When Justice Wilson Chan of the Court of Appeal wrote in his judgement on Baggio Leung that the defendants’ actions “hurt the dignity of LegCo”, I can only assume that he was referring to the dignity that a legislative body ought to have, and with this, I heartily concur. The problem is not, however, with the legislative body we ought to have but the one that we’re stuck with.
The first surprise in researching this article was that the Hong Kong government’s Basic Law website has had the constitution of the People’s Republic of China prepended to it. I’m not sure when this useful and necessary addition was made – it is of course quite proper and long overdue – but be that as it may, Section 5 of the PRC’s constitution sets out, in Articles 95-111 the powers and duties of Local People’s Governments at all levels.
As Hong Kong is a Special Administrative Region rather than an Autonomous Region, I take it that, in the absence of Hong Kong’s Basic Law, Section 5 would apply to Hong Kong.
As such, Hong Kong would establish a people’s congress and a people’s government (Article 95), with a standing committee (Art. 96) of directly elected deputies (Art. 97) with a term of five years (Art. 98), which is to enforce the constitution and adopt plans for local “economic, cultural and public service development,” enact (Art. 99) regulations (Art. 100), elect and remove various key persons (Art. 101), be subject to oversight (102), be structured in a prescribed way (103), and so on.
In Hong Kong, these articles are mirrored in and implemented by Articles 66-79 of the Basic Law. The means of electing our legislators is bundled into Annex II, but the eventual objective (Art. 68) is “the ultimate aim is the election of all the members of the Legislative Council by universal suffrage” for (Art. 69) a term of four years, which (Art. 70) must be reconstituted if dissolved by the Chief Executive and (Art. 71) presided over by a member elected by his or her peers and who (Art. 72) has various powers.
So far – and allowing for a rather quixotic definition of universal suffrage – so good. But, in Article 73, the rubber hits the road. Article 1, Section 8 of the US Constitution reserves to its Congress the power of appropriation and spending. Britain does not have a written constitution, but these powers are vested in its Parliament. By contrast, and unlike its Western counterparts, LegCo does not have the power to propose appropriations and spending: Article 73 (2) and (3) of Hong Kong’s Basic Law rather grants to LegCo the mere power to approve.
And, while Article 74 allows for the introduction of what would, in a parliamentary system, be private member’s bills, because such bills may not “relate to public expenditure or political structure or the operation of government,” this power is so severely curtailed as to be stillborn.
And here we come to the rub of the matter. While local governments in other parts of the PRC have substantive economic and legislative powers, our local LegCo has no substantive powers: it is, by design, a body with the mere power of approval, not the power to propose. In other words, a rubber-stamp. And, while I do not question the honourable Justice’s verdict, the question I pose is: what dignity is due to a rubber-stamp?
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