法政匯思深表關注較早前立法會主席被揭發於上週辯論政改議案時曾參與建制派立法會議員WhatsApp群組的討論。 根據較早前的新聞報導所指,該WhatsApp群組的目的似乎是為製造辯論提早結束而作出相關統籌,但其行為動機(例如考慮到在同一天不同的時間示威者的人數預計將有所不同)與議員們就其對政改議案進行審查和辯論應的應有職責無關。群組內的一眾建制派議員抱著這種心態,導致最後除了他們其中位議員外,其他議員一票也沒能投下,可以說完全不是巧合。

立法會主席參與此WhatsApp群組討論的一事所引起的問題是,究竟在公眾的眼中,主席能否繼續擔當立法會象徵性領袖人物一職,並履行其具體的憲法義務。我們亦難以想像主席從此以後繼續掌管立法機關的日常業務時,如何能完全避免他的所有決定,會因為公眾知悉他曾參與建制派議員共同嘗試控制辯論時間長短的安排一事而被削弱。

就這個問題,終審法院曾表示,「《基本法》彰顯著行政、立法及司法三權必須分立的原則」。立法會主席於立法會履行其憲法下的職權時,特別是在審查行政機關的議案和政策的過程中,作為立法會的獨立與誠信的守護者扮演著獨特的角色。我們特別注意:

《基本法》第73條 香港特別行政區立法會行使下列職權:

(一) 根據本法規定並依照法定程序制定、修改和廢除法律; …
(五) 對政府的工作提出質詢;
(六) 就任何有關公共利益問題進行辯論;

故此,就立法會主席參與自稱建制派議員的WhatsApp群組,目的為縮短就香港有史以來最重要的政改草案之一的辯論和審議一事, 我們深表關注。值得注意的是,這些建制派包括同時兼任行政會議成員的議員。這種行為嚴重損害公眾對立法會履行其憲法責任的信任。

再者,憲法賦予立法會主席具體的憲法和法定權利,相對亦期望主席會以獨立和中立為原則行使該等權利。我們特別注意:

《基本法》第72條 香港特別行政區立法會主席行使下列職權:

(一) 主持會議;
(二) 決定議程,政府提出的議案須優先列入議程;
(三) 決定開會時間;
(四) 在休會期間可召開特別會議;
(五) 應行政長官的要求召開緊急會議;
(六) 立法會議事規則所規定的其他職權。

另外,根據《基本法》第79條,立法會主席有權宣告立法會議員喪失其資格。《立法會(權利及特權)條例》(第382章)為主席進一步提供其它權力,包括強迫列席的權力,以助主席維持立法會平穩運行及履行其憲法下的職權。該等權力的合法行使有賴於公眾的信任及主席的中立性和獨立性。在立法機關的日常業務中,主席經常被要求行使權力就各種事項作出裁決。立法會議員發言的時間和內容,及議員在議會其間的行為,正是主席經常需要作出裁決的事項。有鑑於此,我們難以想像主席他日作出此類裁決時,如何避免該決定在公眾知悉他曾參與建制派議員共同嘗試控制辯論時間長短的安排一事而被削弱。

因此,除了考慮到他本人的表現是否恰當之餘, 主席亦需考慮到公眾對他繼續以獨立和權威的身份主持立法機關的日常業務的能力是否仍有信心,以致立法會能繼續履行其憲法下的職權。

法政匯思 2015年6月26日

The Progressive Lawyers Group notes with serious concern the recent revelations that the President of the Legislative Council was a participant of the WhatsApp group of pro-establishment lawmakers during the debate on the Government’s Constitutional Reform Bill last week.

From the recent news reports, it appears that the purpose of the WhatsApp group was to co-ordinate efforts to bring an artificial end to the debate upon considerations (such as the likely number of protestors at different times of the day) which are irrelevant to the performance of lawmakers’ constitutional duties to scrutinise and debate the Constitutional Reform Bill. It is therefore no coincidence that with that mindset, the same pro-establishment lawmakers who were members of this group, save for eight of them who remained in the Chamber to vote, failed to register a vote at all.

The participation by the President in this WhatsApp group’s discussions therefore gives rise to valid questions as to whether, in the eyes of the public, he can continue as the symbolic head of the Legislative Council with its specific constitutional duties. It is also difficult to see how the President can continue to control the daily business of the legislature without all his decisions being undermined by the public knowledge that he has in the past been party to a co-ordinated effort by the pro-establishment lawmakers to artificially control the length and duration of a debate.

In this regard, the Court of Final Appeal has stated that “the Basic Law enshrines the principle that there must be a separation of powers as between the executive, the legislature and the judiciary”. The President of the Legislative Council therefore has a distinct role as guardian of the independence and integrity of the Legislative Council in the performance of its constitutional functions especially in the course of acting in scrutiny of Executive bills and policies. In particular:

Basic Law Article 73 The Legislative Council of the Hong Kong Special Administrative Region shall exercise the following powers and functions:

(1) To enact, amend or repeal laws in accordance with the provisions of this Law and legal procedures; …
(5) To raise questions on the work of the government;
(6) To debate any issue concerning public interests;

It is therefore of great concern that the President of the Legislative Council should be party to a WhatsApp chat group with the self-characterised pro-establishment lawmakers effectively to curtail the debate and scrutiny of one of the most important constitutional reform bills in the history of Hong Kong. Notably, these pros-establishment lawmakers include members who are simultaneously members of the Executive Council. Such conduct seriously undermines the confidence of the public in the Legislative Council to perform its constitutional duties.

Furthermore, the conferral of specific constitutional and statutory powers on the President is upon the expectation that the President will exercise those powers with independence and neutrality. In particular:

Basic Law Article 72 The President of the Legislative Council of the Hong Kong Special Administrative Region shall exercise the following powers and functions:

(1) To preside over meetings;
(2) To decide on the agenda, giving priority to government bills for inclusion in the agenda;
(3) To decide on the time of meetings;
(4) To call special sessions during the recess;
(5) To call emergency sessions on the request of the Chief Executive; and
(6) To exercise other powers and functions as prescribed in the rules of procedure of the Legislative Council.

In addition, under Article 79 of the Basic Law, the President also has the power to declare a lawmaker no longer qualified from office. The Legislative Council (Powers and Privileges) Ordinance (Cap 382) supplements the President with further powers for the smooth running of the Legislative Council in performance of its constitutional functions, including powers of compulsion to attend. The lawful exercise of these powers is dependent on the trust of the public in the neutrality and independence of the President. During the course of the legislature’s business, the President is often called upon to exercise his powers to adjudicate upon a number of matters. The length and content of a lawmaker’s speech, as well as the conduct of a lawmaker during a legislative session are often matters requiring the adjudication of the President. It is therefore difficult to see how the President can continue to make such determinations without those decisions being undermined by the public knowledge that he has been a party to a co-ordinated effort by the pro-establishment lawmakers to control the length and duration of a debate.

Thus, the President must therefore consider not only whether he himself has conducted himself with propriety, but whether the public still has confidence that he can continue to chair the daily business of the legislature with the appropriate independence and authority to ensure the that the Legislative Council can continue to perform its constitutional functions.

Progressive Lawyers Group 26 June 2015

Article originally appeared in Stand News on 26 June 2015