Provisional Legislative Council
PLC Paper No. CB(2) 1501
(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, 16 September 1997 from 10:45 am to 1:10 pm in the Chamber of the Legislative Council Building
Members Present :
Hon Ambrose LAU Hon-chuen, JP (Chairman)
Hon Ronald ARCULLI, JP (Deputy Chairman)
Hon WONG Siu-yee
Dr Hon Raymond HO Chung-tai
Hon NG Leung-sing
Hon LEE Kai-ming
Hon Mrs Elsie TU, GBM
Hon YUEN Mo
Dr Hon LEONG Che-hung, JP
Hon Mrs Sophie LEUNG LAU Yau-fun, JP
Hon CHAN Yuen-han
Hon CHAN Kam-lam
Hon Andrew WONG Wang-fat, JP
Hon Howard YOUNG, JP
Dr Hon Charles YEUNG Chun-kam
Hon IP Kwok-him
Hon Bruce LIU Sing-lee
Hon Mrs Miriam LAU Kin-yee, JP
Dr Hon TANG Siu-tong, JP
Members Absent :
Prof Hon NG Ching-fai
Hon Eric LI Ka-cheung, JP
Hon Mrs Peggy LAM, JP
Hon Henry WU
Hon MA Fung-kwok
Hon CHAN Choi-hi
Hon CHAN Wing-chan
Hon TSANG Yok-sing
Hon CHENG Kai-nam
Hon Frederick FUNG Kin-kee
Dr Hon Philip WONG Yu-hong
Hon Kennedy WONG Ying-ho
Hon Timothy FOK Tsun-ting
Hon CHOY So-yuk
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
- Ms Phyllis KO
- Senior Assistant Law Draftsman (Acting)
Clerk in Attendance :
Staff in Attendance :
- Mrs Percy MA
- Chief Assistant Secretary (2)3
- Mr Jimmy MA
- Legal Adviser
- Mr Stephen LAM
- Assistant Legal Adviser 4
- Miss Salumi CHAN
- Senior Assistant Secretary (2) 1
I. Proposed Committee stage amendments to be moved by the Administration
(PLC Paper Nos. CB(2) 324(04) and 324(05))
Members noted that the Administration had agreed to move some technical amendments as set out in CAB Paper No. 7 to improve the clarify of certain provisions in the Bill in response to members' comments and those of the Legal Adviser made at the last meeting in respect of CAB Paper No. 6. The Administration had also agreed to move a number of Committee stage amendments (CSAs) which were set out in CAB Paper No. 8 to address various concerns raised by the Bills Committee. The two papers were tabled at the meeting and subsequently issued to members vide PLC Paper Nos. CB(2) 324(04) and CB(2) 324(05) respectively.
2. At the invitation of the Chairman, Deputy Secretary for Constitutional Affairs (DS(CA)) and Principal Assistant Secretary for Constitutional Affairs (PAS(CA)) explained the proposed CSAs for members' consideration. The gist of the ensuing deliberations is summarized in paragraphs 2 - 24.
Clause 3 - Interpretation
3. PAS(CA) pointed out that as the Administration would introduce a CSA to the effect that ex-officio members of the Election Committee (EC) who were also eligible electors of functional constituency (FC) would be allowed a choice to vote either in the EC or the FC election, a consequential amendment to the definition of "ex-officio member" would be required. The amendment was to delete "1(7)" and substitute "1(7A)".
Clause 4 - Terms of office of Legislative Council (LegCo)
4. DS(CA) informed members that in line with past practice, the Administration would add a new subclause to the effect that the consideration of any Bill or other business of the Council would lapse upon its dissolution. Mr Andrew WONG said that it should also be specified in the Bill that the consideration of any bill or other business of the LegCo would not be affected by the end of a legislative session. DS(CA) responded that the Administration did not consider such a provision necessary. Mr WONG informed members that he would move his own amendments.
Clause 9A - First Meeting of the First Term of Office of Legislative Council
5. DS(CA) said that in response to members' suggestion, a new clause would be added to provide for the Chief Executive to specify by notice in the Gazette, within 14 days after commencement of the first term of office of the LegCo, the date and time for holding the first meeting of the first term of LegCo.
6. The Legal Adviser drew members' attention to the fact that the proposed new clause had not prescribed the procedure for the election of the presiding Member and the President. Mr Ronald ARCULLI and the Legal Adviser expressed concern that this could give rise to uncertainty as to what election procedure should be adopted. The Legal Adviser advised that the Administration should consider whether the election procedure should be set out in the Bill as the Provisional Legislative Council (PLC) could not make rules for the first LegCo unless that was also provided for in law.
7. Referring to the Decision of the Preparatory Committee for the Hong Kong Special Administrative Region (HKSAR) of the National People's Congress (NPC) on the Establishment of the PLC of the HKSAR adopted by the Preparatory Committee for the HKSAR of the NPC at its Second Plenary Session on 24 March 1996, Mr CHAN Kam-lam considered that it would not be ultra vires for the PLC to make rules for the election of the President of the first LegCo as one of the tasks of PLC was to handle matters that had to be dealt with before the formation of the first LegCo of HKSAR.
8. DS(CA) explained that under Article 75 of the Basic Law (BL 75), the rules of procedure of the LegCo should be made by the Council, provided they did not contravene the Basic Law. It was therefore for Members of the first SAR LegCo to decide their own rules and procedures including those for the election of the President. The Administration did not consider it necessary or appropriate for such rules and procedures to be prescribed in the Bill and that Members of the first LegCo could always make reference to the rules and procedures of the former LegCo and the PLC.
9. Principal Government Counsel said that BL 71 had provided for the President of the LegCo to be elected by and from among Members of the LegCo. Both BL 71 and BL 75 did not require any law to be enacted for the election. He cautioned that if such rules and procedures were to be prescribed in the Bill, it would infringe on the right of the LegCo to determine its own rules and procedures, and thus contravening the Basic Law.
10. Mr Ronald ARCULLI suggested that the proposed new clause be revised to the effect that the relevant provisions in the Rules of Procedure of the PLC (which could be amended to include the election procedure for the President) would apply to the first meeting of the first LegCo term, unless such provisions were amended by Members of the first LegCo term. Some members supported his suggestion.
11. Principal Government Counsel reiterated that it would not be appropriate to bind the first LegCo to adopt the rules and procedures of the PLC. PAS(CA) said that the Administration had no strong view on Mr ARCULLI's suggestion, if members wished to pursue the matter.
12. In response to Mr Ronald ARCULLI's question on the taking of the LegCo Oath by Members, Principal Government Counsel drew members' attention to section 19(a) of the Oaths and Declarations Ordinance (Cap. 11) which stipulated that "A member of the Legislative Council shall, as soon as possible after the commencement of his term of office, take the Legislative Council oath which if taken at the first sitting of the session of the Legislative Council immediately after a general election of all members of the Council and before the election of the President of the Council, shall be administered by the Clerk to the Council."
Clause 11 - Acceptance of office as a Member
13. Members noted the amendment of replacing "given to" with "received by" in clause 11(2A) to provide for a notice of non-acceptance to take effect when it was "received by" the Clerk to the LegCo.
Clause 13 - When Member ceases to hold office
14. Members noted that after re-consideration of members' views on the 20% Nationality Rule, the Administration had agreed that a Member's seat would become vacant if he/she altered his/her nationality or the fact as to whether he/she had a right of abode in a country other than the People's Republic of China. The only exception was an elected Member of the 12 specified FCs 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. The Administration would move an amendment to such an effect.
Clause 22 - Who is eligible to be registered as an elector : geographical constituencies
15. PAS(CA) informed members that the Administration proposed to add "of geographical constituencies" after "register" in subclause (1)(a) to improve the clarity of the provision, and to substitute "believes" with "is satisfied" in subclause (2).
Clause 23 - Who is eligible to be registered as an elector ; FCs
16. Members noted that the Administration's proposed CSAs to clause 23 relating to the application of the "one-year" rule to electors of the relevant FCs were technical in nature.
Clause 24 - Corporate elector to have authorized representative Section 9, Part 3, Schedule 2 - Election Committee Subsector Election
17. PAS(CA) pointed out that the proposed amendments sought to ensure consistency in the drafting of two similar provisions, i.e. clause 24 (2) and section 9(2)(d) in Part 3 of Schedule 2. He confirmed that the amendments were technical in nature and had no policy implication.
Clause 37 - When person is disqualified from being nominated as a candidate and from being elected as a Member
18. DS(CA) informed members that in response to the Bills Committee's view, the Administration would propose to delete "salaried" in subclause (1)(g) so that representatives (including honourary consuls) of foreign countries would be disqualified from being nominated as candidates and from being elected as a Member. Mr Ronald ARCULLI expressed concern that the term "representative" had a very narrow meaning. He pointed out that salaried functionaries of foreign countries should also be disqualified and be so provided in the Bill.
19. Principal Government Counsel cited a past case where the eligibility of a LegCo candidate who was a consulate employee was challenged in Court. Although the challenge was not successful, the Administration considered that the term "functionaries" could cause confusion. Acting Senior Assistant Law Draftsman added that the Chinese version of the term "salaried functionary" in the previous electoral legislation was , the meaning of which could be very broad.
|20. PAS(CA) pointed out that if a person was eligible to be nominated as a candidate or be elected as a Member under the Basic Law, his/her right to participate in an election should not be restricted without a very strong reason. The Administration considered this to be an important principle. However, the Administration would be agreeable to consider Mr ARCULLI's suggestion that salaried functionaries of foreign countries should also be disqualified from candidature or being elected in a LegCo election. Members agreed that if the Administration decided against the suggestion, the Chairman would move an amendment on behalf of the Bills Committee.
Clause 70 - Member determined not to have been duly elected
21. Members noted that the Administration, after consideration of Mrs Miriam LAU's comments, had proposed to recast the wording of the relevant clauses to enhance clarity.
Item 26, Part 3, Schedule 1 - Textiles and Garment FC
22. DS(CA) explained that the Administration proposed to delete paragraph (1)(l) because the Hong Kong General Chamber of Textiles Limited had been established for less than 12 months and its members would therefore not be eligible to vote in a FC election. However, in recognition of its importance in the industry, the Administration proposed to add the organization to paragraph 2 so that the organization itself would be entitled to one vote.
23. Dr Charles YEUNG Chun-kam said that although members of the Chamber would not be eligible to be electors for the FC in the 1998 election, they would be eligible when the 2000 LegCo election was held. He therefore considered it unnecessary to delete the organization from the list. DS(CA) explained that the relevant provisions only applied to the 1998 LegCo election. Amendments would be introduced in relation to the 2000 and future LegCo elections as and when necessary.
24. Mrs Sophie LEUNG and Mrs Miriam LAU agreed with the Administration. They added that the public would be confused if electors listed in the Bill were in fact not eligible to vote. Mrs LEUNG stressed that the "one-year" rule was important to prevent "vote planting".
25. DS(CA) informed members that the Administration had decided not to include members of the Hong Kong Institution of Textile & Apparel as electors because the Administration had reservation about the status of Institution as a professional body.
26. DS(CA) further informed members that the Administration had decided not to include companies registered under the Textile Traders Registration Scheme (TTRS) as electors for the FC. He explained that companies registered under TTRS were not necessarily related to the FC e.g. shipping and transportation companies, and hence TTRS should not be used as a basis for delineation.
chedule 4 - Consequential Amendment of Other Ordinances
27. Members noted that consequential amendments to the Independent Commission Against Corruption Ordinance would be required and the Administration would move amendments to such an effect.
|28. At the Chairman's request, PAS(CA) undertook to provide a full set of CSAs to be moved by the Administration (in bilingual version) to the Bills Committee by close of play on that day.
II. Outstanding issues awaiting the Administration's responses
Legal advice on direct elections
29. The Chairman said that Hon Andrew WONG had requested for details of the legal advice obtained by the Administration on whether the restriction of the voting rights of a geographical-cum-functional or geographical-cum-election committee elector to just one vote in either the geographical constituency, the functional constituency or the election committee to which he belonged would be against the principle of universal and equal suffrage enshrined in the Hong Kong Bill of Rights Ordinance (Cap. 383). PAS(CA) responded that the Administration would provide the information as soon as possible.
Information on the nine new FCs recommended by the Chinese side of the Sino-British Joint Liaison Group in 1992-94
|30. Members noted that Hon Howard YOUNG had requested the Administration to provide information on the nine new FCs recommended by the Chinese side of the Sino-British Joint Liaison Group for the 1995 LegCo election. PAS(CA) reminded members that the nine new FCs proposed in the Bill were not exactly the same as those recommended by the Chinese side. He undertook to provide the relevant information to the Bills Committee after the meeting.
(Post-meeting note : The following two sets of information were attached to the Secretary for Constitutional Affairs's letter dated of 16 September 1997, issued to members vide PLC Paper No. CB(2) 327 -
- past material on the Government's position regarding the proposal of restricting the voting rights of a geographical-cum-functional elector to either the geographical constituency or the functional constituency to which he belongs, but not in both constituencies; and
- a list of the nine proposed new functional constituencies for the 1995 LegCo elections put forward by the Chinese side during the 1993 Sino-British talks on the 1994/95 electoral arrangements.)
III. Amendments proposed by individual Members
Draft CSA by Dr Hon LEONG Che-hung
(PLC Paper No. CB(2) 324(01))
31. Dr LEONG Che-hung briefed members on his draft CSA in respect of how the 12 FCs for which HKSAR permanent residents who were not of Chinese nationality or who had the right of abode in foreign countries were eligible to be nominated as candidates should be determined. (The CSA was tabled at the meeting and issued vide PLC Paper No. CB(2) 324(01)). Dr LEONG said that it was unfair for the 12 FCs to be selected on the basis that they had a greater chance of returning such candidates as proposed in the Bill. He proposed that these 12 FCs should be determined by drawing lots.
32. In response to Mr Ronald ARCULLI's enquiry, Dr LEONG Che-hung said that his initial thinking was that the proposed arrangement of drawing lots would only apply to the election of the first LegCo. As for subsequent LegCo elections, he considered that only Chinese citizens who were permanent residents of Hong Kong with no right of abode in any country other than the People's Republic of China should be eligible for nomination as candidates.
33. Mr CHAN Kam-lam expressed concern that the proposal was not very practical as certain FCs, such as the Labour FC, were highly unlikely to have candidates who were not of Chinese nationality or who had right of abode in a foreign country. Mr Bruce LIU shared the concern. Mr CHAN opined that the Administration's proposal, although not an ideal one, was acceptable. In response, Dr LEONG Che-hung said that even if the Labour FC was picked as one of the 12 FCs using his proposed method, it was not mandatory for the FC to return a Member who was not of Chinese nationality or who had right of abode in a foreign country.
Draft CSAs by Hon Bruce LIU Sing-lee
(PLC Paper No. CB(2) 324(02))
20% Nationality Rule
34. Mr Bruce LIU briefed members on his draft CSAs on how 12 FCs should be determined. (The CSAs were tabled at the meeting and issued vide PLC Paper No. CB(2) 324(02)). Mr LIU explained that the permitted quota, of 12 seats should be determined in the ratio of 6:5:1 among the FCs, geographical constituencies (GCs) and EC.
35. In response to Mr Howard YOUNG's enquiry, Mr Bruce LIU referred to the new proposed clause 35A(4) in PLC Paper No. CB(2) 324(02) and explained how the "permitted nationality quota" would be allocated.
36. Dr LEONG Che-hung reiterated that he did not accept that the 12 FCs were selected simply because they had a greater chance of returning candidates with foreign nationality or right of abode in foreign countries. He reminded members that the Administration had no statistical information to support its proposal and that an elector who was eligible to be registered in more than one FC could choose to be registered in the FC of his choice.
Fourth Sector of EC
37. Mr Bruce LIU explained to members his proposed amendments to Table 4 in Part I of Schedule 2 . Of the total of 42 seats for Provisional District Boards in Urban and Regional Council Areas, he proposed that each District Board should be allocated either two or three seats according to the size of its membership. In this connection, Mr Howard YOUNG reminded Mr LIU to take into account the possibility of unused quota of EC seats being transferred to the Provisional District Boards as ex-officio EC members were allowed a choice to vote either in the EC or the FC election.
38. Mr Andrew WONG expressed concern that allocation of a specific number of seats to each District Board might give rise to a situation in which District Board members would give regard to district interest only when voting. Mr WONG said that while he found the proposed arrangement in the Bill acceptable, he queried why members of the Provisional Urban Council and the Provisional Regional Council, which were also district-based organizations, were not included in the EC Fourth Sector.
39. In response to Mr Andrew WONG's query, PAS(CA) explained the Administration's rationale for not including the Urban Council and the Regional Council in the EC Fourth Sector as follows -
- the Specific Method for the Formation of the First Legislative Council of the Special Administrative Region of the People's Republic of China did not include the Urban Council and the Regional Council in the composition of the EC; and
- In order to protect the electorate size of these two smallest FCs, the LegCo Bill had already provided that members of the Urban Council and the Regional Council FCs could vote in their respective FCs but not in the EC election.
40. Mr Andrew WONG reiterated that the Urban Council and the Regional Council, being district-based organizations, should be included as voters for the EC Fourth Sector. In order to be consistent with the Specific Method, restriction could be imposed on members of the Urban Council and Regional Council so that they would not be eligible to be members of the EC. PAS(CA) stressed that the Bill proposed that the same principle should apply to electors and candidates and that members of the Urban Council and the Regional Council could exercise their second votes only in their respective FCs.
Draft CSAs by Hon Frederick FUNG Kin-kee
(PLC Paper No. CB(2) 324(03))
41. Members noted the draft CSAs to be moved by Hon Frederick FUNG Kin-kee in relation to the following subject matters, which were tabled at the meeting and subsequently issued vide PLC Paper No. CB(2) 324(03) -
- number of votes an elector may cast; and
- voting system of geographical constituencies.
Amendments by Hon Mrs Miriam LAU Kin-yee
42. Mrs Miriam LAU informed members that she was considering moving amendments to expand the electorate for the Transport FC to the effect that -
- corporate members with business registration certificates (including limited or unlimited companies) of associations would be added to the list of electors for the FC; and
- an organization comprising only individual members would be given one vote.
IV. Legislative timetable
43. The Chairman reminded members that the deadline for giving formal notice of CSAs was 18 September 1997 and the date for resumption of Second Reading debate of the Bill was 27 September 1997.
44. There being no other business, the meeting ended at 1:10 pm.
Provisional Legislative Council Secretariat
5 March 1998