Margaret Ng


Tel: (852) 2869 8317
Fax: (852) 2179 5190
Email: margaret@margaretng.com
Website: http://www.margaretng.com

CALC Conference 2009 - Legislative Drafting: A Lawmaker’s Perspective
LEGCO 2009-04-03

The most famous legislation that I have participated in as a legislator is undoubtedly the National Security (Legislative Provisions) Bill, introduced by the Government in February 2003. It was known as “Article 23 legislation” for short, because the Bill’s objective was to implement Article 23 of the Basic Law under which the HKSAR was required to “enact laws on its own to prohibit any act of treason, sedition, subversion against the Central People’s Government, or theft of state secret”, political activities of foreign political bodies and connections between local political bodies and foreign political bodies. The intention of the SAR Government was to have the bill passed in July, before LegCo rose for the summer break, but the bill touched on a raw nerve of a population a large proportion of which had escaped from Communist China in the 1950s and 60s. The memory of the June 4 incident of 1989 was still green in the minds of the rest.

The Bill, drafted as an amendment bill amending three existing Ordinances, was complex and in obscure language alien to the public. The legal profession’s warning and concerns were ignored. The demand for a ‘white bill’, i.e. a draft bill published for consultation, was rejected because the Government was worried about delay. It reckoned it had a majority in LegCo.

In the event, mistrust in the bill grew into a movement, and in that year when Hong Kong already faced an economic downturn and SARS, sparked off the march of 500,000 people in the streets on 1 July 2003. A consequence of the march was that the bill was eventually withdrawn. Its other consequence was that, a year later, the Chief Executive, Mr. Tung Chee-hwa, stepped down for reason of “ill health”, and was replaced by Mr. Donald Tsang the present Chief Executie.

So law drafting is no joke in Hong Kong.

Hong Kong’s constitutional arrangement is unique, and this has made our legislative process and experience unique. But we also have a great deal in common with other jurisdictions, because we have sprung from the common origin of the Westminster tradition. I expect that, since many of our legislators today have started their political career before 1997 under the British Administration, we also share many common features with parliamentarians the world over.

This means, broadly speaking, our aims regarding legislative drafting are similar, and the rules and procedures governing the legislative process are similar. Most politicians are in parliament because they want to influence public policies which implement certain values, and policies frequently require legislative underpinning. Of course, sometimes a situation has arisen which provokes a social outcry that politicians should ‘do something’, or that ‘there should be a law against it!’, and passing a law becomes the substitute for real action or policy. Personally, I hope that this does not happen too often, because law made under such circumstances lacks circumspection.

The political aims of Hong Kong’s legislators are quite distinctive, in my view, because of Hong Kong’s particular political circumstances and recent history. The fact of transfer of sovereignty from Britain to China has dominated us for the past 30 years: from the first Sino-British talks on the future of Hong Kong and the run-up to 1997, and then from the establishment of the HKSAR under the Chinese constitution from the 1 July 1997 to today. We are still in that process of establishing the HKSAR under our “mini-constitution” the Basic Law, and in the totally unchartered waters of “one country, two systems”. Thus, much of our political aims have to do with institution building, including the legislature itself as an institution, to adapt to Chinese sovereignty on the one hand, and, on the other hand, to preserve the fundamental values such as the rule of law, democracy, and individual rights and freedoms.

Although we have adopted the Westminster style of rules and procedure and even some of the language – such as the absurd title of “the Honourable”, there are missing blocks in the structure, the most obvious one being a workable party system. The large number of unaffiliated members of course affects the way LegCo can realistically conduct its business, including the core business of legislation at every step.

Also arising from our historical and constitutional background, LegCo is not divided by political creeds reflecting class interests. The Government is appointed, not elected and has no seat in LegCo. LegCo is elected by a large variety of methods of election, and split into geographical constituency seats and functional constituency seats, but politically divided into the “pro-Government” or “pro-China camp” which may be counted on the support the Government and Beijing and opposed to challenges of their authority, and the “pan-democrats” or the “opposition camp” which press for democracy, advocate universal human rights and mistrust the SAR Government and Central Authorities.

I have annexed to the text of this speech some essential features of the composition, voting procedure and powers of LegCo (See Appendices I, II and III), and I invite you to bear them in mind.
Quite apart from social policies, then, there is the underlying programme of pushing for democracy and autonomy on one side of the House, and maintaining supremacy of the executive authority, particularly Beijing’s authority, on the other side of the House. Since the Government has no seat in LegCo and the Chief Executive is not allowed to belong to any political party, it has to push its proposals through LegCo through influence and patronage. The outcome may be reasonably assured, but the process is, I am sure, exhausting. Government officials have frequently complained that the so-called “pro-Government camp” is even harder to deal with than the so-called “opposition camp”.

From this very rough sketch, it can be seen that interests in LegCo are highly complex and fragmented. Politics is notoriously short-term anywhere in the world. In Hong Kong it can be even more short-term and changeable. This brings in a large measure of unpredictability. It also means that the heart of parliamentary business – the enactment of laws, a lengthy and tortuous business . Members can be overly cautious sometimes, and insufficiently painstaking at other times. The Government, for a variety of reasons, are rarely flexible enough to take members’ concerns into account. In recent years, scared of amendments moved by members, bills have tended to be drafted with greater and greater rigidity to confine its scope to almost to the clauses in it.

To both officials and members, the legislative process can be very frustrating. It can be a huge waste of expensive time and effort on all side, including the drafting team and the LegCo legal services division. The end product of such a process is often a clumpy piece of legislation which nobody is happy with.

In dealing with a bill, the legislators and the Government may focus on different things. Legislators want to know the impact on the public, especially their electorate. The Government is mostly concerned with administrative convenience and the needs of the particular department responsible for its implementation. Many clashes between legislators and Government originate from this difference of focus.

When the Government is too exclusively concerned with its own political aims, especially when it is pressed for time, there can be serious oversight.

One example of this is the Revenue (Abolition of Estate Duty) Bill 2005. In his budget speech on 16 March 2005, the Financial Secretary proposed to abolish estate duty. He wanted that to come into effect in July. The bill he introduced on 11 May 2005 purported to abolish the then existing Estate Duty Ordinance, but overlooked the whole probate practice which, underpinned by the EDO, had been effectively protected beneficiaries of the deceased’s estate. The bill which was passed in the end introduced a new scheme which had far-reaching effects for ordinary families and not just those who died billionaires, without any prior consultation.

A much more dramatic example is the Interception of Communications and Surveillance Bill of 2006 – called the “spy bill” for short. The Government’s law enforcement agencies such as the police and the ICAC (Independent Commission Against Corruption) had been telephone-tapping without lawful authority, contrary to Article 30 of the Basic Law. Judicial review proceedings were brought. The Government lost before the Court of First Instance, lost again on appeal and also on appeal to the Court of Appeal, and had to have a law enacted before the suspension of the court’s declaration expired. The Government rushed to push through legislation in a matter of month.

The subject matter of the bill was politically sensitive. It was feared that people with unwelcome political views will be interfered with. The “pan-democrats” were up in arms because the Government showed itself to have scant respect for privacy of communication, in defiance of basic rights. The “pro-Government” groups were determined to overcome opposition and ensure that Government law enforcement agencies have the power they wanted to investigate crime and threats against security. The Secretary for Justice played only a backroom role. The Secretary for Security was the minister who sponsored the bill, but the police and ICAC, the main operator of wiretapping, were the real driving force.

The bill introduced a two-tier system of authorization. Wiretapping required the authorization of ‘panel judges’ appointed in an administrative and not juridical role. The whole system operates in secret, but a Justice of Appeal, again appointed in an administrative capacity as Commissioner, is given certain powers to monitor the implementation of the system and report to the Chief Executive.

During the intensive vetting process, many ambiguities and gaps were pointed out, and numerous amendments were suggested, but the Government was unwilling to accept most of the material suggestions. Second reading debate was resumed to just before the deadline. The debate took 58 hours spread over 3 days. The Government moved 189 amendments, all of which were passed; members moved 187 amendments, all of which were defeated. Most legislators could not, and the pro-government members did not follow the debate. The public had little idea of what happened, but a survey of “opinion leaders” by the SCMP was highly critical of the bill.

The Government paid a price. In February this year, the Commissioner reported ‘irregularities’, notably by the ICAC. The public learned that the ambiguities of some provisions resulted in ICAC officers disregarding the views and orders of the panel judges and the Commission where the ICAC took a different view of what the law meant. The disclosure and obvious dissatisfaction of the Commissioner put the integrity of the ICAC in question.

To say the very least, rush plus rigidity to meet an immediate need make poor legislation. Rush is not confined to the vetting process. Often, the Government’s procrastination means decision is not made until late in the day, uncertain drafting instructions are thrust upon the Law Draftsman, and things are turned upside down when the bill goes to LegCo.

It is worth pointing out that where a member moves his own amendments, he is responsible for the drafting. The draft is vetted by LegCo’s legal services division for language and technical correctness. It was no small task for me to draft the 120 amendments in two languages within the short time available, and I would not have done so if I had not felt it was a matter of fundamental principle.

By our rules, an amendment which has the support of the majority in a bills committee is drafted by the Legal Services Division. I have that luxury as Chairman of the bills committee on the Race Discrimination Bill in 2007. There was no dire pressure of time in this case, but the Government’s rigidity about the provisions was extreme. Government officials just repeated set responses verbatim when confronted with queries and criticism.

In that case, there was a large degree of consensus among members of the bills committee in favour of greater racial equality. Not only is this a basic right, but minorities are becoming an important constituency. My belief is that the Government’s rigidity stamps from its inability either to promote racial equality across the board in its departments or in the community where racial discrimination is deep seated and pervasive, though not frequently in the direct and vicious manifestation.

Naturally, most bills are relatively mundane and passed without even a bills committee being formed. On my own count, from 1995 to 2008, a total of 127 bills committees were formed of which many were short and uneventful.

My last example is chosen to give the story a happy ending. The Mainland Judgment (Reciprocal Enforcement) Bill was, admittedly, a “technical” bill which puts into effect an agreement between the mainland of China and the HKSAR on the mutual enforcement of judgments in certain types of cases and under a set of conditions. It was nevertheless of great symbolic significance, and the vetting required meticulous care because our two systems of law are profoundly different, and if mainland judgments can reach property in Hong Kong, we have to be sure that there is clear justification and adequate safeguards. On the other hand, links with mainland courts are inevitable and desirable for good reasons.

A number of amendments resulted from the vetting process, all of which were agreed and considered to be improvements. The reason for the smooth process was undoubtedly the knowlegeable Government team and their good working relationship with the mainland officials responsible for the mutual enforcement agreement in the first place. Perhaps there is one other reason. Being “technical”, the bill was thought to be boring and has no political appeal. The lack of excitement was conducive to rational scrutiny!

Conclusion

Let me conclude with a few observations and some pius hopes, I am here giving you only this lawmaker’s perspective, and cannot speak for others.

It is essential to the rule of law and so a categorical imperative with our profession that no law should be passed which does not conform to the fundamental principles of clarity, accessibility, constitutionality and due process. By constitutionality I mean particularly due regard for the rights of the individual under the constitutional settlement. By clarity and accessibility I mean the same as King James I when he said: “Every subject ought to understand the law under which he lives”. If the law is meant to be obeyed other than as an instrument of tyranny, then it must be based on consensus, and to be based on consensus, it must first be understood. By due process I mean not just the letter of the rules of procedure, but first of all the consensus through consultation and rational debate, and secondly the fairness that underlies these rules and procedures.

I believe that much of the problems of Hong Kong’s legislation have to do with the fact that the legislative process has become almost unmanageable. But to make it manageable the Government must recognize the proper political interest of the legislator, and be prepared to come to a reasonable settlement at the stage the policy is being formulated, before law drafting has even begun. Then, once the process has begun, it must go at a good pace without losing its momentum. To achieve that, sensible decisions have to be made along the way, and this can happen only if there is sufficient trust and give and take. When consultation in broad general conceptual terms is inadequate and may lead to mistrust and controversy, the publication of a ‘white bill’ – or draft bill for consultation, is often a good idea, and I urge that Government to make more use of it.

I have long advocated a process for LegCo, whereby the Government takes seriously the obligation to consult the legislature on its policies and for legislators to indicate their support or opposition, and take responsibility for it, so that drafting can proceed on the firm basis of that bargain. A bill which correctly implements that bargain should be supported in the main. Such a bill will have a much better chance of being a cogent piece of legislation, and then we need not look to interminable debates to fit in or reject illogical or prolific amendments.
In the context of Hong Kong’s present political framework, I believe this simple proposal may not be entirely practicable. That is one of the main reasons why I think the sooner the SAR Government and Beijing make up their minds to give Hong Kong democracy the better it will be for the integrity of our legal system. In the interim, I believe the following steps can bring improvement to the efficiency of the process and quality of the product:

1. More communication between legislation and the drafting team to give legislators a better understanding of law drafting;

2. Greater discipline instilled into policy bureaux to keep to a viable timetable from drafting instructions to the final draft;

3. Greater use of white bills for consultation where the technical language is material;

4. Simpler and more accessible drafting, including the development of a more felicitous Chinese drafting language.


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