The question arises from concern over the way that additional funding approval for the high-speed rail link was pushed through
BRYANE MICHAEL
UPDATED : Monday, 28 March, 2016, 4:19pm
Disputes over the snap vote for high-speed rail link funding raise questions over oversight for Legco. Photo: Felix Wong
Can and should the Hong Kong judiciary oversee the Legislative Council? Labour Party lawmakers want to put that question to the test. At the heart of the dispute lies a fundamental jurisprudential dilemma. Should the voice and will of the people regulate its own activity (and impose its own discipline)? Or should the judiciary provide checks and balances which prevent Legco descending into chaos.
At the heart of the issue lies a supposedly improper Legco voting procedure which pushed through
HK$19.6 billion in additional funding for the cross-border rail link. Supposedly, the pro-Beijing chairman of Legco’s Finance Committee took advantage of the absence of several colleagues to rush through a vote.
The gossip crowd sees in the case the struggle between rule of law (as embodied by pan-democrats) and Beijing’s growing influence over political life (as embodied by Chan Kam-lam). Because the pan-democrats lost the vote, they do what any normal, rational person in modern society does. They sue.
Could – and would – the judiciary void a Legco decision over a supposed voting impropriety?
A judicial review seems not to apply. A funding motion does not touch (yet) on executive action. No issue of human rights or constitutional principles seems to apply to Legco’s voting procedures.
Section 23 of the Legislative Council Ordinance and Practice Direction 26.1 of the Constitutional and Administrative Law List make it clear that Hong Kong’s framers did not want the courts to interfere in Legco matters. Not at all. So why turn to the courts?
Someone must impose discipline on Hong Kong’s legislators and ensure conduct by the rule of law. Hong Kong does not have a high-visibility Legco oversight board or ethics commission. In any case, the Labour Party members turned to the courts because they obviously felt that was the only place they could turn to.
Maybe it’s time to make Legco accountable to someone other than the newspapers (and the central government). Maybe it’s time to allow for court oversight over Legco activity – when the current Legco voting dispute blows over.
An oversight committee of Legco members would be too politicised. An internal, independent watchdog would still be answerable ultimately to Legco. The courts represent the only body in Hong Kong Legco members might all agree to trust.
Giving the courts extra powers would strengthen rule by law in Hong Kong. Their powers could be confined to procedural – rather than substantive – law. They would also give Legco members the same feeling of safety which we experience when we carry on our own daily business.
Detractors would argue that Legco is the sovereign-isimo. The courts would be too powerful. Legco is accountable to the political process. Existing law forbids it. Beijing won’t like it.
The real question is whether, as stated in the Basic Law, such oversight would bolster the “fundamental rights and freedoms of ... [the] legislative ... systems.” I leave it to you to decide.
Dr Bryane Michael is a senior fellow with the University of Hong Kong’s Asian Institute for International Financial Law
http://www.scmp.com/news/hong-kong/law-crime/article/1931319/letter-law-it-time-hong-kong-judiciary-oversee-legislative
