Constitutional crisis looms over landfill fracas

PUBLISHED : Tuesday, 12 October, 2010, 12:00am
UPDATED : Tuesday, 12 October, 2010, 12:00am

Hong Kong may be heading for a constitutional crisis.

The Legislative Council asserts that it has the right to overturn an order by the chief executive, despite government advice to the contrary. If it votes to do so, the government will take the issue to court. And if it loses in Hong Kong, it is likely to appeal to the National People's Congress.

There are two factors in the row: an unpopular order by the chief executive, and the extent of Legco power.

Donald Tsang Yam-kuen triggered the row when he signed an executive order allowing expansion of the Tseung Kwan O landfill into five hectares of Clear Water Bay Country Park. The expansion had been canvassed for some time and generated a lot of opposition in the community and Legco.

Last week Civic Party lawmaker Tanya Chan said she would table a motion in Legco tomorrow to repeal Tsang's order. Government lawyers then declared lawmakers did not have the power to reverse the order.

But yesterday, after receiving independent legal advice from senior counsel Philip Dykes, Legco President Tsang Yok-sing said he would allow a vote tomorrow on Chan's motion. It is likely to pass because the main political parties and unionist lawmakers have indicated they will support it, along with at least 20 functional constituency legislators - well beyond the threshold needed.

Some lawmakers say that as well as opposing the expansion, they support the motion because they want to protect their powers, which they say are threatened by the government's legal interpretation.

The government's choices are limited; a judicial review seems to be the only way forward because Donald Tsang is legally bound to publish the repeal motion in the Government Gazette within two weeks. If a judicial review failed, the government would be forced to abandon the landfill plan or appeal to the NPC.

Environment Secretary Edward Yau Tang-wah said he would continue to lobby legislators to head off a crisis, but his prospects for success looked bleak last night.

He urged lawmakers to act responsibly and hinted he would look into alternative plans to deal with the city's burgeoning waste crisis.

Announcing his decision yesterday to allow the vote, Tsang Yok-sing said the Basic Law gave the legislature clear power to make laws, and he found no legal basis for restricting its power in the way the government lawyers argued.

Quoting independent legal advice, Tsang said Legco was duty bound to reject laws it found problematic, and it was the last gatekeeper in the checks and balances on the power of the administration. 'It is unacceptable to deprive lawmakers of powers to veto any laws simply because the government has done so much and gone through all the processes in relation to that order.'

Asked if the standoff would affect Legco's relationship with the administration, Tsang said both sides should work towards the common good of society. He refused to speculate on whether the government would take the issue to court.

Secretary for Justice Wong Yan-lung would not comment on what steps he could take if the motion were passed. He said he needed more time to study Tsang's ruling.

'The most important task now is to study the decision of the president very carefully to consider if there are perspectives we need to study further,' Wong, who held a short media briefing with Yau, said.

Wong played down the significance of the potential constitutional crisis, saying the only disagreement between the administration and the legislature was over the extent of the powers of lawmakers in handling subsidiary legislation.

He stood by his department's legal view, supported by advice from senior counsel Michael Thomas, which says the motion, even if passed, would have no effect in law.

The department argues that because the chief executive has no power to repeal the order, the legislature cannot reverse it. But Dykes, from whom Tsang Yok-sing sought advice, disputed that opinion.

Tsang said that while there were areas where the legislature had delegated its powers to the administration, the Country Parks Ordinance was an exception.

Unlike the Town Planning Ordinance, which allows the chief executive and Town Planning Board to publish zoning plans without going through the legislature, Tsang said the Country Parks Ordinance required any country park map approved by the administration to be tabled before the lawmakers as subsidiary legislation.

Under the ordinance that sets out the legislature's powers in relation to the executive, lawmakers have the power to amend and repeal any subsidiary legislation tabled to them.