How to sort out the mess over landfill extension plan

The legislative year will open on Wednesday with the customary policy address by the chief executive. However, this year, legislators will have more on their minds than what Donald Tsang Yam-kuen will have to say.

In fact, there is the possibility of a constitutional crisis as some legislators threaten to vote to repeal the government's proposal to carve out five hectares from the Clear Water Bay Country Park and turn it into part of an enlarged Tseung Kwan O landfill which, the government says, will be full 'around 2013-14'. The plan is to enlarge the landfill by 50 hectares, 10 per cent of which will come from the country park.

By and large, Legislative Council members understand the problems of disposing of municipal waste. But because of complaints by residents of Tseung Kwan O, they want to be sure that the serious odour problem is fixed before they agree to the country park deal.

The government is saying that any resolution to repeal the chief executive's decision, even if it was passed, would have no legal effect. But Legco's legal adviser believes that the legislature does, indeed, have the legal authority to repeal the chief executive's decision.

Thus, there is the possibility that the National People's Congress Standing Committee may step in with an interpretation of the Basic Law.

The government is urging Legco president Tsang Yok-sing not to permit the vote on the grounds that such a resolution would be unlawful. But one legislator, Albert Chan Wai-yip of the League of Social Democrats, has already vowed to seek a judicial review if the vote is not allowed. So a legal battle may well be in the offing, unless, of course, the vote for repeal goes ahead and is defeated.

The government, advised by former attorney general Michael Thomas, is going so far as to say that nobody, not even the chief executive, can repeal what is essentially subsidiary legislation to the Country Parks Ordinance, originally enacted in 1976 under the colonial administration, when the legislature consisted of only British officials and appointed members, with no elected representatives of the public.

It is therefore ironic, to say the least, to see Thomas argue that current Legco members are complaining 'at the terms of an ordinance which they or their predecessors were content to pass into the law'. To tell today's elected legislators that they should not baulk at provisions approved at a time when not a single member of the legislature was elected is absurd and shows no respect for democracy.

The crux of the matter is the odour emanating from the landfill, which has plagued nearby residents for years. Environment Secretary Edward Yau Tang-wah, who has agreed to delay implementation of the decision for 14 months, until January 2012, promises that the matter is well in hand.

The sludge treatment facility is scheduled to be commissioned in 2013, which means that disposal of sludge from sewage treatment works will end, greatly reducing the smell problem.

Actually, if the government is sure that the odour problem will be solved in 2013, it can end the current stand-off simply by delaying implementation of the country park decision to 2014. After all, since the Tseung Kwan O landfill is being expanded, even without the five hectares from the country park, its capacity will be increased until well beyond 2014.

And if the government refuses to delay implementation beyond 2012, Legco can.

Even Michael Thomas says in his legal opinion that a resolution to delay implementation 'to give time to deal with the odour may well be within Legco's powers'.

Frank Ching is a Hong Kong-based writer and commentator.