The Basic Law and the Legislative Council (Powers and Privileges) Ordinance (Cap 382) (‘PPO’) provide the Legislative Council (‘Legco’) some privileges and inquiry powers. PPO authorises Legco to investigate issues of public concern by summoning related persons to provide evidence in the chamber of Legco. Such check and balance is important under the concept of separation of power.
Although such powers seems to enshrine the rule of the law in Hong Kong, it is superficial as some previous inquiries were deemed to be politically motivated and more importantly, Hong Kong does not have democratically elected Legco. In summary, the judiciary is more suited to handle such inquiry.
The Privileges and Inquiry Powers of Legco:
Article 77 and 78 of the Basic Law provides members of Legco “shall be immune from legal action in respect of their statement at meeting of the Legco” and “shall not be subject to arrest on their way to a meeting of the Legco” respectively. In addition, article 73(10) stipulates that Legco can “summon, as required when exercising the above-mentioned powers and functions, persons concerned to testify or give evidence”.
Section 4, 5 and 10 of the PPO correspond to article 77, 78 and 73(10) of the Basic Law. However there are related provisions under the PPO that are not provide for in the Basic Law, which include ordering attendance of witness by summon under section 10, examining witness on oath under section 11, compelling attendance by issuing warrant under section 12 and setting offences punishment under section 17-20. There is a doubt that those PPO’s provisions could be unconstitutional.
The Rule of Law:
There are two conceptions of the rule of law. The formative conception focuses on the predictability, promulgation and prospective aspect of the law, and regards the content of the law as irrelevant and is best left to the democratically elected representatives to sort out. The substantive scholar does not dispute the importance of the formative criteria but believe law shall be “just” and embraces elements of democracy, equality, human rights, proportionality, etc. The government will also have a duty to give reason on its policy, and the citizens shall have a channel to...