LC Paper No. CB(2)1925/98-99
Ref : CB2/PL/CA
Panel on Constitutional Affairs
Minutes of meetingMembers Present :
held on Monday, 15 March 1999 at 2:30 pm
in the Chamber of the Legislative Council Building
Hon Andrew WONG Wang-fat, JP (Chairman)
Hon Emily LAU Wai-hing, JP (Deputy Chairman)
Hon Martin LEE Chu-ming, SC, JP
Hon Margaret NG
Hon CHEUNG Man-kwong
Hon Ambrose CHEUNG Wing-sum, JP
Hon LEE Wing-tat
Hon Christine LOH
Hon Gary CHENG Kai-nam
Hon Jasper TSANG Yok-sing, JP
Hon Howard YOUNG, JP
Dr Hon YEUNG Sum
Hon Ambrose LAU Hon-chuen, JP
Hon SZETO Wah
Member Absent :
Hon Ronald ARCULLI, JP
Member Attending :
Hon LEUNG Yiu-chung
Public Officers Attending :
By Invitation :
- Mr Clement C H MAK
- Secretary for Constitutional Affairs (Acting)
- Mr David LAU
- Principal Assistant Secretary for Constitutional Affairs (Acting)
- Mr James O' Neil
- Principal Government Counsel
- Mr Peter WONG
- Senior Assistant Solicitor General
- Mr Philip TANG
- Assistant Secretary for Constitutional Affairs
Clerk in Attendance :
- Prof Albert H Y CHEN
- The University of Hong Kong
- Mr CHANG Hsin
- The Chinese University of Hong Kong
- Hong Kong Bar Association
- Mr Philip DYKES, SC
- Hong Kong Human Rights Monitor
- Mr LAW Yuk-kai
Prof Yash GHAI
Mr Paul HARRIS
- Dr LIN Feng
- City University of Hong Kong
- Prof Benjamin C OSTROV
- The Chinese University of Hong Kong
- Mr Benny Yiu-ting TAI
- The University of Hong Kong
- Prof King-kwun TSAO
- The Chinese University of Hong Kong
Staff in Attendance :
- Mrs Percy MA
- Chief Assistant Secretary (2)3
- Mr Jimmy MA
- Legal Adviser
- Mrs Eleanor CHOW
- Senior Assistant Secretary (2)7
I. Confirmation of minutes of meeting on 18 January 1999
(LC Paper No. CB(2)1273/98-99)
The minutes of the meeting held on 18 January 1999 were confirmed.
II. Meeting with deputations/individuals
2. The Chairman welcomed the deputations and individuals to the meeting to present views on the mechanism for amending the Basic Law.
Professor Albert H Y CHEN of the University of Hong Kong
(LC Paper No. CB(2) 1475/98-99(02))
3. Apart from the views made in his submission, Professor CHEN of the University of Hong Kong stressed that amendments to constitutional laws ought to be made where and as necessary from time to time in order to ensure that the constitutional document synchronised with the development of society. He pointed out that even the Chinese Government had made several amendments to its constitution since its enactment in 1982. The Basic Law formulated in 1990 was based mostly on the Sino-British Joint Declaration signed in 1984. Having regard to the political, social and economic changes in the past 15 years, some of the provisions might no longer be suitable for Hong Kong. For instance, the recent judgement of the Court of Final Appeal delivered on 29 January 1999 had an impact on the immigration policies in relation to the right of abode of persons born in the Mainland to Hong Kong permanent residents. Since Article 159 made provisions for amending the Basic Law, Hong Kong should take a proactive and pragmatic approach to amend it to meet the changing needs of the society. Participation by the public as well as exchanging views between the political parties and the Government in the amendment process should be encouraged to embrace the spirit of democracy and autonomy.
4. In response to a question from Miss Margaret NG, the Chairman said that the proposals for amending Articles 22 and 24 of the Basic Law set out in the Annex to Professor CHEN's submission were for illustration purpose. The focus of discussion should be on the procedure for amending the Basic Law. The Chairman added that the purpose of the meeting was for Members to listen to the views of legal experts and academics and not to debate their views.
5. Mr Martin LEE said that according to his understanding, the Central People's Government's (CPG) position regarding amendments to the constitutional law of China and the Basic Law should be the same, i.e. amendments were only necessary as a result of change of the established policies. He asked whether there was any scope for amending the Basic Law if the CPG's established basic policies regarding Hong Kong had remained unchanged. He sought the deputations' views on the subject. The Chairman said that since the provisions for amending the Basic Law had already been laid down in Article 159, it was more appropriate for the meeting to discuss the mechanism for amending the Basis Law.
6. Dr YEUNG Sum asked Professor CHEN whether it was necessary to obtain the written consent of the Chief Executive (CE) for amendment proposals initiated by Members of the Legislative Council (LegCo). Professor CHEN replied that he had explained in paragraphs 6 and 7 of the paper that the restrictions in Articles 74 and 48(10) were not applicable to amendments to the Basic Law. Firstly, Article 74 dealt with "bills" relating to government policies, and amendments to the Basic Law were in the form of "motions". Secondly, Article 48(10) dealt with "motions regarding revenue or expenditure" which were unlikely to be relevant to any amendment proposals to the Basic Law. Hence, written consent of the CE should not be required for amendments to the Basic Law proposed by LegCo Members. He further said that while LegCo Members had the power to propose amendments to the Basic Law, the final power of amendment of the Basic Law rested with the National People's Congress (NPC).
7. Mr LEUNG Yiu-chung said that some overseas countries had provided that constitutional amendments might be proposed when a specified percentage of electors were in support of a proposed amendment. Since Article 2 authorised the Hong Kong Special Administrative Region (HKSAR) to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, he asked whether residents of Hong Kong had the power to initiate amendments to the Basic Law. He further asked whether an amendment proposal of the deputies of the Region to the NPC (the Deputies) could be submitted direct to the Standing Committee of the National People's Congress (NPCSC) or should route through the HKSAR.
8. In response, Professor CHEN explained that under Article 159, the power of amendment to the Basic Law should be vested in the NPC. The power to propose amendments to the Basic Law could be exercised by each of the following three bodies: (i) the NPCSC; (ii) the State Council; and (iii) the HKSAR. Article 159 further stipulated that amendment bills from the HKSAR should be submitted to the NPC by the delegation of the Region to the NPC after obtaining the consent of two-thirds of the Deputies, two-thirds of all LegCo Members and the CE ("the three parties"). It was very clear that the Basic Law had not conferred the power of amendment on the residents of Hong Kong, although they might raise the matter through "the three parties". He said that in proposing amendments to the Basic Law, the requirement stipulated in Article 159 had to be complied with. For example, deputies of other provinces to the NPC could not propose amendments under Article 159.
9. Ms Emily LAU said that paragraphs 11 and 12 of the paper advocated that amendments to be introduced must respect people's opinion and conform to the will of the people. She asked whether the Basic Law allowed for the possibility of using a referendum to gauge the views of the public. She further referred to paragraph 15 and enquired whether constitutional amendments, which were used as a means to override the interpretation by the highest court in the USA of a particular provision, had any retrospective effect.
10. Professor CHEN said that while referendum could be one of the means to gather people's view, it was not legally binding from a legal point of view. The outcome of a referendum could serve as a useful reference for "the three parties" in deciding whether to support an amendment. In response to a further question from Ms LAU, Professor CHEN said that Article 159 had clearly set out the activities that had legal effect but referendum was not one of them. As regards the constitutional amendments mentioned in paragraph 15 of his submission, Professor CHEN clarified that such amendments did not have any retrospective effect.
11. In response to a question from Mr Howard YOUNG, Professor CHEN confirmed that the joint meeting between Members of the LegCo and the Deputies proposed in paragraph 14 of his submission was an informal one. The purpose was for them to exchange views on the initial proposal so as to reach a consensus before the amendment proposal was formally introduced. He stressed that it was imperative to gauge public opinion through polls, public hearings, informal meetings with social organisations and community leaders, etc. to ensure wide public support before initiating an amendment.
12. Referring to Professor CHEN's view that "the three parties" were accorded equal status in their participation in the amendment process, Mr CHENG Kai-nam asked whether there would be any difference in procedure for an amendment initiated by LegCo Members or the CE, vis-a-vis that initiated by the Deputies. Professor CHEN replied that "the three parties" were equal in status in initiating an amendment to the Basic Law. Paragraph 5 of his submission had pointed out that the Deputies had the additional responsibility of submitting amendment bills to the NPC after consent was obtained from "the three parties".
13. Mr CHENG further asked whether amendments proposed by one party should be submitted to the other two parties in parallel or one after the other. Professor CHEN said that as the consent of two-thirds of Members of the LegCo and the Deputies had to be obtained, and these two parties being people's representatives, he felt that an amendment proposal initiated by either of the two parties should first be submitted to the other party, with the CE being the final party from whom consent was to be sought. This procedure would be similar to that adopted for processing Member's bills.
14. Mr LEE Wing-tat asked whether the Basic Law had prescribed any time limit for each of "the three parties" to complete scrutiny of an amendment proposal. Professor CHEN replied that some overseas countries had imposed a time limit for processing a constitutional amendment, e.g. expressed provision would be provided in the constitution setting out the time limit between the introduction of an amendment proposal and its passage. If the legislative procedure could not be completed within the time frame due to lack of support, the amendment proposal would automatically lapse. He said that Hong Kong might consider adopting a similar procedure. Although Article 159 had not stipulated any time limit, he considered that "the three parties" were obligated to respond to the amendment proposal within a reasonable time. The Chairman said that it was possible to introduce local legislation or formulate rules of procedure in this respect. However, who would be responsible for making rules for the Deputies remained a question to the answered.
15. Mr LEE Wing-tat was concerned that if any one of "the three parties" deliberately dragged on the decision, then it would practically block the amendment process. He opined that procedural restrictions should be imposed to ensure that "the three parties" would proceed with the amendment process without unnecessary delay. In response to Mr LEE's question about the practices in the USA, Professor CHEN said that to his understanding, a time limit was stipulated for scrutinising an amendment before which all the states must make a decision on the matter. He cited as an example that the Equal Rights Amendment of the USA was not passed because several states failed to reach a decision on the matter within the statutory time limit. Professor Benjamin C OSTROV supplemented that in the USA, the time limit varied from amendment to amendment. There was no set rules for all amendments. The Equal Rights Amendment had a two-year provision. It was one state short of passage.
16. Mr SZETO Wah asked Professor CHEN for his view on how the consent of the two-thirds of the Deputies could be obtained. Professor CHEN replied that his views were set out in paragraph 10 of the paper. He opined that the Deputies had been impliedly authorised by the Basic Law to devise procedural rules on how they should give their consent. The draft rules might be submitted to the NPCSC for confirmation if considered necessary.
Mr CHANG Hsin of the Chinese University of Hong Kong
17. The Chairman requested Mr CHANG Hsin of the Chinese University of Hong Kong to provide a written submission after the meeting.
18. Mr CHANG said that the need for instituting a complicated procedure for amending the Basic Law in the past was considered necessary in order to maintain the confidence of the Hong Kong people in the "One country, Two systems" concept. Following the reunification, there was better understanding between the Mainland and the HKSAR. Given that the framework of the Basic Law was drafted some 15 years ago, certain provisions might no longer be applicable to present-day situation. While consideration could be given to amend the Basic Law, any amendments to be made should be carefully considered and should be made only with good justifications and provided that the basic policies of the People's Republic of China (PRC) regarding Hong Kong were not infringed. He supported Professor CHEN's view that amendment proposals to the Basic Law should be published in the Gazette and added that it would be better still if the proposals could also be published in local newspapers for public information. Apart from carrying out public consultation in the Region, he said that the views of the Mainland authorities should also be solicited. As far as he was aware, the Central Authorities had instructed state organs not to have direct contact with the authorities of HKSAR. He suggested that the views of the Mainland authorities might be gathered through informal channels such as exchanging views with Mainland academics.
19. Ms Emily LAU sought Mr CHANG's opinion on whether conducting a referendum on a Basic Law amendment proposal was consistent with the Basic Law and acceptable by the CPG. Mr CHANG said that it was unrealistic to suggest a referendum at this stage because if the outcome of the referendum differed from the views of the CPG, it would put the CPG in a difficult position. He said that with an executive led government, one vote by the CE would veto an amendment to the Basic Law. Even if the CE had given his consent, the NPC, being the ultimate authority, could still veto the amendment.
20. Ms Emily LAU expressed concern about Mr CHANG's comments which implied that if the CPG had formed a view on a particular amendment proposal, it would not accept the outcome of any referendum which differed from its view. She questioned in the circumstances, how the principle of a high degree of autonomy promised under the Basic Law could be implemented in the HKSAR. She asked Mr CHANG whether he was implying that the HKSAR should only amend the Basic Law in accordance with the wish of the CPG. Mr CHANG reiterated that any amendment to the Basic Law should not contravene the established basic policies of the PRC regarding Hong Kong. Understanding the views of the Mainland authorities was a pragmatic approach as it would avoid unnecessary conflict. Addressing a similar question raised by Mr CHEUNG Man-kwong, Mr CHANG said that under the "One Country, Two Systems" principle, the two systems was under one country. It would be unrealistic to propose amendments which would not be supported by the CPG.
21. In response to Mr Martin LEE, Mr CHANG said that the suggestion for the Deputies to be elected by Hong Kong people could be considered, as long as it did not contravene the principle of a high degree of autonomy for Hong Kong.
22. Mr LEUNG Yiu-chung asked whether the role and power of the Deputies to propose amendments to the Basic Law should be restricted, given their limited representativeness. Mr CHANG responded that "the three parties" represented people of Hong Kong. Despite the fact that they might have divergent views on an amendment, they should reflect the views of Hong Kong people. He opined that the provisions set out in Article 159 should be followed as far as possible.
Hong Kong Bar Association
(LC Paper No. CB(2) 1490/98-99(01)
23. Mr Philip DYKES of the Hong Kong Bar Association said that the tentative suggestions of the Bar Association on the subject were set out in the paper. He supplemented the following points -
- Article 159 provided a scanty outline for amendment to the Basic Law. Given the solemnity of the matter, any procedures which were to be adopted to give effect to the power of amendment in Article 159 should ensure that there was no casual and opportunistic change. Amendment proposals should only be made after careful consideration;
- Article 159 did not mention about referendum but there was actually nothing prohibiting it. It would seem to be consistent with models of constitutional practices in other countries, i.e. when an amendment proposal was decided upon by the legislature, the next step required the decision to be put to the people in a non-binding referendum. He hoped that the NPC would not regard this as being in any way inconsistent with either the Basic Law or more importantly, the principles of "a high degree of autonomy" and "Hong Kong people running Hong Kong" enshrined in the Basic Law. The procedure should be such that the NPC would only in very exceptional cases not give effect to the considered view of the people of the HKSAR;
- It was possible to have judicial review of legislation enacted under the Basic Law. However, where there was a system which permitted constitutional amendments, the court was unlikely to intervene in the process because the purpose of the proposed amendment was to change the constitution;
- It was not clear what limits there were on the power of the NPCSC in interpretation of the Basic Law provided under Article 158. One should take into consideration whether Article 158 could be used to amend the Basic Law without having to resort to the procedure under Article 159; and
- Under Article 159, Members of LegCo, the Deputies and the CE were the decision makers of amendment proposals. They all appeared to share equal powers and responsibilities in the amendment process. Any procedures that were devised to harmonise decision making among "the three parties" would have to be carefully considered. It would be important to ensure that there would be procedures to avoid a constitutional deadlock arising from any one of the decision makers holding up a decision during the amendment process.
24. Since Article 159 provided no formality for exercising the power of amending the Basic Law, Miss Margaret NG asked whether it would be possible and permissible for LegCo to enact any kind of legislation to provide for that procedure. She pointed out that legislation enacted would contain restrictions which might depart from Article 159 which contained no restrictions in terms of procedure. Mr DYKES replied that there must be an incidental power in order to implement Article 159. He considered that setting out concrete guidelines in law to be a possibility within the competence of LegCo. In response to the Chairman, he said that it was doubtful whether local legislation could govern the procedures of the Deputies.
25. On referendum, Ms Emily LAU asked Mr DYKES for his view as to when it should be conducted. Mr DYKES said that most referenda were taken after a view was formed and voted by the legislature, while consultation might be conducted to find out public opinion beforehand. An Amendment might or might not be proceeded with as proposed if it did not obtain support through a positive result in a referendum. In response to a further question from Ms LAU, Mr DYKES said that paragraph 5 of his submission proposed to confine the role of the Deputies to a power of vetting and that they should not have the power to initiate an amendment proposal because of their limited representativeness in Hong Kong.
26. Mr CHENG Kai-nam said that it would appear that the LegCo and the Deputies could formulate procedures for amending the Basic Law respectively. He expressed concern about the way to ensure that the other two parties would respond to the party who had initiated an amendment, especially if the amendment was initiated by the Deputies. Mr DYKES responded that it was a matter of devising a workable procedure to implement Article 159. He said that under a unified legal system, where there were three decision makers, there was an implication that they must make those decisions within a reasonable time even though no time limit was prescribed. If any of the parties failed to respond within a reasonable time, the court could step in to ensure that the duties stipulated in the Basic Law were being complied with. The question was how to fit in the procedures of the Deputies for amending the Basic Law which were outside the jurisdiction of the HKSAR.
27. Professor CHEN said that in his submission, apart from formal procedural rules, he had also proposed informal contacts by means of a joint meeting between the LegCo and the Deputies to discuss and work out an option that was acceptable to both parties before an amendment was formally proposed. Paragraph 9 of his submission also suggested that the LegCo's Rules of Procedure should include provisions on how amendment proposals from the CE and the Deputies should be handled. The Chairman said that LegCo could draw up procedural rules such that the Deputies could be regarded as having given consent, if they did not within a specified period respond to an amendment proposal which was agreed by two-thirds of Members of the LegCo and referred to them for consideration. Mr DYKES commented that that might not be conducive to getting the proposal through the next stage of the amendment process.
Hong Kong Human Rights Monitor (HRM)
(LC Paper No. CB(2) 1483/98-99(01)
28. Professor Yash GHAI of the HRM said that the following amendments should be made to the submission -
- the word "two-thirds" in paragraph 21 should read "one half"; and
- to delete "2/3rds of the HKSAR deputies to the NPC" in paragraph 26.
29. Details of the views of the HRM were set out in the submission. Professor GHAI highlighted the following points -
- The Basic Law was a constitutional document; its amendment should not be taken lightly;
- Constitutions were regarded as dynamic and living documents which had to respond to changing social and political circumstances. Further democratisation for Hong Kong people had been provided for under Articles 45 and 68. The ultimate aim was the election of the CE and Members of LegCo by universal suffrage;
- HRM did not feel that the Basic Law could be amended by way by a NPCSC interpretation under Article 158, as suggested by some people in relation to the recent Court of Final Appeal's judgment on the right of abode issue. There were three possible ways for amending the Basic Law. Other than Article 159 which was the principal provision for amendment, the second provision was paragraph 7 of Annex I on the method of selection of the CE, and the third provision was Part III of Annex II on the composition of the LegCo and its procedure for voting bills and motions. Details were set out in paragraphs 11-20 of the HRM's submission;
- It was desirable to have an advisory referendum, which was similar to the non-binding referendum mentioned by Mr DYKES. The referendum would not be inconsistent with Article 159 and should take place after the three parties had reached an agreement on the proposal to be submitted to the NPC;
- Professor GHAI held different views from Mr DYKES as to what role the court could play. As a general rule, the court could not review constitutional changes because by definition it was changing the constitution. However, given the last paragraph of Article 159 which stated that "No amendment to the Law shall contravene the established basic policies of the People's Republic of China regarding Hong Kong", some parts of the Basic Law were therefore unalterable. The court had an obligation to ensure that amendments to the Basic Law should be in conformity with the established basic policies. The practice was accepted by many common law jurisdictions;
- To give effect to the mechanism for amending the Basic Law, it might need local legislation. Professor GHAI was of the view that local legislation could cover both the procedures of the LegCo and the Deputies. Consideration could be given to enacting a comprehensive legislation which governed all aspects of the amendment process in Hong Kong provided that clarification had been made with the NPC;
- It was possible for the NPCSC to propose an amendment without consulting the HKSAR authorities or residents. HRM urged that certain conventions might be necessary for amending the Basic Law. One such convention could be that all proposals for amendments involving the autonomy of Hong Kong should be initiated only by the HKSAR;
- Under Chinese law, a proposal for legislation which was submitted to the NPC was not automatically presented to the Congress for debate or voting. Whether it would be placed on the agenda depended on its Presidium. It might be necessary to clarify with the NPC as to how an amendment proposal from the HKSAR under Article 159 would be handled; and
- There was a need for formal and informal dialogues among "the three parties" to resolve differences on amendment proposals.
30. Miss Margaret NG asked Professor GHAI whether he would agree that enacting a local legislation to regulate the procedure for amending the Basic Law ought not to have any problem of contravening or restricting Article 159, provided that the legislation was purely a matter of procedure and did not bind the way the three parties made their decisions. Professor GHAI agreed. He said that there should be a consultation mechanism with the NPC. If there was an agreement on the procedure, he saw no reason why it could not form part of an ordinance.
31. Miss Margaret NG further asked whether it was possible to include a provision in the local legislation to require a conference to be set up for discussion by "the three parties", when one of the parties initiated an amendment to the Basic Law. Professor GHAI replied that it was desirable to have meetings for "the three parties" to reconcile differences. He opined that such conferences should not contravene Article 159.
32. Mr Martin LEE asked Professor GHAI whether it was his view that while the method of selection of the CE under paragraph 7 of Annex I to the Basic Law could be amended to allow for "one person, one vote", the power of appointment of the CE by the CPG under Article 45 could not be abolished. Professor GHAI agreed.
33. Mr SZETO Wah asked whether it was possible to amend the reference to "year 2007" in Annexes I and II to "year 2000" by using the procedure under Article 159, and then to rely on the procedures under the amended Annexes I and II to change the composition of the LegCo and the method of selection of the CE. Professor GHAI replied that he would need some time to consider Mr SZETO's question. His initial response was that Article 45 incorporated the principle of "gradual and orderly process" for the democratisation of the selection of the CE, which might suggest that it was necessary to review the existing method shortly before 2007. He was not sure whether the review process could start as early as now. He considered that thinking and debating the matter a year in advance would be quite proper. Mr Paul HARRIS of the HRM opined that there was no prohibition against Mr SZETO's proposal under the Basic Law, except for the difficulty mentioned by Professor GHAI regarding the review process.
34. Mr LEUNG Yiu-chung enquired about the right of the people of Hong Kong to initiate amendments. Professor GHAI said that although some countries such as Switzerland had conferred such power on the people, it was an unusual practice. He did not think that it was possible for the people of Hong Kong to submit a formal amendment proposal under Article 159, but it was possible for such a proposal to be put forward through LegCo Members. As to the responsibility of the Government to amend the Basic Law to address the concerns of the people when public support for such an amendment had reached a certain level, Mr HARRIS said that there was nothing in the Basic Law requiring the Government to do so. It might be desirable to give thought to the development of some conventions, as Mr GHAI had earlier suggested, to supplement the framework in the Basic Law.
35. Ms Emily LAU commented that the last sentence of paragraph 45 of HRM's submission was contradictory. She pointed out that if the referendum was advisory in nature as suggested by Professor GHAI, then it would not be right to say that "No amendment to the Basic Law should be made without the consent of the people manifested in an advisory referendum". Professor GHAI explained that a binding referendum was inconsistent with Article 159. Therefore he suggested to develop a convention so that every amendment that was proposed and had the support of "the three parties" should be put to the people. Given the practical realities, it would be very difficult for anyone to bring any proposal to the NPC once it had been rejected by the people of Hong Kong. It was not unusual in other jurisdictions for a convention to have quite a powerful effect on how things operated.
36. On restricting the power of the Deputies in initiating amendments to the Basic Law, as proposed by Mr DYKES and Dr LIN Feng in their submissions, Ms Emily LAU sought advice from Professor GHAI as to whether such restriction would be in breach of Article 159. Professor GHAI responded that such restriction would contravene Article 159 because the Deputies were clearly a party of the amendment process under Article 159. They had the power to initiate amendments, despite the fact that they lacked representativeness.
37. Having listened to the views of several speakers, Dr YEUNG Sum said that he supported the following views-
- amendment proposals could be initiated by Members of the LegCo, the CE and the Deputies;
- it was necessary for a convention to be agreed upon such that any amendment to a provision of the Basic Law within the autonomy of the HKSAR should be initiated only by the HKSAR; and
- it was necessary to set up an informal mechanism to resolve differences among "the three parties" concerned.
Dr LIN Feng of the City University of Hong Kong
(LC Paper No. CB(2) 1475/98-99(03)
38. Dr LIN Feng of the City University of Hong Kong presented his views as outlined in the paper. He further said that he supported the proposal of an advisory referendum, and suggested that a statutory provision could be made to require a referendum to be conducted although the outcome of it was not binding. In response to the question raised by Mr Martin LEE in paragraph 5 above, he said that it had been a practice in the past to amend constitutions upon changes in policy. However, the current amendment proposed by the 15th NPC did not actually lead to any policy changes. He held the view that amendments to the Basic Law could be proposed provided they did not contravene paragraph 4 of Article 159 regarding basic policies.
39. Ms Emily LAU asked Dr LIN the following questions -
- Whether it was permissible to have a referendum, given that the Basic Law did not prohibit one;
- Whether DR LIN's proposal to limit the power of the Deputies to that of vetting, and not initiating amendments to the Basic Law, would be in breach of the Basic Law, given that some deputations held the view that the Deputies had the right to do so;
- Whether the Committee for the Basic Law of the HKSAR should have a quasi-judicial role, and whether it should refrain from making commentaries unless the matter had been put before it; and
- Whether the procedures governing the roles and behaviour of the members of the Committee for the Basic Law of the HKSAR should be drafted and passed in Hong Kong or in the Mainland.
40. Dr LIN gave his reply as follows -
- An advisory referendum was completely consistent with the Basic Law;
- His proposal regarding restricting the power of the Deputies was made on the ground that Article 159 was silent on which party within the HKSAR had the power to initiate an amendment. Moreover, as the HKSAR was one of the three parties which had the power to propose bills for amendment to the Basic Law, he was of the view that the legislature of the HKSAR could decide on the procedure. In further response to Ms LAU, he said that he was not completely against the Deputies having the power to propose amendments, although he considered it undesirable for them to have such power;
- He personally would prefer the Committee for the Basic Law of the HKSAR to be a quasi-judicial body. Comments made by individual members of the Committee for the Basic Law of the HKSAR should be treated as personal opinions, and not as comments made in their official capacity; and
- It was necessary to have procedures to govern the operation of the Committee for the Basic Law of the HKSAR. This could at least make Hong Kong people understand its role and how it exercised its authority. However, such procedure could not be legislated locally, as it was a matter for the NPC.
Professor Benjamin C OSTROV of the Chinese University of Hong Kong
(LC Paper No. CB(2) 1475/98-99(04))
41. Professor OSTROV of the Chinese University of Hong Kong said that the most crucial issue was that the final power of amendment to the Basic Law was vested with the NPC and not the HKSAR. He considered that for purely local issues, the power of amendment should be left with the Hong Kong people who were most knowledgeable about the situation in Hong Kong. He noted that his suggestion to amend Article 159 to that effect might contravene the Basic Law but considered that Hong Kong should strive for the course even though there might be failures. Referring to the concerns raised by Members about the role of the Deputies, his initial response was to remove this party from the decision making process and to have it replaced by the District Boards. He stressed that it was necessary to involve at least three decision makers in the amendment process to ensure that the Basic Law would not be amended lightly.
42. Ms Emily LAU said that while she supported Professor OSTROV's suggestion, she was concerned that it might not be in line with the spirit of the Joint Declaration and the Basic Law. She asked that if the NPC agreed to his proposal, what role, if any, would the Deputies have in the process of amending the Basic Law.
43. Professor OSTROV replied that he did not think that there was any problem with the spirit of the Joint Declaration, as the suggestion was in line with the principle of a high degree of autonomy promised by the "One Country, Two Systems" concept. The only problem was that someone would have to adjudicate on what was and was not a purely local issue. He said that the role of the Deputies in handling Mainland legislation would remain. He clarified that his remarks about removing the Deputies was a preliminary thought, his major concern was that the final decision of amendment should not be vested with the NPC, except for matters relating to foreign affairs and defence. Even if the Deputies were removed from the decision process, there should be a replacement to maintain three separate agents to be the decision makers. The three parties still had to reach consensus without which an amendment proposal could not be passed. The rationale was to prevent frequent amendments which might undermine the authority of the Basic Law.
44. Mr SZETO Wah pointed out that since some members of the District Boards (to be renamed as District Councils) would be appointed by the CE who would have undue influence on them, the proposal to include them as one of three parties would mean that there would not be balance of powers in the decision process. Professor OSTROV commented that this was a good point. He reiterated that this was a preliminary thought and he would leave the proposal for Members to consider.
Mr Benny Yiu-ting TAI of the University of Hong Kong
(LC Paper No. CB(2) 1475/98-99(05)
45. Mr Benny TAI of the University of Hong Kong said that his comments would focus on the legal and procedural aspects. Apart from the views set out in his submission, he made the following comments in response to concerns raised by Members earlier at the meeting -
- Non-binding referendum should not contravene Article 159. However, the proposal to enact legislation to specify that the people of Hong Kong could initiate an amendment proposal which had a certain level of public support and that "the three parties" were required to make a decision on the proposal would contravene Article 159;
- The proposal to enact legislation to restrict the power of the Deputies to propose amendments to the Basic Law would also contravene Article 159;
- To ensure that Article 159 would be implemented smoothly, it was necessary to introduce legislation to stipulate the detailed mechanism and procedure for amending the Basic Law;
- As to whether it was appropriate to regulate by local legislation the role played by the Deputies in the amendment process, he referred members to Article 17 which provided that the HKSAR should be vested with legislative power. As the procedure for the HKSAR to propose amendments to the Basic Law should be regarded as an internal affair of the HKSAR, it was within the HKSAR's autonomy to introduce legislation to provide for the amendment mechanism, including the procedure involving the Deputies; and
- He briefly introduced his proposal of setting up a statutory body, namely the constitutional convention for amending the Basic Law, comprising the CE, all LegCo Members and the Deputies as members and a judge of the Court of Final Appeal as its chairman. Details of his proposal were set out in paragraph 3 of his submission. The mode of operation of the proposed constitutional convention would address Members' concern of possible constitutional deadlock created by any of "the three parties" and provide a forum for members of "the three parties" to debate the original proposal and any amendments to it.
|46. Dr YEUNG Sum said that while Mr TAI's proposal of setting up a statutory constitutional convention with the Deputies as its members had its merits, he sought advice from the Legal Adviser (LA) as to whether Article 17 could be interpreted to mean that the HKSAR had the power to enact local legislation to govern the procedure for the Deputies in the amendment process. In reply, LA said that on the face of it, there was basis for Mr TAI's proposal. However, he would need more time to consider this important issue.
47. Mr TAI supplemented that although Article 17 had not spelt out the ambit of the legislative power of the HKSAR, it had provided a review mechanism in paragraph 3 of Article 17 whereby the NPCSC could return for invalidation any law enacted by the HKSAR which it considered to be not in conformity with the provisions of the Basic Law regarding affairs within the responsibility of the Central Authorities or regarding the relationship between the Central Authorities and the HKSAR.
48. Ms Emily LAU said that she supported the setting up of a constitutional convention in principle. She asked whether the public could be represented in the constitutional convention so as to allow more public participation in the process of amending the Basic Law; and whether an advisory referendum should be held before or after the constitutional convention.
49. Mr TAI replied that having a non-binding referendum before the constitutional convention and allowing public participation in the constitutional convention provided they did not have the right to vote would not contravene Article 159.
50. Ms Emily LAU pointed out that prior to the constitutional convention, there was no consensus which could be put to the people to vote vide a referendum. In addition, in the event that many amendments were proposed to the original proposal, this would make it very difficult for the public to give their views. Mr TAI responded that a referendum could be conducted on the proposal and any amendments to the original proposal put forward by any of "the three parties". He said that since the referendum was not binding, it would only serve as a political instrument to influence members of "the three parties" in making a decision. If a referendum was held after a consensus of the constitutional convention was reached, effect would be very limited. As to Ms LAU's concern that the public might not be well informed and prepared to vote in the referendum if it was held before the constitutional convention because the matter had not been fully discussed and debated in the community, Mr TAI suggested that consultation, informal meetings and hearings could be conducted before the referendum to enhance public awareness of the amendment proposal.
51. Mr Martin LEE commented that any proposal passed by "the three parties" was unlikely to be a good one, given the present composition of "the three parties". He said that the benefit of holding a referendum after the constitutional convention was that it could give the public an opportunity to vote down the proposal, thus sending a clear message to the NPC about the view of the people, which was different from that of "the three parties".
52. Mr SZETO Wah enquired about the mechanism for establishing a constitutional convention which was proposed to be a statutory body. He pointed out that introducing any legislative proposal relating to public expenditure and operation of the government would require the consent of the CE. Mr TAI replied that the existing procedure for introducing bills into LegCo should apply. Enacting local legislation to give effect to the implementation of Article 159 was considered appropriate since the Article itself had not provided for the detailed arrangements. Addressing the concerns of Mr SZETO over the charging effect and policy implications of a possible bill to provide for the establishment of a constitutional convention, the Chairman said that the bill could be introduced by the CE, not necessarily by Members of the LegCo.
53. Mr LEUNG Yiu-chung commented that while Dr LIN Feng advocated that the power of the Deputies in initiating amendment should be restricted, Mr TAI's proposal to set up a constitutional convention would have the effect of strengthening the role of the Deputies. Mr TAI replied that his proposal did have that effect but he was considering the matter from a long term perspective, without paying regard to the existing method for electing the Deputies. He said that if the Deputies were returned by a democratic process in future, similar to the election procedure of deputies of other provinces to the NPC, the concern about their representativeness would be addressed.
54. Mr SZETO Wah pointed out that the Deputies should not be involved in the affairs of Hong Kong. He asked whether including them as members of the constitutional convention would be contradictory to this understanding. Mr TAI responded that it was clear that the restriction mentioned by Mr SZETO only applied to other local affairs and not to the mechanism for amending the Basic Law. Under Article 159, the Deputies had a power and an obligation to consider any amendments to the Basic Law. If there was indeed any contradiction, Article 159 should override.
55. Mr SZETO Wah said that other than the HKSAR, the NPCSC and the State Council also had the power to propose bills for amendment to the Basic Law. In the event that an amendment to be proposed by any of these two bodies was related to internal affairs of the HKSAR, he asked whether this was in contravention of the Basic Law. Mr TAI said that under the Chinese constitution, it was unlikely for the Basic Law to regulate the power of the NPC and the State Council in initiating amendment proposals to the Basic Law.
Professor King-kwun TSAO of the Chinese University of Hong Kong
(LC Paper No. CB(2) 1490/98-99(02))
56. Professor TSAO of the Chinese University of Hong Kong presented his view as set out in his submission, in particular his proposal on the procedures for proposing and voting on an amendment to the Basic Law.
57. In response to Ms Emily LAU as to whether the power of the Deputies to initiate amendments to the Basic Law should be restricted, Professor TSAO said that the matter would need to be considered carefully because Article 159 conferred on them the right to participate in the amendment process of the Basic Law, although they should not be involved in the internal affairs of Hong Kong.
58. The Chairman thanked the deputations/individuals for attending the meeting and sharing their views with the Panel.
III. Date of next meeting
59. The Chairman said that the next meeting would be held on 22 March 1999 to receive further views from the public on the subject.
60. The meeting ended at 5:45 pm.
Legislative Council Secretariat
11 May 1999