The Legislative Council House Committee’s function is to scrutinize bills introduced into LegCo meetings or presented to the council for approval. Between Oct 18, 2019 and April 2020, the House Committee held 13 meetings (originally 17 meetings but with three meetings in February canceled because of the COVID-19 pandemic) and all along its agenda was set for the “election of the chairman and deputy chairman for the 2019-20 session”. Ironically, these legislators spent 20 business hours over a period of seven months and still could not agree on who would head the House Committee!
Opposition lawmakers have been stymieing House Committee proceedings for months, and its presiding officer, Dennis Kwok Wing-hang of the Civic Party, defended the logjam. He said the impasse stems from people’s concern that the “government would try to railroad controversial laws, like national security legislation, through the council if resistance crumbles.”
But isn’t it the function of the LegCo “to enact laws” and “to debate any issue concerning the public interest”? Without the bill even getting passed in the House Committee, how can any bill be discussed by legislators together in order to become law? Filibustering by indecision is a serious dereliction of duty by opposition legislators and nonfeasance of functions conferred upon the entire LegCo by Article 73 (1) and (6) of the Basic Law.
This filibustering by indecision is also a breach of oaths. All legislators when assuming office must take an oath to “uphold the Basic Law’’ and to “serve the Hong Kong Special Administrative Region (not just the voters who elected them) conscientiously, dutifully … and with integrity.” How can such conduct be “upholding the Basic Law’’ when the Basic Law requires positive action and a proper performance of functions? Kwok was wrong in his understanding of his oath — a legislator is there to serve the whole HKSAR, including but not exclusively his supporters. He should have the public interest of the entire SAR in mind, not just a fraction of the community. And the magic word “dutifully’’ requires him to discharge his functions as a legislator in a manner motivated by duty rather than personal desire and impulses or egocentric political interests.
Without the bill even getting passed in the House Committee, how can any bill be discussed by legislators together in order to become law?
Misconduct in public office, as emphatically accepted by the highest court in Hong Kong in HKSAR v Donald Tsang Yam-kuen (2019) 22 HKCFAR 176, is an offense in which a public official, in the course of or in relation to his public office willfully misconducts himself by acts or omission (for example, by wilfully neglecting or failing to perform his duty) without reasonable excuse or justification; and where such misconduct is serious, not trivial, having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of their departure from these responsibilities.
Misconduct may take various forms, ranging from fraudulent conduct, through nonfeasance of a duty, misfeasance in the performance of a duty, an exercise of a power with a dishonest, corrupt or malicious motive, acting in excess of power or authority with a similar motive, or oppression. A good example of wilful neglect is R v Dytham, a case concerning a police constable’s failure to intervene in a fight in which a man was beaten to death. The English Court of Appeal, on convicting the police constable, said that his neglect was “calculated to injure the public interest’’ so it was misconduct in public office. Clearly, the indecision and inaction of Kwok and other opposition legislators was ignoring and disregarding the interests of the HKSAR to have bills properly examined by the House Committee, meaningfully debated by the LegCo general committee and voted upon. Kwok and his fellow opposition legislators have only their parties’ and their personal political interests in mind instead of the interests of all Hong Kong society when they are holding up the House Committee proceedings.
Does he have a proper excuse or justification for doing this? I understand that the House Committee may have different opinions and political factions; it is difficult to get a consensus on who should be the chairman and deputy chairman. This is precisely why a presiding officer is needed to organize the voting and to allow voting to take place. Art 75 (2A) of the LegCo Rules of Procedure provides that “the election of the chairman and deputy chairman of the committee for the first session of a term shall take place at the first meeting of the committee in the session.” It is mandatory that an election has to take place; otherwise it is a breach of the Rules of Procedure. Kwok and his fellow opposition legislators could not even elect someone after meeting 13 times! How difficult is it really to nominate a few people and vote for them? I believe Kwok has no excuse not to allow voting to occur. The facts stated above suggest he is clearly culpable of the offense of misconduct in public office.
The author is a barrister and chairman of the Hong Kong Legal Exchange Foundation.
The views do not necessarily reflect those of China Daily.
