LegCo Paper No. CB(2)958/96-97
(These minutes have been seen
by the Administration)
Ref : CB2/PL/CA

LegCo Panel on
Constitutional Affairs

Minutes of Meeting
held on Monday, 16 December 1996 at 10:45 am in Conference Room A of the LegCo Building

Members Present :
    Hon SZETO Wah (Chairman)
    Hon Ronald ARCULLI, OBE, JP
    Hon CHEUNG Man-kwong
    Hon Emily LAU Wai-hing
    Dr Hon YEUNG Sum
Members Absent :
    Hon Ambrose LAU Hon-chuen, JP (Deputy Chairman)*
    Hon LEE Wing-tat*
    Hon James TO Kun-sun*
    Hon David CHU Yu-lin*
    Hon IP Kwok-him*
    Hon Bruce LIU Sing-lee*
Public Officers Attending :
    Mr Nicholas NG, JP
    Secretary for Constitutional Affairs
    Mr Joseph LAI
    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 :
    Miss Erin TSANG
    Senior Assistant Secretary (2)7

I.Confirmation of minutes of meetings

The minutes of meetings held on 10 October 1996, 11 November 1996 and 18 November 1996 were confirmed without amendment.

II.Date of next meeting and items for discussion

2. The next meeting would be held on 20 January 1997 at 10:45 am. Members present agreed to discuss the following items at the next meeting:

  1. Harmony between the appointment of Administrative team to CE(Des) and the establishment of the principal posts in the Hong Kong Government;

  2. Progress of work of the Joint Liaison Group (JLG); and

  3. Issues related to the formation of the Hong Kong Special Administrative Region (SAR) Government and co-operation with the Preparatory Committee (PC).

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

3. Mr Nicholas NG briefed the meeting on the Administration paper (issued to members vide LegCo Paper No. CB(2) 720/96-97) which set out the following:

  1. Achievements of JLG XXXVIII

  2. JLG Expert Contacts

  3. Localization of laws

Official Secrets Act

4. In response to Ms Emily LAU as to whether changes could be proposed on the Official Secrets Bill (the Bill) when it was introduced to the Legislative Council (LegCo), Mr Nicholas NG said that as a general principle, when bills were introduced to the LegCo, the Administration would explain and provide all necessary information to Members to facilitate their scrutiny of the bills, and he could not know at the present stage whether there would be changes made to the Bill. The Chairman then asked and Mr NG replied that the First and Second Readings of the Bill would be held on 18 December 1996. The Administration hoped the House Committee could accord it high priority.

JLG Expert Contacts

5. Mr Nicholas NG told the meeting that there was one standing expert group which was the Sub-group on International Rights and Obligations, and there were other various expert groups which would meet when necessary.

Stationing of advanced troop from the People's Liberation Army (PLA)

6. In response to Dr YEUNG Sum, Mr Nicholas NG informed the meeting that the Expert Group on Defence and Public Order had met frequently to discuss the handover of military sites and the despatch of an advanced troop from the People's Liberation Army. The Expert Group was still discussing on the size and the arrival schedule of the advanced troop. Dr YEUNG Sum expressed that it was not necessary for the advanced troop to be armed in Hong Kong, since the police was to ensure order and peace of the territory.

Right of Abode

7. Mr Nicholas NG assured the meeting that there was good progress on the issue of right of abode since only a few technical points were left for deliberation. Upon Dr YEUNG Sum's enquiry, Mr NG said that former Hong Kong residents who had emigrated and obtained foreign citizenship needed not to make a special trip back to Hong Kong before the transfer of sovereignty in order to guarantee their right of abode in Hong Kong. Yet, the detailed arrangements had to be announced.

Transfer of Archives

8. Ms Emily LAU asked and Mr Nicholas NG told the meeting that the British and the Chinese sides had already agreed in 1990 on the principles for transfer of archives. All official records, files and information necessary for the smooth operation of the Hong Kong Special Administrative Region (SAR) Government would be passed to the SAR Government and would not be removed. The JLG was now discussing the detailed arrangements for handover.

Garrison Law

9. Dr YEUNG Sum pointed out that the Chinese garrison law provided that on-duty military personnel would be tried in mainland military courts whereas the legislation of Hong Kong provided that criminal cases involving local residents would be tried in local courts. In view of the difference in legislation, he enquired whether any understanding had been reached on the issue. Mr Nicholas NG said that he was not in a position to speak for China. China had regarded the Hong Kong SAR's garrison law as state matter which should be handled by China itself. The Hong Kong Government (HKG) had reflected to the Chinese side the public opinions and other appropriate views in respect of the draft garrison law.

Chief Executive (Designate) (CE(Des)) and JLG

10. The Chairman asked and Mr Nicholas NG said that the Administration would brief CE(Des) on the government structure, the government policies and all necessary information including issues under discussion by JLG. Upon members' question on how CE(Des) should relate to JLG, Mr NG said that it was not appropriate for him to answer on CE(Des)'s behalf. The Chairman held the view that since CE(Des) could have the liberty to express his opinions to JLG, he should also be held responsible for any agreements reached by JLG.

Adaptation of laws

11. Mr Nicholas NG informed the meeting that the Chinese and British sides were exchanging views on the modalities to be adopted for adaptation of local laws, and hoped to be able to make an announcement to the public soon. The Administration had studied about 600 Hong Kong Ordinances to identify necessary adaptation amendments. The adaptation exercise would involve mainly minor changes of the texts such as change of terminology. The Preliminary Working Committee had once considered the introduction of a conversion table to facilitate the adaptation of laws but there was still no discussion on the way forward. Other aspects which involved complicated policy considerations, such as the implementation of the provisions in Article 24 of the Basic Law relating to the right of abode, were being discussed separately in the JLG.

12. Ms Emily LAU pointed out that Annex III to the Basic Law spelt out the six Chinese national laws to be applied to Hong Kong with effect from 1 July 1997 by way of promulgation or legislation by the HKSAR. It would therefore violate the spirit of the Basic Law if the National People's Congress were asked to make law for Hong Kong to lay down the formula for the adaptation of local laws. It would also create confusion in the local community. Mr Nicholas NG said that the Basic Law had already specified that the Chinese national laws shall not be applied in the HKSAR except for those listed in Annex III.

Localization of laws

13. Dr YEUNG Sum enquired and Mr Nicholas NG assured the meeting that there was good progress on the programme on localization of laws. There were only eight outstanding localized bills. The Administration had repeatedly reflected to the Chinese side the importance of reaching early agreement on them. Once the agreement at JLG was reached, the Administration would immediately introduce the bills to the LegCo for scrutiny. The Administration's plan was to complete the localization programme before 1 July 1997. The Chairman then suggested that the Administration should inform the House Committee when the localized bills were about to be introduced to the LegCo so that timely arrangement could be made for early scrutiny of the bills.

State immunity

Transfer of sentenced persons

15. Mr Nicholas NG said that the localized bills and the bilateral agreements considered by JLG only concerned relationship between Hong Kong SAR and other countries and did not concern that between Hong Kong SAR and China because China held the view that juridical relation between Hong Kong SAR and China was a matter within China's sovereignty. The legal and procedural arrangements between Hong Kong SAR and China were still under discussion with the Chinese side. Ms Emily LAU expressed worry that legal vacuum might result if agreement could not be reached on the issue before the transfer of sovereignty.

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

16. Mr Nicholas NG said that the Administration had considered some initial ideas for co-operating with the CE(Des), but it would not be appropriate to disclose them until after these had been discussed and agreed with the CE(Des). In reply to Dr YEUNG Sum on whether the Administration would consult LegCo members beforehand, Mr NG said that where co-operation entailed the use of resources which deployment would require LegCo's approval, the Administration would seek such approval in accordance with established procedures. The Chairman then asked and Mr NG confirmed that the Administration was providing CE(Des) with security protection.

Salary of CE(Des)

17. Mr Nicholas NG said that the Administration would discuss details of co-operation with the CE(Des) on the basis of the three established parameters.

Secondment of government officials

18. Mr Nicholas NG said that both the Chinese and British sides were committed to a smooth and successful transition. The secondment of a large number of senior officials to assist the CE(Des) before 1 July 1997 would not be conducive to the attainment of those objectives. Ms Emily LAU asked whether government officials or executives in public bodies who were to be seconded to CE(Des)'s Administration team had to resign from their respective establishments. Mr NG said that the Chinese Government had indicated on numerous occasions that continuity of the civil service was vital to a successful transition. On the question relating to employees of bodies funded by public monies, Mr NG said that he had not heard of the issue. He believed that, in discussing staffing arrangements for the CE(Des), both sides would take a sensible and pragmatic approach. Dr YEUNG Sum said the Democratic Party objected to a collective transfer of policy secretaries to CE(Des)'s Administration since it would be detrimental to a smooth transition.

Provisional Legislature

14. In reply to Ms Emily LAU, Mr Nicholas NG confirmed that the Chinese State-owned enterprises operating commercially in Hong Kong could not claim state immunity under the localized bill. In response to members, Mr NG agreed to ask the relevant policy branch to prepare a paper to explain the bill more clearly for members' reference.
19. In reply to Ms Emily LAU, Mr Nicholas NG said that the Chinese side had assured the Hong Kong Government (HKG) that there would not be two legislatures operating in parallel in Hong Kong before 1 July 1997. He clarified that the Governor had not said that the Government would provide security to the Provisional Legislature if it were to meet in Hong Kong. He undertook to provide for members' reference the transcript of the Governor's remark. He said that HKG would not provide assistance to the Provisional Legislature. The position of the British and the Hong Kong Governments on the questions of a provisional legislature had already been made clear to the Chinese side at the JLG and other forums.

(Post-meeting note: The Administration provided the script after the meeting which was sent to members vide LegCo Paper No. CB(2) 761/96-97.)

Repeal of amended legislation

20. Dr YEUNG Sum asked whether the Administration would help the CE(Des) to prepare legislation to amend/repeal various human rights related ordinances. Mr Nicholas NG reiterated that the LegCo was the only constitutional legislature in Hong Kong before 1 July 1997 and that the Administration had no intention to introduce any legislative proposals to repeal or amend the various human rights related legislation.

V.Any other business

21. Members present agreed to hold special joint meeting with the Public Service Panel to discuss the secondment of senior government officials to CE(Des) before the next regular meeting, if deemed necessary.

22. The meeting ended at 12:10 pm.

LegCo Secretariat
19 December 1996

*..other commitments

Last Updated on 13 August 1998