LegCo Paper No. CB(2)1898/96-97
( These minutes have been seen by
Ref : CB2/PL/CA
LegCo Panel on Constitutional Affairs
Minutes of Meeting held on Monday, 17 March 1997 at 10:45 am in Conference Room B of the LegCo Building
Members Present :
Hon SZETO Wah (Chairman)
Hon Ambrose LAU Hon-chuen, JP (Deputy Chairman)
Hon CHEUNG Man-kwong
Hon James TO Kun-sun
Dr Hon YEUNG Sum
Hon IP Kwok-him
Hon Bruce LIU Sing-lee
Hon NGAN Kam-chuen (Non-Panel Member)
Members Absent :
Hon Ronald ARCULLI, OBE, JPPublic Officers Attending :
Hon Emily LAU Wai-hing
Hon LEE Wing-tat
Hon David CHU Yu-lin
- Mr Clement MAK
- Secretary for Constitutional Affairs (Acting)
- Mr Joseph LAI
- Deputy Secretary for Constitutional Affairs
Clerk in Attendance :
Staff in Attendance :
- Ms Doris CHAN
- Chief Assistant Secretary (2)4
- Mr Jimmy MA
- Legal Adviser
- Miss Erin TSANG
- Senior Assistant Secretary (2)7
I. Confirmation of the minutes of meeting
The minutes of meeting held on 17 February 1997 were confirmed without amendment.
II. Date of next meeting and items for discussion
2. The next meeting would be held on 21 April 1997 at 10:30 am. Members present agreed to discuss the following items at the next meeting:
- handover ceremony;
- progress of work of the Joint Liaison Group; and
- issues related to the formation of the Hong Kong Special Administrative Region Government and co-operation with the Preparatory Committee.
III. Information paper issued since the last meeting
3. Members noted that there was an information paper issued vide LegCo Paper No. CB(2) 1360/96-97 since the last meeting.
IV. Issues related to the transition of the municipal councils and the district boards
Re-introduction of appointed seats to the municipal councils and the district boards
4. Mr Joseph LAI told the meeting that the stance of the Hong Kong Government (HKG) and the British Government regarding the transition of the municipal councils and the district boards was clear.
5. In view of HKGs opposition to the re-introduction of appointed seats to the municipal councils and the district bodies, Dr YEUNG Sum and Mr CHEUNG Man-kwong asked whether Mr Michael SUEN, who was seconded to the Chief Executive(Designate) (CE(Des))s office but still remained as civil servant, would assist CE(Des) in drawing up a list of appointees. Mr Joseph LAI said that the secondees, including Mr Michael SUEN, were to provide all reasonable assistance to CE(Des) to facilitate his preparation for the establishment of the SAR Government. They worked under the overall direction of, and were accountable to, CE(Des). As to the work to be assigned to Mr Michael SUEN, the Administration was not in a position to answer on CE(Des)s behalf. Nonetheless, CE(Des) had indicated on several occasions that he would not put the secondees in a difficult position. Mr LAI reiterated that the co-operation between HKG and CE(Des) was based on the three established parameters. This applied to the secondment arrangements. Both HKG and CE(Des) aimed at a stable and smooth transition.
6. Mr Bruce LIU indicated that the Hong Kong Association for Democracy and Peoples Livelihood did not agree to the re-introduction of the appointed seats to the municipal councils and the district boards. The meeting also took note of the Democratic Partys view that if Mr Michael SUEN were to assist CE(Des) in preparing the list of appointees, it would undermine HKGs credibility and hence a violation of the established parameters. Moreover, Dr YEUNG Sum said that since the executive had to be accountable to the legislature, the Legislative Council might consider summoning Mr Michael SUEN, where necessary, to report his work to Members.
Criteria for transition
7. The Chairman asked and Mr Joseph LAI said that HKG was not in a position to comment as to whether it was the stance of the Chinese Government or that of the SAR Government to require municipal councillors and district board members to "love China and Hong Kong" before they could transit. As far as HKG was concerned, the municipal councils and the district boards had been operating effectively and there need not be any change to their overall composition. The Chairman then raised the following points suggesting that CE(Des) should consider and explain:
- what yardstick was to be used to assess whether a municipal councillor or a district board member loved China and Hong Kong, and whether a vetting committee would be set up for such political screening;
- why the requirement of "love China, love Hong Kong" was imposed on the municipal councillors and the district board members, but not on the members of the Preparatory Committee and the Provisional Legislature;
- for the additionally appointed members, whether they had to fulful the criteria of "love China, love Hong Kong" as well; and
- whether the new electoral law to be mapped out by the SAR Government would stipulate "love China, love Hong Kong" as one of the election criteria of the candidates.
Two sets of municipal councils and district boards running in parallel
8. In reply to Mr Bruce LIU, Mr Joseph LAI said that under the existing laws up to 30 June 1997, there were only one Urban Council, one Regional Council and 18 district boards. Their functions, operation and membership had been clearly prescribed in laws. He would not respond to the hypothetical question as to whether CE(Des) might appoint members of the provisional municipal councils and district boards before the transfer of sovereignty, resulting in two sets of municipal councils and district bodies running in parallel.
9. The Chairman asked and the Legal Adviser advised that Article 98 of the Basic Law provided that the powers and functions of the district organisations, and the method for their formation shall be prescribed by law. Generally speaking, CE(Des) could carry out preparatory work pertaining to the establishment of the district organisations, though such preparatory work would not have any legal effect. In further reply to the Chairman, the Legal Adviser pointed out that section 47 of the Interpretation and General Clauses Ordinance provided the power to relate back appointment, though it was uncertain whether CE(Des) would model on such mechanism for appointment of members of the provisional municipal councils and district boards. There was no legislative basis for announcement of any appointment before the commencement of the legislation under which the appointment was made. Yet, from the technical point of view, legislation could be drafted to provide for retrospective recognition of an appointment.
Remuneration for members of the provisional municipal councils and district boards
10. Mr CHEUNG Man-kwong asked and Mr Joseph LAI told the meeting that HKG had not set aside any sum in the 1997/98 draft Estimates for the remuneration of persons to be appointed to the provisional municipal councils and district boards. After 1 July 1997, any adjustment to the approved Estimates arising from decisions taken by the SAR Government would have to be considered by the legislature according to the established procedures.
V. Progress of work of the Joint Liaison Group (JLG)
11. Mr Clement MAK informed the meeting that the JLG XXXIX meeting would be held from 18 to 21 March 1997 and the Administration would report back to the Panel the progress of work of the JLG in due course. Since the last Panel meeting, the following expert groups had held meetings:
- expert group on Handover Ceremony -- discussion on the security arrangements and the arrangements for media coverage and the venue was under way;
- expert group on Right of Abode -- the expert group had to complete discussion on a few technical points before any public announcement would be made;
- expert group on Localisation of Laws -- only a few localised bills were outstanding;
- expert group on Civil Aviation -- the expert group was discussing the civil aviation agreements to be reached between SAR and the United States, Indonesia and Philippines respectively;
- expert group on International Rights and Obligations -- there were still a number of bilateral agreements to be discussed by the expert group;
- expert group on Transfer of Archives; and
- expert group on Defence and Public Order.
Extradition of fugitives
12. Dr YEUNG Sum asked and Mr Clement MAK explained that in general, bilateral agreements regarding the extradition of fugitives were reached between Hong Kong and other countries. After the transfer of sovereignty, as Hong Kong SAR would become part of China, there would be arrangements, instead of bilateral agreements, regarding the rendition of fugitives between Hong Kong SAR and China.
Role of JLG after the handover
13. Mr CHEUNG Man-kwong referred to the recent dispute on the role of JLG after the transfer of sovereignty, in that the Governor had indicated that the British Government would step up its monitoring of the implementation of the Joint Declaration through JLG, whilst the Chinese Premier insisted that Britain should stay out of SAR affairs after 30 June 1997. Mr CHEUNG then asked and Mr Clement MAK told the meeting that item 8 of Annex II of the Joint Declaration stipulated that JLG shall continue its work until 1 January 2000 and the functions of JLG were listed in item 3 of Annex II. In reply to Mr Ambrose LAU, Mr Clement MAK said that the Joint Declaration had stated lucidly that the function of JLG was to, inter alia, conduct consultations on the implementation of the Joint Declaration and it was not an organ of power. Mr IP Kwok-him referred to item 6 of Annex II, which stipulated that JLG shall play no part in the administration of Hong Kong or that of SAR; nor shall it have any supervisory role over that administration. He opined that JLG was to provide a forum for both sides to exchange views relating to the implementation of the Joint Declaration and it was not to monitor the operation of the SAR Government.
14. Dr YEUNG Sum then sought clarification with the Legal Adviser and the Legal Adviser advised that as stipulated in paragraph 5 of the Joint Declaration, both the British and Chinese Governments had agreed that JLG was set up with a view to, inter alia, ensuring the effective implementation of the Joint Declaration. From the legal point of view and according to the Vienna Convention, since the Joint Declaration was signed between the two governments, it should be for the two governments to interpret the Declaration.
15. Dr YEUNG Sum and the Chairman expressed that both the Chinese and British Governments should, via JLG, have the authority and responsibility to ensure the effective implementation of the Joint Declaration. If the Chinese and British sides had divergent views on the implementation of the Joint Declaration, they should refer them to their respective governments for solution through consultation via the diplomatic channels.
|16. Mr Clement MAK stressed that the Joint Declaration was a binding international treaty registered with the United Nations. The British Government had indicated time and again that Britain would continue to have a commitment, both political and moral, for Hong Kong for 50 years after the transfer of sovereignty. The British Government would keep in view the implementation of the Joint Declaration after the transfer and if necessary, the British side would conduct consultations with the Chinese side via JLG. Mr James TO then asked and Mr Clement MAK elaborated that the Foreign Secretary had, in his statement issued on 20 December 1996, made clear that the British Government would step up its monitoring of, and reporting on, the developments in Hong Kong, before and after the handover. It would report to the Parliament on the developments in Hong Kong at six-monthly intervals, starting with a report on the period January - June 1997. Those reports would focus on the work of JLG, covering the implementation of the Joint Declaration and they would replace the "Report on Hong Kong", which had been submitted to the Parliament annually. Mr James TO then requested and the Administration agreed to provide after the meeting the Foreign Secretarys statement for members reference. ||Adm|
|17. In view of the discrepancy between China and Britain in defining the ways to conduct consultations, Mr CHEUNG Man-kwong, Dr YEUNG Sum and Mr James TO suggested that to address the public concerns and for the peace of mind of the community, JLG should consider releasing the minutes of the Sino-British talks on the Joint Declaration for clarification on its role after the transfer. Moreover, the Chinese Government should also explain its mechanism in monitoring the implementation of the Joint Declaration. The Administration undertook to relay members requests to JLG for consideration.||Adm|
VI. Issues related to the formation of the first Hong Kong Special Administrative Region Government and co-operation with the Preparatory Committee
Secondment of government officials
18. In response to Dr YEUNG Sum and the Chairman, Mr Joseph LAI said that around 30 government officials had been seconded to the CE(Des)s office. They included Mrs Fanny LAW, former Deputy Director of Housing, Mr Michael SUEN, former Secretary for Home Affairs, Mrs Irene YAU, former Director of Information Services, several Administrative Officers, some Executive Officers, a lawyer and some supporting staff. The lawyer was responsible for advising CE(Des) on legal matters, not for drafting legislation. HKG had not yet received further request from the CE(Des)s office for secondment of government officials.
Security protection of CE(Des)
19. Mr Bruce LIU asked whether the Police would, in the wake of the fake bomb incident, consider enhancing the security protection of CE(Des). Mr Joseph LAI said that the aim of HKG was to ensure the public safety. The Police would take adequate measures in providing security protection to CE(Des).
(Mr Clement MAK and Mr Joseph LAI left the meeting at this juncture.)
VII. Any other business
Allocation of funds for Members overseas duty visits
20. The Chairman referred the meeting to LegCo Paper No. AS 110/96-97. Members present indicated that they did not have any proposal for overseas duty visits for the months of April, May and June 1997.
21. The meeting ended at 12:05 pm.
1 April 1997
Last Updated on 13 August 1998