Debate on Resolutions to amend Rules 44 and 45(2), and Rule 45(1) respectively - Margaret Ng

Debate on Resolutions to amend Rules 44 and 45(2), and Rule 45(1) respectively
LEGCO 2011-05-11

Mr. President

The amendments proposed in this Resolution and the next may appear to be small, but are in fact fundamental. They go to the root of the principles which underlie the Rules of Procedure and the way this Council functions.

Let me state from the start that I consider our ability to maintain order and decorum in all our proceedings to be essential to our proper functioning, and to our credibility in the community as the legislature of the Hong Kong SAR.

Like other honourable members and members of the community, I am concerned about the repeated challenges to the rules of orderly conduct. I am even more deeply disturbed by the occasions on which the President’s orders were met with defiance and resistance and had to be effected by unseemly force. It is not that I am worried about setting a bad example for the children. More seriously, it is a matter of logic and obligation. For if the President cannot guarantee safe passage within our own House, how can we reasonably require any official or member of the public to appear before this Council?

Likewise, I am also aware that in the circumstance of repeated breach of conduct with apparent immunity, public pressure has increased for members to “tighten up” the rules to deter such conduct.

The problem is certainly clear. However, are these amendments of the Rules the right answer? I do not think so. First of all, we should distinguish the rules from their enforcement. The most notorious occasions of disorderly conduct took place within Council sittings. The amendments proposed today do not concern Council sittings: the President already has the powers under the present Rules. The question is how the Rules may be applied and enforced more effectively and expeditiously. This is being dealt with vigorously in the LegCo Commission. The amendments proposed to extend the same powers to the Chairman of any committee, and it is not clear to me that doing so in any way addresses the public’s concern.

Some members of the public have suggested that new rules should be made to punish a disorderly member by banning him from the Council for a period of weeks, with salary reduced or withheld. Our research shows that the House of Commons indeed has such powers, but they are not exercised at the order of the Speaker, but upon a motion moved by another member and passed by the House.

The apparently quaint procedure of the House of Commons illustrates a fundamental principle: authority is not used on an equal. Rules to give one member power over another member are justified only on the basis of necessity to facilitate debate. We must ask ourselves, before we cast our vote today, whether this requirement is satisfied by the proposed amendments.

As I have said earlier, the proposed amendments appear to be small: a few words are deleted from Rule 44, 45(1) and 45(2): 3 in English and 5 in Chinese. But the effect is to remove the difference between the powers of the President in Council, the Chairman in a Committee of the whole House or Chairman of any Standing or Select Committee on one side, and on the other side, the powers of Chairman of any other committee such as a panel, a subcommittee and a bills committee. Under existing rules, the power to order a member whose conduct is disorderly to withdraw immediately is exercised by the former, but not by the latter.

I may add that the three amendments are inter-related. Reading backwards, Rule 45(2) allows the Chairman to order a member whose conduct is grossly disorderly to withdraw; rule 45(1) makes a member who persists in irrelevant and tedious repetition and who refuses to stop speaking upon the Chairman’s direction guilty of grossly disorderly conduct, and Rule 44 makes the Chairman’s decision on whether a member is in breach of Rule 45(1) or (2) final and unchallengable. These are draconian powers. It is right and fitting that they should be restricted.

So why are they given to one group of committees and not to another group? I submit that this is not arbitrary but a matter both of principle and good sense.

LegCo’s Rules of Procedure originated from the House of Common’s Standing Orders, which makes a similar distinction. Powers under Standing Order No.42 (which is similar to our Rule 45(1)) and Standing Order No.43 (which is similar to our Rule 45(2)) are exercised only by the Speaker and the Chairman of a Committee of the whole House or a Standing Committee but by no other Chairman. The distinction is stated at the head of Chapter 27 of Erskine May: committees are divided into those which proceed by debate, and those which proceed by taking evidence, deliberation and report. These powers only apply in Committees which proceed by debate. Or put it another way, committees which deal with formal questions (motion or bills), debate upon them and then resolve them, by voting if necessary, as opposed to committees which hear proposals, deliberate on them by discussion, and where appropriate report to the House Committee but make no binding decision. The report, if appropriate, can then be debated in a sitting of the Council.

According to the research reported to us, no Parliament in the world empowers a Chairman of a deliberative committee with the powers which we are now considering under these proposed amendments.

It is clear to me that the draconian powers under Rules 44 and 45 are exercised by a Chairman of a decision-making committee in enforcing the rules of debate and are necessary and appropriate for that purpose. The Speaker or the President, in maintaining order and decorum in a formal sitting of the House, is additionally upholding the dignity of the Court of Parliament.

Such considerations do not apply to deliberative committees and subcommittees.

Mr. President, the differentiation is not just in name; nor is it just slavish borrowing from a jurisdiction now foreign. It underlines the two complementary halves of our function and the way we discharge them: we debate in opposition, vote on party lines, but we investigate and deliberate in cooperation and across party lines, accommodating each other’s line of exploration. In making our reports we are conscious of power in unity, and that has been illustrated time and again in such reports as on the West Kowloon Cultural Development and most of our Select Committees of Inquiry. While the debates attract more attention, the real work, in my opinion, is more often achieved in the committee room. (By the way, the House of Commons uses “Select Committee” to refer to what we call a “policy panel”, and in the House of Commons, part of the legislative procedure is carried out in Standing Committees.)

In short, we take evidence and deliberate, and then we debate and decide. To disregard the distinction, as these amendments do almost more by thoughtlessness, is to confess our failure to cooperate and to commit this House to total debate. There is already an increasing impatience not to give time to a genuine exchange of views in order to forge maximum consensus, and to go immediately to debate from entrenched positions, and the ultimate vote count. I can’t tell you how remote this is from the true spirit of democracy.

I am reminded of the trial in Alice in Wonderland. As soon as the accusation was read out, the King said to the jury “Consider your verdict”. “Not yet, not yet,” the Rabbit hastily interrupted. “There is a great deal to come before that!”

Mr. President, is there? As far as this Council is concerned?

Let us, for a moment, leave principle and constitutional function and duty aside. Even on considering the practicalities alone these amendments should be opposed. They are neither necessary nor efficacious. Not necessary, because adjourning a committee meeting for a few minutes would be ample to deal with any problem of disorderly conduct. Not efficacious, because I see little likelihood of the Chairman’s order for the member to withdraw being meekly obeyed, and the commotion to get staff assistance to forcibly evict the member from a committee room will be more conducive to farce than to dignity.

Indeed, I believe that the threat of such an order from the Chair will be most likely to be provocative, and contribute to lasting ill feelings between members. It is not in such an environment that we can expect to foster the habit and norm of cooperation and consensus.

Since such additional powers are neither efficacious nor necessary, I do not see any justification for their adoption. Rules do not make good conduct. Only respect for the Rules and the institution can do so.

Finally, I would like to make this point: our Rules of Procedure will fall apart, not just when a few members choose persistently to throw things at officials, but when unbridled contempt are permitted to be expressed by members towards one another, when members are permitted to resort constantly to verbal abuse and personal attack.

I do not see how rational debate can take place in such a linguistic environment. And we do need rational debate if we were to discharge our duty, which includes ensuring the development of principled and reasoned long-term public policies for the good of Hong Kong. As a member who has long served this Council, I am greatly saddened to see this happening.

Although rationality may not be any longer relevant, let it be recorded that these are the reasons why I oppose the motion. I may add that I do so with full exemption from Civic Party, because rules of procedure are above politics.