President Difficult Childbirth, Parliament Twins: Prospects of Hong Kong's "Occupy Legislative Council"

This article was published in Hong Kong Independent Media on May 11, 2019. At the time when the revised draft of the Fugitive Offenders Ordinance was handed over to the Legislative Council Bills Committee without electing a chairperson for two consecutive times, the internal establishment of the establishment raided and passed the guidelines for changing chairpersons, creating the first twin Bills Committee in the history of the Legislative Council, and Hong Kong society broke out at the same time. A "anti-extradition" civil demonstration. The parliamentary protests have intensified, and the occupation of the Legislative Council is ready to go.

The revised draft of the Fugitive Offenders Ordinance entered the second reading and was formally handed over to the Bills Committee. When the chairman of the committee could not be elected after two consecutive meetings, the bill had not yet entered the stage of deliberation, but unexpectedly two bills committees were formed at the same time, which is unprecedented in the history of Hong Kong legislation. .

Despite opposition from the business community and hundreds of thousands of citizens taking to the streets to demonstrate, the Government has brought the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill (the “Fugitive Offenders Ordinance Amendment”) to the Legislative Council. The Hong Kong Bar Association issued two statements in succession to propose amendments to the bill. Chen Hongyi, a member of the Basic Law Committee who has always been biased towards the establishment, also wrote an article criticizing the amendments for "fundamentally changing the existing law". In the future, he appeared and said that the five suggestions in the market, including "Hong Kong people's Hong Kong trial", are not exactly feasible, and only the suggestions made by the government are advisable.

Rewinding the time a little, you can see:

• 17/4 Tu Jinshen presided over the first meeting, but no chairman was elected
• 30/4 Tu Jinshen presided over the second meeting, no chairman was elected
• 4/5 The House Committee of the Legislative Council convened a special meeting to approve the guidelines of "Shi Lai-him as chairperson"
• 6/5 The Secretariat asks members to express their opinions in writing

The election stage of the Bills Committee is the "outpost battle" for bill deliberation. Whoever can elect the Chairman of the Bills Committee from the establishment and the democratic faction will undoubtedly play an important role in the entire bill deliberation. However, in the current composition of the Legislative Council, pro-establishment members occupy the majority, and they will inevitably occupy the positions of chairman and vice-chairman. As the most senior member of the Legislative Council, To Jinshen chairs the Bills Committee. The purpose of using the "rab" method is to prolong the deliberation time of the bill as much as possible, in order to see other possibilities during the legislative period.

Section 21(c) of the House Code provides that when a bill is referred to a Bills Committee by the House Committee at its seat, Members who are at the table may show their participation in the Bills Committee by raising their hands, and among such Members the highest ranking The first (i.e. the most senior member) is responsible for convening the first meeting of the Bills Committee.

Subsection 3(a) of Appendix IV of the House Code provides that: Where an election is held to fill a vacancy in the office of Chairman, the Vice-Chairman (if any) shall preside at the election. If the committee concerned does not have a vice-chairman, or the vice-chairman is absent or nominated for the office, the first of the other members present shall preside at the election.

( On the basis of the evidence that Hon James TO can preside over the meeting in the name of the first and most senior member if the chairman of the Bills Committee has not been elected. )

When the chairman was not elected at the second meeting, the largest "anti-extradition" civil demonstration after the umbrella broke out in Hong Kong. The organizer said that the number of participants exceeded 130,000. At the same time, many famous political and business figures such as Liu Mengxiong, Tian Beichen, etc. All came out to express their opposition to the amendment, and many governments also publicly stated that the amendment was not feasible. In the previous month, the Fugitive Offenders Ordinance was almost ignored in Hong Kong.

The election of the chairman of the Bills Committee will inevitably be completed, and the chairman will be "as expected" by a pro-establishment member. At this time, the establishment suddenly convened a special meeting of the House Committee and passed guidelines, intending to replace Tu Jinshen, with Shi Liqian, a senior member of the establishment next to him, presiding over the meeting.

Section 21(e) of the House Code provides that the chairman of a Bills Committee shall be elected from among the members of the committee. The committee may also elect a vice-chairman. The term of office of the chairman and vice-chairman is until the Bills Committee ceases to function. The procedure for the election of the Chairman and Vice-Chairman is set out in Appendix IV - Where the Chairman is elected at the first meeting of the relevant committee, the first member present shall preside at the election.

( Does the House Committee have the power to issue other guidelines to the Bills Committee on the election of the Chairman without amending the House Code? )

Rule 75(8) of the Rules of Procedure provides that: the Committee may act in relation to the conduct and procedure of Bills Committees and subcommittees established under subsection (12), and Panels established under Rule 77 (Panels) of these Rules of Procedure , which provides guidelines .

( The decision of the ICC to preside over the electoral process by Mr. Shek Lai-him is essentially a "direct" rather than a "guidance", and the issue that extends from this is that the ICC can arbitrarily instruct members to preside over the meeting regardless of whether it is the most senior member. )

Rule 76(11) of the Rules of Procedure states: "Except as otherwise provided in these Rules of Procedure, the conduct and procedure of any Bills Committee and its sub-committees shall be determined by the committee itself . In making any such decision , the Bills Committee shall consider the guidance provided under Rule 75(8) (House Committee) of these Rules of Procedure.”

(This article empowers the Bills Committee to decide whether to implement the guidelines of the House Committee, whether Hon James TO has the right to discuss with other committee members and consider the guidelines of the House Committee)

The guidelines issued by the House Committee should be considered by the Bills Committee on their own, but the Secretary of the Bills Committee issued a notice about an hour after the House Committee adopted the guidelines, asking members to express their opinions in writing on whether to adopt the guidelines, which caused controversy.

The "Rules of Procedure" does not expressly stipulate who will preside over the meeting to discuss whether to adopt the guidelines of the internal meeting. The Secretary-General of the Legislative Council, Chen Weian, said that the arrangement of the Secretariat's written voting is based on the rules of procedure and the House Rules. However, the two documents that the Legislative Council relied on, the Basic Law and the Rules of Procedure, do not have a provision to support the act of the Secretariat asking all members of the Bills Committee in writing to consider the guidelines issued by the House Committee .

According to the Rules of Procedure, if the Committee is to take a written vote on an issue without a meeting , the issue:

(1) must be approved by the chairman of the committee;

(2) All members agree to vote in writing.

In other words, the Legislative Council Secretariat has no right to ask Members to vote on the "Guidelines" in writing. If one objection is to be put into the Legislative Council for debate, a written vote can only be taken when all Members agree. Just imagine, if the bill members meeting can vote on issues in writing with the notice of the secretariat, and the members do not need to attend the discussion, doesn't the secretariat have greater power than the committee? If the Secretariat cannot remain neutral, can the Bills Committee be arbitrarily manipulated by any faction? This time, the secretariat is helping the establishment party to adopt the resolution of the House Committee to replace Tu Jinshen, who presided over the meeting.

Therefore, the actions of the Legislative Council Secretariat are equivalent to helping the members of the Bills Committee to make decisions, which is essentially ultra vires .

23 non-establishment members immediately wrote to the House Committee, requesting the Legal Adviser of the Legislative Council to provide legal advice on the House Committee's guidance on the conduct and procedures of the Bills Committee in accordance with Rule 75(8) of the Rules of Procedure.

The legal adviser said that the pro-establishment MPs asked for a guideline on the process of electing the chairman of the Bills Committee, not the House Committee to issue a direction to the Bills Committee. The House Code only provides for the procedure for electing the chairman at the first meeting of the Bills Committee. As for the procedure for electing the chairman after the first meeting of the Bills Committee, the current House Code does not provide for this. If the House Committee approves the proposed guidelines to the Bills Committee, the Bills Committee shall consider the guidelines. However, the guidelines do not automatically apply to the Bills Committee and it is up to the Bills Committee to adopt the procedures set out in the Guidelines.

When the Secretariat "violated the rules" and adopted "guidelines" for Shi Liqian to replace Tu Jinshen, Shi Liqian simply decided to reschedule the third Bills Committee meeting originally held on May 6 to Saturday (May 11). In the event of a solution, the democrats did not agree with Shi Liqian's "decision" and said that the committee would be held as usual. So on May 6, when most of the pro-establishment factions were absent, the secretariat was not present and did not provide secretarial services, and the members brought their own microphones to speak, the "third meeting" of the "Fugitive Offenders Ordinance" Bills Committee was held. And elected "Chairman" Tu Jinshen, "Vice Chairman" Guo Rongkeng. Kwok Rongkeng immediately put forward a motion at the meeting, asking the government to withdraw the relevant draft immediately. With the second opinion of a group of pro-democracy lawmakers, he "passed" asking the government to withdraw the amendment to the Fugitive Offenders Ordinance.

So far, for the first time in the history of the Hong Kong Legislative Council, there have been two bills committees after the second reading. One is the pro-establishment bills committee that was established in accordance with the procedures, and the other is the pro-democracy bills committee that was established and carried out in accordance with the procedures. Coincidentally, both committees have decided to hold their next Bills Committee on May 11. The democrats decided to set the meeting at 8:30 a.m., half an hour earlier than the establishment meeting. One will continue the deliberation on the revision of the Fugitive Offenders Ordinance, and the other will elect the establishment Xie Weijun as the chairman of the committee. Will the democrats stay in the conference hall overnight, disguised as "occupying the Legislative Council", so that the establishment cannot be present, or will the two factions appear in the conference hall together, and the secretariat only recognizes Shi Liqian as the chairperson and dismisses the others. ”, and started a round of “Battle for Microphones”, it is still unknown who will achieve the goal.

Chief Executive Carrie Lam broke into the Legislative Council by amending the Fugitive Offenders Ordinance, causing the Legislative Council to be torn apart and the Bills Committee divided into two. The constitutional issues involved in the incident may be appealed to the courts in the future, and the courts, which have always been reluctant to intervene in legislative affairs, will also be caught in a dilemma. Under heavy pressure, the government firmly stated that the amendment to the Fugitive Offenders Ordinance will not be withdrawn, and this year's session of the Legislative Council is about to end. When the next legislative year begins, the suspect Chen Tongjia, who is to be transferred to Taiwan, has been released from prison in Hong Kong after serving his sentence. At that time, the "urgency" reason for the government to support the legislation all the time no longer exists, so why does the government give "justice" to the amendment of the Fugitive Offenders Ordinance?

It is foreseeable that no matter how the tug-of-war continues, the Hong Kong version of "Occupy the Legislative Council" may be on the verge of a wave of opposition to the Fugitive Offenders Ordinance from the public and parliament.