Key clause locks out Legeo
AS the Legislative Council (Powers and Privileges) Bill 1983 heads to- wards its tinal but contentious pas- sage. one key clause, 14(2), contain- ing some forbidding implications, has |been generally overlooked.
The ride of adverse comment which
HARVEY STOCKWIN takes a hard look at clause 14(2) of the Legislative Council (Powers and Privileges) Bill 1988 and discovers that it has the potential to make Legco powerless... and wholly subordinate to the executive.
la saying this, Mr Litton was primarily
substantiates his thesis.
everything that happens in Hoogkong
Don't iske my word for it. Recall clause 4
Declaration.
of the recently-satified Sino-British Joint transitional period between the date of the Britain and China “declare that during the entry into force of this Joint Declaration and June 30, 1997 the Government of the United "Anyone with a cursory knowledge of thetration of Hongkong with the object of main- Kingdom will be responsible for the adminis-
knową only too well how governments, given by and social stability .. a "security" inch, may take an alb-embracing Given the density, fragility, and small size of Hongkong, there are very few issues which could not be considered as "relating to securi- ty," if the Government so ordered.
'Tong, and Legco, masi suffer in silence.
length with the night and poners of Legro to
tronically, clause is of the Bill deals at. obiain evidence and documentation
this Ordinance." Given the implied povecs to But the whole clause is made “subject clause 14(2), clause 15. plus other items in the Bill, could well become redundant
Clause (1) is even more specific. Legco's ability to-order any person to attend before clauses 13 and 14.
has swirled around the Bill has mainly worried about other clauses but 14(2) also recent history of authoritarianism in Asia į taining and preserving its economic prospen- the council is specifically made subject to
been concerned with the need for safe- guards against the arbitrary exercise of power by Legco.
Yet there also appears to be a need for safeguards inhibiting the arbitrary exercise of power against Legco itself. Certainly this seeras possible under 142).
Put another way, if the members of the Legislative Counes] (MLCs) vote for the Bill as it presently stands. they could be voting themselves the power ta be powerless.
If clause 1-42 is allowed to stand as part of the Bill without being amended. Legco could become, either now or in the future. totally subordinate to the executive.
Legco or its committees could be unable to choose freel; those from whom they want- ed to obuin opinions on Hongkong mastera
Legco could have no power whatsoever to move outside the "official line" on any mat- ser which Authority regards as involving "the security of Hongkong."
In extremis the Légco Bill might even be interpreted as meaning that no one could
make representations to Lamelco. for exam- ple, unless they had the Govemor's permis- sion, and were also a member of the Hong, kong civil service.
Additionally, one conceivable interpreta- tion of clause 14(2) is to render meaningless the provisions elsewhere in the Bill for Lego
to conduct its own inquiries.
Altogether, the clause by itself perfectly emphasises the point by former Bar Associa– tion chairman. Me Henry Litton, that the Powers and Privileges Bull “turns history on its head.**
Mr Litton noted that the need for power and privileges for Britain's House of Com- mona arusë out of the conflict between the King and Parliament, led by the Speaker.
Bur. in Hongkong, "the Governor is both 'King and Speaker; as if this is not enough, the Bill seeks to give him "divine rights in Legislative Council.”
Ta full, it reads
No person, other than a public officer acting mile.
with the consent of the Governor, shall before the Council or a comminec (a) give any evidence; or (b) produce any paper, book, record or docu-
ment,
relating to the correspondence of any naval, military or air force matter or any matter relating to the security of Hongkong or the responsibilities of Her Majesty's Gover- ment in relation to Hongkong, nor shai! secondary evidence be received by ar produced before the Council or a commit Tee of the contents of any such paper, book, record or document.
Obviously, confronted with this legalese, all too many, including those responsible for the passage of the Bill. have succumbed to the temptation to believe that this is a normal let- out, aimed at keeping secret those govern- mental matters which should properly be secret.
Stephen Davies and the RTHK Newsplus But, as was pointed out most strikingly by term on ATV on June 14. clause 14(2) has many more implications than that,
Davies siressed that the clause clearly aims at inhibiting any present, or future, Clive Pontings giving Hongkong MLCs the inside track on what the Government may, or may not be doing, about security,
The administration of Hongkong. social stability. These are recognised Maintaining economic prosperity. Preserving binding international agreement, no less being among "the responsibilities of Her: Definidon apart, clearly the clause signi-, kong."
Majesty's Government in relation to Hong- fies that Legoo will not have the powers.: normal in most legislatures (even some oper- or provide documentation on these subjects Yet no person will be able to pive evidence sting under authoritarian regimes) to inquire to the Legislative Council. Linless, that is, the freely into defence matters.
has been given the Governor's permission to person happens to be a public officier who testify.
The clause is aot saying that any official requires permission before giving testimony to Legco. It is saying that only officials can testify on security matters.
Legislature.
The mind boggles at the potential implica- The Hongkong Governor will thus limil ¦was originally intended to stipulate that pub- tions of clause 14(2). Conceivably, the clause in a way which would be impossible for most i lic servants would require official permission democratic heads of government vis-a-vis to give evidence on sensitive issues to the their own parliaments, Leyco's ability to in- quire.
Unquestionably, as drafted, it now goes section on interpretation. It is assumed here knowing where the power would stop. under ("Public officer" is also not defined in the ! far beyond that. The difficulty comes in that the term connotes any government ser- autocratic guidance. limited then that limitation should have been vant. If the term means something more? defined.)
“Maners relating to the security of Hong- kong" is potentially wide-ranging enough, but worse follows. Consider the next subordinate clause bitched to the main clause: No person, other than a public officer acting with the consent of the Governor, skali, before the Council or a committe-
ment
(Clive Ponting, without getting any per- mission from anyone, sent secret records and ¦ (a) give any evidence; or documents to Tam Dalyell, an opposition Labour MP crusading against Mes Thatcher over the sinking of the Argentine cruiser | General Belgrand. Prosecuted under the,Offi- ¡cial Secrets Ac1. Ponting's action was vindi- 'cated by a jury).
די
relating to the security of Hongkong," one Seeing the caveat, or any maiter quickly turns to the section on "interpreta- tion" in see how security matters are defined. No definition is provided.
(b) produce any paper, book, record or docu- relating to.
the responsibilities of Her Majaty's Government în relation to Homplong
The trouble with this is that Hongkong Gavemment, unself is a responsibility of Her Majeny"
fied as coming under the scope of 14(2) Anything and everything could be classi- because Britain is ultimately responsible for
from concerned citizens on the need for more Suppose Legco wants to hear evidence
public wilets in Wong Tai Sin.
a
Bill vividly attests to an evident lack of The whole lamentable story of this Legoo
potential implication behind clause 14(2) is curiosity and inquiry by MLCs. Yet the clear to make Legco an even more uninquisitive body.
tion and limitation of authoritarian powers the transition period. is for the better delīni- As pointed out last week, the need, during
already on the Hongkong statute book. Here. further vast increase of such implied powers. in clause 14(2) alone, one sees instead the
Hongkong needs to move towards more and powerful Legco playing a substantive role open government, with a more representative in the process.
in whom it wants, when it wants. on what Yet Legco will be ponerless 10 call before
subjects it deems fil.
will have the power to make it unconcerned The affairs of Hongkong will be Legoo's concem and responsibility, but the Governor and irresponsible.
interpreted as giving unrestricted licence for
Meanwhile, clause (42) could well be administrative cover-ups.
Perhaps that licence is being granted
¦ was a civil servant and had the Governor's
No. person could give witness, unless he: permission. Even public toilets in Wong Tai wittengly. Perhaps clause 14(2) is merely an Majesty's Govemment in relation to Hong-imated to read that only the Army is deem- Sin are. ultimately "a responsibility of Her Royal Navy and the RAF must surely be incredibly incom.pelent error in drañing. (The
kong."
Suppose ordinary folk want to reach out to ment formally the need for more brothel their future elected representatives, to docu-
suppression in Kun Tong. This, too, could be limitation in Mongkok or for cockroach- disallowed once this Bull becomes law,
ultimately responsible. Yes the only person
These are also maiters on which Britain isl
who might be allowed to tell Legco what's what would be the very government servant roaches to run wild. Some future Governor who is allowing the bronhels or the cock- could even decide that Mongkok and Kun
deletion there, could return the clause to the ed to be "military"). A change here, and a sincted format which, perhaps, was origi- nally intended.
that clause 1442) is a reserve power which the li is, of course, no argument to suggest
provision. If it is to be unused, why put it in British would be must unlikely to use. As it stands. The reserve power could be a blanket
the legislation?