LC Paper No. CB(2)1273/98-99
(These minutes have been seen
by the Administration)

Ref : CB2/PL/CA

Legislative Council
Panel on Constitutional Affairs

Minutes of meeting
held on Monday, 18 January 1999 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 Martin LEE Chu-ming, SC, JP
Hon Margaret NG
Hon Ronald ARCULLI, JP
Hon CHEUNG Man-kwong
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

Member Absent :

Hon Ambrose CHEUNG Wing-sum, JP

Member Attending :

Hon LEUNG Yiu-chung

Public Officers Attending :

Items II & III

Mr Michael SUEN, JP
Secretary for Constitutional Affairs

Mr Clement MAK
Deputy Secretary for Constitutional Affairs (1)

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

Item IV

Mr Michael SUEN, JP
Secretary for Constitutional Affairs

Mr Robin IP
Deputy Secretary for Constitutional Affairs (2)

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

Clerk in Attendance :

Mrs Percy MA
Chief Assistant Secretary (2)3

Staff in Attendance :

Mr Jimmy MA
Legal Adviser

Ms Mariana LEUNG
Senior Assistant Secretary (2)7

I. 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))

The Chairman recapped previous discussion on this item at the Panel meeting on 19 October 1998. He said that the Administration was of the view that the blueprint for constitutional development in Hong Kong should follow the Basic Law and that it did not consider the establishment of a constitutional convention the only way for the public to give views on the subject. The Chairman invited suggestions from members as to how the matter should be taken forward. The Chairman added that the process of involving the community in discussion of important issues in an open and organised manner as advocated by Miss LOH would be adopted by the Subcommittee on mechanism for amending the Basic Law.

2. Miss Christine LOH said that the ideal way was for the Government to take the initiative to establish a constitutional convention for discussion of complex constitutional issues and involve the Legislature which consisted of the people's representatives in the process. Noting that the Administration would not take the lead in the matter, she considered it appropriate for the Panel to take on the task. The Chairman suggested that the matter be dealt with at a later stage. Miss LOH agreed.

3. Ms Emily LAU suggested that delegates from the countries quoted in Miss LOH's paper (e.g. South Africa, Taiwan and Australia) be invited to discuss their experience of holding consitutional conventions with the Panel at some suitable time in the future.

4. The Chairman asked whether the Research and Library Services Division should be asked to conduct a research on the mechanism of overseas countries amending their constitutions. Miss Christine LOH said that as valuable information and views could be gathered during the process of public consultation, research work could be considered at a later stage. The Chairman suggested that as a first step, the Secretariat could compile a list of relevant countries, so that consulates of these countries could be contacted for more information when the need arose. Clerk

II. Mechanism for amending the Basic Law

5. Taking into account the anticipated workload of the Panel in the foreseeable future as well as the overlapping membership of the Panel and the Subcommittee set up to study the mechanism for amending the Basic Law, members agreed that the Subcommittee should be dissolved and that the subject should be taken over by the Panel.

6. The Chairman gave a verbal report on the decisions made at the Subcommittee's meeting on 7 January 1999 and their progress. He said that the Subcommittee had agreed that, as a first step, the public would be invited to send/present their views to the Subcommittee. Moreover, members of the Subcommittee could suggest specific persons/groups to be invited to give their views on the matter. The issues proposed by the Administration for detailed study should form the basis for public consultation (paragraph 3 of the Administration's paper issued vide LC Paper No. CB(2)954/98-99(02) refers). Members of the Subcommittee could propose additional issues for public consultation. Upon finalisation of the list of issues for consultation, an advertisement would be placed in local newspapers. The recommended deadline for written submissions was 28 February 1999.(Post-meeting note: An advertisement inviting written submissions was placed in Ming Pao Daily News and South China Morning Post respectively on 21 January 1999)

7. On persons/groups to be invited to give views to the Subcommittee, the Chairman referred members to the name list suggested by Mr LEUNG Yiu-chung and Mr Howard YOUNG tabled at the meeting. Members agreed that invitation letters would be issued by the Secretariat on behalf of the Panel. The Chairman reminded members to advise the Clerk as soon as possible if they would like to propose additional names. Clerk

8. On additional issues for public consultation, the Chairman said that Mr LEUNG Yiu-chung had proposed to include the mechanism for consulting Hong Kong people on an amendment to the Basic Law (BL) proposed by the Standing Committee of the National People's Congress (NPCSC) and the State Council. The wording of his proposal was tabled at the meeting.

9. Mr LEUNG Yiu-chung explained that according to Article 159 of the BL, the power to propose bills for amendments to the BL was vested in the NPCSC, the State Council and the HKSAR. In addition, the Committee for the Basic Law of the HKSAR would study a bill for amendment and submit its views. He said that it was important for Hong Kong people to be consulted on any proposed amendment relating to Hong Kong affairs.

10. The Chairman was of the view that while the issue raised by Mr LEUNG was an important one, it was not urgent. It would appear to be a separate matter not related to the study being conducted which was confined to amendments to the BL from the HKSAR. Mr Howard YOUNG said that it might not be appropriate for Members to discuss the amendment mechanism of the NPCSC and the State Council. The Chairman clarified that Mr LEUNG's proposal was only confined to whether Hong Kong people should be consulted on any amendment proposal to the BL, not the amendment mechanism per se. Miss Margaret NG was of the view that the mechanism for implementation of BL 159 should be worked out as far as possible and should not be delayed until a real problem arose. She also pointed out that although the NPCSC would have its own set of procedures in proposing amendments to the BL and was vested with the power for interpretation of the BL, consultation with Hong Kong people would be desirable as any proposed amendment to the BL would concern Hong Kong people.

11. Ms Emily LAU, Miss Christine LOH and Miss Margaret NG said that the opportunity should be taken to consult the public on Mr LEUNG's proposal. Members agreed that the proposal would be included in the list of issues for public consultation.

12. Members further agreed that a four-hour time slot (2:30 pm - 6:30 pm) on three consecutive Mondays on 15, 22 and 29 March 1999 be reserved for holding special Panel meetings for the purpose of receiving public views.

13. Mr Martin LEE pointed out that the Chief Executive (CE) should be invited to give views on the subject to the Panel as he was one of the three parties concerned. The Chairman said that he would write to invite the CE to attend meetings of the Panel.

    (Post-meeting note : A copy of the Chairman's letter to the CE has been circulated to members vide LC Paper No. CB(2)1164/98-99.)

14. The Chairman referred members to the Administration's reply to the Subcommittee's request for a timetable of its study on the matter. He said that the Administration had replied that in view of the complexity of the matter, it would not be able to come up with a timetable at this stage. Mr LEUNG Yiu-chung said that the Administration should aim at working out with the relevant parties concerned a mechanism for amending the Basic Law as soon as possible. He could only proceed with his resolution to amend Article 74 and Annex II of the BL when such a mechanism was in place. To facilitate members' discussion and consideration, the Administration should present some concrete proposals on the various issues identified. Dr YEUNG Sum opined that the Administration should provide a timetable on its study for members' reference. Ms Emily LAU said that the Administration should be in a position to provide such a timetable by mid April 1999, after studying the public views gathered in March 1999.

15. SCA said that the public hearings to be conducted by the Panel would help to gauge the public's thinking on the various issues involved. The Administration would like to study the views recevied by the Panel before it began to formulate its proposals. He advised members of the work so far undertaken by the Constitutional Affairs Bureau (CAB). Firstly, the CAB had requested the Department of Justice to study the procedures of constitutional amendment in overseas countries for reference. Secondly, the CAB had also raised the issue with the Hong Kong and Macao Affairs Office (HKMAO) regarding how local deputies to the NPC were to fulfill their constitutional responsibilities under BL 159. The Administration would brief members on the progress of the discussion. SCA assured members that the Administration was aware of the urgency of the matter. However, he could not say at this stage whether a timetable could be provided in April as requested.

16. In response to Mr Ronald ARCULLI's question of whether Government departments other than the Department of Justice would be involved in the matter, SCA said that the CAB would act as a co-ordinator among the relevant bureaux and departments. In addition, it was necessary to report the progress of the matter to the Executive Council and to consult it where necessary.

III. Items for discussion at the next meeting
(LC Paper No. CB(2)1056/98-99(01))

"Direct elections" and "Ministerial system of government"

17. The Chairman referred members to the two items on the outstanding list, i.e. "Direct elections" and "Ministerial system of government" and said that the Administration had advised at previous meetings that it would be impossible for a detailed discussion paper to be prepared on the subjects for consideration of the Panel before the completion of the 2000 LegCo election. The Chairman said that the CE had openly stated that it was not the opportune time to adopt a ministerial system of government, and asked whether SCA could explain why CE had made such a statement. In his view, implementation of a ministerial system of government would not contravene the Basic Law.

18. SCA said that he was not in a position to elaborate on the CE's statement. However, whether implementation of a ministerial system of government would contravene the Basic Law would be a separate issue which could be discussed. In response to the Chairman's request, SCA said that the Administration would not be able to produce a paper on the subject for discussion at the next Panel meeting to be held on 9 February 1999.

19. Mr SZETO Wah asked whether it was the intention of the Administration to consider the subject only when the composition of the second term LegCo was known. SCA said that there was no correlation between the composition of the LegCo and the implementation of a ministerial system of government. He explained that the CAB was at present engaged in other more pressing issues like the arrangements for the 1999 District Councils election and the 2000 LegCo election and because of manpower constraints, it would not be able to provide a detailed discussion paper on the subject before the 2000 LegCo election.

20. Dr YEUNG Sum did not agree with SCA's advice that the subject could only be discussed after the 2000 LegCo election. He said that discussion on the subject should start as soon as possible. While he was aware that there were different views on the timing for implementing a ministerial system of government, it was the view of the Democratic Party that direct elections and ministerial system of government should be implemented as a package. Mr LEUNG Yiu-chung suggested that to start off, the Administration could provide a list of issues which required study for the consideration of the Panel, similar to the approach adopted for the subject of the mechanism for amending the Basic Law. Ms Emily LAU agreed that discussion should commence as soon as possible so that adequate time was available for arrangements for any possible change of political system in 2007.

21. SCA said that while he appreciated that many people regarded the adoption of a ministerial system of government would be conducive to improving the relationship between the Executive and the Legislature, he pointed out that the Government had been operating well under the current system, and problems in the governance of Hong Kong might arise only if a majority party emerged after universal suffrage had taken place. The Administration therefore did not consider the issue of ministerial system of government as a matter of urgency. Taking into account the fact that the Basic Law had made provisions for reviewing the composition of the LegCo after 2007, SCA said that to start discussion on the subject in the year 2000 was considered appropriate. Furthermore, any change in the form of government was an important issue with far-reaching implications and should therefore be considered carefully.

22. The Chairman said that it would appear that the Administration would only consider implementing a ministerial system of government when there was universal suffrage. Mr Martin LEE remarked that the Administration did not make any pledge on the timing of universal suffrage and only wanted to delay the matter.

23. SCA responded that he could not agree with comments that the Administration had been delaying the matter or obstructing the pace of democratic development. On the contrary, the Administration would adhere to the blueprint for the future development of the political system of the HKSAR as outlined in the Basic Law. He said that BL 68 stipulated that the ultimate aim was the election of all LegCo Members by universal suffrage, and Annex II of the Basic Law provided for the mechanism for proposing amendments to the method of forming the LegCo and its voting procedures after 2007. He assured members that, as he had indicated in his speech made at the motion debate held on 15 July 1998, insofar as the issue of direct elections was concerned, the CAB "was obliged to take up its responsibilities" and would "definitely undertake various relevant analysis and studies". The CAB had since 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.

24. In response to Ms Emily LAU's request for a timetable on the work to be undertaken by the CAB on the subject between now and 2007, SCA said that he could not commit himself on what would be done in a number of years' time, especially after the year of 2004 by which time he would reach retirement age.

25. Ms Emily LAU found SCA's reply totally unacceptable. She said that the retirement of SCA in 2004 was irrelevant as the Government as a whole was still in operation. She expressed strong dissatisfaction over the Administration's unwillingness to have early discussion on direct elections and to provide members with a working timetable on the matter. Mr Martin LEE echoed her view.

26. Dr YEUNG Sum said that Members were concerned about the Government's committment in democratic development in the light of the CE's stance on the abolition of the two Municipal Councils and the retention of appointed seats in the District Councils. SCA said that BL 68 had clearly provided that the ultimate aim was the election of all LegCo Members by universal suffrage and that the CE was responsible for the implementation of the Basic Law under BL 48. Mr Martin LEE expressed concern about the word "ultimate" which did not specify any timeframe.

27. SCA explained that the Administration could only provide a discussion paper for the Panel after a comprehensive analysis of the information collected. The Administration had to consider among other things what system would be relevant to the situation of Hong Kong and whether any particular system would contravene the provisions of the Basic Law.

28. In view of the Administration's position, the Chairman undertook to prepare a paper on "Ministerial system of government" for members' discussion. He invited the Administration to join the Panel's discussion when the paper was ready. He said that the subject of "Direct elections" could be discussed at a later stage. He asked the Administration to consider providing a timetable on the progress of its work on the two issues to the Panel . Ms Emily LAU suggested that public hearings could be conducted sometime in the foreseeable future with a view to gathering the public's views on direct elections, especially the views of the commercial sector. Chm


Items proposed by members

29. The Chairman asked whether members would propose any discussion item for the next meeting. Ms Emily LAU proposed that the subject of "Application of the Prevention of Bribery Ordinance (Cap 201) to the Chief Executive" be discussed. She said that she had raised a written LegCo question on the subject at the Council meeting on 13 January 1999. The Chief Secretary for Administration had replied on behalf of the Administration. In response to Ms LAU, SCA agreed to co-ordinate response on the subject within the Administration. Adm

Press report of SCMP on 11 January 1999

30. Ms Emily LAU sought clarification from SCA on a local press report which reported that SCA had referred to the Democratic Party as an "extreme minority"during a meeting with a US congressional delegation.

31. SCA said that he was pleased to be given the opportunity to clarify the matter. He denied that he had referred to the Democratic Party as an "extreme minority"at the meeting. He said that at the request of three staffers from the Foreign Relations Committee of the US Senate, he had a meeting with them during which various issues were discussed. In response to a question on how many people in Hong Kong had expressed the wish that the pace of democracy should be expedited, he had replied that he did not feel that democracy was the major concern of the public given the present economic situation. In answering the question he had quoted findings of a bi-monthly opinion survey on major issues of public concern conducted by the Home Affairs Department. He had stated that the subject of democratic development was only raised by an extreme small percentage of the respondents, i.e. around three to five percent. In fact, the subject was not even raised in the July/August 1998 survey. He had also mentioned that the University of Hong Kong had conducted surveys on democratic development on a half-yearly basis. The percentage of respondents expressing concern on the subject had dropped from some 10 to 20 percent before the handover to about two to three percent recently. SCA said that as to how his answers had been misinterpreted and further reported by one newspaper, he could not provide any explanation except that he did confirm with the American Consulate that no official statement had ever been issued or was intended to be issued by the latter for that particular meeting.

32. The Chairman commented that the paradox of the issue was that the conclusion that the pace of democracy was not the major concern of Hong Kong people was in fact arrived at by means of a democratic process.

33. Ms Emily LAU questioned whether it was appropriate and responsible for SCA to give a response on the pace of democracy to the international community on the basis of the surveys referred to. As the objective of these surveys was not to gauge the public views on democratic development specifically, a proper survey with specific questions should be conducted on the matter instead. Mr Martin LEE said that a poll on the subject had been conducted on 24 May 1998. Majority of the respondents had indicated that the elections of the CE and the LegCo should be by universal suffrage as soon as possible, i.e. the next term. He queried why SCA had not made reference to the result of this poll in his reply given to the delegation.

34. SCA said that in reply to the delegates, he had merely quoted the factual information at hand. In fact, the meeting was arranged at the request of the delegation and he was only one of the parties with whom the delegation had met and exchanged views during their visit in Hong Kong. There was no question of him trying to influence them on their thinking on certain issues.

IV. Relationship between the Executive and the Legislature

35. In view of time constraint, members agreed that discussion of the above item be deferred to the next meeting.

36. There being no other business, the meeting ended at 4:20 pm.

Legislative Council Secretariat
11 February 1999