XN000022-1985-06-12 — Page 18

WEDNESDAY, JUNE 12, 1985

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AMENDMENT TO BE MADE TO CONTROVERSIAL CLAUSE

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THE ADMINISTRATION HAS AGREED THAT AN AMENDMENT WILL BE MADE AT THE COMMITTEE STAGE TO CLAUSE 24 OF THE LEGISLATIVE COUNCIL (POWERS AND PRIVILEGES) BILL, THE HON JOHN SWAINE SAID IN THE COUNCIL TODAY.

SUPPORTING THE BILL IN THE LIGHT OF VARIOUS AMENDMENTS TO IT, MR SWAINE SAID THE CLAUSE HAD BEEN ONE OF THE MOST CONTROVERSIAL AND HAD LED TO THE COMMENT THAT IT PLACED THE LEGISLATIVE COUNCIL ABOVE THE LAW.

+ IN THE UNITED KINGDOM, WHERE THE LEGISLATURE IS SOVEREIGN, THE DOCTRINE OF THE SEPARATION OF POWERS APPLIES IN ITS FULL VIGOUR, AND IT HAS BEEN HELD BY THE HIGHEST JUDICIAL AUTHORITY THAT PARLIAMENT IS TRULY MASTER OF ITS OWN HOUSE, AND IS NOT SUBJECT TO CONTROL BY THE COURTS, HE SAID.

HOWEVER, MR SWAINE STRESSED THAT THIS UNLIMITED IMMUNITY HAD NEVER APPLIED IN HONG KONG.

+BECAUSE THE LEGISLATIVE COUNCIL IS NOT A SOVEREIGN BODY THE IMMUNITY WHICH IT POSSESSES FROM JUDICIAL ENQUIRY IS LIMITED, AND THIS IS FOUNDED ON THE DOCTRINE THAT ONLY THOSE POWERS AND PRIVILEGES ARE TO BE IMPLIED WHICH ARE NECESSARY FOR THE PROPER EXERCISE OF THE FUNCTIONS OF THE LEGISLATIVE BODY, HE EXPLAINED.

MR SWAINE SAID AS THE UNDERLYING PRINCIPLE OF THE BILL WAS TO DECLARE AND CODIFY THE LAW, AND NOT TO EFFECT ANY SUBSTANTIAL CHANGE, CLAUSE 24 IN ITS ORIGINAL FORM WAS OPEN TO OBJECTION AS GOING BEYOND THAT MANDATE.

+ACCORDINGLY, THE ADMINISTRATION HAS AGREED THAT AN AMENDMENT WILL BE MADE AT THE COMMITTEE STAGE WHICH WILL EXCLUDE THE JURISDICTION OF THE COURT ONLY IN RESPECT OF THE LAWFUL EXERCISE OF THE POWERS CONFERRED BY THE BILL OR STANDING ORDERS.

+THIS AMENDMENT WILL LEAVE INTACT THE COURT'S POWER OF ENQUIRY AS TO WHETHER THE POWER IN QUESTION EXISTS AND WHETHER THE EXERCISE OF THAT POWER IS LAWFUL.

+I AM SATISFIED THAT WITH THIS AMENDMENT A FAIR BALANCE WILL BE STRUCK BETWEEN ENSURING SUFFICIENT FREEDOM OF ACTION FOR THE LEGISLATIVE COUNCIL SO THAT IT WILL NOT BE HAMSTRUNG IN THE EXERCISE OF ITS POWERS, AND THE PRESERVATION OF THE CITIZEN'S RIGHT OF ACCESS TO THE COURTS TO CHECK THE ABUSE OF POWER, HE SAID.

COMMENTING ON THE BILL IN GENERAL, MR SWAINE SAID OF THE PROVISIONS WHICH REMAINED, THERE COULD BE NO QUARREL WITH THOSE WHICH SOUGHT TO ENSURE FREEDOM OF SPEECH AND DEBATE IN THE COUNCIL OR ITS COMMITTEES.

/+NOR CAN .***