Filibustering: Flawed in Principle and Bad for Hong Kong
Photo Credit: South China Morning Post
By Richard Cullen

Filibustering: Flawed in Principle and Bad for Hong Kong

Mar. 09, 2018  |     |  0 comments


Introduction


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, after the 2016 LegCo Election, a number of newly elected Pan-Democrat (PD) LegCo Members chose to complete their required swearing-in as LegCo Members in unusual ways — each designed to make some level of anti-government and/or anti-Beijing political points.


After legal action initiated by the HKSAR Government — assisted by a Basic Law Article 158 Interpretation by the National People’s Congress Standing Committee (NPCSC) of Article 104 of the Basic Law — six new PD Members of the LegCo were disqualified by the courts in Hong Kong as LegCo Members because they failed, through their own choice, to complete their Oath of Office (as required by Article 104) in what was judged to be a proper manner.


It was this reduction in PD numbers within the LegCo which made it possible for the Pro-Establishment (PE) LegCo Members to gather the numbers to effect the anti-filibustering amendments.


What is Filibustering


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 a bill), in order to delay or prevent a decision being made to enact that proposal by a vote of the legislature. According to the sort of procedural rules which typically apply in elected legislatures, there will be a time limit which applies to establish when such a vote needs to be taken. Thus, if a legislature member can talk beyond that time limit, a vote can be prevented and, again according to the usually applicable rules, the proposal will lapse: it will need to be reintroduced afresh if it is to be voted on a second time.


This process is often called “talking a bill to death” or “talking out a bill”.


It follows from the above, that, in order to filibuster, the procedural rules of the legislature in question must not specifically prevent debating tactics such as these. It also follows from the above that normally, it will always be a minority within a legislature which engages in filibustering: they are not in government, they are opposed to some government proposal, and so they resort to filibustering to stop that proposal moving forward.


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.


In France, for example, in 2006, the left-wing opposition introduced almost 140,000 amendments to a particular privatization bill that they opposed. Normal procedures applying within the French legislature meant that it would have taken 10 years to debate and vote on all the amendments. Ultimately the left-wing opposition withdrew all the amendments when they realized that there was a lack of public support for their use of this tactic.


It transpires that all of these forms of procedural political obstruction have come to be referred to, collectively, as filibustering. Filibustering thus has both a specific meaning (talking out a bill) and this more general (stone-walling) meaning (which includes the specific meaning).


In Hong Kong, the term filibustering is used in both the specific and general senses noted above. In this essay, the term is employed in the general sense unless otherwise indicated.


A Short History of Filibustering


An early recorded example of filibustering in the specific sense dates to the time of the late Roman Republic (although the term filibuster was not used then) when Cato the Younger used such tactics to thwart the will of Julius Caesar around 60 BC in the Roman Senate.


The term may have been derived, originally, from a Dutch term, vrijbuiter (freebooter) for (usually sea-borne) adventurers who robbed others during the early colonial era when sailing ships dominated international trade and travel.


Different jurisdictions have dealt with filibustering within their legislatures in different ways. In this part of the essay, I wish to focus on three jurisdictions; the US, the UK, and Australia.


The US has not only allowed filibustering within the US Congress in Washington, it has, more than otherwise, celebrated it as a mark of the strength of the US democratic system.


The rules of procedure have not allowed ready access to filibustering in general or specific senses within the US House of Representatives since the late 19th century. The US Senate, however, has allowed perhaps the widest scope for filibustering in any major jurisdiction. It has done this through enactment of its own rules of procedure (filibustering is not a product of any provision in the US Constitution). Those Senate rules cannot be easily changed — the rules themselves require a two-thirds majority to be changed and, normally, a vote to end a filibuster requires a 60 percent majority vote.


The requirements for filibustering in the specific sense are notably friendly to any Senate member commencing a filibuster. There is no requirement for what is said to be relevant to the matter being proposed, so reading out the contents of phone book as a central component of a filibuster is allowed.



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 Senate is not just a house of review for legislation: it has a pivotal role in confirming a wide range of significant federal judicial appointments (including to the US Supreme Court) and executive appointments. For example, on the election of a new President, a new Cabinet must be appointed, subject to Senate approval. Filibustering often comes into play when the Senate is engaged in this appointment confirmation process.


Both the major parties in the US, the Republicans and the Democrats, have used filibustering in the Senate quite widely when they have been out of government (and in a minority in the Senate). Each party has tended to argue (when in government) that the other has taken filibustering too far in certain cases: the Republicans used filibustering to stall civil rights legislation beginning in the 1960s and the Democrats made life difficult for President George W Bush when he was making judicial and executive appointments, for example.


It is now the case in the US that non-revenue law-making within the Senate typically requires a 60 percent majority which regularly mandates resort to protracted negotiated agreements — all designed to avoid stalled law-making caused by filibustering.


Despite these clear impediments to regular democratic majority rule (50 percent plus 1) decision-making, there have been few serious filibustering reform proposals — and none which have attracted the cross-party support (in the Senate, especially) needed to effect any real reform.


It may be the reason that this flawed system is celebrated relates to the fact that the US is stuck with filibustering as a key component within its legislative regime: it cannot, realistically, be changed. 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. In each case the party doing the filibustering typically argues — when they achieve some level of success in deferring or stopping new legislation or certain appointments — that they have benefited the public interest. Based on this rather self-serving analysis, it follows that filibustering is good for democracy, according to the relevant advocates. In a sense, the long dominant, bipartisan arguments in the US that filibustering is part of a “great American tradition” (to quote from a Brookings Institute paper) is to make a virtue out of necessity.


Filibustering is not unknown in the UK but procedural rules and norms of parliamentary behavior mean that filibustering has a significantly limited impact compared to the US Senate. In the House of Commons, each Member speaking must speak, in a relevant manner, to the particular topic under debate: they cannot read from the Bible in a general way, for example. The rules of procedure also allow for the Speaker in the House of Commons to control what is debated in terms of who says what, when, and for how long. Amendments can be made to the relevant rules based on a simple majority vote, also, so that the controls on filibustering can be strengthened if this is seen to be needed.


In Australia, the rules of procedure in the Federal Parliament in Canberra are even more stringent. Time limits are firmly enforced as are rules governing relevance and the use of unparliamentary language (and behavior). The result is that filibustering is normally simply not a viable political option. No commentator that I am aware of either from within Australia or from outside has argued that Australian democracy has been weakened by the long-term deployment of this robust, anti-filibuster regime.


The intent of these rules in the UK and Australia is to avoid the use of tactics designed to delay or derail progress towards a deciding vote. This is to ensure, as far as possible, that bills and proposals are voted on in a timely manner.


Filibustering in the HKSAR


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.


Filibustering has, since that time, come to be associated fundamentally, with the PD group with the LegCo, however. In 2009, filibustering measures were used, ultimately unsuccessfully, to try and thwart the financing of the Guangzhou-Hong Kong High Speed Rail Link. More filibustering was used to try and halt a bill designed to stop LegCo Members from immediate participation in a By-Election prompted by their own resignation. Ultimately, this filibuster was also unsuccessful.


Over a number of years — and especially after C. Y. Leung became the Chief Executive (CE) of the HKSAR in 2012 — filibustering by the PD group within the LegCo became a dominant aspect of the way in which much of the business of the LegCo proceeded.


Frequently, this filibustering has been accompanied by theatrics within the LegCo with PD Members — most often led by the more Radical PD (RPD) Members — engaging in a variety of attention-seeking displays, both visual and aural, during debates. The direct and recorded televising of most LegCo procedures amplifies the attraction of behaving this way: the more dramatic political-theatrical gestures are best placed to be replayed on television news broadcasts and reported in some detail across the media generally.


All of this growing resort to filibustering over the last several years has cumulatively imposed real costs on Hong Kong — and increasingly on the PDs.


Within the 2016-17 period, approval of public expenditure of almost HKD 70 billion for major local construction projects has been largely deferred or stopped due to disorder in the LegCo. These projects offer critical work to a workforce of around 400,000.


The PDs also look steadily to have painted themselves into a filibustering corner. Although it was the RPDs who led the way — not least with respect to the mass-moving of amendments and resort to attention-seeking displays — the entire PD group largely joined in with varying levels of enthusiasm. The RPDs were more direct and uncompromising — they were determined to make matters as difficult as possible for the HKSAR Government within the LegCo. Having such a hard-nosed objective meant that the RPDs were quite clear about what they should do. They were, thus, frequently able to set the filibustering agenda: the RPD tail was wagging the PD dog.


In 2013, all 27 PD LegCo Members submitted a total of 1.9 million amendments in response to one set of procedural reform proposals. The LegCo Secretariat estimated that the time needed both to vet the amendments in accord with procedure and then to vote on each of amendment could take several years.


The HKSAR Government of the most recently appointed CE, Mrs. Carrie Lam, which took office in 2017, adopted a firm, formally neutral stance as the debate about reform grew — especially after the disqualification of the six PD LegCo Members for failing to take the oath of office in a proper manner opened up the possibility of amendments. Mrs. Lam said that resolving the reform issue was a matter for the LegCo. Former senior HKSAR Government members have, however, commented that reform was needed because of the significant harm arising from long-term abuse of the procedural rules in the LegCo.


It would seem, too, that increasing numbers in Hong Kong have grown tired of filibustering and are concerned about the resultant adverse consequences. A recent Chinese University survey found that over half of those interviewed opposed filibustering with about one third expressing continued support for the wide-ranging use of such measures.



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 mainstream PDs in LegCo have also found themselves being attacked on the topic not just from the PE LegCo Members. Certain RPDs outside of the LegCo and numbers of younger Hong Kong Localist/Independence activists have been scathing in their attacks on the more moderate PD majority for failing to be strident enough in fighting against the HKSAR Government, Beijing, and anti-filibustering reforms.


Across the wider public, the perception has grown of abuse of process, an often first-resort confrontational, almost tribal, opposition to most government initiatives (in place of policy-based opposition), and the increasing absence of cool judgment on when to filibuster. These factors have all played a part in a shift in public opinion against filibustering as it has come to be practised in Hong Kong. There is a clear view that the misuse of filibustering has increased over the course of 2017, with the LegCo failing more than ever to make progress with considering and resolving the range of matters on its legislative agenda.


Finally, in mid-December 2017, after further chaotic scenes within the LegCo, more than 20 amendments to procedural rules to place limits on general and specific filibustering were passed (with several further changes set to follow). Key amendments reduced the quorum required for certain types of LegCo meetings from 35 to 20 LegCo Members, and the support threshold for establishing LegCo Committees of Inquiry was raised from 20 to 35 Members.


PD measures adopted shortly prior to the vote on these amendments to try to delay or stop the voting indicated a sense of political desperation: setting off an emergency alarm (locked in a drawer); a Member chaining himself to his desk; and chanting slogans.


More recently, the LegCo’s powerful Finance Committee has moved to change the relevant rules to reduce opportunities for filibustering (in both senses) within this important committee (and its sub-committees).


In fact, offshore experience shows that the reforms could, at a future time, benefit the PDs. Given the current part-democratic structure of the LegCo and with LegCo electoral reform now stalled most likely until the 2024 LegCo Elections, at least, the possibility of seeing a broad PD majority in the LegCo is a distant prospect. But it remains plainly conceivable — with electoral reform. Any such PD majority in the LegCo would then stand to benefit from the anti-filibustering reforms recently passed.


Conclusion


It is important to note that there are institutional factors which amplify the operational frustration of LegCo members — and especially PD members. The rules set down in the Basic Law in essence make it almost impossible for Members to introduce their own Bills for debate. They are thus left with a primary role which involves discussing and approving (or not) those Bills which the Government introduces. Moreover, the Government has ultimate control over the time-tabling of new laws and amendments. This frustration is further elevated for the PDs by their deep sense of grievance with respect to long-stalled political reform (at the level that they desire).


Some of the explanation for the intensity of filibuster-based dysfunction which has been experienced within the LegCo arises from these role-limiting factors. One can also see how these factors shaped the early attraction of resorting to filibustering tactics by PD Members within the LegCo.


Minority group frustration is a normal part of life within any legislature, however: it is a political aspect which legislators must come to terms with. When exasperation leads to frequent first-resort use of filibustering maneuvers, it is a sign of poor operational judgment. This failure of acumen is made clearer, still, when LegCo Members rely on repeated political theatrics during debates. The arguments are regularly set within a simplistic, Four Legs Good, Two Legs Bad framework — the opposition to too many proposals put before the LegCo becomes inordinately resentful and, at times, bloody-minded.


When Lord Lester QC visited Hong Kong in October 2012, his presentation explained how the Westminster Parliament in London has, over its long history, built up a strong sense of what might best be described as its own institutional integrity. That is, although the UK Parliament is a place of the most intense debate — and disagreement — the Members of Parliament in both Houses understand that they each are part of a pivotal governance institution and they owe a duty to maintain proper standards of behavior as they participate in debates in order to protect that critical institutional integrity. The Parliament operates according to different rules compared to the Judiciary. Both, however, rely on the deep understanding by their respective members about the crucial importance of impulse control in order to maintain the fundamental strengths of each institution.


The LegCo was, for most of its life in British Hong Kong, an attenuated legislature appointed by the Governor. The sense of institutional integrity was, thus, significantly less strong compared to the other two arms of government. This has left the LegCo more vulnerable to further erosion of its own collective understanding of its core public purpose.


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.


Filibustering within the US Senate remains a deep-seated aspect of the US democratic tradition. It is regularly supported as, on balance, a positive aspect of that tradition by commentators from both major parties in the US — and by other independent commentators.


In my view, the key reason for this level of support is the entrenched nature of this particular political arrangement. Deng Xiaoping was, reportedly, once asked what he thought of Mao’s Mausoleum in Tiananmen Square. He is said to have replied that: If you did not have it, you would never build it; but once you have it, you can never get rid of it. US Senate filibustering can be similarly gauged. A clear measure of this is that almost all other major democratic legislatures have declined to copy this particular US approach to legislative rule-setting. In fact, numbers of parliaments have gone out of their way to put in place rules which prevent filibustering as far as possible.


Prior to the recent votes in the LegCo changing the Rules of Procedure so as to limit filibustering (in specific and general senses), a group of Hong Kong academics circulated a petition outlining their objections to the proposed rule changes and calling for further support. The petition was well set out. Somewhat conspicuously absent from the petition, however, was a list of the clear benefits secured by filibustering over the last several years (apart from a notation of referrals for investigation of certain public officials). It is hard not to conclude that 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.


As an aside, it is interesting that, in the HKSAR, despite a great deal of opinion-polling, we do not seem to run any regular polls on the popularity, or otherwise, of the LegCo as an institution. In the US, polling on the popularity of Congress (sometimes slipping below 10 percent, as it happens) is regular.


The LegCo remains only a partially democratic institution — around 57 percent of all seats can be described as directly elected. Within the remaining 43 percent, made up of Functional Constituencies (FCs), numbers of seats have only very small electorates, and in a number of FCs only one candidate is nominated. There are also certain limits (some noted above) in the Basic Law which constrain the powers of LegCo Members.


All of which says that there is a prima facie case that the LegCo is in a special category — a category which, it could be argued, creates a justification for allowing filibustering (in both senses) to a significant degree. We have now, however, had extended negative experience with filibustering in the LegCo. Whatever case might have been made to allow filibustering on a significant scale has been gravely undermined by the degree of abuse of process evidenced by that direct and extended experience.


The experience both in Hong Kong and offshore says that largely unhindered filibustering results in notably more harm than good being visited on any serious legislative process: typically, full freedoms to filibuster will lead to regular abuses of process at the expense of making timely progress with voting on, often conspicuously significant, legislative proposals.


The reduction in PD LegCo Members arising out of the Oath-Taking episode after the 2016 LegCo Elections has meant that, less those six PD Members, the LegCo has now voted to introduce new rules of procedure significantly limiting filibustering in both the specific and general senses.


This is, on balance, a positive development for the HKSAR. It should help the LegCo to focus more on its key legislative roles. It should also help to repair the dented reputation of the LegCo. Finally, these reforms should assist all in the LegCo over time, including the PDs.


References


Binder, Sarah A. and Smith, Steven S. “Filbusters a Great American Tradition”, Brookings Institute, available at: https://www.brookings.edu/opinions/filibusters-a-great-american-tradition/ (accessed, January 5, 2018).


Cheung, Tony, “Carrie Lam rejects call to mediate tensions in Legco over rule book changes, says pan-dems would not want her to interfere”, South China Morning Post, December 12, 2017, available at: http://www.scmp.com/news/hong-kong/politics/article/2123948/lam-rejects-call-mediate-tensions-legco-over-rule-book (accessed January 5, 2018).


Chung, Kimmy, “Legco approves rule book changes after dramatic debate with 11 Pan-Dems booted out of chamber” South China Morning Post, December 15, 2017, available at: http://www.scmp.com/news/hong-kong/politics/article/2124467/two-pan-dems-kicked-out-legco-meeting-after-disrupting (accessed January 5, 2018).


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Lo, Sonny, “Can Hong Kong’s new NPC deputies be the change that the city’s zero-sum politics needs?” South China Morning Post, December 21, 2017, available at: http://www.scmp.com/comment/insight-opinion/article/2125230/can-hong-kongs-new-npc-deputies-be-change-citys-zero-sum (accessed January 5, 2018).


Ma, Mary, “Long on Theatrics, Short on Leadership”, The Standard, December 18, 2017, available at: http://www.thestandard.com.hk/section-news.php?id=190791&sid=21 (accessed January 5, 2018).


Parliament of Australia, Standing Orders, available at: https://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/House_

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Parliament of the United Kingdom, Filibustering, available at: http://www.parliament.uk/site-information/glossary/filibustering/ (accessed January 5, 2018).


Parliament of the United Kingdom, Rules and Traditions of Parliament, available at: http://www.parliament.uk/about/how/role/customs/ (accessed January 5, 2018).


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Tong, Elson, “4 more elected pro-democracy lawmakers to be ousted following Hong Kong court ruling” Hong Kong Free Press, July 14, 2017, available at: https://www.hongkongfp.com/2017/07/14/breaking-4-elected-pro-democracy-lawmakers-ousted-following-hong-kong-court-ruling/ (accessed January 5, 2018).



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