Lawmaker “Long Hair” Leung Kwok-hung on Friday lost his appeal against a refusal, by the High Court, to hear his judicial challenge against the president of the Legislative Council.
Last May legislature chief Tsang Yok-sing decided to halt Leung’s filibuster against a piece of legislation, leading to the lawmaker’s challenge.
The panel of three Court of Appeal judges dismissed Leung’s appeal, emphasising the cardinal principles of separation of powers and parliamentary privilege. The panel upheld the earlier ruling that lawmakers have no constitutional right to filibuster.
It also upheld a lower court’s order that Leung, of the League of Social Democrats, should pay legal costs to Tsang arising from the original hearing. It further ruled Leung must pay Tsang, and the secretary for justice, costs related to the appeal.
Central to the case is Tsang’s decision, on May 17, to invoke for the first time powers in Legco’s rules of procedure to halt a long debate on a legislative bill. The legislation in question was to bar lawmakers who resign from standing in a by-election for six months.
In their filibuster, Leung – and lawmakers Wong Yuk-man and Albert Chan Wai-yip – had proposed 1,300 amendments to the election law, dragging the debate out to about 36 hours before Tsang halted it.
The bill, which passed on June 1, was introduced to prevent a repetition of a “de facto referendum” on political reform, when five pan-democrat legislators resigned in 2010 only to contest the same seats.
Mr Justice Andrew Cheung Kui-nung, Chief Judge of High Court, wrote in his judgment: “First and foremost, under common law, the courts do not interfere with the internal workings of the legislature.”
“The legislature has exclusive control over the conduct of its affairs,” he wrote. “The necessary check and balance is achieved not in the courts, but politically.”
Cheung, Madam Justice Susan Kwan Shuk-hing and Mr Justice Jeremy Poon Shiu-chor rejected Leung’s claim that his constitutional right to participate in the legislative process was infringed by Tsang’s decision.
Cheung wrote that if an individual legislators had the right suggested by Leung, it would open a floodgate of litigation by lawmakers dissatisfied with the rules of Legco’s meetings.
“This would have serious impact on the smooth workings of the Legislative Council,” Cheung wrote.
Poon wrote: “The application for judicial review was no more than a further but futile attempt by the applicant to delay the legislative process of the bill. Put bluntly, he wanted to pursue something in the court which he had already failed to achieve in the political arena.”
The Legco president must have the power to end debates in appropriate circumstances, the appeal court ruled.
But Cheung pointed out that this did not mean the president could disregard Legco’s rules of procedure as he liked, because at the end of the day he must be answerable to the electorate.