LC Paper No. CB(2)182/98-99
(These minutes have been seen
by the Administration)

Ref : CB2/PL/CA

Legislative Council
Panel on Constitutional Affairs

Minutes of meeting
held on Monday, 20 July 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 Martin LEE Chu-ming, SC, JP
Hon Margaret NG
Hon Ronald ARCULLI, JP
Hon CHEUNG Man-kwong
Hon Ambrose CHEUNG Wing-sum, JP
Hon Christine LOH
Hon Howard YOUNG, JP
Dr Hon YEUNG Sum
Hon Ambrose LAU Hon-chuen, JP

Members Absent :

Hon Gary CHENG Kai-nam
Hon Jasper TSANG Yok-sing, JP
Hon CHIM Pui-chung

Members Attending :

Hon Cyd HO Sau-lan
Hon Fred LI Wah-ming
Hon Bernard CHAN
Hon Mrs Sophie LEUNG LAU Yau-fun, JP

Public Officers Attending :

Mr Michael SUEN M Y, JP
Secretary for Constitutional Affairs

Mr Patrick HO
Deputy Secretary for Constitutional Affairs (2) (Acting)

Mrs Maureen CHAN
Deputy secretary for Constitutional Affairs (3)

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

Principal Assistant Secretary for Constitutional Affairs (6)

Clerk in Attendance :

Mrs Percy MA
Chief Assistant Secretary (2)3

Staff in Attendance :

Mr Paul WOO
Senior Assistant Secretary (2)3

I. Items for discussion at the next and subsequent meetings
(LC Paper No. CB(2)65/98-99(01))

Members agreed that the next meeting of the Panel would be held on 21 September 1998 at 2:30 pm to discuss the following issues:

  1. Adaptation of the Legislative Council (Powers and Privileges) Ordinance, the Legislative Council Commission Ordinance and the Private Bills Ordinance;

  2. Review of district organisations (continued discussion on agenda item II of this meeting); and

  3. Review of the 1998 Legislative Council election (continued discussion on agenda item III of this meeting).

2. The meeting also agreed that the following items should be discussed at a future meeting of the Panel: Adm

  1. Relationship between the Hong Kong Special Administrative Region (HKSAR) Government and the People's Republic of China (PRC) Government

    The item was proposed by Miss Margaret NG. Members agreed that the Administration would be requested to brief members on the relationship between the HKSAR Government and the PRC Government and the practical arrangements to implement the principle of "a high degree of autonomy" in the HKSAR.

  2. Direct elections of Legislative Council (LegCo) Members and the Chief Executive

    Referring to the Administration's stance on the proposal of setting up a constitutional convention when the motion debate calling for the adoption of universal suffrage for the next Legislative Council in 2000 and the Chief Executive in 2002 was held on 15 July 1998, Miss Christine LOH said that the Panel might wish to follow up the matter. To facilitate discussion on the subject, a research might need to be done to learn from the experiences of other countries in conducting constitutional conventions on democratic reforms. The Panel might also wish to consider holding meetings to receive public views on the pace of democratisation.

    After discussion, the meeting agreed that the Administration should be requested to provide a paper in due course to explain, among other things, how it would determine the timeframe for the progress of democratisation.

  3. Ministerial system of government

    The Chairman proposed the item for discussion by the Panel. Mr Martin LEE opined that the Administration should advise the Panel as soon as possible of its view on the desirability of implementing a ministerial system of government in the HKSAR. Secretary for Constitutional Affairs (S for CA) replied that in view of the complexity of the matter, it would not be possible for the Administration to come to any views on the matter within a short period of time. He undertook to revert to the Panel in due course.

  4. Adaptation of laws

    The meeting noted that a review by the Administration of the 17 ordinances which were binding on the SAR Government but not on relevant PRC subordinate organs would be completed in August and the Administration would give an updated progress report on the matter at the next meeting of the Panel on Administration of Justice and Legal Services to be held on 15 September 1998.

The Chairman asked S for CA to relay the message for the attention of the Director of Administration and the Secretary for Justice that members would wish to be informed of the latest position regarding the overall adaptation of laws exercise.Adm

II. Review of district organisations
(LC Paper No. CB(2)65/98-99(02))

Public consultation

3. S for CA briefed members on the progress of the public consultation since the Consultation Document on Review of District Organisations was published on 1 June 1998. He informed members that as at 18 July 1998, about 200 written submissions had been received, of which about half supported dissolving the two Municipal Councils (MCs). About 20% of the submissions were in favour of an amalgamation of the two MCs into one. 15% opted for merging the Councils with the District Boards to form a number of regional bodies. Another 10% preferred maintaining the status quo and the rest offered no comments. He advised that it was too early at this stage for any mainstream opinion to be formed as most of the respondents had failed to provide concrete reasons for their preferences. For those in favour of the option to merge the MCs, they were divided on the proposal for the Government to take over responsibility for food safety and environmental hygiene from the MCs. There were also divided views on the timing for implementing the proposals. S for CA said that apart from submissions on the Consultation Document, the Government would continue to solicit feedback through meetings with political parties and holding of public forums on the subject, and views collected on or before 31 July 1998 would be taken into account in finalising the Government's proposals which would be announced when the Chief Executive delivered his Policy Address in October.

4. Mr Ambrose CHEUNG Wing-sum said that the Administration had flawed in its approach to seek public opinion on the Consultation Document. He made the following comments -

  1. The Administration had been trying to influence the public towards accepting the Government's proposals through releasing information about opinions in support of the Government before the consultation exercise came to an end. However, such views and opinions were apparently of a fragmented nature not supported by sound arguments or proof. Moreover, public views collected through other channels, for example, opinion surveys conducted by political parties such as the Democratic Party and the Democratic Alliance for the Betterment of Hong Kong respectively, had not been given due weight and reflected in the Administration's paper prepared for this meeting. Mr CHEUNG pointed out that the results of these two surveys seemed to contradict with the Administration's findings. The former showed that over 70% of the respondents were of the opinion that responsibility for food safety and environmental hygiene should continue to be carried out by the MCs, while in the latter survey more than half of the people were against dissolution of the MCs;

  2. The Government's proposal that it should assume the responsibility for food safety and environmental hygiene currently undertaken by the MCs reflected its preconceived position on the review of district orgainsations. This was considered inappropriate; and

  3. The review of district organisations involved both complicated administrative and constitutional implications. The consultation period, which only lasted for two months, was not adequate to allow full and thorough gauging of public opinion on the subject.

5. In response, S for CA explained that the inclination of the Government towards centralising the management of food safety and environmental hygiene was in fact to address public concern about the need for these functions to be carried out on a territory-wide basis under a consistent policy. The Administration was of the view that there was merit to bring them under one dedicated authority to improve policy co-ordination and efficiency. The options proposed in the Consultation Document were therefore promulgated on the basis that such changes to the roles and functions of the MCs would be adopted. S for CA added that the public consultation was not done in haste. The decision to review the structure of district organisations was announced by the Chief Executive in his last Policy Address and it had taken nine to 10 months to come up with the Consultation Document. He said that the review should not be viewed from the constitutional perspective alone, as district organisations were not organs of political power. S for CA stressed that the Administration was keeping an open mind on the final outcome of the consultation and he assured members that views collected from all relevant quarters would be fully taken into account.

6. Some members shared the view that the Government having set its mind on taking over the functions of food safety and environmental hygiene would not hold a fair and objective attitude on the review, the ultimate purpose of which was to serve the best interest of the community. Ms Emily LAU queried why such functions were to be taken over from the two MCs which, being organisations representative of the local community, provided a channel for public participation in district affairs. She asked whether the proposed transfer of functions resulted from the inability of the MCs to discharge their roles satisfactorily. Dr YEUNG Sum opined that the Government had failed to provide sufficient justification for its proposal to manage the functions of food safety and environmental hygiene centrally. He pointed out that to do so would be a retrograde step against the trend of a streamlined government structure, under which certain services originally provided by the Government were allowed to be privatised or decentralised to other public bodies or statutory organisations.

7. S for CA responded that the crux of the review was not fault-finding but how a restructuring of district organisations would improve policy formulation and implementation. He said that the Government was particularly concerned about the problem of fragmentation of responsibilities in food safety and environmental hygiene between the MCs and the relevant Government departments and policy bureaux, and the recent spate of incidents relating to food safety had highlighted the need to address the problem. The Government believed that to bring the responsibility for food safety and environmental hygiene under one authority would achieve better co-ordination in these areas of responsibility and enhance the ability to respond to emergency situations.

8. Referring to the question of representative government, S for CA said that with the development towards a wholly-elected LegCo, the importance of the MCs' role as a channel for political participation had diminished. The LegCo had become the focus for the development of representative government at a higher level and the District Boards were better placed to deal with district needs and reflect local opinion. The proposal to centralise the functions of food safety and environmental hygiene would enhance the LegCo's role in monitoring the implementation of policy relating to those matters and therefore achieve better accountability and transparency of government.

9. Concerning arguments for a streamlined structure, S for CA explained that the proposals for restructuring the district organisations had the effect of simplifying the existing structure. Under current policy, certain municipal services were tendered out to private contractors, a recent example being the management of public toilets. S for CA advised members that this practice of hiving off services might become more common in the future.

10. Miss Margaret NG opined that the Consultation Document involved two separate and distinct issues: constitutional and functional changes to the district organisations. Miss NG said that she would oppose to any proposal for reorganisation which ran counter to the pace of democratisation, such as the proposals to dissolve the two MCs or to amalgamate them into one. Referring to para. 3 of the Administration's paper (LC Paper No. CB(2)65/98-99(02)), Miss NG said that the Government should provide more information on how the problem of fragmentation of responsibilities in food safety and environmental hygiene between the MCs and the relevant Government agencies had hampered policy co-ordination, efficiency and application of consistent health standards, in order to enable the public to judge for themselves whether the current structure and composition of the MCs warranted a change. She also asked whether the Government had conducted a review of the recent incidents involving food safety, such as the avian flu crisis, to determine if there were coordination problems between the MCs and the Government departments in handling the incidents, and if so, how the problems were related to the existing structure of the MCs. Echoing Miss NG's first point, Miss Christine LOH considered that the Administration should carry out two separate consultation exercises, one on the structure of the district organisations and the other on the roles and functions performed by the MCs.

11. In response, S for CA said that Articles 97 and 98 allowed the SAR flexibility in deciding the details of the formation of district organisations, including their structure and composition, within the realm of Article 97. The present arrangements for review were in accordance with the requirements of the Basic Law. With regard to the food safety problems such as the avian flu incident, he advised that the Administration had not conducted any review on the matter. He stressed that there was nothing to suggest that there was mishandling on the part of the two MCs. The focal point was that the fragmentation of responsibilities between the MCs and the various Government agencies had caused undesirable anamolies which called for a review of the existing structure. In this regard, the Government was taking a step by step approach. The first and foremost task at this stage was for the Government to decide, on the basis of the public consultation, on the general direction as to how a reorganisation should proceed. Details relating to the redefined functions and responsibilities of the Government and district organisations as a result of the reorganisation would become the subject of the next stage in the review to be carried out shortly.

12. In further response to Miss Margaret NG's request for a paper setting out the problem of fragmentation of responsibilities between the MCs and the relevant Government agencies and how the current system hampered policy co-ordination and implementation in these areas, S for CA agreed to refer the request to the appropriate bureaux for consideration and follow-up. Adm

13. In reply to Mr LI Wah-ming's question on the rationale for the Government's proposal to take over the environmental hygiene functions, in addition to the food safety functions, S for CA said that in view of the wide scope of such functions and pending the outcome of the consultation exercise, a decision had yet to be taken on whether and how food safety and environmental hygiene functions should be redelineated.

14. Ms Emily LAU considered that without knowledge of details of the division of responsibilities between the Government and district organisations following the proposed transfer of functions relating to food safety and environmental hygiene to the Government, it would be difficult to convince the public that such a restructuring was necessary.

15. The Chairman expressed the view that the Government, with its preconceived idea to assume responsibility for food safety and environmental hygiene under a Government agency, had not offered sufficient options for the community to consider as to how the functions of the MCs should best be performed. He quoted a number of possible options. He said that even if the Government would assume the authority for policy formulation in those areas of responsibility, the MCs could be retained and allowed to play a monitoring role. The Government could also consider setting up a specialised non-government agency along the line of a Food and Drug Administration of the United States to manage the functions centrally. The Government might even consider increasing the powers of the MCs so as to fully equip them to discharge their existing functions more satisfactorily. Commenting along a similar line of argument, Mr Howard YOUNG said that a restructured organisation, such as an amalgamated Council with better co-ordination and enhanced powers, might be a more competent authority than a Government department to discharge such duties.

16. S for CA replied that in view of the complexity of a reorganisation, the Government was still examining various possible options. He reiterated that an in-depth functional review to consider the division of responsibilities between the Government and district organisations would be conducted after the current structural review. As to the question of widening the power of the MCs, S for CA remarked that the majority of public views seemed to be not in favour of the idea.

Appointed vs directly elected membership of district organisations

17. Some members commented that all appointed and ex-officio seats of district organisations should be deleted. Mr Martin LEE said that he could not agree with the view quoted in the Consultation Document that an appropriate proportion of appointed seats should be maintained because appointed members were able to contribute relevant expertise and experience to the work of district organisations. He said that elected members and people with the relevant expertise and experience were not mutually exclusive.

18. S for CA said that there were divergent public views on this issue. The Administration had not taken a position, pending the outcome of the public consultation exercise.

Summarised views and the way forward

19. Members' views on the proposed review of district organisations were summarised as follows -

  1. The need to improve co-ordination between the policy bureaux and Government departments and the MCs did not necessarily have to result in a dissolution or amalgamation/merger of the MCs. The Government had to provide sufficient reasons and justifications for these proposals;

  2. The absence of sufficient facts and findings to support the need for a structural reorganization, the Government's predetermined idea about the future structure of the MCs, the limited number of options proposed as well as the short period for public comment etc., had cast doubt on whether the Government was intent on undertaking a genuine consultation on the review;

  3. Because of the complexity of the issues involved in the review, the Government should be careful not to rush through any decisions. The Government was accountable to the public as to how public opinion had come into play in the Government's final decision on the review, and any eventual changes to the structure of district organisations should be made in the best interest of the community;

  4. The Administration should consider Members' views carefully as implementation of any changes to the functions and structure of district organisations, in the form of amendments to existing legislation or new legislation, would require approval of the LegCo. In this connection, a motion debate on the review of district organisations would be held in LegCo on 29 July 1998. Depending on the views expressed by Members, it might be necessary for the Administration to modify its stance on the matter and the timeframe for implementing any changes; and

  5. Finally, the future development of district organisations should progress, among other things, on the basis of a streamlined structure and without retrogression in democratisation.

20. S for CA assured members that the options set out in the Consultation Document were by no means exhaustive. The Administration would analyse and collate all the views received during the consultation period. In making a decision on the future structure of district organisations, the Administration would take into account the fact that elections to district organisations would have to be held before the end of 1999. S for CA agreed to brief the Panel on the progress of the review at the next meeting to be held on 21 September 1998.

III. Review of the 1998 Legislative Council election
(LC Paper No. CB(2)65/98-99(03))

21. S for CA informed the meeting that the Electoral Affairs Commission (the Commission) was conducting a post-election review of the May 1998 Legislative Council election. The Registration and Electoral Office had issued questionnaires to all the relevant parties to solicit their views on the electoral arrangements. In the meantime, the relevant Government bureaux and departments were reviewing the various practical aspects and would pass on their views and suggestions to the Commission for its consideration. As required by law, the Commission had to submit a report on matters relating to the election to the Chief Executive within three months after the election, i.e. on or before 24 August 1998.

22. The meeting agreed that the Panel should discuss the subject at the next meeting in September after the report of the Commission had been submitted to the Chief Executive.

23. To facilitate discussion on the subject, Miss Christine LOH said that the Citizens Party had prepared a paper on "Review of the 1998 LegCo Election - Environmental Aspects of Election Campaigning".

(Post-meeting note: The paper was circulated to all LegCo Members vide LC Paper No. CB(2)80/98-99 dated 21 July 1998 and sent to the Administration for consideration.)

24. There being no other business, the meeting ended at 4:50 pm.

Legislative Council Secretariat
19 August 1998