Mechanism for Amending the Basic Law
Preliminary study of the questions identified
at the CA Panel meetings of 15 and 22 March 1999
and the way forward

Additional issues requiring consideration

At the CA Panel meetings of 15 and 22 March, the legal profession, the academics as well as relevant organisations and individuals were invited to express views on the mechanism for amending the Basic Law. During the course of the discussion, a number of new and important issues were identified. These include -

(a)Who will be in a position to initiate the amendment process? Will members of the public be able to initiate the process? Should local NPC deputies voluntarily give up their right to initiate any proposal?

(b)Should there be a requirement that any amendment proposal must have the support of more than a specified number of LegCo Members/ local NCP deputies before it can be put forward?

(c)What should be the form of the amendment proposal?

(d)Should the three parties consider whether or not to set a specified time frame within which the amendment proposal will be considered?

(e)Should there be a specified sequence for any amendment proposal to be considered by the three parties?

(f)What is the mechanism for forwarding the amendment proposal agreed by one party to the other parties?

(g)Should a constitutional conference (involving the three parties and others) be held? What is the nature of such a constitutional conference? What are the rules of procedure? Who should preside?

(h)Should the process be restarted altogether whenever an amendment to the proposal is made during the process?

(i)How will the public be consulted? Should there be a referendum? Should the referendum be binding or advisory?

(j)How can it be ensured that the amendment proposal does not contravene the established basic policies of the PRC regarding Hong Kong?

(k)Should the local deputies work out their own relevant rules of procedure? Or should the Standing Committee of the National People's Congress (NPCSC) provide guidelines to the local deputies?

(l)Should the NPCSC and the State Council consult the HKSAR on their amendment proposals and if so how?

(m)Should the NPCSC provide guidelines to the Committee for the Basic Law of the HKSAR (BL Committee)? Should the BL Committee consult the people of Hong Kong?

Working within the parameters set by the Basic Law

2. In considering the appropriate mechanism to be put in place to give effect to Article 159 of the Basic Law (BL 159), we consider it important to explore options within the parameters provided for in BL 159. The suggestion that we should set up a constitutional conference to deal with the matter will have to be considered against that backdrop.

Participation by members of the public

3. We note that at the two CA Panel meetings the LegCo members, the legal profession, the academics, the relevant organisations and individuals, etc. place a lot of emphasis on the importance of putting in place a mechanism which would allow the general public to be fully consulted or to participate directly in the process (e.g. by way of a referendum). We have commissioned a comparative study of the experience of other countries on constitutional amendments. The Administration will make a presentation on the preliminary findings at the next CA Panel meeting.

Initiating an amendment proposal

4. The Administration also note that at the two CA Panel meetings many shared the view that any of the three parties concerned referred to in BL 159 (i.e. the LegCo, the local NPC deputies and the Chief Executive of the HKSAR) should be in a position to initiate a proposal to amend the Basic Law. But there is, at the same time, a view shared by many that the Basic Law, being a constitutional document, should not be amended lightly. Some have therefore suggested that any amendment proposal must have the support of more than a specified number of LegCo members or local NPC deputies before it can be put forward under BL 159. We are studying the requirements in other models and will formulate our proposed requirement, taking into account the circumstances in the HKSAR.

Sequence for consideration by the three parties

5. On the question of whether there should be a specified sequence whereby an amendment proposal will be considered by the three parties, we note that it has been suggested that the Chief Executive should be the last one to give his consent. We will need to consider how this suggestion will work in the case of an amendment proposal initiated by the Administration.

Exchanging views with the Mainland authorities

6. At the two CA Panel meetings, a number of questions were also raised on matters relating to the NPCSC, the local NPC deputies and the BL Committee. These questions include how the local NPC deputies should discharge their duties under BL 159; whether it will be up to the local NPC deputies to decide their own rules of procedures; whether a mechanism to ensure that the proposed amendment shall not contravene the established basic policies of the PRC regarding Hong Kong (as required by BL 159(4)) should be built into the process, and if so, how and at which stage; whether and if so, how the NPCSC and the State Council should consult the HKSAR if they initiated any amendment to the Basic Law. All these questions require us to exchange views with the Central People's Government (CPG) and the relevant Mainland authorities. As reported earlier, we have started the dialogue with the Mainland authorities.

Consultation process

7. To work out an appropriate mechanism to give effect to BL 159, we believe that it is important for all the relevant parties to be fully consulted so that their views will be taken into account in devising the mechanism. Our preliminary study suggests that we will need to take the following steps to ensure that all parties involved are adequately consulted -

(a)analyse and consolidate all the questions identified and views expressed;

(b)discuss the relevant issues/questions identified with the CPG/NPCSC;

(c)allow time for the CPG/NPCSC to study the relevant issues/questions identified, to consult the relevant parties (e.g. local NPC deputies, BL Committee, etc.) and to formulate their views on the relevant issues;

(d)seek meetings with CPG/NPCSC to gauge their preliminary views;

(e)report to ExCo on the Administration's preliminary views and discussions with the CPG/NPCSC;

(f)report progress to the CA Panel;

(g)the Administration to formulate the proposed mechanism and prepare documents for consultation with LegCo, the legal profession, academics, the general public, etc.;

(h)consult all interested parties on the proposed mechanism;

(i)discuss with CPG / NPCSC;

(j)consider the views collected and finalise the Administration's proposal;

(k)consult ExCo on the finalised proposal;

(l)report to the CA Panel on the finalised proposal and brief the CPG / NPCSC; and

(m)draft and introduce the necessary legislation into the Legislative Council.

8. At this stage, it is not possible for the Administration to provide any meaningful timetable for completing the above process, but the Administration is fully aware of the urgency attached to the matter. We will keep the CA Panel informed of progress made. Given the constitutional importance of the matter, we believe that all the three parties, as well as the public and other parties concerned, should be given ample time to study and discuss the relevant issues so as to work out an appropriate mechanism.

Constitutional Affairs Bureau
May 1999