Test of the government's sway in Legco
Last Wednesday, our Legislative Council set another record by holding the longest debate on a piece of subsidiary legislation on the first day of business of a legislative session, normally reserved for the delivery of the chief executive's annual policy address.
The government's attempt to push through an order made under the Country Parks Ordinance to carve out five hectares of land from the Clear Water Bay Country Park for use as landfill met with fierce resistance from legislators. With increasingly competitive district council elections on the horizon, objections from local residents - backed by prospective candidates in the November 2011 elections and their respective parties - soon swelled into a tsunami of protest and drowned out the environment secretary's plea for reason and tolerance. In a rare show of unanimity, all but four legislators, two of whom had earlier supported the carve-out in their capacity as executive councillors, voted for an amendment to repeal the order.
The government may back off from its earlier position that it would be unlawful for a legislator to amend the order. If the administration digs in its heels, and fights the legislature's defence of its power of amendment head-on, it may trigger an immediate constitutional crisis of its own making - a showdown between the executive and legislative branches over the remit of their respective powers.
Embedded in Senior Counsel Philip Dykes' advice to Legco is the British parliamentary doctrine of the supremacy of the legislature - the argument that, as transplanted to Hong Kong and enshrined in the Basic Law, the legislature has the power to 'enact, amend or repeal laws in accordance with the provisions of [the Basic Law] and legal procedures', and that the legislature has the reserve power to 'recall the product of a devolved legislative authority'.
On the other hand, the Chief Executive in Council, in approving the revised map of the Clear Water Bay Country Park, was merely acting as a delegate or donee of a legislative function which rests squarely within the purview of the legislature. The chief executive is only responsible for implementing the Basic Law and other laws consistent with the Basic Law, Dykes argued. In accordance with British parliamentary principle, the will of the legislature, embodying the will of the electorate, must be given recognition when delegates make subordinate legislative instruments.
If the government takes the legislature to the courts over this principle, would that not force an embarrassing and potentially destabilising crisis regarding the constitutional set-up of the government of the Hong Kong Special Administrative Region? Is there a division of powers between the executive, legislative and judicial branches? Can the will of the people, as reflected by the legislature, override decisions taken by the executive branch? Faced with the 'known unknown', the administration is being pushed dangerously close to the abyss. Will it hold back?
A constitutional crisis has thus far been averted despite much baying and baiting of the secretary for environment in Legco's five-hour debate.
Vexing questions linger, however, not only about the secretary's ability to anticipate the political maelstrom, but also the government's wider ability to hold its own in the face of rock-solid political opposition to any measures that may cost politicians their votes. In a typical, Schumpeterian competitive struggle for the people's allegiance, politicians have no choice but to stand firmly on the side of their electors.
The government is likely to be caught in the same impasse again even if it were supported by its own ruling party or coalition in the legislature, but would the government be able to chart a less ruinous course if it were in the hands of more experienced leaders skilled in playing political games?
Regina Ip Lau Suk-yee is a legislator and chairwoman of the Savantas Policy Institute