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權力及特權法 — 時光倒流 35 年

2020/11/6 — 12:50

政府引用《立法會(權力及特權)條例》大舉拘捕及檢控非建制派議員,令人哭笑不得。香港人善忘,也許從來沒有記取,即便貴為特首,也沒有花時間了解條例的來龍去脈,前世今生,遑論條文背後的傳統和理念,以致不加思索就提出了「沒有人能凌駕法律」之說,意指立法會議員沒有免於受法律約束的特權。其實,由特首提出這個說法,真是太太太諷刺了。不過,重心在於,特權法是一條什麼法律?

1985 年,5 月 17 日,條例尚待立法局二讀辯論之際,我在英文虎報 The Margaret Ng Column 發表有關這項條例草案的評論,指出這條表面上沉悶,而實質上對立法局原有的權力及特權不增不減的法案,其通過其實有劃時代的重大意義,即使當時那些尊貴的議員們仍在雲裡霧裡。

政府將草案當作「技術立法」處理,不作公眾諮詢,我是少數一直等著這草案的評論人。政府「奸計」不得逞,5 月12 日首讀之後惹起軒然大波,民間法、政團體疑心大起,大興問罪之師,以致當時由譚惠珠議員擔任召集人的審議草案委員會十分狼狽,急急應付。爭議的重點,從 6 月 12 日二讀辯論可見。直到 6 月 26 日三讀通過之後,還有不少「手尾」要跟。35 年前的文章,今日審視,仍然正確,只是當時無人料到有一天行政當局會拿這條條例對付民選議員 — Margaret Ng 也沒料到。

Bill of first importance

THE LEGISLATIVE Council-(Powers and Privileges) Bill gazetted last Friday is a bill of the first importance because of its implications for the future. 

In appearance it may well be an unremarkable piece-of legislation; all it claims to do is to gather the powers and privileges "at present, enjoyed by the Legislative Council under the common law into a bill, so that these same powers and privileges will in future e derivable from the statutory law in Hongkong. But this is by itself an important step in preparation for the Hongkong system after 1997, when parliamentary practices in the UK will cease to have direct bearing on the powers and privileges of the legislative assembly here. 

And then the fact that the powers and privileges provided in the bill are already in existence does not mean they are well-known; even less that they are in use, and before they can be invoked they have to þe: publicised. 

I doubt if many members of the Legislative Council have ever stopped to consider that what they say in the Legco cannot constitute libel; or that they cannot be arrested on their way to or from, or during a meeting of the council; or that the regulation of the conduct of members of the council within the council's precincts are entirely the business of the council itself and no court may interfere with it; to name the most obvious. They have not been considered it because the call to do so has never arisen.

Nor is it taken as a matter of course that the Legislative Council is on a par with the British parliament. There is no feeling so acute as the unofficials' awareness that they are only volunteers in an important public service, that both their time and power are limited, that they can only do so much and no more.

Legco Standing Orders 

Nor does the sedate meeting of the Legco, with at least 90 percent of what is said pre-dralied and pre-printed, if not also pre-distributed, bear much resemblance to the boisterous debates with flares of insolent rhetoric in the House of Commons. There you may expect a member to need the protection of the privilege of absolute freedom of speech. Here you laugh hysterically at the slightest banter between an august government official and a charming member of the unofficial. 

In so self-effacing a setting it is easy to understand that the business of being watchdogs of the government is not pursued too far. Indeed with half of the Legislative Council made up of government officials and the rest unofficials appointed by the governor, "watching the government" makes hardly any sense.

The unofficials, however conscientious, can hardly be expected to have sufficient ammunition to do a really effective task. It is not to be wondered that even existing powers are not used to the full. 

For example, it is stipulated in Standing Orders of Legco that the Finance Committee "may call before them to give evidence the public officer responsible for the service or services provided under any head of the estimates", and the Public Accounts Committee, "may call any public officer or, in the case of a report on the accounts of or relating to a non-Government body or organisation, any member or servant of that organisation, to give information or any explanation or to produce any records or documents which the committee may require in the performance of their duties”. This power to call witnesses and documents has never been invoked. 

Again, Standing Orders provides for the formation of select committee to consider matters or bills which the council may refer to the committees, only one such committee has been formed in the deep distance of the past with another one - on the trial of- commercial crimes bill - to be formed in the near future. 

What will induce Legislative Council to actually use these powers is of course unlikely to be the mere existence of a Powers and Privileges Bll, but whatever other factors may also be needed, the consolidation of such powers by legislation is no doubt an important step. 

Indeed if one may be so bold as to interprete this bill not so much a convenient codification as a culminating point of development, as preparation laying down the foundation for things to come, one may even call this a bill to launch a new Legislative Council, a Legislative Council which is less one of the highest level representing the people of Hongkong.

For 2 major developments 

In special, the bill prepares for two major developments: the development of real debates in the meetings of the Legislative Council, in which government may be taken to task and held accountable for their policies and conduct; and the development of a machinery of investigation into large policy areas or proposals of great public interest by Select Committees. 

The first of these developments is prepared for by Part II of the Bill entitled "Privileges and Immunities", and the second is prepared for by Part IlI elaborating on the power of calling witnesses and documents for evidence, and Part IV giving these powers "teeth" in the form of penalties for not obeying a summons of the Legislative Council or a select committee so empowered by the council, or giving false evidence. 

The Legislative Council is due for change. The elections in September will be a cardinal point. With 24 indirectly elected members and be move into the old supreme court building, the politics of this hitherto sedate assembly will change qualitatively. Two possibilities suggest themselves. 

Possibility One: the present situation of the Unofficials acting as a kind of Opposition reflecting public opinion gives way to various sectors of public interest opposed to one another, each pressuring government to form policies to its liking. Possibility Two: The addition of elected members strengthens the representativeness without bringing with it factionalisın; thus strengthened they will more readily assume an active role in reviewing government policies critically by means of Select Committees. 

Possibility One is grim and likely. Possibility Two is rosy and unlikely. What is both likely and worth thinking about is a third possibility: more elected members come into Legco, civil servants retreat into the background, a ministerial system takes over policy responsibilities, and we have a situation in which unofficial members hold other unofficial members - the ministers, responsible for policies and direct criticism at government through them. Thus the executive is made accountable to the legislature. 

It is in this situation that the powers and privileges bill becomes entirely realistic and necessary. One may thus reverse the logic and ask, is this the situation the present bill is paving the way for?

 

Margret Ng Column 17.5.1985, Bill of First Importance

Margret Ng Column 17.5.1985, Bill of First Importance

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