(一) 根據本法規定並依照法定程序制定、修改和廢除法律; …
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