HKP Lecture 6 - Institutional actor (2): The Legislature PDF

Preview

Summary

HKP Lecture 6 Institutional actor (2): The Legislature Historiss, powsrs and eunctions oe LsgCo  Establishsd in 1843, only 4 msmbsrs including ths Govsrnor as ths chairman  1850 onwards: appointmsnt oe unoeeicial msmbsrs, as a way oe co-opting sstablishsd intsrssts liks Chinsss tycoons and British...

Description

HKP Lecture 6 Institutional actor (2): The Legislature Histories, powers and functions of LegCo  Established in 1843, only 4 members including the Governor as the chairman  1850 onwards: appointment of unofficial members, as a way of co-opting established interests like Chinese tycoons and British merchants  Rubber stamps, government bills could cruise through the LegCo  1985 onwards: Introduction of elections, through Functional Constituencies (FC) and Electoral College (EC), was still very much under government control before 1991  Direct election in 1991

Patten’s reform  The legislature in1 995 were originally to serve beyond the handover, thereby providing institutional continuity across the reversion of Hong Kong to the PRC  Chris Patten extended the definition of functional constituencies and thus virtually every Hong Kong citizen was able to vote for the so-called indirectly elected members of the Legislative Council  In 1995, the Geographical Constituencies (GC) was returned by first-past-the-post system, which enabled the popular democrats to win a great majority of directly elected seats o Democratic Party had landslide victory in Municipal Board and LegCo Second stove: Preliminary Working Committee (PWC) and Provisional legislature (PLC)  China’s displeasure with Patten’s unilateral political reform eventually led to the dismantling of LegCo on 1st July, 1997 J  Full-train proposal o Any arrangement made in 1995 should be agreed on by CPG and British government  To counter the influence of Chris Patten’s reform: o Preliminary working committee: A United Front organ, chaired by Qian Qichen 錢其琛

HKP Lecture 6 Institutional actor (2): The Legislature



o Provisional Legislative Council was established in December 1996, which functioned as the HKSAR’s legislature the minute China resumed sovereignty over HK  Formed by pro-China conservative members  Passed laws that violated human rights  e.g. The rights of collective bargaining revoked by PLC Legality of PWC and PLC was questioned

Composition of the LegCo after 1997

Powers and functions of the legislature (Basic Law, Article 73)  Enact, amend or repeal laws o (a) Enacting laws  Most of the legislatures pass laws, only few initiates laws  In HK, the government is primarily responsible for proposing new legislation or amendments to existing legislation  A bill is first published in the Gazette before it is introduced into the Council  First Reading: reading the short title of a bill at a Council meeting  Second Reading: to be studied by the House Committee or a bills committee   HK: First reading & second reading at the same time  Third Reading: the Council would consider whether to support the passage of the bill o Private Member’s bills  Private bills in the UK: introduced into a legislature by a legislator who is not acting on behalf of the executive branch, a “private member” is any member of parliament who is not a member of the cabinet (executive)  A piece of legislation that gives powers or benefits to a particular group of persons, such as a local council or private corporation  These changes to the law do not affect the general public as a whole (X directly affect public interests) o Classification of bills (1) According to the nature of bills (2) According to the sponsor’s  Public Bills: identity

HKP Lecture 6 Institutional actor (2): The Legislature Primarily concerns the public interest   Private bills:  Only allowed to initiate bills that do not involve public expenditure, or the political structure or the  operation of the government  Provides primarily for the particular interest or benefits of any individual, association or body corporate

       

Government Bills: o Sponsored or drafted by a department or bureau of the government Members’ Bill: o Sponsored by members of the LegCo/ a group of members

o (b) The power of purse  To control public expenditure (most powerful tool to check against the govt)  Finance Committee in LegCo  Cannot vote to increase the government’s expenditure, only approves or rejects government funding requests or new taxation proposal  Article 51: If the Legislative Council of the Hong Kong Special Administrative Region refuses to pass the budget introduced by the government, the Chief Executive may apply to the Legislative Council for provisional appropriations. o (c) The committee system  Function: Efficiency, modification, work on the details, specialization in particular policy area  Unlike legislatures in Western democracies, LegCo does not rely on a well-developed system of standing committee to carry out its work  The LegCo only has three standing committees, namely the finance committee, public accounts committee, and committee on members’ interests  Select committee: scrutinizes the executive, investigates particular matters of public interest Examine and approve government budgets Approve taxation and public expenditures Debate on the CE’s Policy Address and issues of great public interests Raise questions on the work of the government Impeach the CE Receive and handle complaints Consent for the removal of judges Investigatory powers: Chief Executive versus the LegCo o What if the Chief Executive is summoned by the LegCo? o Tung Chee-Wah was summoned by the LegCo after the SARS epidemic (2003) o He refused to be summoned since it is “constitutionally inappropriate” to do so o Instead he invited members of the LegCo to the Government House and met closed doors behind media o Not accepted by the Select Committee but there were no follow up actions

HKP Lecture 6 Institutional actor (2): The Legislature Select Committee (2012 - 2016)  Select committees formed o Matters relating to Timothy Tong’s duty visits, entertainment, and bestowing and receipt of Gifts during his tenure as Commissioner of the ICAC o Reasons for the delay of the construction of the Hong Kong section of the Guangzhou-Shenzhen-Hong Kong Express Rail Link  Motions defeated o The motion to request the Government to produce relevant documents involved in the process of free TV license approval (33 for, 30 against) o The alleged secret payment to Chief Executive Leung Chun-ying by the Australian company UGL (38 against, 22 for) o ***No Select Committee formed because of Split voting system 

(d) Power and privileges o Article 77: Members of the Legislative Council of the Hong Kong Special Administrative Region shall be immune from legal action in respect of their statements at meetings of the Council. o Article 78: Members of the Legislative Council of the Hong Kong Special Administrative Region shall not be subjected to arrest when attending or on their way to a meeting of the Council. o To prevent the executive from exercising physical control over the legislature

Power & Privilege of the Legislature  To exempt LegCo business from otherwise applicable general law, such as slander  Functions as a sovereign body  Originated from traditions in the British Parliament: to subsist according to its own laws and customs  Historical background: Glorious Revolution (1688)  The deposition of the reigning king, James II (only accountable to God)  The Crown’s prerogative powers would subject to override by Act of Parliament  Codified in Bill of Rights (1689)  Declaration of Right presented by the Convention Parliament to William and Mary in February 1689 (in statutory form)  “the freedom of speech and debates or proceedings in Parliament should not to be impeached or questioned in any court or place out of Parliament”  To stay free from the Crown’s coercion and to act according to their own judgment  J Freedom of speech, safeguard Parliament’s power Limitatinos of the LegCo (a) Constraints on the private bills  Function: as an alternative policy and a way to expose legal vacuum o Private members’ bills before 1997

HKP Lecture 6 Institutional actor (2): The Legislature o The only constraint was the bills raised could not entail government expenditure o 12 private members’ bills tabled (1991-95) o 53 private members’ bills tabled (1995-97), 23.2% of all bills tabled, 49.1% passage rate o Put policy pressure on the government and influenced the government’s legislative agenda o Example: Anti-discrimination bill (1995), Protection of harbour bill (1997) 

Private members’ bills (1998-2013) (Gu Yu, 2015)



Major obstacles: o CE’s consent as the major determinant o Bills without the CE’s consent usually have real policy impact, such as employment, Mandatory Provident Fund, etc. o The president’s exclusive power to interpret the meaning of “public expenditure”, “operation of the government”, etc., with his/ her power from the rules of procedures, free from any external interference  relying on the President to give interpretations o Make ruling after hearing from the legislator (s) and the administration

(b) Functional constituencies and corporatist representation  Starting from 1850: Businessmen as unofficial members  Before 1964: over 90% of appointed members were from established rich families「主要英資集團如怡和及太古、滙豐銀行，主要商會如香港總商 會等，差不多保證可在行政立法兩局有代表。在政府總部和兩局的決策 核心以外，約一百個主要的諮詢委員會組成了一個次級的吸納架構。」 (Mg Ngok, 2013) o Foreign hongs 洋行: Jardine, Swire  Ambrose King (1975): Administrative absorption of politics and “synarchy” (華洋共治) of colonial bureaucrats, British merchants and Chinese elites  Business interests are institutionalized through the functional constituencies (1985): as a strategy to maintain colonial domination Corporatism:

HKP Lecture 6 Institutional actor (2): The Legislature  



 

Related to functionalism (society is a complex system constituted by different parts which will work together to promote solidarity and prosperity) Domination of the state, organization of the society by interests that are “recognized” by the government o State will manage conflicting interests by incorporating various sectorial interest o Only one interest representative in each sector A 19th-century doctrine which arose in reaction to the competition and class conflict of capitalist society o Emerged in a bipolar society o Fascist Italy: to overcome internal class conflict by defining both the capitalists and the workers as “producers” who strive for the success of the state FC: To guarantee monopoly of access to the state by one group from each sector of society Nowadays, corporatism supplemented parliamentary forms in certain countries, but they hardly became the centre of the liberal democratic state o Societal corporatism – cooperate as a social partner to facilitate international economy, only supplementary role to universal suffrage

Corporatism (Philippe Schmitter, 1974) versus Pluralism (Robert Dahl, 1961)  The degree of solidarity among the power elite is exaggerated  People can remove elite through election  There is competition between partie/ interest groups s in elections  Ability of interest or pressure groups to articulate their views  The government is a neutral arbitrator which is equally open to all interest groups o C.f. Corporatism: privileged and recognized access to representation, no equal competition, government not neutral  FC  These groups link up the government and the people  Though people do not directly govern, these channels are sufficient to ensure accountability and responsiveness  Competition produce an equilibrium point and benefit the general public Case: Sports, Performing Arts, Culture and Publication FC  Arbitrary grouping of functions and limited competition  Eligible voters are limited to recognized art bodies, not individual artists  Yu Run-xing’s family (Chairman of the Hong Kong Table Tennis Association) possesses 13 votes in this FC  Ma Fung Kwok’s opinion on derivative work/ parody:  「咩叫作家？寫過幾篇文就係作家？點先係藝術家？九龍城皇帝係咪書法 家？」/「二次創作」這個詞語只是香港人自創出來 “Secondary creations”

HKP Lecture 6 Institutional actor (2): The Legislature “Secondary creation” in contemporary art J  Marcel Duchamp (1877-1968)  Conceptual art: a movement that prizes ideas over the formal or visual components of art works  Andy Warhol (1928-1987)  Pop art: By creating paintings or sculptures of mass culture objects and media stars, the Pop art movement aimed to blur the boundaries between “high” art and “low” culture (c) Split voting system  The FC members of LegCo are treated as a separate chamber when voting is done on any motion, bill or amendment to a Government bill introduced by an individual member of LegCo  If such motion, bill or amendment is to pass, it must obtain a simple majority of votes amongst FC members and a simple majority amongst all other LegCo members  Effectively, this amounts to giving the FC members a veto over legislative action introduced by GC members  Bills and amendments to bills introduced by the government only require a simple majority vote of all members of LegCo present (d) Internal split by institutional default  FC and GC elections (35 seats each)  Proportional representation: Multi-party system, variations among parties in terms of policy content  List system: A list of candidate are presented by each political party in an election  Political orientation (2012-2016)  Pro-democracy (27), Pro-establishment + No explicit affiliation (43)  Internal divisions in political camps  Cannot check against the executive collectively (e) Restrictions on by-elections  De-facto Referendum (16 May, 2010) o No laws on referenda in Hong Kong o Symbolic meaning: HK people support the Legislators to fight for Universal suffrage – giving mandate to legislators to reject constitutional reform in 2010 o Manifesto of real political reform in Hong Kong and the abolition of FC o Boycotted by the pro-government parties  Post-resignation o The pan-democrats were divided

HKP Lecture 6 Institutional actor (2): The Legislature o “Plugging the loophole”: Resigned legislators cannot stand for by-election within 6 months (f) Legislative behaviour (Jean Blondel, 1970, 1973)  Yardsticks to measure the importance of legislature o Look into the amendments made by legislators o Number of bills  “Viscosity”: to qualify legislative influence, as Blondel pointed out that even in liberal democracies, government bills got their way most of the times, and amendments against government wishes were not usually carried  Policy initiation through private bills does not play a dominant role even in liberal democracies  Legislatures are more active in the American congressional system  It needs indicators of milder legislative influence Legislative behaviour  The legislature’s ability to react to the government bills through amendment: Qualitative difference between bills passed in one sitting and those that spend months in bill committees  Three situations specified by Blondel: o Amendments presented by the opposition, but these are presented for propaganda proposes which will be rejected eventually o Amendments may be passed with the consent of the government o Amendments presented by the opposition but expected to be passed by the legislature against the wish of the government  Viscosity indicators (Ma Ngok, 2007) based on Blondel: o The number of bill committees (BCs) formed o Time spent on bill deliberation o The number of government amendments o The number of members’ amendments o The number of members’ amendments passed Legislative viscosity (1998-2013) (i) Number of BC formed and completed their work (Gu Yu, 2015)

HKP Lecture 6 Institutional actor (2): The Legislature

(ii)

Proportion of bills scrutinized by BCs (Gu Yu, 2015)

(iii)

Number of members and deliberations in the BCs (Gu Yu, 2015) Most of them are formed by less than 20 members (since 2000) Some of the BCs have attracted more members to join (e.g. Chief Executive Election Bill) The government tries to lobby its allies to compete for chairmanship E.g. Ip Kwok Him (National Security Bill, 2003), a motion of vote to close “clause-by-clause” scrutiny of the bills

   

(iv)

BCs and government amendments (Gu Yu, 2015)

HKP Lecture 6 Institutional actor (2): The Legislature (g) Filibuster  An action such as prolonged speaking which obstructs progress in a legislative assembly in a way that does not technically contravene the required procedures (e.g. US Senator Strom Thurmond in 1957)  Usually initiated by the minorities/ oppositions in a policy issue to push for changes in legislation or to prevent a bill from passing by delaying the time of final vote Filibuster in the US (US Senate, 2015)  Usually takes place in the Senate (as the HOR grew in numbers)  Became popular in the 1850s, when it was applied to efforts to hold the Senate floor in order to prevent a vote on a bill  By 1915, the Senate had become a breeding ground for filibusters  Pressure for “cloture” rule under Woodrow Wilson (1917)  The rule required a two-thirds majority to end debate and permitted each member to speak for an additional hour after that before voting on final passage  Even with the new cloture rule, filibusters remained an effective means to block legislation, since a two-thirds vote is difficult to obtain Filibuster in HK  Filibuster is an important way to delay unpopular bills, but the tactic is boycotted by the pro-China camp. Hence, it is not capable of triggering meaningful discussions within and outside the legislature  Culture of HK not used to a prolonged debate (h) Filibuster in HK and Rules of procedure  “Cloture” in HK: No institutionalized mechanism to determine the time of cloture J  Determined by the President of the LegCo in de facto sense  Rules of Procedure (Part I, Decision of Chair Final)  “The President in Council, the Chairman in a committee of the whole Council or the chairman of any committee shall be responsible for the observance of the rules of order in the Council and committee respectively. His decision on a point of order shall be final. (L.N. 87 of 2011)”  Part N: Procedure if Rules of Procedure do not Provide o “In any matter not provided for in these Rules of Procedure, the practice and procedure to be followed in the Council shall be such as may be decided by the President who may, if he thinks fit, be guided by the practice and procedure of other legislatures.”  Controversies: o Policy Address Q&A Session (13/10/2011) o Discontinuation of filibuster (17/5/2012)

HKP Lecture 6 Institutional actor (2): The Legislature Classification of the legislatures Michael Mezey (1990)  “Minimal legislature”: Neither amend nor reject legislation  “Reactive legislature”: Modest policy making power  “Active legislature”: Legislature stands at the centre of the policymaking process

Michael Curtis (1978)  “Submissive legislature”: No decision-making power in terms of initiative and autonomy  “Adversarial legislature”: Considerable scope to influence and scrutinize  HK  “Co-equal legislature”: Independent from the executive in terms of existence, organization and procedures

Implications  Executive hegemony in HK: Created under the influence of Westminster system but in operation, it resembles Presidential system with weak check and balance o Fixed term of the CE (vote of no confidence is not legally binding), separated mechanism for the selection of the CE and the LegCo, the CE enjoys exclusive power of political appointment  The government has the power but no mandate, while the LegCo has the mandate but it has limited power  Radicalism in the legislature  The absence of “political society”: Political demands may have to bypass the legislature...