LC Paper No. CB(2)886/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/PL/CA

Legislative Council
Panel on Constitutional Affairs

Minutes of meeting
held on Monday, 16 November 1998 at 2:30 pm
in Conference Room A of the Legislative Council Building

Members Present :

Hon Andrew WONG Wang-fat, JP (Chairman)
Hon Emily LAU Wai-hing, JP (Deputy Chairman)
Hon LEE Wing-tat
Hon Margaret NG
Hon CHEUNG Man-kwong
Hon Christine LOH
Hon Ambrose CHEUNG Wing-sum, JP
Hon Jasper TSANG Yok-sing, JP
Hon Howard YOUNG, JP
Dr Hon YEUNG Sum
Hon Ambrose LAU Hon-chuen, JP

Members Absent :

Hon Martin LEE Chu-ming, SC, JP
Hon Ronald ARCULLI, JP
Hon Gary CHENG Kai-nam

Members Attending :

Hon Fred LI Wah-ming
Hon Mrs Selina CHOW LIANG Shuk-yee, JP
Dr the Hon TANG Siu-tong

Public Officers Attending :

Mr Michael SUEN
Secretary for Constitutional Affairs

Item IV

Mrs Maureen CHAN
Deputy Secretary for Constitutional Affair(3)

Principal Assistant Secretary for Constitutional Affairs (6)

Item V

Ms Carol YIP
Principal Assistant Secretary for Constitutional Affairs(3)

Item VI

Mr Robin IP
Deputy Secretary for Constitutional Affairs (2)
Clerk in Attendance :

Mrs Percy MA
Chief Assistant Secretary (2)3
Staff in Attendance :

Ms Mariana LEUNG
Senior Assistant Secretary (2)7
I. Confirmation of minutes of meetings on 9 and 19 October 1998
(LC Paper Nos.CB(2) 575 and 625/98-99)

The minutes of the meetings held on 9 and 19 October 1998 were confirmed.

II. Information paper issued since the last meeting
(LC Paper No. CB(2)487/98-99)

2. Members noted the paper which was issued in response to a request of a member at the last meeting.

III. Items for discussion at the next meeting
(LC Paper No. CB(2)629/98-99(01))

Review of sections 15(3) and 40(1)(b)(iii) of the Legislative Council Ordinance

3. The Chairman said that in response to some Members' concern, he had requested the Administration to provide a paper on this item for discussion at the next Panel meeting. He briefed members on the background of the case. Under Article 79 of the Basic Law, if a Member was censured for misbehaviour or breach of oath by a vote of two-thirds of the members of the Legislative Council present, the President should declare that that Member was no longer qualified for office. By virtue of section 15(3) of the Legislative Council Ordinance, the kind of "misbehaviour" for which a Member might be censured under Article 79(7) included, but was not limited to, a breach of an oath to the effect that, if elected, he would not do anything during his term of office that would give rise to the circumstances specified in section 40(1)(b)(iii)(A) - (I). Some of the circumstances specified in section 40(1)(b)(iii)(A) - (I) were already covered by Article 79(4) and (6) of the Basic Law. The Chairman said that he had requested the Administration to incorporate any legislative proposals on the matter in the bill to be introduced for the 2000 LegCo election. Failing which, Members might wish to consider introducing a Member's Bill for that purpose.

(The Administration joined the meeting.)

4. At the invitation of the Chairman, Secretary for Constitutional Affairs (SCA) said that the Administration would brief members on the following subjects at the next Panel meeting -

  1. The Consultancy Report on Food Safety and Environmental Hygiene Services, and

  2. Initial arrangements for the 2000 LegCo election.
IV. Review of district organisations
(LC Paper No. CB(2)628/98-99(01))

5. Referring to the Administration's paper, SCA advised members that the Consultancy Report on Food Safety and Environmental Hygiene Services (the Consultancy Report) was being finalised and should be ready within this week. The Administration would study the recommendations carefully and determine how to implement the proposals. The Administration would brief this Panel and other relevant Panels on the Consultancy Report and the Administration's comments on the recommendations of the Report.

(Post-meeting note : A joint meeting of the Panels on Constitutional Affairs, Environmental Affairs and Health Services will be held on Monday, 14 December 1998 at 9:15 am to discuss the Consultancy Report on Food Safety and Environmental Hygiene Services in Hong Kong.)

6. On delivery of arts and culture, sports and recreation services, SCA said that Mr Albert C C LAM had been appointed as the Consultant to assist in the study of the new structure. The Home Affairs Bureau would keep the Panel on Home Affairs informed of the progress of the study.

7. As regards legislative work, SCA said that the District Councils Bill which sought to repeal the existing Provisional District Boards (PDB) Ordinance with effect from 1 January 2000 and to combine the provisions for the establishment, functions and operation, etc. of the District Councils (DCs) with their electoral arrangements would be introduced into the LegCo in December 1998. The Bill had to be enacted as early as possible in 1999. After enactment of the Bill, all the necessary subsidiary legislation would have to be completed by 14 July 1999 which would be the last regular sitting of the LegCo before the summer recess. SCA also advised members that the Administration was studying the list of legislation (as set out in the Annex to the paper) that would need be amended or repealed in order to effect the transfer of the functions, contractual rights, duties and liabilities of the Provisional Municipal Councils (PMCs) to the Administration or other statutory bodies. The possibility of introducing all the amendments to the Ordinances in the form of an omnibus bill was being considered. In either case (of introducing an omnibus bill or a number of bills), the bill(s) would be introduced into the LegCo in the second half of the 1998/99 legislative session, to allow sufficient time for making the subsidiary legislation before the end of 1999, after the bill(s) were enacted.Adm

8. Members discussed the legislation involved in re-structuring the framework for delivery of municipal services (Annex to the paper). Pointing out that the terms of office of both the PMC members and the DB members would expire by the end of 1999, Mr CHEUNG Man-kwong queried why a bill on electoral arrangements would be introduced for the DCs, but not the MCs. He said that the Administration should not assume that the LegCo would agree to the abolition of the PMCs. A few members said that the LegCo should be presented with an overall view of the legislative proposals arising from the review of the district organisations and suggested that all the relevant legislation should be introduced together into the LegCo. Mr LEE Wing-tat said that an alternative was to introduce the amendments to the Public Health and Municipal Services Ordinance ahead of other legislation.

9. SCA said that the Administration was working on the most appropriate approach to translate the Chief Executive's policy directive on the re-organisation into legislation, and to put in place a new structure to assume responsibilities of municipal services after the terms of the incumbent members of the PMCs expired by 31 December 1999. The fact that the legislation concerning the transfer of the authority and functions of the PMCs could not be introduced together with the District Councils Bill was simply because the Consultancy Report was still being finalised and the Administration had yet to study it in detail. He had earlier explained why the District Councils Bill needed to be enacted as early as possible in 1999.

10. Ms Emily LAU suggested that a bill repealing the existing Provisional Regional Council (PRC) Ordinance and the Provisional Urban Council (PUC) Ordinance should be introduced together with the District Councils Bill so that Members could indicate their position regarding the future of the MCs at an earlier stage. SCA agreed to consider Ms LAU's suggestion.

(Post-meeting note : The Administration's response was circulated to members vide LC Paper No.CB(2)744/98-99 on 27 November 1998.)

11. Miss Margaret NG said that as the functions and operation of the DCs to be formed would hinge on the future of the PMCs, it was illogical to introduce the District Councils Bill ahead of the legislation to provide for the transfer of the functions and authority of the PMCs. She further pointed out that the need for the District Councils Bill to be introduced and enacted early was becacuse the Bill, apart from making provisions for the establishment, functions and operation of the DCs, also provided for the electoral arrangements of the DCs. In her view, the functions and electoral arrangements of the DCs, being constitutional and technical issues respectively, could be dealt with by separate bills. The future of the MCs was an important constitutional matter which should not be dealt with in a hasty manner simply because of the imminent need for making electoral arrangements for the DCs. Regarding the transfer of functions of the existing MCs, Miss NG opined that there was no legal basis for such transfer to be effected unless the PRC Ordinance and PUC Ordinance were repealed.

12. Dr YEUNG Sum said that the issue under discussion involved significant changes to the representative system of government. He called upon members to put aside their personal views concerning the future of the MCs, and to consider the best approach for scrutinising the relevant legislation arising from the review of the district organisations. Dr YEUNG suggested that a subcommittee be set up by the Panel to study the Administration's proposals on the review and to conduct forums to solicit expert opinions in this respect. The Chairman said that the proposal could be considered at the next meeting when the Panel discussed the Consultancy Report.

13. Mr Ambrose CHEUNG Wing-sum reiterated his previous views concerning the approach adopted by the Administration in conducting the review. He cautioned that the way this review was conducted would set a bad precedent for future consultation exercises. In view of the Administration's comments about time constraints, he suggested that elections for the MCs and DCs could be conducted together with that for the LegCo in the year 2000. Apart from allowing more time for the Administration, the proposed timetable would synchronise the timing of elections of the representative institutions in future.

14. In response, SCA explained that although there had not been any white paper or green paper issued for the review of district organisations, the "Consultation Document" and the "Consultation Report" were essentially such kind of policy documents. He said that he and his colleagues had been attending various forums including radio phone-in programmes to explain to the public about the proposals on review of district organisations, to listen to the views of the public and to answer the public's questions and concerns. SCA further explained that there should not be any delay in the DC elections as the DBs were provisional in nature, and the District Councils Bill should be enacted before the terms of office of incumbent members expired by 31 December 1999.

15. The Chairman asked whether the Administration would consider introducing another bill on the establishment and electoral arrangements of the two MCs, in the eventuality that the bills repealing the PRC and PUC Ordinances could not be passed by the LegCo. SCA responded that he was confident that the necessary legislation would be passed by the LegCo. While plans would be in hand to deal with the situation mentioned by the Chairman, he said that it was inopportune to discuss the matter at this stage.

V. Relationship between the Hong Kong Special Administrative Region Government and the Central People's Government
(LC Paper No. CB(2)629/98-99(02))

16. The Chairman said that this item was discussed at the last meeting. In response to the points raised by members at the meeting, the Administration had prepared a paper for members' further discussion.

Xinhua News Agency (Hong Kong Branch)

17. Members noted that the Xinhua News Agency (Hong Kong Branch) (Xinhua) was one of the three "State" organs stationed in Hong Kong. In response to Ms Emily LAU, SCA said that contact between the HKSARG and the Xinhua were infrequent and on a one-off basis after the reunification. For example, the HKSARG provided VIP facilities and security protection to retired state leaders when they visited Hong Kong after the reunification. In further response to Ms LAU on the number of the visitors and the expenditure incurred by the HKSAR, SCA agreed to provide the information after the meeting.

(Post-meeting note : The Administration's reply was circulated to members vide LC Paper No.CB(2)761/98-99 on 30 November 1998.)

18. Mr LEE Wing-tat asked whether the Administration had a name list of the personnel of the three "State" organs, so that one could tell who were actually authorised to carry out the executive functions. SCA explained that there was no practical need for the Administration to have the information since the definition of "State" only applied to Mainland organisations which fulfilled the three conditions stipulated in Cap. 1, not personnel working in these organisations. In further response to Mr LEE, SCA said that it would be for the organisations or their personnel to provide proof if they claimed to satisfy the definition.

Chinese Communist Party in Hong Kong

19. Having noted the Administration's advice that the Chinese Communist Party (CCP) was not one of the "State" organs, some members expressed concern over the form of the CCP's existence, and its role in the HKSAR. Mr CHEUNG Man-kwong pointed out that if the CCP was operating as a lawful entity in Hong Kong, it had to be registered under the Societies Ordinance and the Companies Ordinance. He was concerned whether the Xinhua represented the CCP in Hong Kong, and if so, the exemption granted to Xinhua as a "State" organ under Cap.1 would be extended to the CCP.

20. SCA said that Members' concern on the subject had previously been expressed in the form of oral questions (on 19 April 1995) and motion debates (on 26 April 1995 and 3 May 1997). He had nothing to supplement the responses made by his predecessor on those occasions. There was no information on whether Xinhua was representing the CCP, nor was there any evidence of the CCP engaging in any open activities in Hong Kong. The need for the CCP to register under the relevant Ordinances therefore did not arise. He assured members that any organisations in the HKSAR had to be abide by the laws of the HKSAR under Article 22 of the Basic Law. In response to members, SCA said that he had not in the past made any enquiries of the Central People's Government about the role and existence of the CCP in the HKSAR, and would not do so in future as the subject matter was not considered to be directly related to the agenda item under discussion.

Definition of "Central Authorities"

21. Referring to paragraph 2(iii) of the Administration's paper, Miss Christine LOH asked the Administration to clarify the meaning of "Central Authorities", a term referred to in the last of the three conditions that a subordinate organ had to meet in order to be within the Cap. 1 definition of "State", and whether the term included the CCP. SCA said that of the three conditions, the last one only came into play when it was necessary to decide whether the organisation concerned was acting within the scope of its delegated functions and authority. He supplemented that the term of "Central Authorities"was used in the Basic Law. Members were not satisfied with the reply and requested SCA to provide a definition on the term, to which he agreed to consider.

(Post-meeting note : The Administration's reply was circulated to members vide LC Paper No. CB(2)775/98-99) on 2 December 1998.)

VI. 1998/99 voter registration exercise
(LC Paper NO. CB(2)630/98-99(01))

22. At the invitation of the Chairman, Deputy Secretary for Constitutional Affairs (2) (DS for CA(2)) introduced the information paper. Members noted that a voter registration (VR) exercise would be conducted in mid-December 1998 to January 1999 to register new electors and update electors' information on the general electoral roll. A series of publicity activities would be conducted during that period.

23. In response to Mr Howard YOUNG's question on whether those who had applied for voter registration after the deadline in the last VR exercise would automatically be included into the 1999 electoral roll, DS for CA(2) replied in the affirmative. He explained that a person could apply for registration as a new elector any time throughout the year. However, one had to register as an elector before 16 January 1999 in order to be included in the final register to be published in March 1999 which would form the basis for the compilation of voter registers for the District Council elections to be held in late 1999. Another VR exercise would be conducted in 2000 for the 2000 LegCo election.

24. On the understanding that the VR exercise would target mainly at young people, i.e. those in the age group of 18-24, a few members suggested that publicity and the actual registration could be done through secondary schools, tertiary educational institutions, technical colleges and vocational training councils, etc. DS for CA(2) advised members that relevant arrangements had been made for publicity activities to be launched and temporary registration centres would be set up in various tertiary educational institutions. In response to Ms Emily LAU on the expenditure involved, DS for CA(2) said that about $12 million would be spent on this VR exercise.

25. Mr SZETO Wah asked for information on the registration rate of young people at the age group of 18 to 24. DS for CA(2) responded that the Home Affairs Bureau had published a Report entitled "Opinion Survey on Voting Behaviour in 1998". He would provide the relevant information after the meeting.

(Post-meeting note : The information provided by the Administration was circulated to members vide LC Paper No.CB(2)793/98-99 on 3 December 1998.)

VII. Hon Christine LOH's paper entitled "An open process for community discussion - Background paper on constitutional conventions"
(LC Paper No. CB(2)301/98-99(01))

26. In view of time constraints, the Chairman suggested and members agreed that an in-house discussion of this item be deferred to the next meeting.

27. In response to the Chairman on the the two outstanding items proposed to be discussed by the Panel i.e. "Direct elections" and "Ministerial system of Government" which were related to Miss LOH's proposal, SCA advised members that the Administration had been gathering information on the different systems of Government through various sources including overseas Economic and Trade Offices, the internet and consulates in Hong Kong. The next step would be to study and analyse the information collected. He explained that as the Constitutional Affairs Bureau was heavily engaged in other more pressing issues such as arrangements for the 2000 LegCo election, it would not be possible for further discussion on these topics and a detailed discussion paper to be prepared for the Panel before the completion of the LegCo election to be held in 2000.Adm

III. Any other business

Meeting dates for January - March 1999

28. Members agreed that the regular meeting of the Panel for the months from January to March 1999 would be held on the following dates -

Monday, 18 January 1999

Tuesday, 9 February 1999

Monday, 15 March 1999

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

Legislative Council Secretariat
18 December 1998