developer, not Legco, needs to tread carefully

PUBLISHED : Wednesday, 04 November, 2009, 12:00am
UPDATED : Wednesday, 04 November, 2009, 12:00am

A Legislative Council select committee again summoned New World China Land chairman Henry Cheng Kar-shun and its executive director to testify yesterday at the hearing investigating the company's hiring of former housing chief Leung Chin-man, which triggered claims of a conflict of interest.

It was reported that the committee held a closed-door meeting shortly before the hearing, during which members were warned to take extra care at the inquiry and not 'step out of line' during questioning. They were reminded to strictly follow Legco's rules and regulations and act within their power, to avoid giving the developer ammunition to support a case should it go to the Court of Final Appeal.

Their concern was superfluous because, as long as the committee was exercising powers within its rights, it should have nothing to fear. Hence, it should not have set boundaries to restrict its investigation. To a certain extent, it has tarnished the pious reputation of the council, giving rise to suspicions that 'big money' can influence Legco.

The pair have not decided whether to take their case to the Court of Appeal in an attempt to overturn an earlier court decision, which ruled the select committee had the legal power to summon them to testify.

The hearing involves a row that dates back to 2004, when the government sold the Hunghom Peninsula housing development at a price below the market rate to a consortium which included a sister company of New World China Land.

Leung, the director of housing at the time, was hired 19 months after his retirement by the firm as its vice-chairman and executive director, thus triggering allegations of a conflict of interest, which ultimately forced him to resign after two weeks.

The court challenge hinges on the interpretation of Article 73 of the Basic Law, which describes Legco's powers and functions. It allows the council, sitting as a select committee, to exercise summoning powers to carry out investigations under its powers and privileges ordinance.

The case has raised vital questions of constitutional principle that are of considerable significance for Hong Kong. They include the proper interpretation of the scope of the powers of Legco and its committees. Because of the significance of these powers, the government has a moral obligation to uphold their integrity.

The High Court earlier ruled that the select committee had the legal power to require the developer to testify and, if it refused, it could still summon the two men in accordance with the law. But the company rejected this ruling.

The developer doesn't seem to have much of a case. But if, for some reason, it won an appeal, the government would have to seek an interpretation of the Basic Law from the central government to safeguard our constitutional integrity. However, this extreme measure should only be a last resort, as it would seriously undermine our legal system and violate the spirit of the law.

The developer should therefore proceed with care, and not do anything that might go against the principles of corporate social responsibility. In the end, it might win the battle but lose the war. And if its actions triggered an interpretation of the Basic Law, it could potentially set off a constitutional crisis. This would almost certainly bring the company into disrepute.

The fact that Legco can act as prosecutor, investigator and judge at the same time, with no real separation of functions, does give the impression that it might be biased in its ruling. On the other hand, if the hearing is conducted in a transparent and fair manner, the council will certainly be subject to public scrutiny.

All men are equal before the law, which is the fundamental principle under which each individual is subject to the same laws and treatment. No one should have any special legal privileges, no matter how rich and powerful they are.

Albert Cheng King-hon is a political commentator