LC Paper No. CB(2)2771/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/PL/CA

Legislative Council
Panel on Constitutional Affairs

Minutes of meeting
held on Monday, 21 June 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 LEE Wing-tat
Hon Martin LEE Chu-ming, SC, JP
Hon Ronald ARCULLI, JP
Hon CHEUNG Man-kwong
Hon Christine LOH
Hon Jasper TSANG Yok-sing, JP
Hon Howard YOUNG, JP
Dr Hon YEUNG Sum
Hon Ambrose LAU Hon-chuen, JP

Members Absent :

Hon Margaret NG
Hon Gary CHENG Kai-nam
Hon Ambrose CHEUNG Wing-sum, JP

Member Attending :

Hon Albert HO Chun-yan

Public Officers Attending :

Item IV

Mr Robin IP
Deputy Secretary for Constitutional Affairs (2)

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

Mr LI Wing
Chief Electoral Officer, Registration and Electoral Office

Item V

Mr Clement MAK
Acting Secretary for Constitutional Affairs

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

Mr Peter H H WONG
Senior Assistant Solictor General

Mr Philip TANG
Assistant Secretary for Constitutional Affairs

Clerk in Attendance :

Mrs Percy MA
Chief Assistant Secretary (2)3

Staff in Attendance :

Mr Jimmy MA
Legal Adviser

Mrs Eleanor CHOW
Senior Assistant Secretary (2)7

I. Confirmation of minutes of meeting on 19 April 1999
(LC Paper No. CB(2) 2308/98-99)

The minutes of the meeting on 19 April 1999 were confirmed.

II. Endorsement of draft report to the Panel on Constitutional Affairs to Legislative Council
(LC Paper No. CB(2) 2306/98-99(01))

2. Members endorsed the draft report which would be presented to the Council on 7 July 1999. Members noted that the report would be updated to incorporate major issues discussed at this meeting.

III. Items for discussion at the next meeting on 19 July 1999
(LC Paper No. CB(2) 2306/98-99(02))

3. Mr Martin LEE informed members that as reported by the press on 9 June 1999, the Secretary for Constitutional Affairs (SCA) had made remarks at an international conference that political parties in Hong Kong were not ready for democracy. He suggested and members agreed that SCA should be asked to clarify his remarks at the next meeting to be held on 19 July 1999. Adm

IV. Publicity strategy to promote the 1999 District Councils election
(LC Paper No. CB(2) 2306/98-99(03))

4. At the invitation of the Chairman, Deputy Secretary for Constitutional Affairs (DS for CA) introduced the paper which set out the proposed publicity strategy to promote the District Councils (DC) election of the Hong Kong Special Administrative Region (HKSAR) to be held on 28 November 1999. He showed members the new logo which would be used throughout the campaign. The design concept of the logo came from the Chinese word "區 ".

5. Mr Martin LEE asked whether the logo for the 1998 LegCo election would be adopted for the 2000 LegCo election. DS for CA replied that the Administration had yet to work out the publicity strategy for the 2000 LegCo election. However, it was noted that the logo used in the 1998 LegCo election was well received by the public.

6. Ms Emily LAU asked whether the fact that 25% of DC members would be appointed by the Government would be conveyed to the public during the compaign. She also asked about the voter turnout rate in the last DC election and the estimated voter turnout rate for the 1999 DC election. She also expressed concern about the adequacy of ballot papers supplied to the polling stations.

7. DS for CA and Chief Electoral Officer of the Registration and Electoral Office (CEO/REO) responded with the following points -

  1. As set out in the paper, the promotion campaigns would be carried out in three phases with each serving a different purpose. The first phase was to arouse awareness and interest of the public towards the DC election. The Administration would explain to the public the role, functions and composition of the DC, including the fact that the number of directly elected seats of DC would be increased to 390;

  2. The total number of voters in the 1994 DC election was 690 000, representing a turnout rate of 33%. However, it was difficult to estimate the turnout rate for the next election. In the past, the amount of ballot papers supplied to a polling station was based on 70% of the number of registered voters allocated to the polling station. As a small number of polling stations attracted a higher than 70% turnout rate in the 1998 LegCo election, this had resulted in a shortage of ballot papers. In the 1999 DC election, ballot papers of 100 % of the electorate coverage of each polling station would be available; and

  3. The content of the publicity activities would very much depend on the medium employed. For instance, the message carried by TV and radio APIs would be direct and simple, whereas that on print media could contain more detailed information.

8. Ms Emily LAU reiterated that the Administration must not mislead the public. In the series of publicity programmes to be orgainsed, reference should be made to both the number of appointed and elected members of DC. DS for CA undertook to consider her suggestion. Adm

9. At the request of the Chairman, CEO/REO passed around a sample ballot paper for members' perusal. He explained that an elector upon entering the polling station would be issued with a ballot paper and a chop with a tick. He should then proceed to one of the voting compartments where he would apply the chop to mark his ballot paper to indicate his choice of candidate in the circle printed next to the candidate's name.

10. In response to Mr Howard YOUNG and Dr YEUNG Sum, CEO/REO said that as long as the ballot paper was marked by the chop provided and the voter's intention was clear, the ballot paper would be regarded as valid, e.g. it did not matter how the tick was positioned inside the circle next to the candidate's name or more than one tick was applied to the same candidate. However, if the tick was placed in between the names of two candidates, the ballot paper would be invalid because the voter's intention was unclear. A hand-written tick would also render the ballot paper null and void. There would be clear guidelines for Returning Officers (RO) to follow. Principal Assistant Secretary for Constitutional Affairs (4) (PAS for CA (4)) supplemented that there would be large scale advertising campaigns including TV APIs to promote the use of the chop and to emphasise that a hand-written tick was unacceptable. Mock polling would also be held in districts to familiarise electors with the use of the chop.

11. Mr Martin LEE queried why a ballot paper marked with a hand-written tick was invalid. He said that if a chop was to be used at all, it should bear a "O" mark, rather than a "O" mark as a "O" mark was likely to be inverted. The Chairman asked whether the purpose of the new arrangement was to prevent vote buying. Mr CHEUNG Man-kwong said that vote buying would only be possible in a small circle election. If this was the Administration's concern, then the mandatory use of a chop should only apply to functional constituency and Election Committee elections. He felt strongly that for large scale geographical constituency elections, ballot papers marked by a hand-written tick which clearly indicated the choice of candidate should be accepted.

12. CEO/REO said that the Electoral Affairs Commission (EAC) had considered using symbols other than a tick, but had come to the view that the tick should be adopted as it had worked well in the past DC and LegCo elections. He said that past experience had shown that marking ballot papers by pen could produce different symbols. As the chop would only produce a tick, it would help reduce the number of questionable ballot papers. He said that if electors were allowed to mark the ballot paper by either a chop or a pen, it would cause even more confusion. In response to Ms Emily LAU, CEO/REO said that the EAC had not received any comments on the use of a chop during the public consultation, other than those made by some LegCo Members.

13. In response to the Chairman, CEO/REO replied that the relevant regulation to be made by the EAC would stipulate clearly that ballot papers were to be marked only by using the chop provided. It would also state that where the voter's intention was clear, the ballot paper was regarded as valid. The conditions under which ballot papers were regarded as invalid would be specified in the guidelines to be issued to Returning Officers.

14. Mr CHEUNG Man-kwong maintained that since the principle was to accept ballot papers with clear indication of the voter's intention, hand-written tick should not be rejected. CEO/REO advised that the EAC would like to have a uniform method of voting to reduce the number of disputes and questionable ballot papers. The ultimate objective was to facilitate counting of votes at individual polling stations in the long term.

15. Ms Emily LAU said that at one of the public forums conducted by the EAC, its chairman had mentioned that the purpose of introducing the use of chop was to standardise the method of voting and that voting by using a chop was also implemented in some other countries. Subject to a review of this new arrangement, consideration could be given to counting of votes at polling stations. While she supported the proposal in principle, she said that members were concerned whether the number of invalid votes would increase as a result of the use of a chop.

16. The Chairman pointed out that under the existing practice, ballot papers of two or more polling stations in a constituency should be mixed before counting. CEO/REO responded that although counting of votes would be conducted on a district basis for the 1999 DC election, the practice of mixing ballot papers would still be applied to constituencies having more than one polling station.

V. Mechanism for amending the Basic Law
(LC Papers Nos. CB(2) 2306/98-99(04), (05) and (06))

17. At the invitation of the Chairman, Acting Secretary for Constitutional Affairs (SCA(Ag)) briefed members on the procedures and timetable for devising the mechanism for amending the Basic Law as set out in paper (06). In gist, many of the steps and procedures for amending the Basic Law involved discussions with the Central authorities. The issues could not be resolved by Hong Kong alone. It was therefore not possible at this stage for the Administration to provide any concrete timetable for completing the whole process. However, at the request of the Panel, the Administration had tried to provide a rough estimate of the time required for some of the steps. He highlighted three points -

  1. The total time required for devising a mechanism for amending the Basic Law would depend on the progress of each and every step and procedure indicated in the paper;

  2. Many of the steps involved discussions with the Central authorities on matters relating to the Standing Committee of the National People's Congress (NPCSC), the State Council, the Committee for the Basic Law and the local NPC deputies. The HKSAR could not set a timetable for amending the Basic Law unilaterally; and

  3. Based on the preliminary rough estimate, it would take about 15 to 22 months for the HKSAR to complete the steps not involving the Central authorities. Excluding the time required for making local legislation which would take about six to nine months, the timetable was in fact very tight.

18. Senior Assistant Solicitor General (SASG) briefed members on the preliminary findings of the comparative study on the procedures for constitutional amendments in other countries as set out in paper (05). The five countries under study were USA, Australia, Malaysia, South Africa and Switzerland. The scope of the study covered: who might initiate an amendment; forms of amendment; sequence and time frame of deliberation; and special provisions. The next step was to study how these procedures for amending constitutional laws were implemented in these countries. Quoting Australia as an example, he said that it was required in law that a proposed amendment to the constitution should be submitted to and voted on by electors, but by convention the matter would not necessarily be put to electors if the two Houses of Parliament had passed the amendment. This illustrated that discrepancy might exist between constitutional provisions and the actual implementation. In sum, amendments to constitutional laws in these five countries involved complicated procedures to ensure that the constitution would not be amended lightly. Hong Kong had to work out a mechanism that was suitable to its circumstances and in conformity with Article 159 of the Basic Law.

19. The Chairman asked why the study only covered federal states and not unitary states such as Singapore or New Zealand. SASG explained that in selecting the five countries, the Administration had taken into account factors such as whether the countries practised common law, their history, the availability of constitutional documents and any unique features in their procedures for constitutional amendment. He further explained that since the constitutional system in Malaysia and Singapore was similar, it was not necessary to include Singapore in the study. The reason for making reference to Australia instead of New Zealand was because New Zealand did not have a written constitution.

20. Mr CHEUNG Man-kwong expressed concern over the timetable for amending the Basic Law. Given that the process for establishing a mechanism was estimated to take at least two years, it would mean that no amendment could be made to the Basic Law during the interim period. The only way to amend the Basic Law would be to seek an interpretation from the NPCSC under Article 158. Under the circumstances, Article 159 which provided for the amendment of Basic Law would be de facto repealed. He criticised the Administration for applying double standards and adopting different measures to suit its purpose, i.e. the Continental law system was adopted to implement Article 158, while the common law system which was relatively more stringent was adopted to implement Article 159.

21. SCA(Ag) said that the Administration shared the views of academics and the legal profession that amending the Basic Law was a serious matter, and it was necessary to adopt a prudent approach. The Chief Executive had already pledged that the Administration would seek an interpretation from the NPCSC only under the most exceptional circumstances. He disagreed that the Administration was applying double standards in dealing with Articles 158 and 159. He explained that legislative interpretation was not equivalent to legislative amendment. SASG supplemented that legislative interpretation must be faithful to the original legislative intent while legislative amendment could go beyond the legislative intent.

22. The Chairman asked what information had been passed to the Central authorities for consideration. SCA(Ag) responded that the Administration had reflected the views of the Panel, the questions identified at the two special Panel meetings in March, the procedures required and the rough timetable to the Hong Kong and Macau Affairs Office (HKMAO) which undertook to study the matter.

23. Ms Emily LAU and Mr LEE Wing-tat considered that taking two years to devise a mechanism was too long and unacceptable. Dr YEUNG Sum asked whether the rough timetable was agreed to by the Central authorities. SCA(Ag) responded that members should not be too pessimistic because it was the consensus of all parties concerned that a mechanism should be established as soon as practicable. He further said that some of the steps set out in the timetable might take longer or shorter time than expected, and some of the steps might be proceeded with concurrently. The Administration was fully aware of the urgency attached to the matter and would keep the Panel informed of the progress made.

24. The Chairman and Mr TSANG Yok-sing asked whether the Administration had submitted any preliminary proposal to the HKMAO so as to facilitate it to give views and to estimate the time required on its part. SCA(Ag) said that the Administration needed time to consider the matter thoroughly and to seek views from all the relevant parties before coming up with a preliminary proposal. At this stage, the Administration was consolidating and analysing the views expressed by the various parties, conducting further study on the various issues, studying the experience of other countries on constitutional amendments and discussing with the HKMAO. In addition, it was not possible for the Administration to work out proposals on certain parts of the issue which involved other parties.

25. Mr TSANG Yok-sing said that the Administration should at least come up with proposals for the procedures which the HKSAR had full autonomy. Dr YEUNG Sum added that Article 159 had provided a basic framework for amending the Basic Law and the Administration should formulate procedures along the line. Members requested the Administration to provide preliminary proposals to give effect to Article 159 for the Panel's consideration within a reasonable time. Adm

VI. The right of abode issue

26. With the concurrence of the Chairman, Mr Martin LEE referred members to Article 24(2) of the Basic Law which set out the categories of persons who would have the right of abode in the HKSAR and the Opinions of the Preparatory Committee for HKSAR of the NPC on the implementation of Article 24(2) adopted at the Fourth Plenary Meeting of the Preparatory Committee on 10 August 1996 (the Opinions) (copies tabled at the meeting). He pointed out that the wording used in the various provisions in Article 24(2) was the same but the Opinions had arbitrarily applied different interpretations to these provisions. For instance, paragraph 4 of the Opinions explained that persons referred to in Article 24(2)(3) could become permanent residents of the HKSAR if one or both of their parents had attained Hong Kong permanent residence at the time of the birth of these persons. Paragraph 6 of the Opinions also explained that persons referred to in Article 24(2)(5) could become permanent residents of the HKSAR under Article 24(2)(2) if one or both of their parents had acquired permanent resident status at the time of or any time after the birth of these persons. He pointed out that the wording used in Articles 24(2)(2) and 24(2)(3) was the same and that there was no reference in Article 24(2)(3) on the requirement for these persons to become Hong Kong permanent residents only when one or both of their parents had acquired the status of Hong Kong permanent resident as at the birth of these persons. He stressed that the Opinions of the Preparatory Committee were views for reference by the HKSAR only and should not be construed as the legislative intent of the Basic Law.

27. SASG responded that the Preparatory Committee's Opinions was approved by the NPC at its meeting on 10 March 1997. It was regarded as a document reflecting the legislative intent of Article 24(2). Given that Article 24(2)(3) referred to persons of Chinese nationality born outside Hong Kong and Article 24(2)(5) referred to persons not of Chinese nationality born in Hong Kong, it was understandable that there would be different treatments, albeit the wording used in these provisions was the same.

28. Mr Martin LEE pointed out that as stated in paragraph 1 of the Opinions, the views provided therein served to facilitate the HKSAR to implement Article 24(2). It was not meant to reflect the legislative intent of the Basic Law, or to assist the court to interpret the Basic Law. As a general rule in drafting, provisions which used the same wording should not have different interpretations. SASG responded that even under the common law in ascertaining the legislative intent of a provision, consideration could be given to the social and economic implications of a provision on the society. Since the provisions dealt with two categories of people whose population size varied significantly, it was quite possible to come up with two different interpretations. Mr Martin LEE disagreed with the argument.

29. Noting that the NPCSC would discuss the right of abode issue at its meeting starting on 22 June 1999 in response to the HKSAR Government's request to seek an interpretation on Article 24(2), members agreed that a special Panel meeting should be held on the coming Friday, 25 June 1999 at 10:45 am to discuss the following issues -

  1. The Opinions of the Preparatory Committee;

  2. Effects of the "test cases" on persons in similar situations as those of the applicants in the "test cases";

  3. Administration's response to points/queries raised by Members at previous special House Committee meetings;

  4. Final results of the special survey on the number of Mainlanders with right of abode in Hong Kong; and

  5. Administration's view on Bing Song's article in the South China Morning Post on 15 June 1999.

VII. Review of the existing mechanism for LegCo to monitor the exercise of delegated authority for making of subsidiary legislation

30. As the meeting ran short of time, members agreed that the above item would be deferred to the next meeting to be held on 19 July 1999.

31. The meeting ended at 4:30 pm.

Legislative Council Secretariat
9 September 1999