LegCo Paper No. CB(2) 1501/96-97
(These minutes have been seen by the Administration)
Ref : CB2/PL/CA

LegCo Panel on Constitutional Affairs

Minutes of Meeting held on Monday, 17 February 1997 at 10:45 am in Conference Room A of the LegCo Building

Members Present :

    Hon SZETO Wah (Chairman)
    Hon CHEUNG Man-kwong
    Hon Emily LAU Wai-hing
    Hon James TO Kun-sun
    Dr Hon YEUNG Sum
    Hon David CHU Yu-lin
    Hon IP Kwok-him
    Hon Bruce LIU Sing-lee

Members Absent :

    Hon Ambrose LAU Hon-chuen, JP (Deputy Chairman)
    Hon Ronald ARCULLI, OBE, JP
    Hon LEE Wing-tat
Public Officers Attending :
    Mr Nicholas NG, JP
    Secretary for Constitutional Affairs
    Mr Joseph LAI
    Deputy Secretary for Constitutional Affairs
Clerk in Attendance :
    Miss Flora TAI
    Senior 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

The minutes of meeting held on 20 January 1997 were confirmed without amendment.

II. Date of next meeting and items for discussion

2. The next meeting would be held on 17 March 1997 at 10:45 am. Members present agreed to discuss the following items at the next meeting:

  1. issues related to the transition of the municipal councils and district boards;

  2. progress of work of the Joint Liaison Group; and

  3. issues related to the formation of the Hong Kong Special Administrative Region Government and co-operation with the Preparatory Committee.

III. The Preparatory Committee’s recommendation to repeal and amend some existing Hong Kong legislation

3. In reply to the Chairman, Mr Nicholas NG told the meeting that the Hong Kong Government (HKG) did not know when the Preparatory Committee (PC) would submit its recommendations as to repeal/amend some local legislation to the National People’s Congress (NPC) for consideration and what NPC’s decision would be. However, the Foreign Office of the British Government and the senior British representative of the Joint Liaison Group (JLG) had relayed Hong Kong people’s concerns to the Chinese ambassador in the United Kingdom and the Chinese side of the JLG respectively. The Foreign Secretary had told the Chinese Foreign Minister during their recent meeting in Singapore, that the PC’s recommendations had aroused concerns and anxieties in the local community and abroad. The Governor had issued four statements to setting out clearly the position of HKG. The Chief Secretary had also made clear HKG’s stance on the issue.

Drafting bills related to repealed/amended legislation

4. Dr YEUNG Sum opined that if the NPC were to adopt the PC’s recommendations, the Chief Executive (Designate) (CE(Des)) would have to submit legislative proposals to the Provisional Legislature to fill the resulting legal vacuum arising from some of the existing legislation being repealed or amended. Dr YEUNG, Mr CHEUNG Man-kwong and Mr IP Kwok-him asked whether HKG would second any law draftsman to assist CE(Des) in drafting bills related to the Societies Ordinance, the Public Order Ordinance and the electoral laws. Mr Nicholas NG said that as a general point, if CE(Des) had further request for assistance, he could raise it with the Governor and the Chief Secretary who would consider it on the basis of the three established parameters. On the specific question of drafting versions, however, HKG did not have any plan to second law draftsman to the CE(Des) Office.

5. In further response to Dr YEUNG Sum and Mr CHEUNG Man-kwong, Mr Nicholas NG said that he was not in a position to answer on CE(Des)’s behalf the scope of work of the CE(Des)’s office and how CE(Des) would deploy the seconded government officials. He pointed out that the seconded government officials were to provide all reasonable assistance to CE(Des) to facilitate his preparation for the establishment of SAR Government. The secondees worked under the overall direction of, and were accountable to, CE(Des) on matters facilitating his preparatory work. CE(Des) had indicated that he would not put the secondees in a difficult position. It would be for CE(Des) to account to the public as to the work assigned to the secondees. He reiterated that HKG would only provide assistance to CE(Des) on the basis of the established parameters, and that HKG only recognised the Legislative Council (LegCo) as the sole legislature in the territory before 1 July 1997. HKG would not provide any assistance to the Provisional Legislature. He further stressed that HKG was responsible for the administration of Hong Kong until 30 June 1997 and its authority and credibility would not be compromised.

6. In response to Mr Bruce LIU as to whether HKG would indirectly provide assistance to the Provisional Legislature by seconding government officials to assist CE(Des) in drafting bills for the Provisional Legislature’s scrutiny, Mr Nicholas NG reiterated that HKG had made clear its stance on the Provisional Legislature.

Two legislatures running in parallel

7. In reply to Ms Emily LAU, Mr Nicholas NG said that the British Foreign Secretary had indicated on various occasions and at various forums that he had made clear to the Chinese Foreign Minister that the British government’s and HKG’s stance on the Provisional Legislature remained unchanged. The Chinese Foreign Minister had re-confirmed his previous statement made in the Hague that the LegCo, the Governor and the Privy Council were the sole legitimate authority, and there would not be another centre of authority, duplication of authority or two legislatures running in parallel in Hong Kong before 1 July 1997. Mr NG said that any group, which purported to sit and to operate as a legislature in Hong Kong before 1 July 1997, might be in breach of the law.

8. Mr Bruce LIU asked and Legal Adviser advised that the local legislation did not define what activities conducted by an organisation would be considered as running parallel with the existing legislature. Various aspects had to be taken into consideration before it could conclude whether there was another legislature operating as such in Hong Kong.

The Provisional Legislature and its working groups

9. Ms Emily LAU asked and Mr Nicholas NG said that as the Provisional Legislature would operate and hold meetings in Shenzhen, it would be outside Hong Kong’s jurisdiction. Any person or group intending to organise any activities in Hong Kong would need to observe Hong Kong’s law. It would be for the relevant individuals or organisations to seek their own legal advice on the legality of the activities to be organised.

10. With reference to the Provisional Legislature’s working groups on Administrative Matters and Rules of Procedure (the working groups) which held tea gatherings in Hong Kong, Mr James TO requested the Administration to refer the case to the Police for investigation as to whether the working groups had violated the Societies Ordinance, which required that any organisation had to notify the Societies Officers within 21 days of its formation and intention to hold meetings in Hong Kong. Mr Nicholas NG noted the request, adding that to his knowledge, the Provisional Legislature’s working groups had not yet held any formal meetings in Hong Kong.

Legislative procedure

11. In reply to the Chairman, Mr Nicholas NG said that the Royal Instructions and the Letters Patent stipulated the legislative procedure for law enactment, and the first, second and third readings conducted in the LegCo were part of the stipulated legislative procedure. HKG would follow the legislative procedure to submit bills to the LegCo, and not other legislature, for scrutiny and passage before 1 July 1997.

12. Mr Bruce LIU then asked and Legal Adviser advised that Rule 1 in Clause 25 of the Royal Instructions stipulated the enactment formula for local legislation, though the same formula was not provided for in the Basic Law. As to whether the passage of a document containing workings similar to the existing enactment formula would constitute a legislative activity, it was difficult to comment from a legal point of view by referring to that alone.

IV. The Administrative team to the Chief Executive(Designate) (CE(Des))

V. Issues related to the formation of the first Hong Kong Special Administrative Region Government and co-operation with the Preparatory Committee

Assistance provided to CE(Des)

13. Mr Nicholas NG informed the meeting of the following:

  1. the Police was providing security protection to CE(Des);

  2. CE(Des) had moved in his new office at the Asia Pacific Finance Centre. Subject to future needs, more office accommodation and further secondment of government officials would be considered;

  3. CE(Des) was provided with a car and a chauffer; and

  4. information related to the existing government structure and policies was provided to CE(Des). If necessary, briefing sessions by respective policy secretaries would be arranged to facilitate CE(Des)’s preparation for the establishment of the future SAR Government.

Secondment of government officials

14. Mr James TO asked and Mr Nicholas NG told the meeting that there was no memorandum governing the secondment of government officials to the CE(Des)’s Office. The Administration considered it unnecessary because the secondment of government officials was to provide assistance during the transitional period for the continuity of the government after the handover. As to whether HKG could, from the legal point of view, recall the secondees from the CE(Des) Office if they were required to work against the three established parameters, he confirmed that HKG had the authority to deploy or recall them. In reply to the Chairman, Mr Nicholas NG said that although the secondees were accountable to the CE(Des)’s Office for the day-to-day operation, they remained under the employment of HKG. The Civil Service Branch was still responsible for the overall personnel management of these secondees, including their resignation. The co-operation between HKG and the CE(Des) was based on the three established parameters. The Governor had stated clearly those established parameters at different occasions, including the Question Time with the LegCo. The CE(Des) was also well aware of the parameters.

15. Mr James TO then requested the Administration to provide a standard version of memorandum on secondment of civil servants to public organisations for members’ reference. Mr Nicholas NG agreed to take the matter up with the Civil Service Branch. Mr TO also supplemented that the LegCo Secretariat should make available relevant information on secondment of civil servants during re-organisation of the LegCo Secretariat, if any, to members.

(Post-meeting note : The Administration provided a letter (issued to members vide LegCo Paper No. CB(2) 1360/96-97) setting out in general the terms of secondment of civil servants to CE(Des)’s office. The note on the transitional staffing arrangements during the re-organisation of the LegCo Secretariat was also circulated to members for information vide the same LegCo paper.)

16. In reply to Ms Emily LAU, Mr Nicholas NG told the meeting that the number of government officials to be seconded to the CE(Des)’s Office would be adjusted in accordance with the needs. At present, about 30 government officials had been seconded to the CE(Des)’s Office and discussion was under way for further secondment, including officers from the Information Services Department. He stressed that the Administration would definitely observe the established parameters in considering the secondment arrangements. The Chairman and Ms Emily LAU then requested and Mr Nicholas NG agreed to liaise with the Civil Service Branch for provision of weekly reports on the secondment arrangements for members’ reference.

(Post-meeting note : the update on the secondment of civil servants to CE(Des)’s office was copied to members vide LegCo Paper No. CB(2) 1360/96-97. The Clerk to the LegCo Panel on Public Service agreed to send copies of the further update to members when available in future.)

Principal officials to straddle 1 July 1997

17. Mr CHEUNG Man-kwong asked whether CE(Des) would account to the public if some incumbents of the existing Principal Officials posts could not straddle 1 July 1997 due to reasons other than nationality requirements and personal reasons, as contrary to Article 100 of the Basic Law. In response, Mr Nicholas NG said that he was not in a position to comment before CE(Des) had made any announcement. The aim of both the Chinese and the British governments was to ensure the continuity and stability of the civil service, which was vital to a successful transition, and CE(Des) had also expressed his concern about the continuity of the civil service on various occasions.

18. With reference to the Foreign Secretary’s recent meeting with CE(Des), Mr CHEUNG Man-kwong pointed out that there was discrepancy in their terminology, in which the former asked whether there would be 100% continuity in the civil service and the latter replied that the continuity would be substantial. He was concerned whether HKG had mapped out any compensation plan for those incumbents, who, due to political reasons, could not remain in their existing positions after the transfer of sovereignty. Mr Nicholas NG said that HKG had not considered any arrangements or contingency plan, nor would he wish to give any speculative answer on the issue. The Chairman then suggested and the meeting agreed that a special meeting would be held for the Administration to brief members on the necessary arrangements if certain incumbents officials were not able to straddle the handover.

19. Ms Emily LAU asked and Mr Nicholas NG replied that he was not in a position to answer on CE(Des)’s behalf the factors which would be taken into consideration by CE(Des) in the appointment of Principal Officials. Mr James TO asked whether HKG had taken any initiatives in recommending to CE(Des) a list of suitable candidates for the post of Secretary of Justice, Mr Nicholas NG said that he would try to ascertain.

Political vetting

20. Dr YEUNG Sum expressed the Democratic Party’s view that CE(Des) should not subject the incumbent officials to any political vetting when considering whether they were suitable to remain in their existing positions after 1 July 1997, since it would put the civil service’s moral at stake. He asked whether HKG had raised the issue with CE(Des). Mr Nicholas NG replied that both HKG and the British government had put it clearly and strongly to the Chinese government that the continuity of the Principal Officials and the civil service as a whole was vital and conducive to a smooth transition. The Foreign Secretary had also raised this subject with his Chinese counterpart in each of their recent meetings. The Chinese side and CE(Des) had stated publicly the importance of the civil service’s continuity.

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

21. Mr Nicholas NG briefed the meeting that the JLG XXXIX meeting would be held in March and the date of the meeting was yet to be scheduled. Since the last Panel meeting, the following expert groups had held meetings:

  1. expert group on Transitional Budget -- the Chinese and British sides had reached consensus on the transitional budget for 1997-98;

  2. expert group on Handover Ceremony -- discussion on the security arrangements and the arrangements for media coverage and the venue was under way;

  3. expert group on Localisation of Laws -- only a few localised bills were outstanding. Once the agreement at the JLG was reached, the Administration would immediately introduce those bills to the LegCo for scrutiny;

  4. expert group on Right of Abode -- the expert group had completed discussion on the scope of the issue and only a few technical points were left for deliberation. Detailed arrangements would be announced in due course; and

  5. expert group on International Rights and Obligations -- the discussion on Hong Kong’s participation in international organisations and continuous application of bilateral and multi-lateral agreements to Hong Kong after 1 July 1997 was almost drawn to a close. Only a few items were left for further discussion.

International Covenants on human rights

22. In reply to Ms Emily LAU, Mr Nicholas NG told the meeting that the British Foreign Secretary had suggested to the Chinese Foreign Minister to consider allowing SAR Government to compile annual reports on human rights covenants to the United Nations, and the latter had agreed to consider the issue further.

Stationing of advance troop from the People’s Liberation Army (PLA)

23. In response to Dr YEUNG Sum, Mr Nicholas NG said that the expert group on Defence and Public Order met regularly to discuss the stationing of an advance party from the PLA to prepare for the handover of military sites on 1 July 1997. The expert group was still considering, from a pragmatic angle, the size, arrival schedule and operation of the advanced personnel.

Transitional budget for 1997-98

24. In reply to Mr James TO and Mr CHEUNG Man-kwong, Mr Nicholas NG said that the transitional budget would be submitted to the LegCo in March as usual and would cover 12 months. Both the Chinese and the British sides were clear that in case funding or legislative proposal was required to implement any JLG agreements, the established procedures had to be followed. When funding or legislative proposal was introduced to the LegCo, the Administration would provide all necessary information to Members to facilitate their consideration. The Chairman then asked and Mr Nicholas NG said that the Chinese and the British sides understood that the transitional budget for 1997-98 had to be submitted to the LegCo for endorsement.

Surrender of fugitive offenders

25. In response to Mr James TO, Mr Nicholas NG agreed to convey to the JLG members’ request for expediting the discussion on the surrender of fugitive offenders. He told the meeting that the JLG was discussing bilateral agreements regarding surrender of fugitive offenders with the major countries. Discussion with other countries would continue beyond 1 July 1997.

26. There being no other business, the meeting ended at 12:30 pm.

LegCo Secretariat
4 March 1997

Last Updated on 13 August 1998