Legislative Council of Hong Kong

Disqualified lawmaker ‘Long Hair’ Leung Kwok-hung seeks judicial review over changes to Legco rule book

Application claims lowering the quorum was ‘unconstitutional’

PUBLISHED : Friday, 22 December, 2017, 9:02am
UPDATED : Friday, 22 December, 2017, 3:59pm

Disqualified lawmaker “Long Hair” Leung Kwok-hung has sought a judicial review over Legislative Council house rule changes that curb the pro-democracy’s camp ability to filibuster, despite concerns that the move may end up in an interpretation of the Basic Law.

The pro-democracy camp in Legco, led by convenor Charles Mok, distanced itself from Leung’s move on Thursday, saying the former pan-democratic lawmaker took the legal action in his personal capacity as the bloc had not yet reached any consensus over the matter.

A total of 24 amendments to Legco’s rule book – proposed by the pro-establishment camp to curb filibustering – were passed last Friday, including the controversial change to lower the quorum requirement from 35 to 20 for certain types of weekly meetings of the 70-member council.

Through his lawyers, Leung, who was disqualified for taking an improper oath, argued that the lowering of the quorum was “unconstitutional”, in that it has breached Article 75(1) of the Basic Law.

The article in question stipulates that “quorum for the meeting of Legislative Council shall not be less than one half of its members”.

The legal row hinges on whether the word “council” in the article should be applied at the committee level – when the council meeting entered a stage of bill scrutiny where the 70 lawmakers were allowed to give an unlimited number of speeches.

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According to the court writ filed on Thursday, Leung argued that the Basic Law would apply, as the committee is an integral part of the legislative process, and that it contains the same members as in council meetings.

His claim was consistent with two pieces of legal advice the legislature sought from British counsel Lord Lester QC and local counsels Ambrose Ho Pui-Him SC and Jonathan Chang, although two others, Lord Pannick QC, also from the UK, and Jimmy Ma Yiu-tim, whom the pro-Beijing camp sought advice from on a later occasion, advised the contrary.

Leung argued the legislature should have paid heed to the earlier legal advice it sought. “The applicant considers it highly improper for the Legco, in contrary to the two sets of independent legal advice obtained by its president, to pass a resolution which is, according to unequivocal legal advice, inconsistent with the Basic Law,” the writ said.

He asked for an expedited hearing, and urged the court to declare the Legco resolution “unconstitutional”.

Addressing the concerns that the lawsuit may trigger another interpretation of the Basic Law from the top Beijing legislature body, the National People’s Congress Standing Committee (NPCSC), Leung argued: “The problem is not about whether we file a case or not. Beijing can interpret the Basic Law any time anyway. Applying the same logic, should we not file any legal case in the future?”

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Leung said he would apply for legal aid for the case, and also for an injunction from the court prohibiting Legco from implementing the new quorum rule if leave was granted.

Pan-democrats discussed filing a judicial review on the rule changes on Monday, but no decision was made.

Mok admitted that they had been facing a dilemma.

“On one hand, some are concerned that it may lead to another interpretation of the Basic Law; but on the other hand, some believe we still have to do it as it is a matter of principle,” he said.

The pan-democrats would not seek another judicial review if Leung was granted the leave, sources in the camp said.