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The Legislative Council (LegCo) subcommittee that raised the fuss over the government's edict that five hectares of Clear Water Country Park be encroached to expand a landfill voted unanimously at an emergency meeting Thursday to go ahead with an October 13 vote to repeal the order signed by the Chief Executive in Council. Now the issue has turned into a power struggle that could find its way to the courts.

Wednesday, the Administration, in an effort to placate angry legislators, had declared it would present a motion to defer the controversial order, which was to have gone into effect November 1, for 14 months. The new effective date would be January 1, 2012. The government hoped that by doing so, lawmakers could be persuaded during the interval to support the edict, on grounds that the existing landfill was nearly filled to capacity.

Secretary for the Environment Edward Yau told Thursday's meeting that postponement is the only way out and that the executive order cannot be repealed. Yau then pledged to work with residents of the neighborhood, district bodies and the LegCo to get rid of the foul odor that plagues the site. He also promised not to seek funding for works from the Finance Committee during that period.

There was, however, an even more pressing issue for legislators, a legal opinion advanced by the Department of Justice (DOJ) earlier in the week, asserting that the LegCo had no authority to rescind the order. The DOJ statement Wednesday added not even the Chief Executive himself had the authority to rescind the order.

Legislators see the government's position as a threat to the LegCo's power to scrutinize government edicts. Some have stated that if the DOJ's position is correct, LegCo has virtually no power.

Members of the subcommittee, which is charged with scrutinizing subsidiary legislation, Thursday reaffirmed their unanimous decision to move to repeal the order next week.

Lawmaker Cyd Ho of Civic Act Up said postponement would not solve the problem that now confronted the assembly. The Democratic Party's Emily Lau expressed outrage that the government continues to hold that the LegCo has no power to repeal the order. Even if the postponement motion carried, she said the order should not automatically come into effect without being scrutinized again by the legislature.

Ip Wai-ming, of The Hong Kong Federation of Trade Unions, urged the government to withdraw the order in full.

There are myths and uncertainties surrounding the legal dispute that could transform it into a constitutional crisis. Thursday afternoon, the LegCo President gave permission for the government to move the postponement motion, but he had not approved tabling of the repeal motion presented by the subcommittee because of government opposition.

Subcommittee member Albert Chan of the League of Social Democrats threatened to seek a judicial review if the LegCo President disapproved the subcommittee's motion.

Assuming that both motions are tabled for debate, the subcommittee's motion would come first. If the encroachment order were repealed, the government motion to postpone the land encroachment would become null and void.

Subcommittee chairperson Tanya Chan warned, "If the subcommittee and the government motions are both vetoed, it would return to the basics, meaning that the encroachment would come into effect on November 1 as the government earlier intended," she said. "Members must therefore consider the consequences and vote very carefully."

Earlier reports indicated that lawmakers representing geographical constituencies strongly supported the repeal. Representatives of functional constituencies were expected to oppose the repeal motion.

Some members of the subcommittee proposed amending the subcommittee's motion and require the government to seek approval from the LegCo to validate the order after expiry of the new effective date. The subcommittee however voted down the amendment, seen as an insurance bid, choosing to hold to its original motion.

China Daily

(HK Edition 10/08/2010 page1)