Tuesday, 26 April 2016

The Land without Law: the House of Lawmakers?

The Land without Law: the House of Lawmakers?
A Brief Discussion on Judicial Intervention in the Irregularities of the Legislature
Written by Cheong Tsz-lok, BSS (Govt & Law) & LLB II, HKU, edited by Chen-t'ang
Original: The Undergrad, April 2016 (Law Association Column)

The Financial Committee of the Legislative Council has recently passed the extra funding for the Guangzhou-Shenzhen-Hong Kong Express Railway Link (XRL) project with their votes unrecorded through the hand-raising mechanism, despite complaints by pan-democrats and protesters inside and outside the Legislative building. Some members voted both yes and no simultaneously. The motion carried.

The view that standard of our honorary representatives in the Legislature has long been disappointing is shared by supporters on both sides of the political spectrum, though the figures that came to their mind may be different. When “Voting them out” is hardly a practical solution, the Judiciary may be the last resort.

The courts of Hong Kong are justified to correct the procedural irregularities by the Legislature and the Court has currently adopted an excessive conservative approach.

The general reluctance for the Judiciary to interfere with the internal management of the Executive decisions is based on the doctrine of separation of powers. The Court explicitly stated this in a judicial review case concerning construction of railways: “[t]he Court can only apply the law. It does not run railways.” (Re Chan Kai Wah, per Reyes J)

The Court is also reluctant to step into the shoes of the Legislature. In Cheng Kar Shun, the Court ruled that the legislature had the power to determine the extent of statutory power, privileges and the degree of immunity enjoyed by the Court. As long as the procedural improprieties was not inconsistent with the Basic Law, the Court will not intervene. In the later case of Leung Kwok Hung concerning the decision to stop the filibuster, the Court has adopted a noninterventionist approach. It was held, to ensure the order, efficient and fair disposition of LegCo
business, it was both desirable and necessary to refrain from intervention. This reasoning is weak as ultimately the Court merely resorted to passive deference without further justification. 

In these decisions, the Court, as usual, relied on mainly English authorities to rationalize its deference attitude. The over-reliance on English authority has made the ruling alien to Hong Kong. Under the doctrine of parliamentary supremacy, the judiciary has no mandates to decide how the other branches should make decisions. Without a written constitution, the Parliament is the source of its own powers and all other sources of statutes and case law. The Parliament will correct itself as a fully elected Legislature. It is against such background that the UK courts are at least theoretically not permissible to intrude into the realm of the other branches.

On the other side of the globe, the wholesale adoption of British authorities does not suit Hong Kong, as a city without a fully elected legislature nor a truly functioning accountability system. The same degree of deference is unsatisfactory that the balance between the branches is not firmly entrenched and respect of separation of powers by the Executive, wielding immense administrative power buttressed by a loose pro-establishment governance alliance, is doubtful.

Professor Yash Ghai says: “Sometimes it is only by court intervention that a modicum of legality can be preserved… In Hong Kong, the point is particular pertinent since neither the Hong Kong executive and legislature is fully elected.” The Basic Law provides the basis of judicial review rather than the abstract Sovereign concept. A purposive reading of the Basic Law, taking how the Court can secure rule of law from the two branches into consideration, suggests that the Court should have inherent jurisdiction to examine the procedural irregularities of the Legislature as well. The Court must not adopt a hands-off approach for preservation of legality hinges on how willing the Court is to scrutinize executive and legislative activities.

It is true that the above proposal may open the floodgates and politicize the courts, usurping the dedicate balance between the three branches. The operation of Legislature may be severely hindered. Nevertheless, the self-imposed blanket exclusion of jurisdiction over the legislative activities does nothing to ensure true separation of powers, where the Court, as an impartial arbitrator, must bear the burdens to decide the legality of legislative activities.

The preposition that the Court can rule whether there is a power to conduct particular affairs but have no power to inquire the operation and irregularity, however reckless and excessive, is hardly a satisfactory approach.

It is time for the Court to fulfill its constitutional roles as a guardian of the rule of law and separation of powers. After all, the line between internal legislative procedures and substantive legislative power is blurred. It is hoped that the precise circumstances that the non-compliance with the rules will lead to an invalidity of the law will be outlined, and the judgment will provide, if not deterrence, to the Legislators, in the days we still have some expectations in our institutions.

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