Richard Cullen on Filibustering: Flawed in Principle and Bad for Hong Kong (IPP Review)

"Filibustering: Flawed in Principle and Bad for Hong Kong"
Richard Cullen

IPP Review
March 9 2018

In October 2012, a leading member of the House of Lords visited Hong Kong on a regular visit. During one seminar, this experienced commentator expressed the view that the Judiciary in the Hong Kong Special Administrative Region (HKSAR) looked to be in sound health. It was doing the job it was institutionally designed to do very well. The Legislative Council (LegCo) received a less positive report card. The problems, already well entrenched, arising from filibustering were highlighted along with the lack of proper behavior within the LegCo by certain members — behavior, we learned, which would not be tolerated within the Parliament at Westminster. The LegCo emerged as the least functional of Hong Kong’s governance institutions according to this assessment.

    The LegCo recently voted, in somewhat controversial circumstances, to introduce significant restrictions on the capacity of LegCo Members to filibuster.

      In this essay, I want to discuss how this has come to pass, some 20 years after the establishment of the HKSAR within the People’s Republic of China (PRC), and why, on balance, it is a good thing that these restrictions have been put in place in Hong Kong. In order to do this, we need to consider what is meant by the term filibustering both specifically and more generally and, in particular, what this term has come to mean in the HKSAR.

     Those controversial circumstances concerned how the numbers within the LegCo changed so as to allow certain anti-filibustering amendments to the LegCo procedural rules ...

     Briefly, filibustering is the term applied when a member (or members) of a legislature speak at unusually great length on a proposal, which may often be a proposed new law (usually called abill), in order to delay or prevent a decision being made to enact that proposal by a vote of the legislature... 

     Given that the purpose of filibustering is political stonewalling — to stall or stop certain legislative processes — not surprisingly, a number of other procedural tactics are employed to this end, apart from ultra-lengthy member presentations. It is common for non-government members or groups within a legislature to resort, too, to tactics such as moving large, sometimes massive numbers of amendments to a bill, and making repeated calls to check that a quorum is present (that the specified minimum number of legislature members is present). Again, where the procedural rules allow this, amendments moved may be quite trivial and designed not to generate serious debate but simply to delay the process of legislating...

     Both the major parties in the deeply anchored two-party system in the US have benefitted from filibustering initiatives whilst in a minority in the Senate...

     The first filibuster in the HKSAR was mounted by the PE group within the LegCo in 1999 to delay a vote on a bill to dissolve the partially elected Urban and Regional Councils, established during the British Hong Kong era. The delay was needed to allow then absent PE LegCo Members time to return to the LegCo for the relevant vote. The PE group justified their action by reference to the accepted tradition of using filibusters within other notable legislatures around the world...

     It is simply quite difficult to locate suitable examples in order to draw up such a list of real benefits for the HKSAR (terrible laws stopped, for example) arising out of the extensive filibustering experience of recent years...

     The Judiciary in Hong Kong, particularly the Court of Final Appeal (CFA), continues to maintain very high standards (and independence), and to display the highest competence regularly. The LegCo can do much in a proper and positive manner. But it is beset by serious operational problems, sourced from within, which lower its performance level measurably and continuously. It is fair to say that the LegCo has, unfortunately, become the (comparative) pivot of governance dysfunction in Hong Kong. Filibustering has established itself as a significant part of how this has come to pass... Click here to read full text.