Legislative Council

LC Paper No. CB(2)2872/98-99
(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 17th meeting
held on Tuesday, 25 May 1999 at 8:30 am
in Conference Room A of the Legislative Council Building Members Present:

Hon Ronald ARCULLI, JP (Chairman)
Hon Cyd HO Sau-lan
Dr Hon Raymond HO Chung-tai, JP
Hon LEE Kai-ming, JP
Hon NG Leung-sing
Prof Hon NG Ching-fai
Hon CHAN Wing-chan
Hon CHAN Kam-lam
Hon SIN Chung-kai
Hon Andrew WONG Wang-fat, JP
Hon WONG Yung-kan
Hon Howard YOUNG, JP
Hon YEUNG Yiu-chung
Dr Hon TANG Siu-tong, JP
Hon LAU Kong-wah
Hon Emily LAU Wai-hing, JP

Members Absent :

Hon LEE Wing-tat
Hon Margaret NG
Hon Mrs Selina CHOW, JP
Hon MA Fung-kwok
Hon CHEUNG Man-kwong
Hon Christine LOH
Hon Bernard CHAN
Dr Hon LEONG Che-hung, JP
Hon LEUNG Yiu-chung
Hon Gary CHENG Kai-nam
Hon LAU Wong-fat, GBS, JP
Hon Mrs Miriam LAU Kin-yee, JP
Hon Ambrose LAU Hon-chuen, JP
Hon CHOY So-yuk
Hon TAM Yiu-chung, JP

Public Officers Attending :

Mr Robin IP
Deputy Secretary for Constitutional Affairs

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

Ms Phyllis KO
Acting Deputy Principal Government Counsel (Elections)

Clerk in Attendance :

Mrs Percy MA
Chief Assistant Secretary (2) 3

Staff in Attendance :

Mr Stephen LAM
Assistant Legal Adviser 4

Mrs Eleanor CHOW
Senior Assistant Secretary (2) 7

I. Matters arising

Proposed Committee Stage amendments (CSAs)

Mr Andrew WONG said that he had proposed a number of CSAs to the previous Legislative Council Bill. One CSA was to restructure the functional constituencies (FCs) into five FCs, each having six seats. The 30 FC Members would be elected by registered electors of geographical constituencies (GCs) through the list system of proportional representation. The Administration was of the view that the CSA would have charging effect. The President had ruled that the CSA was outside the ambit of the Bill. Another CSA was to adopt the list system of proportional representation for the Election Committee (EC) election. Mr WONG said that he intended to propose the same CASs to the current Bill, and would like the Administration to advise on whether the CSAs would have any charging effect. To facilitate the Administration to reply, the Chairman instructed the Clerk to the Bills Committee to forward the CSAs previously proposed by Mr WONG to the Administration for reference. Adm

Clause 43

2. On Mr CHAN Wing-chan's question relating to the Catering subsector of the EC, Principal Assistant Secretary for Constitutional Affairs (4) advised that the 11 seats allocated to the Catering subsector remained unchanged. The Bill sought to delete the Catering subsector from Table 5 of Schedule 2 because the Catering subsector would have an equivalent FC when a new Catering functional constituency (FC) was created. It was no longer necessary to include it in Table 5 which referred to subsectors without an equivalent FC.

II. Clause by clause examination of the Bill

Clause 45 - Transitional provisions

3. Deputy Secretary for Constitutional Affairs (DS for CA) explained that clause 45(1) sought to make it clear that notwithstanding the proposed dissolution of the Provisional Municipal Councils (PMCs) after 31 December 1999, the two incumbent Members returned by the Urban Council (UC) and Regional Council (RC) FCs in the 1998 LegCo election were to serve out their term of office until 30 June 2000. Clause 45(2) provided that no by-election would be held after 31 December 1999 when the term of office of the PMCs expired to fill the vacancies if such vacancies arose. He further explained that clause 45(3) sought to provide that an oath given by a Member of the first term LegCo under section 40(1)(b)(iii) of the Legislative Council Ordinance (LCO) to be taken to be modified as proposed in clause 24(a). A new form incorporating changes proposed in clause 24(a) would be prepared for the second term LegCo.

4. Mr Andrew WONG asked about the section under which clause 45 would be placed in the LCO. Acting Deputy Principal Government Counsel explained that clause 45 consisted of transitional provisions which would appear only in the Bill and not the LCO. This was a common drafting device employed. DS for CA supplemented that most of the provisions in the Bill would take full effect after 30 June 2000 while some would take effect after the enactment of the Bill. The transitional provisions would take effect after passage of the Bill and lapse upon the expiry of the first term LegCo on 30 June 2000. After some discussion, DS for CA suggested that the matter be resolved between the law draftsman and the Legal Service Division. Adm/

5. The Chairman pointed out that according to Article 5 of the Specific Method for the Formation of the First LegCo of the Special Administrative Region (SAR) of the People's Republic of China adopted at the Ninth Plenum of the Preparatory Committee of the HKSAR under the National People's Congress on 23 May 1997 ("the Specific Method"), 30 Members should be returned by FCs. Given that the PMCs would be dissolved after 31 December 1999 and the two Members concerned were proposed to serve out their term of office in the first term LegCo, he questioned whether it was constitutional to remove the constituents of an FC during the term of office of its returned Member. He also expressed concern about the two Members returned by UC and RC FCs retaining the LegCo seats after they had lost substantial connection with their respective constituencies after 31 December 1999. Dr YEUNG sum echoed the view and questioned the legal basis for clause 45(1).

6. DS for CA explained that having regard to the term of office of the PMCs would expire on 31 December 1999, the Administration considered it an appropriate and practical approach to provide for the two sitting Members of the UC and RC FCs to remain in their office until the LegCo term expired. The two Members could continue to perform the duties of LegCo Members. He said that the arrangement was necessary to cater for special circumstances. He reassured members that clause 45(1) did not contravene the Basic Law.

7. Ms Emily LAU commented that the two Members should cease to be Members when they no longer represented the UC and RC FCs. She enquired about the implication for leaving the two seats vacant following dissolution of the PMCs. She pointed out that section 17(1) of the LCO stipulated that a vacancy in the membership of LegCo did not affect its power to transact business. The Chairman added that section 17(2) of the LCO also stipulated that neither a vacancy in the membership of LegCo nor the eligibility of a person to be a Member affected the validity of its proceedings.

8. DS for CA replied that as proposed in section 45(2), no by-election would be conducted to fill the vacancies of the two seats of the UC and RC FCs after 31 December 1999. The Chairman responded that it was practically not feasible to conduct a by-election since there would not be any electorate for UC and RC FCs after 31 December 1999. Mr Andrew WONG said that the problem could be overcome by introducing a provision to deem former registered electors of the UC and RC FCs to be eligible electors in the event of a by-election. Dr TANG Siu-tang held the view that the term of office of the PMCs should be extended to 30 June 2000 to tie in with that of the first term LegCo.

9. The Chairman pointed out that the two Members returned by UC and RC FCs might breach the promissory oath under section 40(1)(b)(iii)(I) as they would cease to have a substantial connection with their respective FCs following the dissolution of the PMCs. DS for CA responded that a person contesting in an FC election would take a promissory oath to the effect that if elected, he or she would not do anything during his or her term of office that would result in, inter alia, his or her ceasing to have a substantial connection with the constituency. In the case of the two sitting Members returned by UC and RC FCs, they would not be considered to have positively done anything to cease to have a substantial connection with their respective FCs as the proposal to dissolve the PMCs was made by the Administration.

10. The Chairman said that there was no provision in the LCO or the Basic Law to provide for arrangement for removal of constituents of an FC during the term of office of its returned Member. He requested the Administration to give a written response to members' concerns. He also requested the Legal Adviser to provide legal advice on the subject. Adm

Clauses 46-48

11. The Administration explained and members did not raise any query on the remaining clauses in the Bill.

    (Post-meeting note - The Administration and the Legal Service Division's responses to concerns raised by the Bills committee at this meeting were circulated to members vide LC Paper Nos. CB(2) 2135/98-99(01) and LS 205/98-99 respectively.)

III. Date of next meetings

12. The Bills Committee agreed to discuss Members' proposed amendments relating to FC at the next meeting to be held on 28 May 1999 at 8:30 am. Non Bills Committee Members would also be invited to forward their proposed amendments for the Bills Committee's consideration. Members also agreed that a separate meeting would be scheduled to discuss amendment proposals relating to other issues, after the Administration had reverted to the Bills Committee on a number of outstanding issues. DS for CA advised that the Secretary for Constitutional Affairs would attend the meeting on 31 May 1999 to explain the Administration's position regarding the Election Committee referred to in Annexes I and II of the Basic Law.

13. The meeting ended at 9:31 am.

Legislative Council Secretariat
23 September 1999