LEUNG KWOK HUNG v. THE PRESIDENT OF THE LEGISLATIVE COUNCIL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION

HCAL 64/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 64 OF 2012

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J U D G M E N T

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1.  On 19 May 2012, after hearing submissions from the parties, I refused leave to apply for judicial review in this matter for reasons to be handed down later. Here are my reasons.

The controversy

2.  The Legislative Council (Amendment) Bill 2012 [“the Bill”] has a chequered history.  The Bill consists of 3 clauses.  The substance of the amendments proposed under the Bill is in Clause 3.  It amends section 39 of the Legislative Council Ordinance to the effect that a person who has resigned as a member of the Legislative Council is prohibited from standing for election in a by-election to be held within the 6 months after the resignation.  In mid-April 2012, resumption of the Second Reading of the Bill was scheduled to take place on 2 May 2012.  Two legislators proposed 1,232 and 74 amendments to the Bill.

3.  The nature of the amendments was described by the Secretary General of the Legislative Council at para 6 of her affidavit as follows,

“6. The Committee Stage amendments proposed by the Government makes a drafting improvement to clause 3 of the Bill. The Committee Stage amendments proposed by Hon WONG Yuk Man seek to amend clause 1(1) and (2) and clause 2 of the Bill to make improvements to the language of the their Chinese texts. The Committee Stage amendments proposed by Hon Albert CHAN can be grouped around 6 themes as follows:

(a) the disqualification does not apply if the resigning Member agrees to pay a certain percentage of the cost of the by-election;

(b) the disqualification does not apply if the Member has resigned because he is held in custody in a foreign country;

(c) the disqualification provision will expire after a certain period of time;

(d) the disqualification period is reduced from 6 months to a lesser period;

(e) the disqualification does not apply if the Member has resigned because he is diagnosed as suffering from a certain disease but is found later to have been wrongly diagnosed; and

(f)   the disqualification does not apply if only a certain number of functional constituency/geographical constituency Members resign.”

4.  It is not the role of this court to comment on these amendments.  I simply annex to this judgment summaries of the amendments prepared by the Legislative Council Secretariat.  My purpose is to provide background information for a rational and objective assessment on the reasonable time required for a proper debate on these amendments.  As events turned out, the Committee of the Whole Council spent 36.5 hours on such debate before it was halted pursuant to a ruling made by the President.

5.  As a matter of practicalities, given the procedural requirement that each amendment has to be separately voted upon, it was estimated that voting on all these amendments would take another 30 hours or more.

6.  The motion for the Second Reading was passed after a debate of 8 hours and 39 minutes on 2 May 2012.  20 members of the Council spoke in that debate.  The proceedings of the Bill continued on 3 May and it entered into the Committee stage.  Due to the lack of a quorum on that date, the meeting was adjourned.

7.  The debate resumed on 9 May.  A legislator moved to adjourn the proceedings pursuant to Rule 40(4) of the Rules of Procedure of the Legislative Council.  That motion for adjournment was debated for 4 hours 29 minutes.  The motion was voted upon on 10 May and it was negatived.  The President as chairman of the Committee indicated that there would be a joint debate of all the amendments proposed by the two legislators.  There was no objection.

8.  The joint debate on these amendments started on 10 May.  It continued up till 8:35 pm on 11 May when the meeting was adjourned due to absence of a quorum.  The debate resumed on 16 May and it continued overnight.

9.  At about 4 am of 17 May 2012, a legislator invited the chairman to conclude the joint debate.

10.  The chairman enquired whether any member who had not spoken at the committee stage would like to speak on the amendments.  When no-one indicated he or she wished to speak, the chairman reviewed the situation. He said,

“黃宜弘議員提出一項問題。事實是，本會由5月2日起就現時這項條例草案恢復二讀辯論，在5月3日進入全體委員會審議階段至現時這一刻，我們已經用了超過42小時。正如黃宜弘議員指出，全委會亦已用了超過33小時，其中發言的議員集中在三、四位議員。根據秘書處的統計，黃毓民議員發言20次、陳偉業議員發言28次、梁國雄議員發言27次，他們的“拉布”可說是相當成功。

秘書處根據我們的會議紀錄，替我做了一項統計，在議員發言期間，我曾超過75次指出議員的發言離題，多次指出議員的發言冗贅煩厭，重複論點。黃宜弘議員要求立即中止辯論，亦提出在其他議會是有一個所謂closure motion，即是由議員動議中止辯論，立即進行表決的議案。

我同意一些議員指出，我們所謂的“拉布”在很多其他議會亦是一個並不罕見的政治手段，即是說，在其他議會的議事規則亦容許“拉布”的空間，但我在批准兩位議員提出一千三百多項修正案時，亦進行了廣泛研究，很多其他議會既有“拉布”空間，同時亦設有中止“拉布”的機制，即黃宜弘議員剛才所說的closure motion，還有一些其他的手段，包括限定會議時間等。

各位議員，如果當天我認為在批准這一千三百多項修正案後，是會引發一個我不可能控制的辯論、不可能終結的辯論，我是不可能批准這些修正案的，因為我一定要保障議會中少數人表達意見，甚至是少數人利用《議事規則》容許的方法來向政府爭取；但同時，我亦有責任保證立法會作為一個機構的有效運作。

所以，如果我做了一件事情，是會產生出一個沒法完結的辯論，我是不可能這樣做的。在我們的《議事規則》中，是沒有外國國會所謂closure motion的程序，但我小心研究過我們的《議事規則》，這個全體委員會審議階段是否可以無窮無盡，沒完沒了地延續下去呢？我認為不是的。我容許議員在全體委員會審議階段發言多於一次，是根據《議事規則》第38條，大家留意，《議事規則》第38條是一條限制性條文，條文首先指出議員的發言不得多於一次，但亦有例外情況，其中第一項例外便是在全體委員會審議階段。在全體委員會審議階段，議員是不受發言只限一次的限制，但這樣不等於賦予議員權利無限次發言。我想指出這是並不正確的。

全體委員會審議階段之所以讓議員重複發言，我在以往亦提過，並不是讓議員可以把一篇無限長度的演辭分開若干個15分鐘來發言，而是在辯論中可以讓議員有多次交鋒，以弄清楚大家對條文的意見。可是，大家也看到，我們進行了33小時30分鐘的辯論是否達到這個目的呢？我相信所有客觀的觀察者也看到並不是。所以，我認為我們的辯論應該要結束了。”

11.  As he said, the debate had already been conducted for 33.5 hours and most of the time speeches were made by members who avowedly adopted what is known as filibustering tactics.  The Applicant was one of those.  He had spoken for 27 times whilst the other two members were those proposing these amendments.  The chairman also referred to the fact that during the course of the debate he had ruled over 75 times that a speech was irrelevant and many times that a speech was repetitious.

12.  He took the view that he needed to balance the interest of the minority to express their views and to use tactics permitted by the Rules of Procedure to contest with the Government on the one hand and his responsibility to ensure the effective conduct of its business by the Legislative Council on the other.  Even though there was no procedure for a closure motion in the Rules of Procedure, he opined that the debate at Committee Stage should not continue indefinitely.  His assessment of the situation was that objectively speaking the debate was not serving the proper objective of a debate.  He considered that the debate should come to an end.

13.  When he was about to address the question whether he could do so under the Rules of Procedure, another legislator invited the chairman to adjourn for a short period of time to give the opportunity to other legislators to reflect their views to the chairman in private.  He acceded to that suggestion.  Before he adjourned, the chairman explained that he could exercise his power under Rule 92 of the Rules of Procedure of the Legislative Council to stop the debate.  He said,

“合併辯論在我們的《議事規則》内，沒有就進行的程序作出明文規定。現在我們的做法，我剛才說，就是讓議員可以反覆發言。但是我認為如何結束，我們應該有一個安排。如果《議事規則》內沒有訂明如何結束這個全體委員會審議階段的辯論，那麼，《議事規則》第92條便適用。

《議事規則》第92條訂明，對於本議事規則內未有作出規定的事宜，立法會所須遵循的方式及程序是由立法會主席決定，以及該條第二款亦訂明，如果立法會主席認為適合，是可以參照其他立法機關的慣例和程序來處理。正如黃宜弘議員指出，在其他立法機關，我們看到是有一個稱為即時中止辯論，付諸表決的議案。

          可是，我們只是參考，並非跟隨這做法。我認為經過這三十多小時的辯論，我們來到這一刻是應該作結了。所以，我打算讓提出修正案的議員及官員作總結發言後，便結束辯論。”

14.  After hearing the views of the other legislators, the chairman resumed the proceedings of the committee at about 9:00 am.  He decided as follows,

“在今早清晨4時30分，當黃宜弘議員提出要求我參考其他地方議會的即時終止辯論的議案後，我對大家說，我打算讓提出修正案的議員和官員在作出總結發言後，辯論便告結束。其後，當然有不同議員表示有不同的意見，當時我決定暫停會議，然後跟各方的議員商量一個最好的辦法。當我聽取各方面的意見後，我決定我仍須結束這項辯論。但是，在結束前，由於我亦聽到有提出修正案的議員表示他們其實仍有許多內容還想提出，如果只有一次15分鐘的發言，是無法完成的。我現在決定在會議恢復後，我會請提出修正案的議員和官員發言，並會按我們的發言規定，每人每次發言15分鐘。但是，我會把這個發言時間一直延至今天正午12時，如果提出修正案的議員覺得仍有許多內容想提出，我希望他們能夠利用這段時間，組織好他們的資料，能夠充分表達出來。如果到了12時或12時前已沒有委員和官員表示想發言，我們便結束這項辯論，進入修正案逐項表決的階段，這個是我的決定。”

15.  A legislator queried whether this would become a precedent.  The chairman responded,

“全委會主席：所謂先例，只是在具體情況下才發生。就這個所謂先例，為何我可以運用《議事規則》第92條賦予立法會主席的權力，是因為《議事規則》內，對於在全體委員會審議階段的合併辯論程序應如何進行，以及在全體委員會審議階段可以如何終結，未有作出規定。

由於在這些事宜上，《議事規則》未有作出規定，所以，根據第92條，我們要如何進行合併辯論、如何結束這個辯論，立法會主席有責任作出一個決定。

如果日後就這些問題經過討論後，有一些新的決定，經大會通過《議事規則》有關規定的話，那麼，當然大家以後會按大會的決定來行事。”

16.  The chairman also agreed to produce a written ruling explaining his decision.

17.  The debate at committee stage therefore resumed at 9 am on 17 May and it ended at noon.  Thereafter, the amendments to the Bill proposed by the legislators were put to vote.

18.  The Applicant considered that the President did not have the power to stop the committee debate on the amendments.  By this application he sought the following relief,

“1. An order for Certiorari to bring up and quash the ruling of the President dated 17 May 2012 closing the debate on the Second Reading of the Bill pursuant to Rule 92 of the Rules of Procedure of the LegCo; and

2. A Declaration that the President acted ultra vires in closing the debate on the Second Reading of the Bill pursuant to Rule 92 of the Rules of Procedure of the LegCo; and

3. Any interim relief as the court may provide; and

4. If leave is granted, an expedited hearing of this Application; and

5. Such further and other relief as the court may provide; and

6. An order for costs.”

In the course of the hearing on 18 May, the Applicant confirmed through his counsel that he would not seek injunctive relief.

19.  When he moved for ex parte leave on 17 May, Mr Lee SC, counsel for the Applicant, told the court that the challenge was confined to one single question: whether Rule 92 gives such power to the President.  After hearing Mr Lee, by reason of the potential disruption to the business of the Legislative Council if interim relief is to be granted, this court directed an inter partes hearing be held on 18 May.

The Rule and the President

20.  Rule 92 is in the following terms,

“In any matter not provided for in these Rules of Procedure, the practice and procedure to be followed in the Council shall be such as may be decided by the President who may, if he thinks fit, be guided by the practice and procedure of other legislatures.”

21.  The Rules of Procedure [“the Rules”] were made by the Legislative Council on 2 July 1998 pursuant to Article 75 of the Basic Law.  The relevant part of that article provides,

“The rules of procedure of the Legislative Council shall be made by the Council on its own, provided that they do not contravene this Law.”

22.  As regards the office of the President of the Legislative Council, Article 71 provides for his qualifications.  The President is to be elected by and from the members of the Legislative Council.  Article 72 sets out the powers and functions of the President,

“(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.”

23.  Thus, one of the functions of the President is to preside over meeting.  By necessary implication, he is also given the necessary power in the performance of such function.  As observed by A Cheung J (as he then was) in Cheng Kar Shun v Li Fung Ying [2011] 2 HKLRD 555, by reason of the nature of the Basic Law, its wording is necessarily large and general.  At para 162, His Lordship said,

“As Mr Thomas put it during submission, being a document which is essentially there to deliver political aims and purposes, the language of the Basic Law can be expected to be expressed in terms of general statement of principle, or in broad-brush terms, not condescending to particularity of position, not matching the standards of a parliamentary draftsman, more descriptive of powers and functions than prescriptive of the limits and the nature of those powers. In general terms, what the Basis Law seeks to do is simply to assign the powers to the appropriate bodies because, in that way, the devolution of power settles in the right hands. As counsel described, the Basic Law is here to provide a view of a landscape showing the great outlines. What it is not is an ordnance survey map, precisely laying out the details of the ground.”

24.  The same approach should be adopted in construing the function and power of the President in presiding over the meeting of the Legislative Council.  This approach, together with Rule 3 of the Rules, provides the answer to Mr Lee’s submission based on the distinction between the President and the Chairman of the Committee.

25.  Presiding over meeting does not mean simply sitting at the seat of President listening to the speeches of the legislators. It also entails exercising proper control over the process.  Whilst the substantial merits of a debate in the proceedings of the Council are in the hands of the legislators (which would ultimately be decided by the votes cast by them), the orderly, fair and proper conduct of the proceedings is within the province of the President.  

26.  One should therefore consider the power of the President under Rule 92 against this light: the President has the constitutional function and power to preside over the meetings of the Legislative Council.  By reason of the constraint in Article 75 that the Rules must be Basic Law compliant, the Rules cannot negate the power of the President to preside over meetings as his authority to do so comes from Article 72.

27.  This does not mean the President can exercise his power without regard to the Rules.  Though the legal authority of the President to preside over meeting is derived from the Basic Law, his political authority to do so comes from the members of the Legislative Council.  Thus, in the exercise of his power, he would need to have regard to political as well as legal consequences.  As mentioned, the President is elected by the members and if the members are dissatisfied with his decision, they could make him accountable by political means.  One of the alternatives open to members is to pass resolutions expressing their views on the decision of the President.  Of course, in taking those courses, the members themselves would also be politically accountable to their voters.  Moreover, the President himself has to be an elected member of the Legislative Council.  Thus, he is, like other members of the Legislative Council, politically accountable to the voters.  But these are political considerations.  This court, as a court of law, is only concerned with the legal authority of the President.

28.  As I said, as a matter of strict legal analysis, the President’s power to preside over meetings comes from Article 72 instead of the Rules.  In the present proceedings, this court is only concerned with the law.  The court is neutral as regards matters which should be the subject of political debate.  Thus, whether the President should exercise his power in the manner as he did and whether filibustering should be allowed as a matter of politics (as distinct from the legal question, which I shall consider below, whether the Basic Law confers a right upon an individual legislator to filibuster) could not be the subjects of debate in court proceedings.

Separation of powers and parliamentary privilege

29.  Since the challenge of the Applicant is directed at the conduct of proceedings of the Legislative Council, the court must have regard to its constitutional role and the role of the Legislative Council in deciding whether it is appropriate to intervene.  An important principle (derived from a long line of authorities) was summarized by A Cheung J (as the Chief Judge then was) in Cheng Kar Shun v Li Fung Ying [2011] 2 HKLRD 555 at para 220,

“… the courts of the Hong Kong Special Administrative Region do not, as a rule, interfere with the internal workings of the Legislature. Exceptionally, where questions of whether the Legislative Council, in going about its business, has acted in contravention of the provisions in the Basic Law arise, the courts do have jurisdiction to intervene. But the jurisdiction must be exercised with great restraint, having regard to the different constitutional roles assigned under the Basic Law to different arms of the Government.”

30.  A similar statement can be found in the speech of Lord Morris in Pickin v British Railways Board [1974] AC 765 at p 790,

“It must surely be for the Parliament to lay down the procedures which are to be followed before a Bill can become an Act. It must be for Parliament to decide whether its decreed procedures have in fact been followed. It must be for Parliament to lay down and to construe its Standing Orders and further to decide whether they have been obeyed; it must be for Parliament to decide whether in any particular case to dispense with compliance with such orders … It would be impracticable and undesirable for the High Court of Justice to embark upon an inquiry concerning the effect or the effectiveness of the internal procedures in the High Court of Parliament or an inquiry whether in any particular case those procedures were effectively followed.”

31.  Of course, as mentioned by A Cheung J, the Legislative Council is subject to the Basic Law and the courts of the Hong Kong Special Administrative Region do have jurisdiction to determine whether the practice of the Legislative Council complies with the Basic Law.  However, whether such jurisdiction should be exercised is another matter.  In general, there must be very exceptional circumstances before the court can deem it appropriate to intervene in the legislative process.  See also Hartmann J in Leung Kwok Hung v President of Legislative Council [2007] 1 HKLRD 387 paras 31 to 32.

32.  There are good practical reasons for this principle which is a facet of the doctrine of separation of powers.  As I said in the course of the hearing on 18 May, the court must respect the integrity of the legislative process.  If the court were to intervene lightly, this would cause great damage and disruption to the proper functioning of the Legislative Council, to whom the constitutional role of a legislature is assigned under the Basic Law.  That would not accord with the public interest.  The judicial process, built in with it the right and mechanism for two tiers appeal, takes time.  Final judicial determination cannot be achieved within a matter of weeks. If rulings made by a chairman or the President were to be readily reviewed in court, the whole legislative process could be easily disrupted and there would be inevitable delay.

33.  Mr Lee did not argue against this principle.  However, by reference to some dicta of Lord Bingham in The Bahamas District of the Methodist Church v Symonette [2000] 5 LRC 196, he contended that the exceptional circumstances in the present case warrant intervention by the court.  In that case, Lord Bingham reiterated the general principle, at p 208b,

“The second general principle is that the courts recognize that Parliament has exclusive control over the conduct of its own affairs. The courts will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions … The law-makers must be free to deliberate upon such matters as they wish. Alleged irregularities in the conduct of parliamentary business are a matter for Parliament alone. … The principle is essential to the smooth working of a democratic society which espouses the separation of power between a legislative Parliament, an executive government and an independent judiciary. The courts must be ever sensitive to the need to refrain from trespassing, or even appearing to trespass, upon the province of the legislators …”

34.  In a jurisdiction like Hong Kong which has a written constitution, there is a modification.  At p 208i to 209a,

“Likewise, the second general principle must be modified to the extent, but only to the extent, necessary to give effect to the supremacy of the Constitution. Subject to that important modification, the rationale underlying the second constitutional principle remains as applicable in a country having a supreme written constitution as it is in the United Kingdom where the principle originated.”

35.  Lord Bingham referred to the exception at p 209c, and Mr Lee relied strongly on it,

“This is no place for absolute and rigid rules. Exceptionally, there may be a case where the protection intended to be afforded by the Constitution cannot be provided by the courts unless they intervene at an earlier stage. For instance, the consequences of the offending provision may be immediate and irreversible and given rise to substantial damage or prejudice. If such an exceptional case should arise, the need to give full effect to the Constitution might require the courts to intervene before the Bill is enacted. In such a case parliamentary privilege must yield to the courts’ duty to give the Constitution the overriding primacy which is its due.”

36.  In my judgment, the relevant principles can be stated as follows,

(a) By reason of its role as the judicial authority in Hong Kong under Articles 85 and 158 of the Basic Law, the court has jurisdiction to interpret provisions of the Basic Law in adjudicating cases within the limits of the autonomy of the Hong Kong Special Administrative Region;

(b) That jurisdiction can be exercised in respect of the acts of the legislature by reason of the supremacy of the Basic Law over the Legislative Council and the courts’ constitutional duty to uphold the Basic Law.  Thus, the court has in the past entertained challenges to the constitutionality of the legislations passed by the Legislative Council;

(c) At the same time, the court also recognizes that the Legislative Council is the authority under the Basic Law (Article 73) to enact, amend or repeal laws and the President is the authority to preside over meetings of the Legislative Council (Article 72);

(d) Having regard to the obvious undesirability of the court’s interference in the legislative process and the doctrine of separation of powers, whilst the court does have jurisdiction to examine the constitutionality of the proceedings in the Legislative Council, the jurisdiction should not be exercised in a manner that would trespass on the province of the legislators;

(e) Thus, the court will generally decline to entertain questions on the constitutionality of a bill in terms of its contents at the pre-enactment stage even though, after a piece of legislation has been passed, it would entertain challenges to the same question;

(f) A discrete aspect of this exercise of discretion is that, subject to challenges on procedural constitutionality (by that I mean a challenge to the validity of a procedure adopted in the Legislative Council based on the Basic Law), the Legislative Council is regarded as the master of its own procedures given its autonomy enshrined in the case law and reinforced by Article 75(2);

(g) Even in cases of challenges on procedural constitutionality, the court may decide that such challenges should not be entertained at the pre-enactment stage.  The court will only exercise its discretion at pre-enactment stage where immediate and irreversible consequences giving rise to substantial damages and prejudice;

(h) There is a distinction between a challenge on procedural constitutionality and a challenge based on irregularity stemming from non-compliance with the internal rules of the Legislative Council like the Rules of Procedure.  By reason of the principle that the Legislative Council should be the master of its own rules (and the Rules can be amended from time to time) and the constitutional role of the President to preside over meetings of the Legislative Council, irregularity falling short of constitutional infraction is capable of being redressed by subsequent proceedings in the Legislative Council and other political process.  I have already alluded to some political considerations of such matter at the beginning of this judgment and explained why the court should not be involved in such debate, lest the political impartiality of the court be compromised;

(i) In other words, in dealing with these challenges, the court will consider the matter strictly from a legal point of view without any regard to the political undertone at the background.  The court must adhere to its independence and impartiality. 

37.  Applying these principles in the present case, the crucial issues are,

(a) Given that the Applicant’s case against the President is a procedural challenge, is there a reasonably arguable case on constitutional challenge?

(b) If the Applicant has a reasonably arguable constitutional challenge, whether it should be entertained at the pre-enactment stage in light of the criteria set out above for exceptional cases.

The constitutional challenge

38.  Mr Lee submitted that the Applicant’s challenge is based on his constitutional right to participate in the work of the Legislative Council as a legislator.  He said the Applicant’s right to speak at the committee stage has been infringed.  The immediate right of the Applicant is curtailed and the court has a duty to act to protect his constitutional right.  He referred to Lord Bingham’s judgment at p 210d,

“Their Lordships have already expressed the view that pre-enactment relief should be granted only when, exceptionally, this is necessary to enable the courts to afford the protection intended to be provided by the Constitution. When that state of necessity exists, to deny the courts power to intervene would, ex hypothesi, be a failure to safeguard citizens’ rights under the Constitution. When that state of necessity exists, the threatened enactment of legislation, which will be void under the Constitution but nevertheless cause irreparable damage, is a sufficient foundation (or ‘cause of action’) for the complainant’s application to the court.”

39.  The constitutional provision relied upon by Mr Lee is Article 73(1) of the Basic Law.  It reads as follows,

“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;”

40.  Mr Yu SC and Mr Pao said this Article refers to the powers and functions of the Legislative Council as a collective entity.  It does not confer any constitutional right on individual legislator.

41.  Mr Lee did not agree.  He submitted that since the functions and powers of the Legislative Council have to be performed by the legislators, by necessary implication Article 73(1) safeguards the rights of individual legislators to participate in the legislative process.

42.  Though I agree that the functions and powers of the Legislative Council must be performed by the legislators, I do not think Article 73(1) is of any avail to the Applicant in overcoming the principle of parliamentary privilege.  The facts of the Bahamas case illustrate the point.  There were two different challenges in that case: one based on the constitutional right against deprivation of property; the other based on procedure irregularity in the passing of the bill in question.  As regards the latter (which is more relevant for our purposes), the challenge failed.  One can glean that from para (4) in the headnotes,

“(4) Parliament had a duty to ensure that private Bills introduced in Parliament did not unfairly prejudice others. Thus, the introduction of such a Bill had to follow the procedural requirements set out in r 15 of the Rules of the House of Assembly. However, irregularity in the conduct of parliamentary business was a matter for Parliament, not for the courts. Moreover, art 59(1) of the Constitution, which provided that Bills were to be ‘debated and disposed of according to the rules of procedure of that House’ was not intended to make it a constitutional requirement to follow those rules or to deprive either House of the power given by art 55(1) to regulate its own affairs. Thus, whether, in the introduction of a private Bill, the safeguards were properly applied was a question for Parliament to resolve and was not a question for the courts. It followed from this that the Bill could not have been challenged on the procedural ground (see pp 213-216, post). Dicta of Lord Campbell in Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 Cl & Fin 710 at 725 applied.”

43.  The issue was considered in the judgment of Lord Bingham at p 213h to 214g.  In essence, the approach was as follows: the starting point is the principle of parliamentary privilege, “irregularity in the conduct of parliamentary business is a matter for the Parliament, not the courts”.  The issue is whether the constitutional provision in question “has the effect of displacing these principles by making compliance with the rules of procedure of the House of Assembly … a constitutional requirement.” It is a question of interpretation of the relevant constitutional provision.

44.  In the context of the Basic Law, the autonomy of the Legislative Council in respect of its own procedure, subject to compliance with the Basic Law, is enshrined in Article 75(2).  Such autonomy is buttressed by Section 23 of the Legislative Council (Powers and Privileges) Ordinance Cap 382 and Article 77 of the Basic Law.  It is impossible to construe Article 73(1) as negating that autonomy.  As Lord Bingham said in the context of the Bahamas case, “clearer language would be required before it would be right to construe this provision as having the far-reaching effect of opening up to court scrutiny the procedures followed in Parliament on all Bills, motions and petitions initiated by members”.

45.  Further, even assuming that Article 73(1) can somehow be construed as protecting the right of an individual legislator to participate in the legislative process, it cannot be elevated to a constitutional right to continue with filibustering.  On any view, given the factual matrix of this case, ample opportunity had been afforded to the Applicant and the other legislators to have a proper debate with regard to these amendments, bearing in mind the time that had been given, the number of speeches made by the legislators who wished to comment on the amendments and the subjects of these amendments.  What the Applicant and other legislators participated in filibustering wished to achieve is not the proper expression of their views.  Rather they wished to continue with the committee debate of the amendments indefinitely to obstruct the legislative process.

46.  The President did not stop the debate abruptly. Rather, he allowed the debate to continue for another 3 hours until noon.  And the debate was only a debate at the committee stage on amendments.  After the amendments are voted upon, there would still be opportunity to speak on the Bill at the Third Reading.

47.  Thus, this is not a case where a legislator is deprived of the opportunity to speak on a legislative item.  With the greatest respect, as a matter of legal analysis, I find what the President said with regard to the proper purpose of debate in this context legally unassailable: the purpose is to allow exchange of opinions on the draft provisions in question.  Of course, as the President also remarked, one must also safeguard the right of the minority to express their opinions.  But it would be absurd to elevate the right to express opinions to a constitutional right to filibuster.

48.  If there is a right to filibuster, the proceedings of the Legislative Council could be hijacked by a handful of legislators for an indefinite period of time.  The legislative process could come to a grinding halt and the Legislative Council would not be performing its constitutional function under Article 73.  Giving Articles 73(1) and 75(2) a purposive interpretation, they cannot encompass a constitutional right to filibuster.

49.  Since it is my conclusion that there is no constitutional displacement of the principle of parliamentary privilege in the Basic Law, I agree with Mr Yu that the court should observe the non-intervention approach both before and after the completion of the legislative process.

50.  The adoption of such an approach does not mean the rule of law is compromised.  Rather, it is the recognition by the court as to the difference between the judicial process and the political process and the acknowledgment of the constitutional role of the Legislative Council as the master of its own practice and procedure in the application of the doctrine of separation of powers which underlies the Basic Law. 

51.  Mr Lee submitted since the Rules permitted filibustering, the Applicant was entitled to engage in such tactics by way of exercise his right to speak in the Legislative Council.  Counsel referred to Rules 38(1)(a), 34(6) and 58(3) and submitted that, reading them together, a debate at committee stage cannot be ended until no more member indicates further intention to speak. 

52.  This is also his main plank in arguing why Rule 92 is not applicable: since the matter (viz when would committee debate be stopped) has been provided for, there is no scope for the exercise of the power under Rule 92 by the President.

53.  On the other hand, Mr Yu argued that Rule 34(6) only mandates the President or Chairman to put the question to vote immediately after no member indicates further intention to speak instead of adjourning the proceedings.  The rule, counsel said, does not pre-empt a debate being closed under other circumstances.

54.  There are provisions in the Rules which show it is not intended that the business of the Legislative Council should be thwarted by irrelevant and repetitious speeches or vexatious debates: Rules 36(5), 38 and 41(1), 45(1), 57(4).  Given human ingenuity, written rules cannot deal with all the eventualities.  History elsewhere demonstrates that measures like closure orders in the Parliament of the United Kingdom were adopted to meet such crisis before the making of any standing orders to such effect[1].  Of course, there are differences in the political landscape and circumstances in different jurisdictions.  Historical developments elsewhere may not be applicable in Hong Kong.

55.  As far as Hong Kong is concerned, in the context of our Basic Law, I do not see any room for suggesting that there is a constitutional right to filibuster.  In the exercise of his authority to preside over meeting under Article 72, the President has a constitutional duty to ensure that proper conduct of business in the Legislative Council is not derailed.  How such duty is to be performed, how the power of the President is to be exercised and the relationship between the President and the members as a whole (balancing the interests of different political Parties in the Legislative Council) are matters of politics.

56.  The existence of powers to deal with irrelevant, repetitious or vexatious debates demonstrates that the right of a legislator to speak in meetings is not unchecked and therefore it is not possible to contend for an absolute constitutional right to speak.  It also demonstrates that rulings by the President (or a chairman) often have the effect of regulating the right to speak in meetings.  It needs hardly be said that proceedings in the legislature would come to halt if every decision having the effect of curbing or regulating a legislator’s right to speak is liable to be challenged in court on the ground that it curtails the immediate constitutional right of a legislator under Articles 73 or 75(2).  Mr Lee’s constitutional argument cannot be right.

57.  In light of my above conclusion on the proper interpretation of Articles 73(1) and 75, I do not think the rules cited by Mr Lee can give rise to a constitutional right to filibuster.

58.  As regards the proper interpretation of Rules 34(6), 38 and 92, it follows from the principle of parliamentary privilege that these are matters for the Legislative Council and the President in the exercise of his authority under Article 72.  

Pre-enactment intervention

59.  I can deal with the second issue briefly.  Even assuming for the sake of discussion that a constitutional right is involved and the Applicant has a good case for procedural constitutional challenge, I do not think there is sufficient reason for the court to entertain a challenge at the pre-enactment stage.  As I have explained in張德榮對政制及内地事務局局長 HCAL 45 of 2011, 11 July 2011, even if the Bill were to be passed, there would still be time for a procedural constitutional challenge to be mounted before it could bring about any irreversible consequences which would give rise to substantial damages and prejudice.

60.  In short, the criteria for pre-enactment intervention cannot be satisfied.

Result

61.  For these reasons, the court should not intervene in the present case.  I therefore refused leave in this application for judicial review.  

Costs

62.  Parties invited this court to make a costs order nisi.  The general principle is that costs should only be ordered in a leave application in exceptional cases, see Ho Mei Ling (No 2) [2012] 1 HKC 400.  Having regard to the factual circumstances of the present case, instead of acceding to the invitation of the parties, I wish to have written submissions on the costs implications of the following features before I make any decision on costs, such submissions shall be lodged with the court within 14 days,

(a) The application for interim relief (until its withdrawal at the middle of the hearing on 18 May) and its potential impact on the business of the Legislative Council;

(b) The Applicant’s awareness of the principle as to parliamentary privilege (as he was the applicant in Leung Kwok Hung v President of Legislative Council [2007] 1 HKLRD 387) and the court’s allusion to that principle at the ex parte hearing on 17 May;

(c) The constitutional importance of the issues decided in this judgment and the extent to which the Applicant can rely upon the principle as regards public interest litigation discussed in Chu Hoi Dick v Secretary for Home Affairs (No 2) [2007] 4 HKC 428 and Chan Noi Heung v Chief Executive in Council CACV 197 of 2007, 16 March 2009. 

63.  Lastly, I wish to thank counsel and all involved in the preparation of the evidence placed before the court for their assistance. The case has been heard at short notice and parties have to work under immense pressure as to time.  Without their co-operation, the court would not be able to dispose of the matter within the time frame as it did.  In particular, the court should commend counsel on all sides for properly confining their submissions to legal issues even though there is a huge public interest and much public discussion on the political aspects of these events outside court.  In so doing, counsel contribute to the upholding of the integrity and the independence of the judicial process.