Provisional Legislative Council

PLC Paper No. CB(2)1277
(These minutes have been
seen by the Administration)

Ref : CB2/BC/3/97

Bills Committee on
Legislative Council Bill

Minutes of the meeting held on Tuesday, 9 September 1997 from 2:30 pm to 6:30 pm in the Chamber of the Legislative Council Building

Members Present :

Hon Ambrose LAU Hon-chuen, JP (Chairman)
Hon WONG Siu-yee
Dr Hon Raymond HO Chung-tai, JP
Hon NG Leung-sing
Prof Hon NG Ching-fai
Hon LEE Kai-ming
Hon Mrs Elsie TU, GBM
Hon YUEN Mo
Hon MA Fung-kwok
Dr Hon LEONG Che-hung, JP
Hon Mrs Sophie LEUNG LAU Yau-fun, JP
Hon CHAN Yuen-han
Hon CHAN Wing-chan
Hon CHAN Kam-lam
Hon TSANG Yok-sing
Hon CHENG Kai-nam
Hon Frederick FUNG Kin-kee
Hon Andrew WONG Wang-fat, JP
Hon Kennedy WONG Ying-ho
Dr Hon Charles YEUNG Chun-kam
Hon Howard YOUNG, JP
Hon IP Kwok-him
Hon Bruce LIU Sing-lee
Hon Mrs Miriam LAU Kin-yee, JP
Hon Timothy FOK Tsun-ting
Hon CHOY So-yuk

Members Absent :

Hon Ronald ARCULLI, JP (Deputy Chairman)
Hon Eric LI Ka-cheung, JP
Hon Mrs Peggy LAM, JP
Hon Henry WU
Hon CHAN Choi-hi
Dr Hon Philip WONG Yu-hong
Dr Hon TANG Siu-tong, JP

Public Officers Attending :

Mr NG Sek-hon

Deputy Secretary for Constitutional Affairs

Mr Patrick HO Chung-kei

Principal Assistant Secretary for Constitutional Affairs

Mr James O'Neil

Principal Government Counsel

Clerk in Attendance :

Mrs Percy MA

Clerk to Bills Committee

Staff in Attendance :

Mr Jimmy MA

Legal Adviser

Mrs Justina LAM

Assistant Secretary General 2

Mr Stephen LAM

Assistant Legal Adviser 4

Miss Flora TAI

Senior Assistant Secretary (2) 3

---

I.List of outstanding points which required further response by the Administration
(PLC Papers Nos. CB(2) 269 and 286(02))

1. At the invitation of the Chairman, the Administration responded to the outstanding points raised by the Bills Committee and deputations at previous meetings, a list of which was tabled at the meeting and issued vide PLC Paper No. CB(2) 269. Members noted that the related Committee stage amendments (CSAs) proposed by the Administration were set out in Annex B to the Information Note tabled at the meeting and subsequently issued vide PLC No. CB(2)286(02). The ensuing discussion is summarized below.

Preparatory Committee’s decision adopted at the National People’s Congress on 23 May 1997 in respect of the Specific Method for the Formation of the First Legislative Council of the Special Administrative Region of the People’s Republic of China ( the Specific Method)

(PLC Paper No. CB(2) 286(01))

2. On the Bills Committee’s request for documentary proof in support of the Administration’s advice that the Preparatory Committee’s decision of 23 May 1997 had been endorsed by the Standing Committee of the National People’s Congress (NPC), Deputy Secretary for Constitutional Affairs (DS(CA)) referred members to the document recording "The Decision of the Standing Committee of the NPC on 3 July 1997 to Approve the Proposal to Conclude the Work of the Preparatory Committee of the Hong Kong Special Administrative Region (SAR)". The document was tabled at the meeting by the Administration and subsequently issued vide PLC Paper No. CB(2) 286(01).

Ex-officio members of the Election Committee

(PLC Paper No. CB(2) 286(02))

3. DS(CA) advised members that the Administration, after reconsideration, had agreed to the Bills Committee’s suggestion that ex-officio members of the Election Committee (EC) who were also electors of functional constituencies (FCs) should be allowed a choice either to vote in the election of the EC or that of a FC to which they belonged. The Administration would introduce a CSA to this effect. The ex-officio EC members would be required to make the choice within a deadline to be prescribed by way of regulation. In response to members, DS(CA) said that it was the Administration’s view that the proposed amendment would not contravene the Preparatory Committee’s decision.

4. Mr Andrew WONG queried the proposed arrangement of transferring any unused quota of EC seats for Provisional Legislative Council (PLC) members and Hong Kong deputies to NPC to the Chinese People’s Political Consultative Conference subsector and then to the Provisional District Boards subsector should there be further unused quota. He opined that if ex-officio EC members were to be given a choice to vote in either EC or FC, any unused quota should not be transferred. However, if ex-officio members were duty-bound to vote in the EC, then the question of unused quota would not arise. DS(CA) explained that it was necessary to protect the electorate size of the EC which would return 10 Members to the first SAR Legislative Council (LegCo).

Voter registration of ex-officio EC members

5. Members noted that the Administration, having considered members’ views, would move a CSA to require the ex-officio EC members to register as GC electors before they could exercise their right to vote in the EC election.

Implementation of the 20% Nationality Rule

6. DS(CA) informed members that the Administration proposed to move an amendment to clause 13 to the effect that a LegCo Member’s seat would become vacant when he/she altered his/her nationality or the fact of whether or not he/she had a right of abode in a country other than the People Republic of China as declared under clause 38(1)(b)(ii). While members agreed that a Member should be disqualified if his/her acquiring a right of abode in a foreign country or changing his/her nationality (other than Chinese nationality) resulted in the breach of the 20% Nationality Rule, they objected to the Administration’s proposal to also disqualify a Member who altered his/her foreign nationality to Chinese nationality.

7. Some members pointed out that according to Article 79(3) of the Basic Law (BL), a Member would cease to hold office only when he or she lost or renounced his or her status as a permanent resident of the Region only. In response to members’ enquiries, Principal Government Counsel (PGC) explained that the term "being elected" in clause 37 did not cover the tenure of office of a Member whereas the Nationality Rule applied to the whole tenure of LegCo. Members were of the view that an elected Member of the 12 specified FCs, as prescribed in clause 35, who had declared that he/she had a foreign nationality or right of abode in a foreign country and had subsequently acquired or restored Chinese nationality or had given up or ceased to have that right of abode should not be disqualified. DS(CA) stressed that the Administration’s proposed amendment sought to implement BL 67 and was not inconsistent with it. However, he agreed to re-consider members’ view and revert to the Bills Committee as soon as possible.

Adm

Voting system of Election Committee

(Annex A to PLC Paper No. CB(2)286(02))

8. DS(CA) explained that the Administration had considered and concluded that the proposal to make it mandatory for EC electors to vote for not less than 10 candidates was not necessarily an improvement. Compared to the EC election in 1995, the risk of the electoral process being dominated by a particular group in the EC election in 1998 would be greatly reduced because the electorate base of the EC was now much larger and the 800 electors of the EC would be returned from four equal-sized sectors. Some members disagreed with the Administration. They maintained that it was the duty of EC electors to cast all 10 votes.

Corporate electors of FCs

9. Members noted that under clause 23(5), "a body" was required to be in operation for 12 months before its corporate members would be eligible for registration as corporate electors in the relevant functional constituency. The purpose of the requirement was to prevent "vote planting".

Requirement to support the Basic Law and pledge allegiance to the SAR

10. Clause 38 of the Bill set out the requirement for a candidate to make a declaration to the effect that he/she would uphold the Basic Law and pledge allegiance to the SAR. Referring to a Member’s earlier enquiry on whether elections in overseas countries and the Mainland had similar requirements, DS(CA) informed members that information on the practices in other countries and the Mainland was not available. However, he stressed that the proposed requirement was reasonable and consistent with the Basic Law and the Preparatory Committee’s decision.

Information Technology FC

11. DS(CA) said that the Administration had agreed to include the Hong Kong Association for Computer Education Ltd, Hong Kong Society of Medical Informatics Ltd and Hong Kong Telemedicine Association as electors for the Information Technology FC. However, the Administration would need to further consider whether Information Technology (IT) Division of the Hong Kong Institution of Engineers (HKIE) should be included as well. In this connection, Mr Raymond HO pointed out that HKIE was the only professional body in Hong Kong which accredited related IT degree courses at universities and qualified IT engineers with the required qualifications and experiences. Moreover, the professional qualifications of members of the IT Division of HKIE were comparable to those IT professionals included as electors for the FC in the Bill. Hence, they should be given a choice to vote in this FC. DS(CA) reiterated that the Administration had taken into consideration the professional standard in delineating the electorate for the Information Technology FC and only those bodies with well-established and recognized qualifications would be included as electors.

Sports, Performing Arts, Culture and Publication FC

12. Members noted the Administration’s position that -

1. the Hong Kong Video Industry Association Ltd and Hong Kong Theatres Association Ltd should be included in the Wholesale and Retail FC instead of the Sports, Performing Arts, Culture and Publications FC as these two organizations were considered to be more related to the former FC;

2. given its nature of business of its members, it was not appropriate to transfer the Hong Kong Record Merchants Association Ltd from the Wholesale and Retail FC to the Sports , Performing Arts, Culture and Publication FC; and

3. the Administration would move a CSA to include the Hong Kong Book & Stationery Industry Association Ltd as elector for the Sports, Performing Arts, Culture and Publication FC.

13. Some members expressed disappointment at the Administration’s decision on paragraph 12(a) above and noted the Chairman’s advice that individual members were at liberty to move CSAs, if considered necessary.

Composition of Election Committee

14. Members noted that the Administration, after having considered members’ views relating to the composition of the EC, remained of the view that -

1. placing the Sports, Performing Arts, Culture & Publication FC and the Social Welfare FC under the Third Sector was consistent with the Preparatory Committee’s decision;

2. the Labour FC should not have a claim to more than 40 seats because the allocation of seats to the subsectors in the first three sectors was generally done on an equal basis; and

3. there was no justification to specify the number of seats for each of the four groups under the "Sports, Performing Arts, Culture and Publication" subsector of the Third Sector of the EC.

Transport FC

15. With reference to the question as to whether any shipping companies had been omitted from the list of electors for the Transport FC, DS(CA) explained that the proposed list had been carefully drawn up by the Administration to ensure that organizations which were representative of the trade would have been included.

16. In response to members’ queries, the Administration undertook to revert to the Bills Committee on -	Adm

1. providing a detailed breakdown of the 154 electors of the Transport FC into commercial companies and corporate bodies, and the number of members of the latter;

2. whether green minibus operators should be given more seats in the Transport FC; and

3. whether the distribution of the number of electors between land and sea transport should be proportional and whether more organizations which were representative of the trade should be included as electors.

Textile and Garment FC

17. Members noted that the Administration needed more time to confirm whether members of the bodies listed in the Textile and Garment FC were all corporate members.	Adm

Social Welfare FC

18. Referring to a proposal that certain registered and well-established district/local organizations should be included as electors for the Social Welfare FC, DS(CA) reiterated that the Administration did not consider it appropriate to alter the list of electors of the Social Welfare FC as its electors had all along only included registered social workers and corporate members of the Hong Kong Council of Social Service.

Financial Services FC

19. On the question of whether members of the Chinese Gold & Silver Exchange Society should be included in paragraph 1(3)(m) of Schedule 3 as electors of the Financial Services FC, DS(CA) explained that the "rolling over" arrangement in respect of the 1997 Provisional Register for FCs as provided for in Schedule 3 needed not to apply to the Society because it did not have any individual members.

II.Proposed amendments from members

(PLC Paper Nos. CB(2) 266, CB(2) 274, CB(2) 276, CB(2) 278 and CB(2) 286(03))

20. The meeting noted that details of the amendments to the Bill proposed by individual members of the Bills Committee had been issued vide PLC Paper Nos. CB(2) 266, CB(2) 276 and CB(2) 278. The meeting also noted that a summary on members’ proposed amendments had been prepared by the Secretariat and issued vide PLC Paper No. CB(2) 274.

General elections before or after dissolution

21. Mr Andrew WONG was of the view that it was a fairer arrangement to hold all general elections after dissolution so as not to give undue advantage to incumbent Members. He pointed out that the Bill provided for a general election to be held under two scenarios : either within three months after LegCo was dissolved by the Chief Executive under Article 50 of the BL during its term of office; or after prorogation of the LegCo and prior to the automatic dissolution upon the end of the fixed term. He found such inconsistency not appropriate. In response, Principal Assistant Secretary for Constitutional Affairs (PAS(CA)) explained that the concept of prorogation in clause 6(3) of the Bill aimed at preventing incumbent Members to have undue advantage as the operation of the LegCo would be terminated before the electioneering activities commenced. The scenario of LegCo being dissolved by the Chief Executive would only happen under very unusual and special circumstances. In response to Mr Andrew WONG’s question, PGC said that the Basic Law did not require elections to be held within a term of office of the LegCo.

Number of votes an elector may cast

22. The meeting noted that Mrs Elsie TU and Mr Bruce LIU/Mr FUNG Kin-kee had proposed that the "one person, one vote" principle should be adopted so that all electors (with the exception of ex-officio EC members or electors of the smallest FCs) would be required to choose to vote in only one constituency. Mrs TU pointed out that the proposal was not contrary to the Basic Law or the Preparatory Committee’s decision. Members noted that the Administration did not support the proposal.

23. Mr Andrew WONG also had reservation about the proposal. He explained that the proposal would be contrary to the principles enshrined in the Hong Kong Bill of Rights Ordinance (Cap. 383), i.e. to vote and to be elected without unreasonable restriction at genuine periodic election which should be by universal and equal suffrage, as it would deprive voters of the right to participate in the only elections that were held by way of universal suffrage. He added the "one person, one vote" principle should only apply to GC election. He asked the Administration to provide past paper on the Government’s position on the voting rights in respect of the relevant electoral bill in 1994 for members’ reference. Mr WONG also distributed copies of his speech on "A Comprehensive and Democratic Electoral Reform Package" delivered at the sitting of the former Legislative Council on 29 June 1994 (English version only) for members’ information (subsequently issued vide PLC Paper No. CB(2) 286(03)).

Adm

Disqualification of electors

24. Mr Andrew WONG explained that his proposed amendments aimed to confine disqualification of electors only to escaped convicts from Hong Kong prisons, enable prison inmates to have votes, and remove all prospective disqualification. DS(CA) informed members that the Administration did not support the proposals on the ground that the provisions in the Bill were already less stringent than those contained in the previous electoral legislation and there was no strong public sentiment for further changes.

Disqualification of candidates

25. Mr Andrew WONG proposed that disqualification of candidates should only be confined to escaped convicts from Hong Kong prisons and that prospective disqualification should be reduced from five years to four years (to tie in with a LegCo term) and be confined to corrupt offences committed in Hong Kong. Moreover, disqualification on bankruptcy grounds should be confined to undischarged bankrupts. Members noted that the Administration did not support the proposals on the ground that the provisions in the Bill were already less stringent than those contained in the previous electoral legislation.

26. PAS(CA) informed members that the Administration was considering whether disqualification of an elector or a candidate on the basis of conviction of any offence under the Prevention of Bribery Ordinance (Cap. 201) should be restricted to only the more serious corruption offences, having regard to the fact that some offences under the Ordinance were not directly related to elections. The Administration might propose amendments in this respect.

20% Nationality Rule

27. Members noted that Mr CHAN Choi-hi and Mr Bruce LIU/Mr FUNG Kin-kee had respectively proposed that the quota of 12 seats be allocated in the ratio of 4:6:2 among the GCs, FCs and EC, as recommended in Article 8(1) of the Specific Method. Mr LIU briefly explained his initial proposal which aimed at allocating the 12 seats to candidates who secured the highest number of votes in the respective GC, FC and EC elections. A few members expressed reservations about the feasibility of the proposal. In response, DS(CA) reiterated that the Administration’s proposal made in the Bill was simpler to implement. It would ensure that the election would not return more than 12 Members who were not of Chinese nationality or who had right of abode in foreign countries. It would not introduce an element of uncertainty to the election outcome as no successful candidate would lose his/her seat because of the 20% Nationality Rule. The Administration therefore did not support the proposals put forward by Mr CHAN or Mr LIU/Mr FUNG.

28. Dr LEONG Che-hung opined that the arrangement proposed under the Bill was unfair. He suggested that the 12 FCs specified in clause 35(3) should be determined by drawing lots. DS(CA) stressed that the 12 FCs had been selected because it was considered that they had a greater chance of returning candidates with foreign nationality or right of abode. Dr LEONG queried whether the Administration had any statistical information to support such a decision. He further pointed out that the Administration’s decision had not taken into consideration the possibility that an eligible elector in one FC might choose to register in another FC for which the elector was also eligible.

Geographical constituency

29. Mr Bruce LIU/Mr FUNG Kin-kee proposed that the "single seat, single vote" system should be adopted for the GC election. Some members pointed out that the proposal was inconsistent with Article 4 of the Specific Method which only gave the HKSAR a choice between either the "multi-seat, single vote" system or the proportional representation system. The Administration held a similar view. Mr Bruce LIU argued that the Preparatory Committee had not specifically precluded other types of voting systems in its recommendations. It would therefore be for the President of PLC to decide whether such an amendment could be moved.

III. Date of next meeting

30. Members agreed to continue discussion of other amendments proposed by members at the next meeting scheduled to be held on Wednesday, 10 September 1997 at 8:30 am.

31. There being no other business, the meeting ended at 6:30 pm.

Provisional Legislative Council Secretariat
25 November 1997