Mechanism for Amending the Basic Law
Constitutional Affairs Panel Meeting on 17 May 1999
Speaking Note for the Deputy Secretary for Constitutional Affairs
At the two CA Panel meetings held in March, a number of new issues were identified. These new issues and other important matters that we have pointed out before have been set out in the paper passed to the Panel.
2. The Administration has already started a preliminary study on the various issues set out in the paper. Apart from some of our preliminary views as stated in the paper, I wish to add a few words on several issues today.
3. First of all, we note that at the two CA Panel meetings, much importance was attached to the formulation of a mechanism to enable the three parties to discuss any Basic Law amendment proposals in a more effective manner so as to work out proposals which are acceptable to all the three parties.
4. Furthermore, participants of the meetings also placed a lot of emphasis on the importance of putting in place a mechanism which would allow the general public to be fully consulted (e.g. by way of a referendum). We pay high regard to participation by the general public, but we believe that we have to study carefully which method is the most suitable one. Should we conduct opinion surveys or carry out referendums? Or should we rely on open discussions and public figures such as the LegCo members to reflect the public opinions? We have commissioned a comparative study of the experience of other countries on constitutional amendments. Our colleagues of the Department of Justice will later on brief us on the preliminary findings on the following issues : who will be in a position to initiate the amendment process, what will be the discussion procedures and time frame, and the mechanism for referendums and so on.
5. At the two CA Panel meetings, a number of questions were raised on matters relating to the NPCSC, the State Council, the local NPC deputies and the Basic Law Committee. I wish to elaborate on our preliminary views on these issues :
- On the question of how the local NPC deputies should discharge their duties under Article 159 of the Basic Law, whether it will be up to the local NPC deputies to decide their own rules of procedures and the contents: We note that Article 75(2) of the Basic Law stipulates that the LegCo can decide their own rules of procedure provided that they do not contravene the Basic Law. We also note that it is stipulated in the "Measures Concerning the Discharge of Duties of the Deputies of the Hong Kong Special Administrative Region to the National People's Congress" promulgated by the General Office of the NPCSC late last year that the local NPC deputies should discharge their duties in accordance with Article 159 of the Basic Law. We need to consult the relevant Mainland authorities as to whether the General Office of the NPCSC will provide further details on how the local NPC deputies will discharge their duties as laid down in Article 159 of the Basic Law, or whether the local NPC deputies will formulate their own rules of procedure.
- On the suggestion of whether a mechanism to ensure that proposed amendments shall not contravene the established basic policies of the PRC regarding Hong Kong should be built into the process, and if so, how and at which stage : We need to consider whether we should put in place such a mechanism. Some suggest that in considering an amendment proposal, each of the three parties should examine whether the proposal is in compliance with Article 159(4) of the Basic Law. Before an amendment bill is put on the agenda of the NPC, the Basic Law Committee should, in accordance with the Basic Law, study it and submit its views. We believe that the Basic Law Committee and the NPCSC will of course consider whether an amendment bill contravenes the established basic policies of the PRC regarding Hong Kong. We also need to discuss this with the relevant central authorities.
- On the question raised by LegCo members as to whether the NPCSC and the State Council should consult the HKSAR on their amendment proposal and if so, how : We agree that any proposal to amend the Basic Law is of constitutional importance and should be handled with prudence. We note that at the two CA Panel meetings held in March, many emphasized the importance of wide consultation. We need to discuss this with the central authorities.
- On the suggestion that the Basic Law Committee should consult the HKSAR before giving its view: We note that the Basic Law Committee is a working committee under the NPCSC and its function is to study questions arising from the implementation of Articles 17, 18, 158 and 159 of the Basic Law and submit its views thereon to the NPCSC. These Basic Law provisions do not set out whether there should be any requirements for consultations with the HKSAR. We need to understand the views of the relevant central authorities.
6. We have pointed out in the paper that since a number of issues mentioned above relate to the NPCSC, the local NPC deputies and the Basic Law Committee, we need to exchange views with the Central People's Government and the relevant Mainland authorities. We have started the dialogue with the Mainland authorities and have conveyed to them the various questions identified by the CA Panel, including the question of whether the NPCSC and the State Council should consult the people of the HKSAR if they initiated any amendment to the Basic Law.
7. We have set out the procedures and the steps required in the paper. To work out an appropriate mechanism to put into effect Article 159 of the Basic Law, we believe that it is important that we fully consult all the relevant parties and consider their views. We will report back to the CA panel in due course and listen to the views of Members. At this stage, it is not possible for the Administration to provide a meaningful timetable for completing all the procedures, but the Administration is fully aware of the urgency attached to the matter.
Constitutional Affairs Bureau