In 1653, England’s lord protector, Oliver Cromwell, told the members of the Rump Parliament that: “You have sat too long for any good you have done lately. Depart, I say, and let us have done with you. In the name of God, go!”
Since 2012, barrister Dennis Kwok Wing-hang, a Civic Party member, has represented the legal functional constituency in the Legislative Council. His recent antics, however, have demonstrated his unsuitability for office. Although, as Lord Randolph Churchill, the Tory statesman (and Winston’s father), once explained, “the duty of an Opposition is to oppose”, this is done through reasoned debate, not by preventing a legislature from functioning.
In October, after it became necessary for the Legislative Council’s House Committee to elect a new chairman, it fell to Kwok, as deputy chairman, to preside over the election, which should have taken about 30 minutes. Instead of discharging this responsibility, he has used his position to prevent this happening, and, over six months and 14 meetings, he has deliberately created deadlock. To waste time, he has allowed opposition lawmakers to make speeches on unrelated issues, without time limits.
Kwok’s behavior has produced damaging consequences, impacting severely on the Legislative Council’s ability to discharge its functions under the Basic Law (Article 73). It is estimated that at least 14 bills and 89 pieces of subsidiary legislation, some involving economic and livelihood issues, have been held up, while the chief executive’s policy address remains undebated. Kwok has sought to justify himself by claiming that, if he does not obstruct things, the government might seek to “railroad” controversial laws through, like national security legislation and the national anthem law. This, of course, is no justification, particularly as the Basic Law, which he has sworn to uphold, provides that Hong Kong “shall” enact a national security law, just as it is obliged to enact the national anthem law, following its insertion into the Basic Law’s Annex III by the National People’s Congress Standing Committee in November 2017 (Art 18).
Kwok (Wing-hang)’s behavior has produced damaging consequences, impacting severely on the Legislative Council’s ability to discharge its functions under the Basic Law (Article 73)
When he took the Legislative Council Oath, Kwok undertook not only to “uphold” the Basic Law, and to “bear allegiance” to the “Hong Kong Special Administrative Region of the People’s Republic of China”, but also to serve Hong Kong “conscientiously, dutifully, in full compliance with the law, honestly and with integrity”. By blocking the election and creating mayhem, Kwok has aroused grave concerns over his bona fides. He is, moreover, by making a mockery of good governance, endangering the “one country, two systems” principle itself.
Indeed, the Hong Kong and Macao Affairs Office, naturally appalled by this scandalous situation, has suggested that Kwok, and his collaborators, may have committed misconduct in public office. Unlike bribery, this offence, which has five elements, does not require cash payments or other advantages, and is aimed at people who abuse their public position, which, the courts have said, can include parliamentarians. In 2005, the Court of Final Appeal held that the offence arises where a public officer, in the course of or in relation to his public office, wilfully misconducts himself, by act or omission, for example, by wilfully failing to perform his duty, without reasonable excuse, or justification, and the misconduct is serious, not trivial (Sin Kam-wah v HKSAR).
If, therefore, a formal complaint is lodged with either the ICAC or the police, and a formal investigation ensues, the Department of Justice may need to consider whether Kwok, by failing over many months to arrange an election, falls within these criteria, and whether the consequences of what he has done are sufficiently egregious to justify further action. In that exercise, Kwok’s reaction to the appointment of the new chief justice may also be instructive.
When it was announced last month that Mr Justice Andrew Cheung Kui-nung is to become the new chief justice in January, following the retirement of Geoffrey Ma Tao-li in January, the chief executive asked Kwok to stop paralysing the work of the Legislative Council, so it can, as required by the Basic Law (Art 90), endorse the appointment, by July. Although an endorsement before the summer recess would obviously facilitate a smooth handover, Kwok’s bizarre response was to accuse the chief executive of “politicizing a judicial appointment for your own political benefit”, and he withheld any assurances of an endorsement.
Cheung’s appointment, moreover, was widely applauded in legal circles, with Ma himself saying his successor would be “outstanding”. Kwok’s churlish response, however, was to express concerns, not because Cheung lacked the necessary experience, but because he disliked some of his judgments. He singled out for particular criticism Cheung’s decision to uphold the disqualification of the two Youngspiration lawmakers, who failed to take their Legislative Council oaths in the manner prescribed by law, even implying that the judge was a Beijing patsy. As Kwok should know, however, Cheung, like any other judge, has to apply the law as he sees it, and cannot tailor his judgments to suit particular individuals. If, moreover, Cheung had messed up, his judgment would have been overturned on appeal, but this, of course, did not happen.
Cheap shots at judges are, however, an established part of Kwok’s repertoire. When, for example, the Court of Appeal delivered its judgment on the constitutionality of the face mask law on April 9, Kwok, instead of expressing respectful disagreement, as was his right, sarcastically accused the judges of living on another planet, presumably hoping thereby to dent their credibility.
Quite clearly, the Hong Kong Bar Association needs to have a few quiet words with Kwok. Even its greenest members appreciate that they should be respectful of the judiciary, not least because this helps to uphold the rule of law. Grandstanding is all very well, but not when it comes at the expense of the judiciary.
Kwok is, of course, a familiar figure in Washington, DC, where, in 2019, with Civic Party colleagues, he met on several occasions with various China critics, including House Speaker Nancy Pelosi, Republican Party hawks, and officials from the Department of State and the National Security Council. While there, he and his colleagues endorsed US legislation which could end Hong Kong’s special trading status, and expose its officials to sanctions, and also called for international training exercises with the Hong Kong Police Force to end, and for it to be denied crowd control equipment. Although his hosts must have been delighted to find a lawmaker prepared to dance to their tune, there is, as yet, nothing to connect his paralysis of the Legislative Council to anti-China forces in the US, although many of them will be very happy that Hong Kong lacks the security laws it needs to adequately defend itself from radical violence. If, however, there is to be an investigation into his behavior, this is another possible line of inquiry.
The Legislative Council itself must now take whatever steps are necessary to put its house in order. Quite clearly, if a situation arises whereby one of its members is unable, or unwilling, as here, to discharge his responsibilities, mechanisms exist for rectifying the situation. In this, the president of the Legislative Council must be proactive, ensuring that the Rules of Procedure are honored, that the House Committee can operate, and that legislative business can be conducted. The current legislative term runs through to July 15, and much still needs to be done.
If, despite his failings, Kwok is considering putting himself forward again for the Legislative Council elections in September, the legal functional constituency should, like Cromwell, respond with one voice: “In the name of God, go!”
The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of Hong Kong.
The views do not necessarily reflect those of China Daily.
