SCMP Friday, July 27, 2001

Contemptuous odds

Angered by passage of the Chief Executive Election Bill, independent legislator Audrey Eu Yuet-mee, SC, is tempted to quit and return to her legal practice as soon as her term ends. This is understandable. Most people have better things to do than play a game in which the dice are loaded.
Not that the Government is likely to feel bad. For some officials at least, even with a handful of loaded dice, it is much safer not to have to deal with a skilful player. The experience of past months shows the time is long past for maintaining appearances. With the re-election of Chief Executive Tung Chee-hwa assured, the time is ripe for realpolitik.
In a recent submission to the Legislative Council, a perceptive political analyst describes the relationship between the executive and the legislature in Hong Kong as between the haves and the have-nots, with the executive representing the haves and the legislature the have-nots. So the tension between them takes on the character of class struggle. To get the haves to participate in Legco, says the submission, you have to redistribute power between the Government and Legco.
The inequality of power under the Basic Law between the executive and the legislature is multiplied many times in reality. But the contest is not just between the executive and the legislature but between the Government acting in concert with two-thirds of Legco - at least on all serious issues - and a perpetual one-third minority.
Repetition breeds complacency. When the Government knows it can always get the votes in a crunch, albeit with a bit of work, the need for reason and consensus, or to listen to criticism, recedes.
Legco's own rules can easily be played against the perpetual minority. For example, when legislators angered by the Government's oppressive tactics under the Public Order Ordinance and treatment of demonstrators at the Fortune Global Forum called for public views, organisations with such titles as the Tai Po Children's Choir and the High-Quality Chicken-Meat Products Association swarmed Legco with pro-government representatives.
When the Bar is critical of a government position while the Law Society is supportive, the Government ignores the Bar and cites the Law Society's support - sometimes remarking that the Law Society represents by far the larger number of lawyers. When both the Bar and the Law Society are united in opposing a government proposal - for example, the Chief Executive Election Bill - the Government ignores both and goes ahead anyway. The Government gives the independent opinions of legal experts short shrift because to it only the vote count matters.
In the past year, one has seen the Government and the pro-government lobby win with almost monotonous certainty.
Government motions and bills require only a clear majority of all members present. Member's motions or private member's bills require split voting and have to gain a majority in both groups of legislators to carry. One group consists of the 30 members elected by functional constituencies; the other consists of the 24 directly elected members plus the six elected by the Election Committee - this latter group permanently counterbalances the popularly elected members.
Under this system, motions supported by an overwhelming majority of the total number of legislators have been defeated. On one occasion, an amendment I moved was defeated, even though a majority of members present voted in favour and none voted against it. The secret was in a number of functional-constituency members abstaining from voting while remaining present.
The contempt for reasoned debate has become blatant. A notable example is the motion to vindicate the June 4 tragedy, which is proposed every year by Democratic legislator Szeto Wah. The pro-government factions barely bother to speak. They just vote it down.
Bloc votes are, more and more often, complacently recognised as bargaining chips. The Breakfast Group, formerly a forum of legislators not affiliated with political parties, has reorganised itself into a bloc of eight or nine votes for the Government whenever the need arises. Independence is becoming synonymous with isolation and ineffectuality.
There is an almost discernible directive. A motion by a democrat is seldom - though not never - allowed to carry. But any motion having anything to do with encouraging more democratisation or autonomy or human rights has to be voted down. Thus was Martin Lee Chu-ming's last motion, which cited universal suffrage as an aspiration in a world-class city, voted down. The message is clear: advocacy of such aspirations and values is regarded as destabilising and harmful to Hong Kong's economic prosperity.
This system threatens to rot the whole operation of Legco, most seriously in its scrutiny of bills. Bills Committee resolutions are non-binding. Passage of bills, as well as any amendments to them, depend entirely on the voting at the regular Wednesday meetings. Participation in Bills Committees has become less and less meaningful. The efforts and contribution of the democratic minority count for little - except on non-political issues or when the Government has no strong views and will put forward amendments reflecting members' suggestions.
Officials know that with few exceptions what the Government proposes will carry, so they are impatient with criticism and see persistent opposition as merely obstructionist. For example, in vetting the Immigration (Amendment) Bill, which introduced the government DNA test for right-of-abode claimants, officials barely bothered to hide their contempt for members who dared to raise objections.
In that case, although the Bills Committee resolved by a majority vote to introduce certain amendments, these amendments were easily defeated when voted on by the whole of Legco. During the debate, members representing the Liberal Party and the Democratic Alliance for the Betterment of Hong Kong read speeches which put on the record their complete misunderstanding of the effect of the legislation they were approving. Those who chance upon the record in later years might ask whether legislation can be taken seriously if it was passed in ignorance and through misapprehension.
But even this is not the end of the matter. The permanent inequality in Legco means the Government's critics will be in a weaker and weaker position to monitor policy or vet legislative proposals. This is because the fundamental constitutional principle which imposes upon the Government the duty of honesty and good faith toward the legislature has been violated so frequently as to be practically non-existent. New generations of civil servants do not even understand they have such a duty.
This, coupled with frequent examples of incompetence, makes it impossible for Legco to take the Government's proposals or explanations on trust. Yet, given the increasing workload, which is also shared unequally among members, individual legislators have few resources with which to tackle the Government or carry out independent investigations.
To safeguard the quality of public policies and administration, and of legislation passed by Legco, the inequality of means has to be addressed - most urgently of all by strengthening the capability of the Legco Secretariat, which is duty-bound to operate with scrupulous political neutrality. Yet even here, the gap between the executive haves and legislative have-nots could come into play. It is in the interest of the haves in Legco, whose power and influence come from their alliance with the executive, to keep Legco understaffed and underfunded so that the have-nots cannot be strengthened, even by neutral, professional support.
One might ask, after a year of ruthless advancement of incompetent autocracy in Legco, what is the way forward for those who do not wish to join the advancing side?

The sober truth is that unless the rules of the game are changed, the result of any debate will be a foregone conclusion. The haves are not going to change the rules. The force of change can only come from the have-nots. There are, therefore, sound reasons for refusing to play the Legco game. For some, this might mean turning one's back on politics altogether. For others, there might be a dilemma: strategic retreat from the establishment in order to organise dissidence and resistance, or remain in the establishment but forge ways to subvert the unjust rules of the game.

Margaret Ng Ngoi-yee is a legislator representing the legal profession.