Ref : CB2/BC/11/98

Members Present :

Hon Ambrose LAU Hon-chuen, JP (Chairman)
Hon James TIEN Pei-chun, JP
Hon David CHU Yu-lin
Hon Cyd HO Sau-lan
Dr Hon Raymond HO Chung-tai, JP
Hon LEE Wing-tat
Hon Lee Kai-ming, JP
Hon Fred LI Wah-ming
Hon Mrs Selina CHOW LIANG Shuk-yee, JP
Hon Ambrose CHEUNG Wing-sum, JP
Hon Christine LOH
Hon CHAN Wing-chan
Hon SIN Chung-kai
Hon Andrew WONG Wang-fat, JP
Hon WONG Yung-kan
Hon Jasper TSANG Yok-sing, JP
Hon Howard YOUNG, JP
Hon YEUNG Yiu-chung
Hon LAU Wong-fat, GBS, JP
Dr Hon TANG Siu-tong, JP
Hon SZETO Wah
Hon TAM Yiu-chung, JP

Members Absent :

Hon Ronald ARCULLI, JP
Hon MA Fung-kwok
Hon CHEUNG Man-kwong
Hon CHAN Kam-lam
Dr Hon LEONG Che-hung, JP
Hon Andrew CHENG Kar-foo

Member Attending :

Hon Eric LI Ka-cheung, JP

Public Officers Secretary :

Mr Michael SUEN
for Constitutional Affairs

Mr Robin IP
Deputy Secretary for Constitutional Affairs 2

Mrs Maureen CHAN
Deputy Secretary for Constitutional Affairs 3

Mr Augustine CHENG
Deputy Director of Home Affairs

Mr Paul WONG
Principal Assistant Secretary for Constitutional Affairs

Mrs N Dissanayake
Senior Assistant Law Draftsman

Mr Vidy CHEUNG
Senior Assistant Law Draftsman

Ms Monica LAW
Senior Assistant Law Draftsman

Clerk in Attendance :

Mrs Constance LI
Chief Assistant Secretary (2) 2

Staff in Attendance :

Mr Jimmy MA
Legal Adviser

Mrs Justina LAM
Assistant Secretary General 2

Miss Flora TAI
Senior Assistant Secretary (2) 2

I. Election of Chairman

Mr Ambrose CHEUNG was elected as the presiding Member for the election of Chairman of the Bills Committee.

2 The presiding Member called for nominations for the chairmanship of the Bills Committee.

3. Mr Andrew WONG was nominated by Mr LEE Wing-tat and seconded by Miss Christine LOH. Mr Ambrose LAU was nominated by Mr YEUNG Yiu-chung and seconded by Mr CHAN Wing-chan. Both Messrs Andrew WONG and Ambrose LAU accepted the nomination.

4. As there were two nominations, a vote was cast by secret ballot. Mr Ambrose LAU had 13 votes and Mr Andrew WONG had eight votes. The presiding Member therefore declared Mr Ambrose LAU who received the highest number of votes elected as Chairman of the Bills Committee. Mr Ambrose LAU then took the chair.

5. The Bills Committee decided that a Deputy Chairman would not be necessary.

II. Meeting with the Administration
[the Legislative Council Brief issued by the Constitutional Affairs Bureau on 10 December 1998 (File Ref : CAB C4/17/7 IV)]

6. At the invitation of the Chairman, Secretary for Constitutional Affairs (SCA) briefed members on the Bill as set out in the Legislative Council (LegCo) Brief. SCA urged members to expedite the processing of the Bill which was targeted for resumption of Second Reading debate before the Chinese New Year. He explained that a lot of preparatory work would need to be completed before the District Council (DC) ordinary election could be held. The DC ordinary election was tentatively scheduled for the last week of November 1999 in order to elect DC members in time to replace the Provisional District Board (PDB) members whose term of office would lapse by the end of December 1999.

7. The Chairman suggested, and the Bills Committee agreed, to discuss the general principles of the Bill before proceeding to detailed examination of the provisions in the Bill. The gist of the discussion is summarised in the following paragraphs.

Composition of District Councils

8. Referring to the fact that small businessmen and professionals represented 20% to 30% of the successful candidates in the 1994 District Board (DB) elections, Mr LEE Wing-tat queried the argument put forward by the Administration that appointed membership was necessary because these people might not wish to stand as candidates for direct election of the DC. SCA said that as the Administration had explained on previous occasions, balancing the elected membership was only one of the reasons for having appointed membership. The justifications for appointed membership had been given in his speech on moving the Second Reading of the Bill. He said that there were some individuals who were enthusiastic and interested in district affairs and were capable and experienced but had no intention of participating in direct elections. Appointed membership would help reflect the different interests in the district and enhance the quality of DCs in deliberating district business. He added that the proposed number of elected members for DCs would increase from 346 to 390 in view of the overall population increase. The Administration considered that the proposed ratio of 4:1 for directly elected/ex-officio members and appointed members was appropriate and reasonable.

9. Mr LI Wah-ming pointed out that the proposed DC functions were largely the same as those of DBs. Since DBs had operated smoothly in the years of 1995-97 when all DB members were returned by direct election with the exception of ex-officio members in New Territories DBs, Mr LI queried why it was necessary to add appointed members to the DCs. SCA reiterated that appointed membership would be beneficial to DC operation because it would enable people of different sectors in the district to participate in district affairs. As mentioned in his speech on moving the Second Reading of the Bill, the DCs would perform additional functions and have greater participation in territory wide activities and enhancement of building management and fire prevention work in the districts.

10. Mr LEE Wing-tat asked about the selection criteria for appointed members to the DCs as they would be electors for returning a member to the LegCo. He was concerned that the Administration would only appoint pro-government people to the DCs as in the case of PDBs. A pro-government camp could then easily dominate the decisions of the DCs. SCA disagreed that appointed members could dominate DC meetings because appointed members would only represent one-fifth of the total membership of a DC. He said that it must not be assumed that appointed members would always hold a different view from elected members. In this connection, Mr SZETO Wah remarked that appointed and ex-officio seats together could easily dominate the business of DCs. Mr LEE also pointed out that the Administration had not appointed any members of the pro-democracy parties to the PDBs other than those previously returned by direct direction. As a result, the pro-democratic members had lost the chairmenship in the DBs in Kwun Tong and the Central and Western Districts.

11. SCA denied that the Administration had any political preference in the selection of appointed members, or the existence of a pro-government camp in PDBs. He pointed out that DCs were only consultative bodies and their resolutions would not have any legislative impact or binding effect on Government policies. The Administration would appoint members from among a wide range of people in the community. In this connection, Mr LEE Wing-tat sought confirmation from the Administration whether any of the appointed members of the PDBs were members of the Democratic Party, the Frontier or the Citizens Party. SCA responded that the Administration did not have ready and complete information on the political affiliation of all appointed members because some of them had not disclosed such information. Moreover, it was necessary to obtain these members' consent before the information could be disclosed.

12. Mr LEE Wing-tat asked whether the Administration considered that the public should be made aware of the appointment criteria, and whether there would be any evaluation mechanism of the performance of appointed members to facilitate consideration of re-appointment. SCA responded that he had already explained the purpose of appointed membership when moving the Second Reading of the Bill. As regards re-appointment of members, the District Officers concerned who were familiar with the performance of the members would give their comments to the Administration. Mr LEE Wing-tat remarked that the District Officers' opinions could be subjective and different District Officers might have different criteria.

13. Mr Andrew WONG asked whether the Administration would consider stipulating in the Bill that only those persons who were not members of any political parties and those who had not stood as candidates in an election would be appointed to DCs. SCA responded that the Administration did not consider it appropriate to set down rigid rules in the law because some flexibility would be necessary in the selection of appointed members. However, the Administration would consider explaining the appointment criteria in greater detail during the Third Reading of the Bill if necessary. In this connection, Mr WONG suggested that the Administration could consider listing out the appointment criteria in a Schedule which could be amended. SCA responded that Mr WONG's suggestion still could not provide the necessary flexibility in appointments.

Adm

14. In response to Mr Andrew WONG, SCA informed members that it was normal practice for the Administration to make appointments after an ordinary election was held. Mr LEE Wing-tat asked whether the Administration would appoint those unsuccessful candidates in the election. SCA responded that to exclude this group of candidates would unduly limit the choice of the Administration. However, the Administration would take account of members' concern before making a decision.

15. Mr Ambrose CHEUNG said that there were pros and cons to retain appointed membership in the DCs but he was concerned whether there would be an independent mechanism to select the appointed members based on a set of objective appointment criteria or guidelines. Miss Christine LOH added that there should be greater transparency in the appointment process and that the public should have the right to know the appointment criteria and to monitor the appointments. In response, SCA said that the Administration had no intention to set up an independent mechanism for selecting candidates as there was already an establishd system which had operated well. He added that the performance of appointed members would also be subject to public and media monitoring during their terms of office. Miss Christine LOH disagreed with SCA and pointed out that only elected members would be affected in their re-election by their performance. Mr LEE Wing-tat and Mr LI Wah-ming also expressed doubts on the effectiveness for the public and the media to monitor the performance of DB appointed members. SCA maintained the view that the public would have the same expectations on all DC members, irrespective of whether they were elected or appointed, and that it would not be appropriate for the Administration to specify the appointment criteria. Nevertheless, he noted the concerns of Members in this respect.

Adm

16. Referring to the Administration's argument that appointed membership could enhance the quality of DCs in deliberating business, Ms HO Sau-lan said many DB members could only serve on a part-time basis because DB members could not live on the limited allowances for DB members. This would adversely affect the quality of DB discussion. She considered that appointed membership was not the only means to enhance the quality of transacting business by DCs. SCA agreed that there were many ways to enhance the quality of DCs in transacting district business. The Administration had made much efforts to increase the sense of civic awareness of the general public through voter registration and election publicity campaigns, which could hopefully attract more quality people to participate in district affairs. In this connection, Ms HO urged the Administration to consider requiring DC members to have a higher attendance rate at DC meetings as a means of enhancing the quality of DC discussion.

17. Responding to Mr LI Wah-ming and Mr Ambrose CHEUNG on the appointment procedure, SCA informed members that an effective system for appointing members to advisory and consultative bodies was already in existence. The Administration had comprehensive information, through input from various sources and District Officers, on people who had a record or interest in public service, or who had expertise in various fields. Interested individuals could also volunteer for public service.

Disqualifications

18. Referring to the provision of the Legislative Council Ordinance (Cap. 542) which disqualified a LegCo Member if he or she, without valid reason, was absent from meetings for three consecutive months without the consent of the LegCo President, Mr Howard YOUNG asked about the reasons for having more lenient provisions in the Bill which sought to disqualify a DC member on absence from meetings for six consecutive months without the consent of the DC. SCA explained that the proposed provisions were the same as those in the former DB legislation. He pointed out that a lower threshold of six months for DC members was reasonable because LegCo in session would hold a Council Meeting almost every week, while DB meetings were held once every two months. An absence for six consecutive months would only mean an absence from two or three DB meetings. SCA also informed members that there had been a case in which a DB Member was disqualified for being absent from meetings for six consecutive months without the consent of the DB. Ms HO Sau-lan expressed dissatisfaction that while the Administration stressed the importance of enhancing the quality of DCs in transacting business, the Administration had decided to set such a low attendance standard for DC members.

19. Referring to clause 11(2) which clearly specified that an appointed member would hold office from the date specified in the letter of appointment and vacate office on 31 December of the year in which an ordinary election was next held after the appointment, Mr Andrew WONG asked about the purpose of subclause (3) which empowered the Chief Executive to specify in a letter of appointment a shorter period for the term of office of a person appointed to a DC. He expressed concern that subclause (3) might be intended as a deterrence clause against 'unsatisfactory performance' of some appointed members. SCA clarified that subclause (3) was only to provide for flexibility in appointing members after the commencement of the normal term of office. He agreed to review the drafting of the subclause to see if it would give rise to any misunderstanding.

Adm

Adjustment to the term of office of District Councils

20. Mr SIN Chung-kai was of the view that November would not be an ideal time for holding a DC election because October - December was normally the peak period of DB activities, while less activities would be held towards the end of a financial year. If an ordinary election was to be held in November, incumbent members would have undue advantage by making use of public-funded activities to canvass for their own election. He suggested that the Administration should consider adjusting the commencement date of the term of office of DC to coincide with the beginning of a financial year in April. The arrangement would also facilitate operation of the DCs and their secretariats as there would be guaranteed financial resources for DC activities in the beginning of a new term, and that there would be less interruption to DC activities if the ordinary election was to be held towards the end of a financial year. Considering that the PDB members' terms of office would expire on 31 December 1999, the first term of office of DC members could be shorter than four years.

21. Mr SZETO Wah referred members to the Provisional District Boards Ordinance (Cap. 366) which specified that the term of office of the Provisional DB members would end not later than 31 December 1999. He considered that if the ordinary election for DCs was to be held in November 1999, it would be a fairer arrangement for the existing tenure of PDB members to end earlier so that PDB members would not have undue advantage over other candidates.

22. SCA noted members' suggestions and undertook to provide a written response at the next meeting.	Adm

Functions of District Councils

Referring to clause 59(b), Mr Andrew WONG asked whether the Administration would object to an amendment to the Bill transferring some of the executive powers of the municipal councils to the DCs, on the grounds that the amendment would have a charging effect on the revenue. In response, SCA reminded members that the Administration had disagreed with the LegCo as to whether the Rules of Procedure of the LegCo were consistent with the Basic Law. The Administration was of the view that the Basic Law had prohibited LegCo Members from moving legislative amendments relating to public expenditure, or the political structure or the operation of the government, while LegCo Members held a different view. The Administration would need to see the wording of the proposed amendment before taking a view on Mr WONG's suggestion. Should the amendment involve appropriation of public funds, the Administration would object to the amendment.

23. Considering that the Bill did not specifically seek to transfer the existing functions of the municipal councils (which included food and environmental hygiene services) to DCs, Mr LEE Wing-tat asked whether it was appropriate to add "matters relating to food and environmental hygiene services" as functions of a DC under clause 59(a)(i). He asked whether PDBs had agreed to the arrangement. SCA responded that the Administration had consulted all PDBs on the future functions of DCs and the proposed addition reflected the majority view.

24. Mr LEE Wing-tat informed members that the Planning, Environment and Land Bureau recently declined to send representatives to attend a meeting of the Provisional Kwai Tsing District Board to explain the delay in implementing the Executive Council's decision of re-locating the shipyards at North Tsing Yi. He therefore had doubts that the Administration really wanted to enhance the role of DBs/DCs, since senior officials did not even attend PDB/DC meetings. In response, SCA assured members that the Administration was committed to sending officials who were sufficiently senior to attend PDB/DC meetings to answer members' questions. The Chief Secretary for Administration had also asked Heads of Bureaux and Departments to increase communication with individual PDBs, to answer enquiries of members and to consult DBs in a positive, frank and open manner. SCA said that he hoped the case cited by Mr LEE was only an isolated incident. He also told the meeting that with a view to ensuring effective implementation of DC decisions, chairmen of future DCs would join the District Management Committee as members.

Quorum of District Council meetings

25. Mr SIN Chung-kai queried whether it was operationally feasible to increase the quorum requirement of DC meetings from one-third to "not less than half" of the DC membership, having regard to the operation of DB meetings and attendance records of DB members. SCA informed members that the Administration had consulted all DB secretariats which confirmed that the average attendance rates of all DB meetings were not less than 80%. Mr SIN cited his experience that such a high attendance rate could unlikely sustain throughout a DB meeting which normally lasted a fairly long time. SCA undertook to obtain more information in this respect. However, he pointed out that DCs would normally hold bi-monthly meetings and DC members had the duty to stay through the meeting. If there were operational difficulties in meeting the requirement, DCs should review the length of DC meetings.

Adm

Powers of the Chief Executive and the Chief Executive in Council

26. Referring to clause 8 which empowered the Chief Executive in Council to amend Schedules 1, 2 and 3 in the Bill, Mr Ambrose CHEUNG asked and Deputy Secretary for Constitutional Affairs 2 (DS/CA2) responded that section 3(1A) of the Provisional District Boards Ordinance had provided for similar powers. Deputy Secretary for Constitutional Affairs 3 (DS/CA3) explained that in the past, the then Governor in Council would publish the Schedules after enactment of the principal ordinance. However, as the present Bill was subject to a tight timetable, these Schedules were included in the Bill so that both would be enacted at the same time. Mr CHEUNG expressed concern that LegCo might not have a chance to comment on any amendment to the Schedules, and that the Chief Executive would be given too much powers such as the power to change the number of DCs, which would not require LegCo approval. SCA advised that these Schedules were subsidiary legislation subject to negative vetting by the LegCo. These schedules only referred to the number of DCs or elected/appointed members in each DC, while the functions of DCs were stated in the principal ordinance. In the past, the Governor in Council had reduced the number of DBs from 19 to 18 only on one occasion.

27. Mr CHEUNG pointed out that the wording of Clause 8 was different from that of section 3(1A) of the Provisional District Boards Ordinance. Dr TANG Siu-tong also queried why the phrase "to affect the public interest" in section 24 of the Provisional DB Ordinance was not retained in Clause 83 in the Bill. SCA undertook to provide a written response.	Adm

28. Miss Christine LOH shared Mr Ambrose CHEUNG's concern that clause 8 and clause 83 would confer very broad powers on the Chief Executive and the Chief Executive in Council. She considered that the Bill should specify the circumstances when such powers would be exercised. In response, SCA said that members needed not worry that LegCo would not be consulted on changes to the Schedules, because it was the usual practice of the Administration to conduct thorough consultation with parties concerned before making any important changes. SCA emphasized that clause 8 was not meant to provide a mechanism for the Administration to bypass LegCo scrutiny. He added that it would not be practicable to specify all possible circumstances in the Bill as some flexibility would be necessary. Despite the Administration's explanation, some members maintained the view that the Administration should consider limiting and defining the powers of the Chief Executive and the Chief Executive in Council under clause 8 and clause 83.

Adm

DC Chairmanship

Mr Andrew WONG sought the preliminary views of the Administration if an amendment was to be moved to require all DC chairmen to be returned by direct election in the Districts. He also asked whether such an amendment would be considered by the Administration as having a charging effect. SCA declined to respond to a hypothetical question as such.

III. Way forward

29. The Chairman informed members that the Administration intended to resume Second Reading debate at the Council meeting on 10 February 1999. If the Bills Committee agreed to the timetable, it would have to complete scrutiny of the Bill before the end of January 1999.

Clerk 30. To assist the Bills Committee in scrutinising the Bill, members agreed that written submissions from the public should be invited through advertisements in newspapers and press release; and that the Bills Committee would receive oral representation from interested parties at a future meeting. Mr LEE Wah-ming suggested that the Bills Committee could also consider inviting views from the academics. Mr Andrew WONG said that although numerous views had already been expressed on the Bill, he would not object to inviting submissions from the public as there were controversies over the appointed membership and functions of DCs. He considered that a deadline should be set for written submissions to avoid undue delay to the scrutiny of the Bill. The Chairman suggested and members agreed that organisations would be given about one week to send in their submissions, and the Bills Committee will meet deputations the week after.

31. Mr Ambrose CHEUNG considered that the Bill was proposed on the assumption that the two municipal councils were to be abolished, and he suggested that members might also wish to consider whether the Bill should be enacted before or after the enactment of the bill repealing the existing Provisional Urban Council Ordinance (Cap. 101) and the Provisional Regional Council Ordinance (Cap. 385), or whether all these bills should be synchronised.

IV. Date of next meeting

32. To facilitate scrutiny of individual clauses of the Bill at future meetings, the Chairman suggested and members agreed that the Administration should provide a comparison table on the existing provisions of the Provisional District Board Ordinance (and related legislation) and the proposed provisions of the Bill. Ms HO Sau-lan suggested that the Administration should also provide a list on the powers of the Chief Executive and the Chief Executive in Council as conferred by the Bill. To allow time for the Administration to prepare the written response, members agreed that the next meeting should be held on Monday, 11 January 1999 at 4:30 pm.

Adm Adm

33. There being no other business, the meeting ended at 4:35 pm.

Legislative Council Secretariat
14 July 1999