Legislative Council

LC Paper No. CB(2)2674/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/BC/16/98

Legislative Council Bills Committee on
Legislative Council (Amendment) Bill 1999

Minutes of the 8th meeting
held on Wednesday, 14 April 1999 at 2:30 pm
in Conference Room A of the Legislative Council Building Members Present:

Hon Ronald ARCULLI, JP (Chairman)
Hon Cyd HO Sau-lan
Hon LEE Wing-tat
Hon LEE Kai-ming, JP
Hon NG Leung-sing
Prof Hon NG Ching-fai
Hon Margaret NG
Hon MA Fung-kwok
Hon CHEUNG Man-kwong
Hon CHAN Wing-chan
Hon CHAN Kam-lam
Hon LEUNG Yiu-chung
Hon SIN Chung-kai
Hon WONG Yung-kan
Hon Howard YOUNG, JP
Hon YEUNG Yiu-chung
Hon LAU Kong-wah
Hon Mrs Miriam LAU Kin-yee, JP
Hon Ambrose LAU Hon-chuen, JP
Hon Emily LAU Wai-hing, JP
Dr Hon TANG Siu-tong, JP
Hon CHOY So-yuk
Hon TAM Yiu-chung, JP

Members Absent :

Dr Hon Raymond HO Chung-tai, JP
Hon Mrs Selina CHOW, JP
Hon Christine LOH
Hon Bernard CHAN
Dr Hon LEONG Che-hung, JP
Hon Gary CHENG Kai-nam
Hon Andrew WONG Wang-fat, JP
Hon LAU Wong-fat, GBS, JP

Member Attenting :

Hon Ambrose CHEUNG Wing-sum, JP

Public Officers Attending :

Mr Robin IP
Deputy Secretary for Constitutional Affairs

Miss Shirley YUNG
Principal Assistant Secretary for Constitutional Affairs (4)

Mr Bassanio SO
Principal Assistant Secretary for Constitutional Affairs (5)

Mr James O'NEIL
Deputy Solicitor General (Constitutional)

Ms Phyllis KO
Acting Deputy Principal Government Counsel (Elections)

Clerk in Attendance :

Mrs Percy MA
Chief Assistant Secretary (2) 3

Staff in Attendance :

Mr Jimmy MA, JP
Legal Adviser

Mr Stephen LAM
Assistant Legal Adviser 4

Ms Eleanor CHOW
Senior Assistant Secretary (2) 7

I. Administration's further response to points raised by the Bills Committee on 4 and 5 March 1999
(LC Paper No. CB(2) 1658/98-99(01))

Item (1) - Order of listing the constituents of the Functional Constituencies (FCs)

Acting Deputy Principal Government Counsel (Elections) (DPGC(Ag)) explained that the electorates of FCs in the new Schedules could be listed according to alphabetical order or in order of the number of strokes in Chinese character so as to make them easier to read.

2. The Chairman asked whether both methods could be used, i.e. to adopt the number of strokes for the Chinese version and alphabetical order for the English version. Miss Margaret NG suggested that irrespective of the method used, both versions should be presented on the same page. Mr Howard YOUNG considered that listing electorates by alphabetical order was more user friendly, given that it was difficult to count the number of strokes in Chinese characters and that different characters might have the same number of strokes.

3. DPGC(Ag) said that the normal practice was to list items in Schedules according to alphabetical order. She said that given that each elector was assigned with an item number, adopting the Chairman's proposal would mean that the item number of the same elector appearing on the two lists would not correspond with each other. Deputy Secretary for Constitutional Affairs (DS for CA) cited the example that clause 43(m) made reference to the item numbers of Part 3 of Schedule 1B, and explained that adopting both methods would cause confusion as far as numbering of electorates was concerned. After some discussion, members agreed that it was a matter for the Administration to decide. They had no strong view either way as long as the lists of FC electorates were easy to read. Adm

Item 2 - Effective dates of various provisions of the Bill

4. Noting that certain clauses in the Bill involved repeal or amendment of provisions in the LCO which provided for the establishment of Election Committee (EC), Mr LEE Wing-tat asked when the relevant amendment clauses would take effect. Mr LEE Kai-ming asked when the voter registration for the EC subsector elections would commence. DS for CA replied that section 20 of the Interpretation and General Clauses Ordinance (Cap. 1) provided that if an Ordinance was to commence on a day to be specified in the Gazette, the notice might fix different days for the same provisions to commence for different purposes. For instance, while provisions relating to voter registration would take place before 1 July 2000, provisions relating to the establishment and constitution of the EC, number of LegCo Members to be returned by EC, and number of votes to be cast in elections by the EC could not take full effect before 1 July 2000. Addressing the concern of Mr LEE Kai-ming, DS for CA said that majority of the voters for subsector elections were FC electors. Registration of electors for FCs and voters for EC subsectors would take place in early 2000.

Item 3 - Compliance of section 11 of the Legislative Council Ordinance (LCO) with Article 69 of the Basic Law

5. Noting the Administration's reply that section 11 of the LCO was not inconsistent with the Basic Law, Miss Margaret NG asked for the basis of that position. She pointed out that under Article 69 of the Basic Law, the term of office of the first LegCo was two years. When the two years expired, incumbent Members would cease to be Members of LegCo. Therefore, section 11(2) of the LCO which provided that Members of the previous term shall be deemed as Members for the purpose of the emergency session had no legal basis and might be subject to challenge. Mr CHEUNG Man-kwong expressed concern about extending the term of office of Members beyond the two-year period specified in the Basic Law.

6. At the request of Miss NG, Legal Adviser (LA) briefed members on the background of section 11 of the LCO. He said that prior to 1 July 1997, the calling of urgent meetings after the dissolution of the Council was expressly provided for in the Royal Instructions, but the Basic Law did not contain similar provisions. Although Article 72(5) of the Basic Law provided that the President of the LegCo shall call emergency sessions on the request of the Chief Executive (CE), there were different views as to whether the provision could apply in between terms of the Council. Section 11 had been added to the LCO as a result of a Member's initiative to provide, inter alia, for the President to convene emergency sessions during the period after the end of the term of office of the Council and for the persons holding office as Members of the LegCo immediately before the dissolution to be deemed as Members of the LegCo for the purpose of the emergency session. His view on the matter was that a provision should not be regarded as being in contravention of the Basic Law simply because it was not provided for in the Basic Law.

7. The Chairman said that although the Royal Instructions had provided for arrangements for the commencement of legislative term and sessions, it had made no reference to the term of office. However, the term of LegCo was actually set out in the LCO. LA supplemented that Article 69 of the Basic Law stipulated that the first term of LegCo should be two years, and then four years thereafter. Section 4(2) and (3) of the LCO provided that the first term of office of the Council was to begin on 1 July 1998 and that subsequent terms were to begin on such dates as specified by the CE. While section 10(1) of the LCO provided for the CE to specify the date and time for holding the first meeting of the first term, no provision had been made for determining the date and time of the first meeting of subsequent terms.

8. Miss Margaret NG advised that the Committee on Rules of Procedure (CRoP) had discussed the issue and the majority of the members had supported that the legislative sessions in 2000 and subsequent terms to commence in October to tie in with the Policy Address, the timing of which was affected by the budget cycle. Given that the first term LegCo would end on 30 June 2000 and the second term LegCo would commence in October 2000, there would be a gap in between the two terms. She expressed concern about the effect of section 11 of the LCO which had been made to address the gap in between terms.

9. In response to members, Deputy Solicitor General (DSG) said that the Administration recognised that there was a gap in between terms and considered that section 11 of the LCO was justifiable in order to make provisions for emergencies arising. The Administration also recognised that there was a risk of challenge especially to laws which were to be passed by LegCo during such a meeting. The questions arising from legal proceedings would ultimately be a matter for the court to determine. Miss Margaret NG commented that the Administration should not take the chance, knowing that there was a real possibility of challenge. DSG replied that the Administration did not think that such a challenge would be successful.

10. Miss Margaret NG opined that if section 11 of the LCO was not considered valid, it should be removed from the LCO. Mr Ambrose CHEUNG said that he agreed with the Administration. While there was a risk of challenge, section 11 should be able to withstand any challenge in court because deeming of Members of the previous term as Members for the purpose of emergency sessions under section 11 should not be regarded as a continuation of the term of office of Members.

11. Ms Emily LAU said that given the status of Members after 30 June 2000 would be in doubt, some members of the CRoP had considered whether the second term LegCo should commence on 1 July 2000. It was noted that under the circumstances, the Council would need to be prorogued towards the end of the first term to enable general election to be held before July 2000.

12. Mrs Miriam LAU supplemented that the concern of Miss NG had been fully deliberated by the CRoP. The CRoP had actually made a decision and explained its position in paragraph 3.11 of its "Progress Report for the period July 1998 to April 1999" as follows -

    "The Committee has examined the subject at great length. It has come to the view that the deeming of the persons holding office as Members of the LegCo under section 11(2) of LCO is solely for the purpose of convening an emergency session after the Council is dissolved but before the general election takes place. It is a provision necessary for ensuring that a law making mechanism is available during a period when there are no incumbent Members, e.g. when the LegCo has been dissolved by the CE under Article 50 of the Basic Law, but before the next general election is held. The provision is not intended to extend the term of office of these Members. The Committee is of the view that it would be unlikely that the provision would be considered as contravening the Basic Law as regards the two-year or four-year term of office of Members. If an emergency session were to be convened after the general election, the CE may specify, in accordance with section 4 of LCO, an earlier date for the commencement of the new term and of its first session to enable a Council meeting to be held."

13. LA asked the Administration whether it would consider providing a deeming provision specifically in respect of the President so that it would be clear that the person who held office as President would be deemed as President for the purpose of convening emergency sessions after the end of the term or dissolution of the Council. DSG replied that existing section 11(1) of the LCO was adaquate for such purpose. He did not think that such a deeming provision was necessary.

II. Administration's response to points raised by the Bills Committee on 12 March 1999
(LC Paper No, CB(2) 1658/98-99(02))

Item 1 - "No canvassing day"

14. Mr LEE Wing-tat urged the Administration to reconsider the proposal to prohibit canvassing activities on election day, having regard to the high voter turnout rate in the 1998 LegCo election despite inclement weather, and the opinion of voters that such activities on polling day was not useful in helping them to decide how to cast their votes. His view was supported by Members of the Democratic Party, the Liberal Party and the Democratic Alliance for the Betterment of Hong Kong, Ms Emily LAU and Mr LEUNG Yiu-chung. Ms LAU asked the Administration whether it was concerned about low voter turnout rate if canvassing activities were prohibited on the election day, and if so, to what extent would the Administration expect the turnout rate to drop and the basis for such an estimation. Mr LEUNG Yiu-chung asked about the circumstances under which the Administration would consider prohibiting canvassing activities on the election day.

15. DS for CA reiterated the Administration's position that it did not see the need to depart from the existing practice, given that past elections showed that canvassing activities were carried out in an orderly and controlled manner and would create a better atmosphere for election. Principal Assistant Secretary for Constitutional Affairs (4) (PAS for CA (4)) supplemented that while some candidates might find canvassing activities not useful, some might not. Hence it was a question of whether it was necessary to legislate against all canvassing activities just because some people did not find the activities useful. As past elections had been carried out smoothly, without giving rise to disorder or chaos, the Administration did not see sufficient justifications to legislate against canvassing activities entirely.

16. Mr LEE Wing-tat said that if the Administration did not accede to Members' request, he would consider moving amendments. Majority of the members present at the meeting supported his proposal. The Administration undertook to reconsider the issue. Adm

Items 2 - 5 - Election expenses

17. Members noted the information provided by the Administration on election expenses reimbursed to candidates in legislative elections in Canada, Australia and France. Mr LEE Wing-tat and Dr YEUNG Sum urged the Administration to consider subsidising part of the election expenses incurred by candidates who had secured votes up to a prescribed threshold (reimbursement scheme). As electioneering activities incurred huge expenses, a reimbursement scheme could help to ensure that candidates would not be subject to influence of donors.

18. DS for CA reiterated his advice given at previous meetings that the Administration had provided considerable subsidies in kind to candidates running in the LegCo election. It did not consider that there was a need to further subsidise candidates in their campaigning activities with additional public funds.

19. In response to the Chairman, PAS for CA(4) said that the UK Government did not reimburse expenses to candidates. However, Members of the Opposition and the Ruling Parties in the Parliament were given some financial support from the government, the amount of which depended on the number of parliamentary seats a political party had and the percentage of votes it obtained at an election.

20. Mr LEE Wing-tat asked whether CSAs to introduce a reimbursement scheme would have a charging effect. Pointing out that some electioneering activities were currently funded by the Government, he asked whether expansion of the scope of these activities, albeit incurring additional public moneys, would be considered as a new liability on public expenditure. The Chairman asked whether introducing a new activity to replace an existing activity would be regarded as having a charging effect, for example, replacing one round of free postal service with the proposed reimbursement scheme.

21. LA replied that whether an amendment involved charging effect would have to be considered on a case by case basis. According to the Rules of Procedure of the LegCo, the object or effect of an amendment which might be to dispose of or charge any part of the revenue or other public moneys of Hong Kong could only be proposed by Members with the consent of the CE. For amendments relating to government fees and charges, it was easy to judge whether they had a charging effect. However, an amendment which sought to introduce a new activity was a complicated issue. The President of the LegCo would take into account the purpose of the principal Ordinance, the legislative effect and objective of the proposed amendment before making a ruling.

22. The Chairman pointed out that amending the principal Ordinance to the effect that the implementation of the proposed reimbursement scheme would be made by subsidiary legislation to be approved by the CE in Council might be a way to overcome the "charging effect" test. However, this might have other political implications. In response, LA said that even if the proposed amendment was only an empowering provision, the question of charging effect would still need to be addressed.

Item 6 - Loss of postings

23. Miss Cyd HO said that she was not satisfied with the answer given by the Administration. She asked the Administration to explain why the election postings of a candidate were lost in the 1995 Municipal Council elections and the remedial action taken by the Postmaster General. The Administration undertook to respond in writing. Adm

III. Administration's response to points raised by the Bills Committee on 15 March 1999
(LC Paper No. CB(2) 1658/98-99(03))

Item 1 - Polling stations in hospitals

24. Having noted the Administration's reply, Mr LEE Wing-tat remained of the view that advance polling should be provided to patients in public hospitals. He also urged the Administration to consider implementing automatic voter registration so that eligibility of voters could be checked against easily.

25. DS for CA replied that for advance polling in hospitals, the most crucial problem lied with the difficulty in compiling the relevant extracts of voter registers, as it was not sure who would be in the hospitals on the polling day. If the polling staff was to collect votes direct from electors in bed, it would be difficult to safeguard the secrecy of votes and worse still, disrupt the daily operation of the hospitals concerned. If electors were asked to vote at polling stations set up at specific places in the hospital, bedridden electors would not benefit from the arrangement and the operation of the relevant hospitals might also be affected.

Item 2 - Composition of the Heung Yee Kuk (HYK) FC

26. Mr LEE Wing-tat asked, reflecting the view of Mr Brian KAN Ping-chee who was a member of the HYK, why some people could become councillors of the HYK without going through formal election.

27. DS for CA explained that the Full Council of the HYK was composed of the Ex-officio, Special and Co-opted Councillors. Ex-officio Councillors were the Chairmen and Vice-Chairmen of Rural Committees and New Territories Justice of the Peace (NTJPs). Special Councillors, the number of which should not exceed 21, were elected by the Ex-officio Councillors of the Tai Po, Yuen Long and Southern Districts from among village representatives or other persons approved by the Secretary for Home Affairs (SHA). Co-opted Councillors were persons nominated by five members of the Executive Committee. Nominated candidates must be approved by the SHA and confirmed by the Full Council. The number of Co-opted Councillors should not exceed 15.

28. In response to Mr CHEUNG Man-kwong, DS for CA explained that the New Territories was historically divided into three main areas namely Tai Po, Yuen Long and Southern Districts, the delineation of which was different from the present situation. Special Councillors were elected by the Ex-officio Councillors of the New Territories. He advised members the breakdown of the Full Council of the HYK in 1998 as follows -

    (a) Ex-officio Councillors
    1. Chairman and Vice-Chairman of Rural Committees
    1. NTJPs
    (b) Special Councillors 17
    (c) Co-opted Councillors 15

    Total 138

29. Mr LEE Wing-tat expressed concern that some 28% of the Councillors were NTJPs who were appointed by the Government and not returned by direct election. He asked whether there was any limit on the number of NTJPs to be appointed. Mr LEE and Mr CHEUNG Man-kwong expressed concern about the influence that the Government might have on the HYK with the increase in the number of NTJPs. The Chairman asked whether NTJPs were indigenous villagers of the New Territories and the criteria for appointment. Dr TANG Siu-tong briefly explained the composition of the Full Council of the HYK for members' information.

30. In response to members, PAS for CA(4) said that the composition of the HYK was governed by the HYK Ordinance (Cap. 1097) whereas the appointment of NTJPs was provided for under the Justices of the Peace Ordinance (Cap. 510). The Chief Secretary for Administration was empowered to appoint a Justice of the Peace whom she considered fit and proper to be an NTJP. PAS for CA (4) undertook to consult the Home Affairs Bureau and provide more information on the current composition of the HYK and the criteria for appointing NTJPs in writing. Adm

IV. Date of next meeting

31. The next meeting would be held on 15 April 1999 to continue discussion on LC Paper No. CB(2) 1658/98-99(03).

32. The meeting ended at 4:30 pm.

Legialtive Council Secretariat
10 August 1999