LegCo Paper No. CB(2) 448/96-97
(These minutes have been
seen by the Administration)
Ref : CB2/PL/CA

LegCo Panel on Constitutional Affairs

Minutes of Meeting held on Monday, 14 October 1996 at 10:45 a.m. in Conference Room A of the LegCo Building

Members Present :
    Hon SZETO Wah ( Chairman )
    Hon Ambrose LAU Hon-chuen, JP ( Deputy Chairman )
    Hon CHEUNG Man-kwong
    Hon Emily LAU Wai-hing
    Hon LEE Wing-tat
    Dr Hon YEUNG Sum
    Hon David CHU Yu-lin
    Hon IP Kwok-him
    Hon Mrs Selina CHOW, OBE, JP*
    Hon Fred LI Wah-ming*
Members Absent :
    Hon Ronald ARCULLI, OBE, JP#
    Hon James TO Kun-sun#
    Hon Bruce LIU Sing-lee#
Public Officers Attending :
    Mr. Nicholas NG, JP
    Secretary for Constitutional Affairs
    Mr. Benjamin TANG
    Deputy Secretary for Broadcasting, Culture and Sport
    Mr. NG Sek-hon
    Deputy Secretary for Constitutional Affairs
    Miss Annie TAM
    Principal Assistant Secretary for Constitutional Affairs
Clerk in attendance :
    Mrs. Betty LEUNG
    Chief Assistant Secretary (2)3
Staff in attendance :
    Mr. Jimmy MA
    Legal Adviser
    >Miss Erin TSANG
    Senior Assistant Secretary (2)7

I. Confirmation of minutes of meeting held on 3 October 1996

1. The minutes of the meeting held on 3 October 1996 (issued vide LegCo Paper No. CB(2) 115/96-97 as Appendix I to the agenda) were confirmed without amendments.

II. Date of and items for discussion at next meeting

2. The next meeting would be held on Monday, 18 November 1996 at 10:45 a.m.. Apart from the standing items on "Progress of the Joint Liaison Group (JLG)" and "Issues related to the formation of the Hong Kong SAR Government and co-operation with the Preparatory Committee", the meeting agreed to discuss the following two items at the next meeting as well:-

  1. Progress on the implementation of the computerized voting and counting system of the Registration and Electoral Office; and
  2. The economic disbenefit and social impact likely to arise if localizing legislation could not be enacted before 1 July 1997.

(Representatives from the Administration were invited to join the meeting at this juncture.)

III. The constitutional relationship between the LegCo and the Municipal Councils

3. Mr. Benjamin TANG said that constitutionally, the two Municipal Councils (MCs), viz the Urban Council and the Regional Council, were independent statutory bodies governed by their respective ordinances and had full autonomy with regard to formulation of policies and expenditure. He stressed that the Broadcasting, Culture and Sport Branch (BCSB) had no policy responsibilities for the two MCs and only performed the following housekeeping functions for them:-

  1. general liaison between the Administration and the MCs;
  2. serving as the contact point for consultation between the Administration and the MCs on issues which did not fall within the responsibility of any branch;
  3. forwarding MCs' financial statements and annual reports, and introducing, on their behalf, new legislative proposals or amendments to existing legislation concerning the two MCs to the LegCo;
  4. answering questions in the LegCo on the two MCs' behalf; and
  5. co-ordinating, where necessary, policies regarding recreation, culture and sport among the two MCs, the Hong Kong Arts Development Council and the Hong Kong Sport Development Board.

At the request of the chairman, Mr. TANG undertook to put in writing BCSB's housekeeping responsibilities for members' reference.

4. Mrs. Selina CHOW expressed dissatisfaction with the present mechanism in which the policies as mapped out by the two MCs were not subject to LegCo's scrutiny. She enquired whether the existing system would be reviewed to facilitate an effective communication between the LegCo and the MCs and to enable the LegCo to monitor the MCs. She also asked how members of the public could obtain information or papers from the MCs.Adm

5. Mr. Benjamin TANG said that the Urban Council Ordinance and the Regional Council Ordinance stipulated that their financial statements be audited by the Director of Audit and tabled at the LegCo. The two legislators who represented the MCs could act as the bridge. Complaints against the MCs for maladministration were subject to investigation by the Commissioner for Administrative Complaints. The secretariats of the MCs could supply the necessary information or papers.

6. Dr. YEUNG Sum asked and Legal Adviser replied that although the staff members of the Urban Services Department and the Regional Services Department were civil servants, they were in fact responsible to the two MCs. On the constitutional aspect, Legal Adviser told the meeting that the Letters Patent and the Royal Instructions did not provide for the establishment of the two MCs. Through the enactment of the Urban Council Ordinance in 1973 and the Regional Council Ordinance in 1985, the MCs were brought into being. They then formed part of the local constitutional framework and had financial autonomy, power and functions. They had to be responsible to the Governor who could issue directions to them. Legal Adviser cautioned that it was not prescribed in law that the MCs had to be responsible to the LegCo, although LegCo members could influence them through the legislative process on bills or subsidiary legislation related to the MCs' policies or through raising questions concerning the MCs during the Council sittings. In case members wished to seek clarification on issues or policies relating to the MCs, they could also invite their representatives to attend meetings of the relevant panels. With reference to the role of the two legislators from the MCs, Legal Adviser said that it was not clear from the present constitutional arrangements that they were to represent the MCs on all issues and to serve as a channel between the LegCo and the MCs.

7. In reply to Mr. IP Kwok-him, Mr. Nicholas NG confirmed that relevant policy branches, would, as appropriate, respond to LegCo members' questions on MC-related matters when they specifically touched upon their policy areas.

8. Mrs. Selina CHOW opined that there should be a mechanism through which LegCo members could discuss with the MCs before the MCs formulated their policies.

9. To sum up, the chairman said that the LegCo could make use of the role of BCSB as a bridge and raise questions about the MCs with it. In response to Mrs. Selina CHOW, he said that members could further pursue the matter with the House Committee if they still wished to establish under the House Committee some formal channels for monitoring matters related to the MCs.

(Mr. Benjamin TANG left the meeting at this juncture. )

IV. Action to be taken by the Hong Kong Government (HKG) in preventing bribery and corruption with regard to the Hong Kong Special Administrative Region (SAR) first Chief Executive (CE) selection exercise

10. Mr. Nicholas NG referred members to CAB's paper issued to members vide LegCo Paper No. CB(2) 115/96-97 as Appendix III to the agenda. He advised that legal advice had confirmed that the relevant provisions of existing electoral and anti-corruption laws, including the Electoral Provisions Ordinance, the Legislative Council (Electoral Provisions) Ordinance, the Boundary and Election Commission Ordinance and the Corrupt and Illegal Practices Ordinance, did not cover the Chief Executive selection exercise. Mr. LEE Wing-tat, referring to the last paragraph of the CAB's paper, remarked that even though the Selection Committee Sub-group would eventually produce a set of guidelines on the conduct of the Selection Committee members, it had failed to take timely action as graft practices might have already taken place. In this connection, he asked and Mr. Nicholas NG confirmed that HKG had taken every opportunity to reflect to the Chinese side members', as well as the public's, wish for the selection process to be open and fair. As for detailed arrangements of the selection exercise, Mr. NG said that he was not in a position to speak on behalf of the Chinese side. Mr. Ambrose LAU then said that he understood that the Selection Committee Sub-group would draw up a set of guidelines to ensure the selection exercise to be conducted in an open and fair manner. The set of guidelines, once mapped out, would be submitted to the Preparatory Committee for deliberation and endorsement. Mr. IP Kwok-him pointed out that Hong Kong already had a comprehensive set of electoral and anti-corruption laws. He asked whether HKG would consider recommending it to the Chinese side to facilitate the work of the Selection Committee Sub-group. Mr.NG said that HKG was always willing to provide information to any person on its policies and legislation. He said that the Administration would be ready to provide the requisite information upon request, though no such request had been received yet.

11. Mr. CHEUNG Man-kwong said that the electoral and anti-corruption laws at first did not apply to the elections of Heung Yee Kuk and the Rural Committee but were eventually brought under them. He enquired whether HKG would consider following such example and initiating action to extend the remit of the legislation to cover the selection exercise. Mr. Nicholas NG replied that the first CE selection was to be arranged by the Chinese side and thus it would be inappropriate for HKG to intervene. Mr. CHEUNG then asked and Legal Adviser said that whether the Corrupt and Illegal Practices Ordinance had to be amended to cover the said selection exercise was a policy matter rather than a legal issue. Dr.YEUNG Sum also sought Legal Adviser's opinion as to whether it was legally in order to propose a Private Member's bill to the effect that the existing legislative provisions governing election related illicit practices could be extended to apply to the selection exercise. Legal Adviser said that from the constitutional point of view, a member could present any bill to LegCo for debate and passage and if it involved disposal of or charges on the public revenue, the bill could only be presented with the Governor's authorization or permission. He pointed out, however, that whether a bill passed by the LegCo and presented to the Governor for his assent would receive his assent was a matter for the Governor. When considering whether to give assent to a bill or not, the Governor, pursuant to the Article VII of the Letters Patent, would take into account of the factor of whether the bill itself was for the peace, order and good government of Hong Kong. In this respect, Legal Adviser agreed to provide a written opinion on the issue.

12. Miss Emily LAU expressed concern that the Chinese authority, in monitoring the conduct of the Selection Committee members in accordance with the guidelines set by it, might challenge the authority of HKG. Mr. NG said that it was the responsibility of HKG to administer the territory before 1 July 1997 and as such, it was HKG's responsibility to deal with any breaches of Hong Kong laws in accordance with its legal provisions.LA

13. In response to the chairman's enquiry, Legal Adviser said that illicit practices occurring in the elections of office members of student associations and the Jockey Club could be brought to court for civil adjudication since those organizations were private.

V. Progress of work of the Joint Liaison Group (JLG)

14. Upon the chairman's invitation, Mr. Nicholas NG briefed members on the papers regarding the progress of work of JLG and the achievements at JLG XXXVII (issued to members vide LegCo Paper No. CB(2) 115/96-96 as Appendices IV and V).

Adaptation of laws

15. Dr. YEUNG Sum noted that the Administration had handed over to the Chinese side detailed adaptation proposals of about 420 ordinances and their subsidiary legislation, and would submit the remaining 200 ordinances to the Chinese side before the end of 1996. He was concerned whether the adaptation programme could be completed before the hand-over. Mr. Nicholas NG replied that the Administration was optimistic that the target date could be met since work was already in good progress.

Handover Ceremony

16. Mr. LEE Wing-tat opined that as the handover ceremony signified the transfer of sovereignty from Britain to China, these two countries should shoulder the expenses for the ceremony as well as Hong Kong. He enquired whether HKG had raised the issue for deliberation at the JLG meeting. Mr. Nicholas NG replied that HKG had not approached Britain or China for partially funding the event because it was in line with the international practice for Hong Kong to bear the expense given that the event itself was directly related to Hong Kong. It was also a historic event for Hong Kong and the expenditure should be affordable. As the historic sovereignty handover ceremony would be in the full glare of publicity, it would provide an excellent opportunity to promote Hong Kong to the world and this should be worthy of the expenditure. However, Mr. LEE Wing-tat pointed out that there had never been any historic precedent for transfer of sovereignty and the international convention cited by Mr. NG only applied to events like the Olympic Games. He was particularly dissatisfied that glory would be shared by all three parties whereas only Hong Kong would pay the bill. Moreover, he wondered why HKG was willing to spend the sum on the ceremony but not on the Comprehensive Social Security Allowance recipients who were in dire need of more subsidies.

17. Mr. IP Kwok-him asked and Mr. Nicholas NG replied that the Chinese and British sides had yet to discuss the list of guests for the ceremony. He said he would check with the policy branch concerned before he could advise whether the list would be put forth to the LegCo for advance information.

Right of abode

18. Mr. LEE Wing-tat said that recently there had been numerous public enquiries on the issue of right of abode in Hong Kong, especially on whether former Hong Kong residents who had emigrated and obtained foreign citizenship needed to make a special trip back to Hong Kong before the transfer in order to guarantee continuation of their right of abode in Hong Kong. He asked whether HKG would actively pursue the matter with the JLG for an early agreement. Mr. Nicholas NG replied that HKG was aware of the public concern and anxiety about the matter and shared the same view that the issue should be resolved as soon as possible. He then assured members present that good progress had been made on the issue and HKG would continue to discuss with the Chinese side with a view to reaching an early agreement on the matter.Adm

List of outstanding issues for JLG

19. Miss Emily LAU noted that in Annex B to the Administration's paper on "Progress of JLG XXXVII", the outstanding issues which needed to be pursued by the JLG before the run-up had yet to be listed. She was particularly concerned about the legal and procedural arrangements between Hong Kong and China on criminal matters. With reference to the said legal and procedural arrangements, Mr. Nicholas NG said that he had explained the issue time and again to LegCo members at various forums and other panel meetings, which was that despite HKG's numerous attempts to raise the issue, the Chinese side held the view that juridical relation between Hong Kong SAR and other parts of China was a matter relating to China's sovereignty and did not fall within the remit of the JLG.

20. Concerning the bilateral and multilateral agreements, Mr. NG informed the meeting that only a few were outstanding. He undertook to furnish for members' reference further information on the agreements that were outstanding in the JLG.

VI. Issues related to the formation of the first Hong Kong SAR Government and co-operation with the Preparatory Committee (PC)

21. Mr. Nicholas NG informed the meeting that the Administration had, upon the requests of the PC, provided information and assistance to it on various occasions, which included the following:-

  1. briefing on the New Airport Project and its expenditure; and
  2. arrangement made by the Liaison Office to facilitate the PC to use air time on television and radio for broadcast.

22. In reply to the chairman, Mr. NG explained that the Liaison Office, which was set up under CAB, served as the focal point of contact of HKG with PC. It also aimed at providing the necessary assistance to the PC and ensuring easy and efficient communication between HKG and the PC. Mr. NG said that any requests for assistance should be channelled through PC's Secretariat.

23. There being no other business, the meeting ended at 12:40 p.m..
LegCo Secretariat
6 November 1996
* Non-panels members
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Last Updated on 13 August 1998