SCMP.com - Country park battle is already over, Legco told

SCMP.com - Country park battle is already over, Legco told: "SCMP.com - Country park battle is already over, Legco told"

Even Tsang can't override his own order, government lawyers say

Cheung Chi-fai
Oct 06, 2010

Lawmakers have no power to override a chief executive's order that will allow extending a landfill site into the Clear Water Bay Country Park, government lawyers said yesterday. The Department of Justice warned lawmakers that a cross-party plan to move a motion to repeal an order issued by the chief executive to amend the boundary of the country park is doomed to fail. It also says even if the lawmakers successfully pass a motion, it will not make any difference to the new boundary of the country park, which will lose five hectares to the landfill. "The repeal will have no effect in law and the designation order will remain in force," the department said in a submission to the legislature. The department argues that neither the chief executive himself nor the lawmakers have the power to repeal the order, as it is inconsistent with the statutory intention of the Country Parks Ordinance. At least five political parties have vowed to back the motion, while some lawmakers from the functional constituencies also have reservations about the landfill extension. This is despite the claim by environment officials that expanding the landfill is indispensable to addressing the city's waste disposal problems. To clarify the latest legal views with the government, an urgent Legco meeting will be convened this morning by a subcommittee scrutinising the Country Park (Designation)(Consolidation)(Amendment) Order 2010. Issued on 31 May by Chief Executive Donald Tsang Yam-kuen, the order was tabled to the legislature in the form of subsidiary legislation on June 9. The order is scheduled to come into force on November 1. Today's meeting is crucial for the opposing legislators as it is also the deadline for them to register their intention to table any motion to repeal the order in the full council meeting next Wednesday. Tanya Chan, a Civic Party legislator and chairwoman of the subcommittee, was surprised by what the government lawyers have claimed, but she said the lawmakers have not changed their minds about opposing the extension. "It is surprising to learn even the chief executive does not have the power to repeal what he himself has done. What if he finds he has done something wrong and now wants to rectify his mistake?" "It also rocks our belief that we legislators are the last gatekeeper when it comes to negative vetting on subsidiary legislation," said Chan. Under the negative vetting procedure, a piece of subsidiary legislation may be gazetted first and even come into force before it is tabled in the legislature. But the lawmakers are supposed to still have the power to amend or veto the law subsequently. The legal advisers to the lawmakers have never indicated in the past meetings that their repeal motion would have no effect in law. Last night they were still drafting a response to the claims of the government lawyers. It remains unclear how the legal differences between the government and the legislature can be resolved and whether court intervention might be required. Lawmakers had also explored alternatives of blocking the order, including whether it was feasible to postpone indefinitely the commencement date of the order by the chief executive himself or the legislature. But this is not favoured as the government lawyers had expressed the view that such an amendment, while allowed, should not cause unreasonable delay to the order. Lonnie Ng Wah-chi, senior government counsel, had told the subcommittee in past meetings that the chief executive had no power to repeal the order as the revised park boundary was approved after going through all the statutory procedures. But it only came to light yesterday that even the lawmakers would face the same constraint as the chief executive when it comes to withdrawing or amending the order. Edward Yau Tang-wah, secretary for the environment, last night reiterated that the decision to encroach on the country park was not only a difficult and painful one but also a necessary one. But he said there is still the hurdle of securing funding from Legco for the landfill extension.