立場新聞 Stand News

CY Leung’s Appointment of Nicholas Yang (楊偉雄) Deviates from Constitutional Convention

2015/3/12 — 17:23

now新聞片段截圖

now新聞片段截圖

Chief Executive CY Leung’s recent triple appointment of former Polytechnic University vice-president Nicholas Yang (楊偉雄) certainly attracted a lot of criticisms. On 2 March, CY Leung appointed Yang as his personal adviser on innovation and technology, as a non-official member of the Executive Council, and as the head of a new committee on innovation and technology. The adviser and committee posts are non-salaried, but Yang will collect an honorarium for the ExCo position of HK$76,510 per month.

The crux of the controversy is that CY Leung is trying to circumvent the Legislative Council in making this triple appointment. Last month, LegCo specifically rejected a bill to establish a new Innovation and Technology Bureau. Having failed to push through this reform, CY Leung appointed Yang to the three positions. We will look at this issue from a constitutional law angle.

廣告

Strictly speaking, CY Leung’s appointment of Yang may not be contrary to the Basic Law because Articles 54 and 55 give a wide executive prerogative for the Chief Executive to appoint and remove ExCo members.

However, we believe that CY Leung, by creating an ad-hoc principal official without a portfolio, has likely impinged upon a ‘constitutional convention’ that requires any major change in the executive branch to require consultation with, and passage of a bill through, LegCo.

廣告

In a nutshell, ‘constitutional conventions’ are informal and uncodified customs and practices followed by institutions within a government. While they are not formal law, they are extremely important in the functioning of constitutional law. The renowned jurist A.V. Dicey explained that conventions secure clarity for the rule of law by providing “rules for determining the mode in which the discretionary powers of [the Executive] ought to be exercised”. Another well-known constitutional scholar, Sir Ivor Jennings, described conventions as rules that “provide the flesh which clothes the dry bones of the law; they make the legal constitution work; they keep it in touch with the growth of ideas.”

To determine whether a constitutional convention exists, Jennings cites three criteria:

(1) Is there a system of precedent (i.e. is there consistent past behavior)?

(2) Did the relevant bodies previously believe they were bound by a rule?

(3) Is there a reason for the rule?

With regard to CY Leung’s triple appointment of Yang, we believe that there is a important constitutional convention at play – namely, that a substantive change to the operations of the executive branch requires firstly, consultation with LegCo, and secondly, passage of a bill through LegCo (especially if it may result in spending).

  In our view, this convention is well-established and fits snugly within Jenning’s test.

Firstly, there is a system of precedent. This convention originated from when the Principal Officials Accountability System (POAS) (主要官員問責制) was put forward by Tung Chee-hwa to LegCo in April 2002. Similarly, Donald Tsang put forward the proposal for the Political Appointments System (PAS) to LegCo in July 2006, which was passed by the LegCo in December 2007. Strictly speaking, Tung and Tsang could have made the ministerial appointments themselves under the Basic Law. However, they notably did not do so – and instead sought approval from LegCo.

Secondly, the executive branch previously believed it was bound by this rule. The reason that Tung and Tsang sought LegCo approval for POAS and PAS  respectively was not only  because it required expenditure, but also – and more importantly – because it created a new class of officials and changed the framework of governance: under POAS, while permanent secretaries would remain as civil servants, a new layer of principal officials would oversee their work and would have to shoulder public responsibility and be answerable to LegCo; and under PAS (which superseded POAS) there would be two additional layers of politically appointed officials below the secretaries.

Thirdly, there is also a reason for this rule. This convention is consistent with Article 73 of the Basic Law, which stipulates that any spending bill must originate in and be passed by LegCo. This includes not only the budget, but also any legislative or policy change that requires spending (such as the  establishment of a new bureau headed up by a principal official, or projects which the Chief Executive wishes to pursue on the advice of ExCo). It is also important in the context of the separation of powers, especially the principle that the executive should remain answerable to the legislature. Any widening of executive powers must be scrutinised by the legislature.

CY Leung’s triple appointment of Yang is, in our opinion, a departure from the constitutional convention described above. In practical terms, the appointment establishes a new political post without the passage of legislation. There is no legislative oversight over the decisions of Yang since he is not in any officially sanctioned post; yet Yang is now in charge of expenditure of the various departments under the innovation and technology steering committee. Needless to say, it is questionable whether Yang can be accountable to the public.

CY Leung’s departure from this convention, therefore, is one that cannot be taken lightly – by circumventing LegCo, it potentially opens the floodgate to similar future departures.

 

By Virginia Chang and Doris Fu, Progressive Lawyers Group (法政匯思)

發表意見