PLC Paper No. LS 36

Paper for the House Committee Meeting of the
Provisional Legislative Council
on 17 October 1997

Legal Service Division Report on Resolution under Section 83 of the Legislative Council Ordinance (134 of 1997)

The Secretary for Constitutional Affairs will move a motion to seek the Provisional Legislative Council's approval of the Legislative Council Ordinance (Amendment of Schedule 1) Order 1997 ("the Amendment Order") at the Provisional Legislative Council meeting to be held on 29 October 1997.

2.Under section 83(1) of the Legislative Council Ordinance (134 of 1997) ("the Ordinance"), the Chief Executive in Council may, subject to the approval of the Legislative Council, by order published in the Gazette, amend Schedule 1 to the Ordinance. Section 83(2) of the Ordinance provides that in section 83, "Legislative Council" includes the Provisional Legislative Council.

3.According to paragraph 2 of the PLC Brief, file reference: CAB C 1/30/5, dated 9 October 1997, from the Constitutional Affairs Bureau, the Administration is of the view that two of the Member's amendments passed at Committee stage of the Legislative Council Bill would pose problems for implementation. They are -

  1. the amendment to expand the Social Welfare functional constituency ("FC") to include societies exempted under the Societies Ordinance (Cap. 151) and non-profit making companies registered under the Companies Ordinance (Cap. 32) whose aims are related to the promotion and development of social service activities (items 15(3) and 15(4) in Part 3 of Schedule 1 to the Ordinance); and

  2. the amendment to expand the Textiles and Garment FC to include registrants under the Textiles Traders Registration Scheme ("TTRs') who are carrying on business in specified types of imports or exports of textiles (item 26(6) in Part 3 of Schedule 1 to the Ordinance).

4.According to paragraphs 3 and 4 of the PLC Brief, the Administration is of the view that the terms 'social service" and "non-profit making" are ambiguous and yet not defined under the Ordinance. It would be difficult for the Administration to decide whether a particular society or company should qualify as an elector in the Social Welfare FC. The Administration proposes to define the scope of 'social service" to relate only to welfare services by making reference to the 7 programme areas included within the purview of the Social Welfare Department and define the term "non-profit making company" to mean a company which is formed for the purpose of promoting the objects as specified in item 15(4)(a)-(c) and is required by its constitution to apply its profits, if any, or other income solely in promoting those objects and to prohibit the payment of any dividend to its members (section 1(b) of the Amendment Order).

5.The Administration further proposes to stipulate that an exempted society and a non-profit making company should be operating with paid employees to provide service on a regular basis in accordance with the specified aims for 12 months immediately before applying for registration as an elector in the Social Welfare FC. The Administration also proposes that exempted societies and non-profit making companies eligible to become electors are those which publish their annual report and audited or certified accounts with regards to annual income and expenditure (section 1(a)(i) and (ii) of the Amendment Order).

6.According to paragraph 11 of the PLC Brief, in order to prevent the TTRS from being abused as a means to acquiring voting right in the Textiles and Garment FC, the Administration proposes that an additional requirement should be imposed so that only those who have registered under the TTRS for at least 12 months (immediately before the voter registration date) could become eligible for registration as electors in this FC (section 1(a)(iii)).

7.Members may note that under section 32 of the Ordinance, the Electoral Registration Officer has a duty to compile and publish electoral registers of functional constituencies. Under section 34 of the Ordinance, a person who is dissatisfied with a decision of the Electoral Registration Officer may appeal against the decision to a Revising Officer.

8.The legal and drafting aspects of the resolution are in order.

Prepared by

Lam Ping-man, Stephen
Assistant Legal Adviser
Provisional Legislative Council Secretariat
15 October 1997