LegCo Paper No. CB(2)1186/96-97
(These minutes have been seen by the
Ref : CB2/PL/CA

LegCo Panel on
Constitutional Affairs

Minutes of Meeting held on Monday
20 January 1997 at 10:45 am in Conference Room A of the LegCo Building

Members Present:

    Hon SZETO Wah (Chairman)
    Hon CHEUNG Man-kwong
    Hon Emily LAU Wai-hing
    Hon LEE Wing-tat
    Dr Hon YEUNG Sum
    Hon IP Kwok-him
    Hon Bruce LIU Sing-lee
Members Absent:
    Hon Ambrose LAU Hon-chuen, JP (Deputy Chairman)*
    Hon Ronald ARCULLI, OBE, JP*
    Hon James TO Kun-sun*
    Hon David CHU Yu-lin*
Public Officers Attending:
    Mr Nicholas NG, JP
    Secretary for Constitutional Affairs
    Mr Joseph LAI
    Deputy Secretary for Constitutional Affairs
Clerk in attendance:
    Mrs Betty LEUNG
    Chief Assistant Secretary (2)3
Staff in attendance:
    Mr. Jimmy MA
    Legal Adviser
    Miss Erin TSANG
    Senior Assistant Secretary (2)7

I.Confirmation of minutes of meeting

The minutes of meeting held on 16 December 1996 were confirmed without amendment.

II.Date of next meeting and items for discussion

2. The next meeting would be held on 17 February 1997 at 10:45 am. Members present agreed to discuss the following items at the next meeting:(a) Preparatory Committee Legal Sub-group*s suggestion to repeal and to amend certain Hong Kong legislation;(b) the administrative team to CE(Des);(c) progress of work of Joint Liaison Group; and(d) issues related to the formation of the Hong Kong Special Administrative Region (SAR) Government and co-operation with the Preparatory Committee (PC).

III. Harmony between the appointment of administrative team to CE(Des) and the establishment of the principal posts in the Hong Kong Government

3. Mr Nicholas NG informed the meeting that the Governor met CE(Des) on 23 December 1996 and agreed that they would meet regularly to discuss issues during the transitional period. Moreover, the Chief Secretary would also work closely with CE(Des), and the Administration would provide the necessary assistance to him on the basis of the established parameters.

Office accommodation for CE(Des)

4. The Administration had consulted CE(Des) and rented an area of 900 square meters in the Asia Pacific Finance Centre as CE(Des)'s temporary office until 30 June 1997. The premises were now being fitted out and should be ready by about mid-February 1997.

Security Protection for CE(Des)

5. The Royal Hong Kong Police was providing security protection to CE(Des).

Secondment of government officials to CE(Des)'s Office

6. Apart from Mrs Fanny LAW, about ten other government officials from the General Grades had been seconded to assist CE(Des). They included one Administrative Officer, some Executive Officers, plus a few secretarial grade and clerical grade staff members. There was also a chauffer. These government officials would be accountable to CE(Des). In reply to Ms Emily LAU, Mr NG said that HKG did not have any plan to second any law draftsmen to the CE(Des) Office.

7. In reply to Ms Emily LAU, Mr NG said that secondment of civil servants to non-HKG organisations was not new. For example, there were secondments to the Legislative Council Secretariat and the Asia-Pacific Economic Co-operation. In these and other cases, the civil servants concerned were accountable to the bodies to which they were seconded, though they remained as civil servants.

8. In reply to Mr LEE Wing-tat, Mr NG pointed out that the Chinese side and CE(Des) were clear about HKG*s stance on the Provisional Legislature and CE(Des) had indicated that he would not put the secondees in a difficult position. Thus, he believed that the secondees would not be subject to conflicting loyalties.

Principal officials to straddle 1 July 1997

9. The Chief Secretary had accepted CE(Des)*s invitation to remain to serve the SAR Government. CSB was co-ordinating meetings of incumbent of future Principal Official posts with CE(Ces). The CE(Des) had told the press that he would probably announce the list of Principal Officials at the end of the month.

10. Mr CHEUNG Man-kwong referred to the rumour that some incumbents of future Principal Official posts might not be able to remain in their existing positions after the transfer of sovereignty. He asked whether this would violate Article 100 of the Basic Law, and whether Hong Kong Government (HKG) would clarify the matter at the Joint Liaison Group or through other appropriate diplomatic channels. Mr NG said that both the Chinese and British sides and CE(Des) recognised that the continuity of the civil service was vital to a successful transition. The British side had repeatedly put to Chinese side that the stability of the civil service should not be undermined. As to whether certain incumbents of future Principal Official posts might not be able to straddle 1 July 1997 and whether this was in breach of the Basic Law, Mr NG said that he was not in a position to comment before CE(Des) had made any announcement. However, he noted that according to the Basic Law, all civil servants could remain in employment after the handover but that there were certain requirements to be fulfilled before the incumbents could take up certain posts in the Hong Kong SAR Government.

11. In reply to Mr CHEUNG Man-kwong, Mr NG pointed out that as enshrined in Article 103 of the Basic Law, the existing mechanisms for the appointment and promotion of civil servants would be maintained after the transfer. Regarding the possible candidates for several Principal Officials posts such as Commissioner for Independent Commission Against Corruption, Deputy Financial Secretary, Deputy Secretary for Administration and Deputy Secretary for Justice, Mr NG said that he was not in position to answer on CE(Des)'s behalf. Mr Bruce LIU then asked and Mr NG confirmed that as provided by the Basic Law, CE(Des) had the authority, to choose and nominate Principal Officials for the SAR Government.

Executive Councillors

12. In response to Dr YEUNG Sum and Mr Bruce LIU, Mr NG confirmed that all members of HKG*s ExCo would need to observe the principles of collective responsibility and confidentiality.

IV. Progress of work of the Joint Liaison Group (JLG)

13. Mr NG informed members that the JLG XXXIX meeting was scheduled for March or April 1997. Apart from the expert group on International Rights and Obligations which met on a regular basis, the following expert groups had held meetings recently:(a) expert group on Transitional Budget;(b) expert group on the Handover Ceremony;(c) expert group on Defence and Public Order; and(d) expert group on Localisation of Laws

14. Mr LEE Wing-tat asked and Mr NG confirmed that the Chinese side had not suggested through the JLG that members of the team (designate) would participate in JLG discussion. He undertook to revert to the Panel if there was further development on the issue.

15. In reply to Ms Emily LAU, Mr NG referred to the statement made by the Chinese Foreign Minister that HKG would be responsible for the administration of Hong Kong until 30 June 1997 and that there would not be two legislatures operating in parallel in the territory before the handover.

V.Issues related to the formation of the first Hong Kong SAR Government and co-operation with the Preparatory Committee (PC)

16. Mr NG indicated that he would report to the Panel on any development, when appropriate.

VI.Any other business

Preparatory Committee Legal Sub-group's suggestion to repeal and amend certain Hong Kong legislation

17. Dr YEUNG Sum referred to the Legal Sub-group of the Preparatory Committee (PC)'s suggestion to repeal 16 human rights related ordinances and opined that it would jeopardise Hong Kong's liberty. The Democratic Party strongly objected to the suggestion. He asked whether HKG would raise objection to the Chinese side via JLG. Mr NG informed the meeting that HKG had issued a statement to make clear that the sub-group's recommendations was a retrograde step. There was no legal justification for repealing Sections 2(3), 3 and 4 of the Hong Kong Bill of Rights Ordinance (the BOR Ordinance) as those provisions were consistent with and did not override the Basic Law. HKG hoped that those recommendations would not be adopted. HKG was considering further steps to take.

18. On Mr LEE Wing-tat's question as to whether it was viable to take the case to court for judicial review and declaration that the original provisions in the Societies Ordinance and the Public Order Ordinance were in breach of the BOR Ordinance, Legal Adviser advised that once a legislative provision was repealed, it was no longer part of the Hong Kong legislation and hence it was not possible to apply for judicial review or declaration in relation to those repealed provision. Mr LEE Wing-tat then asked whether judicial review could be instituted if the original versions of the two ordinances were reinstated after 1 July 1997. Legal Adviser said that Section 6 of the BORO Ordinance provided the court with authority to grant remedies for contravention of the Bill of Rights in appropriate cases. With respect to Article 39 of the Basic Law which provided that the International Convenant on Civil and Political Rights and the International Convenant on Economic, Social and Cultural Rights as applied to Hong Kong should remain in force, Mr CHEUNG Man-kwong asked whether members of the public could seek for judicial adjudication and hence remedies if their rights were infringed after 30 June 1997. Legal Adviser said that under the existing legal system and pursuant to Section 6 of the BOR Ordinance, a member of the public could in appropriate cases raise issues relating to alleged violation of the Bill of Rights in judicial proceedings. He reiterated that if the BOR Ordinance was applicable after 30 June 1997, Section 6 of the BOR Ordinance could still be relied on in judicial proceedings.

19. Dr YEUNG Sum asked and Legal Adviser said that Section 3(1) and (2) of the BOR Ordinance supplemented Section 6 of the Ordinance. As to whether the repealing of Section 3 would undermine the BOR Ordinance and the possible effects of such repealing , it was difficult to speculate. Legal Adviser explained that Section 3 of the BOR Ordinance dealt with legislation that was enacted before 8 June 1989, i.e. the commencement date of the BOR Ordinance, to the effect that all pre-existing legislation that did not admit of a construction consistent with the BOR Ordinance was, to the extent of the inconsistency, repealed. The court was empowered to make such declaration. For legislation that was enacted after the enactment of the BOR Ordinance, the Letters Patent required that it should not be inconsistent with the International Convenant on Civil and Political Rights.

20. Ms Emily LAU then requested and members present agreed that a joint meeting with the LegCo Panel on Home Affairs and LegCo Panel on Administration of Justice and Legal Services be held on 24 January 1997 at 2:30 pm to discuss the effects on Hong Kong internally and internationally upon the repeal and modifications of the existing Hong Kong laws as proposed by PC*s Legal Sub-group. Apart from the Administration, the Hong Kong Bar Association and the Law Society of Hong Kong would also be invited to the meeting. Clerk

21. The meeting ended at 12:30 pm.

LegCo Secretariat22 January 1997

*.other commitments

Last Updated on 13 August 1998