Filibuster saga a reminder that democracy is a messy business

Regina Ip says the Legco president's balancing act during the lengthy and disruptive filibuster saga was a timely reminder of the true nature of a democratic style of governance

PUBLISHED : Sunday, 26 May, 2013, 12:00am
UPDATED : Sunday, 26 May, 2013, 4:35am

After more than 160 hours of "debate" in the Legislative Council, starting on April 24, the budget bill was finally enacted, enabling the legislature to vote through more than HK$350 billion of funding for public expenditure. Hong Kong's unwelcome version of a "fiscal cliff" was narrowly averted after officials issued dire warnings of impending disruption to critical public services, and much drama and altercation in Legco.

In the course of the process, accusations flew thick and fast from both extremes of the political spectrum. On one side, Legco president Jasper Tsang Yok-sing was accused of failing to maintain order; on the other, of an overly dictatorial approach. Finally, Tsang enforced strict time management, setting limits for debates at different stages of the legislative process, and brought it to an end on May 21.

As the filibuster dragged on, citizens watched the farcical process with frustration and dismay. Some were angry at how a minority - the "filibuster four" - could hold the entire Legco, and government, to ransom, while others stood by the minority's right to speak. Before we pass judgment on Tsang or the "filibuster four", it is important to come to grips with certain political realities about governance in Hong Kong.

Fact No 1 is that, since the onset of democratic elections to Legco two decades ago, we now have a highly independent, assertive legislature (putting it mildly), which takes its watchdog role seriously. Some take it to the extreme, leaping at every opportunity to appropriate to themselves substantial formal powers to investigate apparent malfeasance, or use the filibuster to coerce government into succumbing to their demands. Such a strategy is doomed to fail, as no government can yield to such demands. But the filibuster battle has succeeded in giving the key players centre stage in the political theatre, and highly valuable prime-time media exposure.

Second, Legco's rules of procedure, albeit inadequate in certain respects, are modelled on the rules of the Parliament in Westminster. They are designed to protect the rights of the majority, the minority, the individual, and those absent from the chamber - self-contradictory though this may sound. It means that the Legco president must allow each member ample time to speak, so that the rights of the individual do not suffer as the result of "the tyranny of the majority".

However, these rules are inadequate in that there is no provision for filibuster override as in other legislatures. In other parts of the world, the use of a filibuster as an instrument of delay and coercion is not uncommon, but other legislatures have developed ways to counter it, such as imposing a speaking time limit, providing for "closure" or "allocation of time" motions, or a motion to lay an amendment "on the table" - effectively killing it.

Legco's rules of procedure need to be amended to introduce such counter-balancing provisions. However, in accordance with Annex II to the Basic Law on provisions for voting on bills and motions in Legco, motions introduced by lawmakers, including those to amend the rules of procedure, require a simple majority vote in each of the two groups of members (geographical and functional) present. Given the fragmented nature of political representation in Legco and the difficulty of securing a simple majority vote in each of the groups, amending the rules is well nigh impossible.

In the absence of such specific provisions, the Legco president has no option but to rely on his powers implied in the Basic Law to exercise control, a power which was upheld by our courts in dismissing an application for a judicial review of Tsang's decision last year to guillotine the debate on committee stage amendments to a controversial bill.

Mr Justice Johnson Lam Man-hon pronounced that "presiding over meetings does not mean simply sitting at the seat of president listening to speeches of the legislators. It also entails exercising proper control over the process", and that "the orderly, fair and proper conduct of the proceedings is within the province of the president".

In other words, in the ultimate analysis, it falls to one man - the Legco president - to maintain fair and proper control of proceedings absent specific rules providing for closure of runaway debates. The Legco president could not have curtailed the debate earlier - as many in government had hoped - as he is a political animal as well as the ultimate custodian of proper order in the chamber.

Tsang is answerable to his critics and voters both within and outside Legco. He also needs to ensure that his rulings stand up to judicial challenge. Thus, in future, when lawmakers resort to filibuster again, we can expect the debates to drag on for many long hours before the president is satisfied he has sufficiently strong grounds to curtail the debates.

A messy situation no doubt - but such messiness is in the nature of the democratic form of government. As democracy scholars have pointed out, democracy may be the most admired form of government, but also the hardest to maintain. As a vocal minority urges speed in implementing universal suffrage, the filibuster saga is a sobering reminder of the dangers and dilemmas inherent in the democratic utopia that many have been lulled into envisioning.

Regina Ip Lau Suk-yee is a legislator and chair of the New People's Party