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Letters to Young Lawyers (IV)
2008-08-26 Dear Young Colleague, The powers and functions of a LegCo member are defined in the Basic Law, and the first one is “to enact, amend or reapeal laws”. I devote much of my time on scrutinizing bills and major subsidiary legislation including, of course, everything which concerns the legal profession and the rule of law, but I also pay attention to the bills and subsidiary legislation which involve important legal issues. I reckon this is where your representative can make a special contribution. The media don’t often report this kind of work, but I assure you there are many interesting stories to tell. For one thing, because Hong Kong is an international business centre, our laws have international exposure. It is vital that we measure up to world standards. This is powerfully illustrated by the Securities and Futures Bill of 2000. The bill consolidated 10 existing ordinances, and aimed to create a modern and user-friendly regulatory regime under a single Ordinance. The “blue bill” as gazetted came in two 1-inch thick volumes. I was the Vice-Chairman of the bills committee set up to scrutinize the Bill. We invited the public and the industry to come to LegCo to give their views. On the day of the hearing, the seats were packed with high power representatives of worldwide brokerage and banking corporations, professional bodies, academics, and small investors’ groups. Some of the most prestigious law firms in town were there representing their clients’ interests. Their written submissions were certainly no bedtime reading! Our job was to ensure that while the voice of market operators was heeded, the interest of the ordinary investors was not forgotten for want of expert advocacy. The Bills Committee took the task very seriously. We visited the regulatory authorities in New York and London to see how they tackled the job. An event on our New York programme was a working sandwich lunch hosted by the Securities Industry Association. The sandwiches were beautiful. And around the table? Top executives and legal counsel of the likes of Morgan Stanley, Merrill Lynch, Charles Schwab and Goldman Sachs were there in force. They had made their submissions through their representatives in Hong Kong. The familiar inch-thick blue volumes in their hands were dog-eared with turning. They knew the provisions inside out. I was really glad I could keep up our end of the discussion! That experience left a deep impression on me. Hong Kong holds up the third corner of the world. This should fill legislators with deep humility to discharge their duty faithfully. * * * * The National Security (Legislative Provision) Bill of 2002 – widely known as “Article 23 legislation” – was a totally different matter. It directly involved restrictions on fundamental freedoms including the freedom of expression, of association, the right to a fair trial and more. The fight was grim. The Bills Committee was in the control of the pro-government majority. The democrats were out-numbered. The Bill was couched in opaque language, incomprehensible to the general public. The Chinese version was even more incomprehensible than the English. Audrey Eu was with me in the Bills Committee, but we needed help. A pitched battle of ordinary citizens against an authoritarian SAR Government with Beijing’s invisible hand behind was worse than David against Goliath. But the legal profession rallied round. We formed the Article 23 Concern Group which included some of the most distinguished members of our profession. We published the “Rainbow Pamphlets” to explain in simple language the pitfalls in the Bill. We distributed them in the street – you should have seen these senior counsel and legal academics in disposable raincoats steeling themselves against the rain and the bewildered stare of passers-by! Our colleagues in other parts of the world responded. We held an international seminar at HKU. The English Bar Association joined in by television conference, and the Canadian Bar by telephone. It was a moment of great solidarity. Reason was never so moved with passion. We were fighting for our freedom. I wrote articles in the Chinese press. It was with mixed feelings that I heard waiters and taxi-drivers say to me, “Miss Ng, we are not educated. We don’t understand the law. We just trust the Hong Kong legal profession to speak up for us!” Frankly, we never expected to win. In my Newsletter of 20 June 2003, I said that unless a miracle happened, the Bill would be passed. Then the miracle happened. On 1 July, the march of half a million saved the day. On 9 July, the Government withdrew the Bill. The candlelight rally all around the LegCo building turned into a thanksgiving. I was beyond tears. * * * * With an undemocratic government which believes more in power than in reason, my LegCo work often meets with disappointments. But there can also be surprise victories, and an example of it was the Race Discrimination Bill, passed in July 2008. This Bill was supposed to provide a law to eliminate all forms of racial discrimination, as Hong Kong is under an international obligation so to do. Yet the bill was full of holes and escape routes for the Government. One of the worst provisions was the notorious Clause 58, known as the “language exemption”. This means, in gist, that discrimination effected by way of the use of or failure to use certain languages would be by definition not regarded as “race discrimination”. We all thought this was very unfair. I was the Bills Committee’s Chairman, and with members’ agreement, I moved a very mild amendment to Clause 58, just to disapply the exemption to medical services and job training and placement. On the day of the voting, I had the unexpected support of 3 members who usually voted with the Government. This brought the total vote-count to 26 for and 24 against my amendment. But the amendment was still defeated, because for members’ motions, you need a majority in the geographical constituencies as well as in the FCs. So how did we score a victory? Well, since the amendment was defeated, the next question was “that [the original] Clause 58 be part of the bill”. I raised my hand to oppose. The vote-count was the same: 26 with me and 24 with the Government. But this time, because it was a government motion, simple majority applied. This means, instead of just being restricted in its scope, the exemption was thrown out altogether! Cheers broke out in the debating chamber and the public gallery, and it was in a spirit of unity that the Race Bill was passed. These stories are just some of the highlights. Most of the time, the business of legislation is unglamorous and requires diligence, a willingness to tackle hard issues and sensitivity to details. Major examples are the Land Titles Bill of 2004 and the recent legislation to implement the Civil Justice Reform. It is here that the “Legal” member is most needed to put in the non-billable hours! Yours sincerely, Margaret Ng Note : Lawyers who claim to be "not so young" have asked me, why are they included? To keep an eye on me, of course; and to join in with their views and advice. |
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