Legislative Council

LC Paper No. CB(2)2653/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/BC/11/98

Bills Committee on District Councils Bill

Minutes of Meeting

held on Monday, 11 January 1999 at 4:30 pm

in the Chamber of the Legislative Council Building

Members Present :

Hon Ambrose LAU Hon-chuen, JP (Chairman)
Hon James TIEN Pei-chun, JP
Hon David CHU Yu-lin
Hon Cyd HO Sau-lan
Dr Hon Raymond HO Chung-tai, JP
Hon LEE Wing-tat
Hon Eric LI Ka-cheung, JP
Hon Lee Kai-ming, JP
Hon Fred LI Wah-ming
Hon Mrs Selina CHOW LIANG Shuk-yee, JP
Hon Ronald ARCULLI, JP
Hon MA Fung-kwok
Hon CHEUNG Man-kwong
Hon Ambrose CHEUNG Wing-sum, JP
Hon Christine LOH
Hon CHAN Wing-chan
Hon CHAN Kam-lam
Dr Hon LEONG Che-hung, JP
Hon SIN Chung-kai
Hon Andrew WONG Wang-fat, JP
Hon WONG Yung-kan
Hon Jasper TSANG Yok-sing, JP
Hon Howard YOUNG, JP
Hon Emily LAU Wai-hing, JP
Dr Hon TANG Siu-tong, JP
Hon Andrew CHENG Kar-foo
Hon TAM Yiu-chung, JP

Members Absent :

Hon YEUNG Yiu-chung
Hon LAU Wong-fat, GBS, JP

Public Officers Attending :

Mr Robin IP
Deputy Secretary for Constitutional Affairs 2

Mrs Maureen CHAN
Deputy Secretary for Constitutional Affairs 3

Mr Augustine CHENG
Deputy Director of Home Affairs

Mr Paul WONG
Principal Assistant Secretary for Constitutional Affairs

Mr James O' NEIL
Principal Government Counsel (Elections)

Senior Assistant Law Draftsman

Senior Assistant Law Draftsman

Clerk in Attendance :

Mrs Constance LI
Chief Assistant Secretary (2) 2

Staff in Attendance :

Mr Arthur CHEUNG
Assistant Legal Adviser 5

Miss Flora TAI
Senior Assistant Secretary (2) 2

I. Late membership

The Chairman informed members that late membership of Hon Eric LI and Hon Emily LAU had been approved on 6 January 1999 under House Rule 23 on ground of their absence from Hong Kong when membership of the Bills Committee was called. The Bills Committee had 30 members at present and the quorum was 10 members including the Chairman.

II. Meeting with the Administration
[LC Paper Nos. CB(2)1027/98-99 and CB(2)1033/98-99]

2. Members noted that the Administration had provided the following papers as requested by members at the last meeting -

  1. comparison of the District Councils Bill with the Provisional District Boards Ordinance and the District Boards Ordinance [Paper No. CB(2)1027/98-99(01)];

  2. comparison of the District Councils Bill with the Legislative Council Ordinance [Paper No. CB(2)1027/98-99(02)]; and

  3. response to concerns raised by members at the meeting held on 4 January 1999 [Paper No. CB(2)1033/98-99(01)].

The Chinese version of these papers were tabled at the meeting and subsequently issued to absent members vide LC Paper No. CB(2)1053/98-99.

3. At the invitation of the Chairman, Deputy Chairman for Constitutional Affairs (2) (DS(CA)2) briefed members on the Administration's response and the gist of discussion is summarized below.

Quorum requirement for District Council meetings

4. Mr LEE Wing-tat asked whether there would be a procedure for a District Council (DC) member to draw the attention of the DC Chairman to the fact that a quorum was not present during the meeting. In response, Deputy Director of Home Affairs (DD(HA)) explained that all DC meetings must meet the quorum requirement and the DC Secretariat would note the attendance of members although voting was not normally required at DC meetings.

5. In response to Ms Emily LAU, DD(HA) informed members that a District Council would specify the quorum of its committees in its Standing Orders, and that the present quorum requirement for DB committees was "not less than half" of its membership.

6. Mr TSANG Yok-sing commented that as the present quorum requirement for DBs had operated well, strong justifications would be required to support any departure from the existing practice.

7. Mr Andrew WONG expressed concern that if a high quorum requirement was set for DC meetings, a simple majority of DC members could terminate the proceedings by withdrawing from the meeting. This would adversely affect the normal operation of DCs. DS(CA)2 responded that the Administration had made reference to the quorum requirement for the Legislative Council (LegCo) and most of the statutory boards and committees before recommending the quorum requirement for the DC. Mr WONG considered that it would be wrong to increase the existing quorum requirements for DBs as proposed in the Bill, and that a lower quorum requirement should be set for DC meetings than its committees. DS(CA)2 said that he would consider Mr WONG's suggestion and provide a response later.Adm

Term of office of District Councils

8. Ms Emily LAU asked about the arrangement for the operation of the previous District Boards during the period preceding the next ordinary election. She noted that the operation of the Provisional Legislative Council was terminated some months before the election for the first Legislative Council (LegCo). DD(HA) responded that no similar arrangement had been made for the Provisional District Boards (PDBs) at the moment, and all PDBs were supposed to continue operation till the end of their term. Ms Emily LAU expressed concern that if PDBs would continue operation during the election period, incumbent members of PDBs could use their status to canvass for their election and would therefore have undue advantage over other candidates. While she did not support adopting the prorogation arrangement of the LegCo for PDBs or the future DCs, she considered that the tenure of PDB members should be terminated well before the ordinary election. She pointed out that prorogation was required in the case of LegCo because the term of office of LegCo Members was stipulated in the Basic Law and could not be varied.

9. Deputy Secretary for Constitutional Affairs (3) (DS(CA)3) responded that while she appreciated members' concern, it would cause practical difficulties to members of PDBs/DCs if their term of office was to be terminated pre-maturely before the next ordinary election, as these members could no longer be eligible for the allowance and members' offices would have to cease operation as well. However, if the prorogation arrangement was applied to PDBs/DCs, only the PDBs or DCs would cease operation but the tenure of members would not be affected and members would continue to draw allowance until the end of their term. Although the arrangement could not preclude all possibilities that PDB/DC members might still use their status to canvass for election, it would be a fairer and reasonable arrangement.

10. Principal Government Counsel (PGC) explained that 'prorogue' was an expression usually applied to parliaments and sovereign legislatures, the effect of which was to suspend the operation of a legislature in order to allow the conduct of an election. Such an expression would not normally apply to local assemblies or advisory councils for which the expression of 'suspension of operation' could be used. Mr Andrew WONG remarked that it was only a matter of terminology, and he was in support of suspension of operation of the PDBs/DCs before the next ordinary election was to be held, if the term of office of DC members was for a fixed period. Under this arrangement, members of PDBs/DCs could still draw allowances and continue operation of their own offices. He quoted the practice of other parliaments and the Provisional Legislative Council in Hong Kong to support his view. Mr Andrew WONG and Mr TSANG Yok-sing were of the view that any changes to the established system which had operated well would require very strong justifications.

11. Ms Emily LAU disagreed with Mr TSANG Yok-sing that incumbent members of PDBs/DCs would unlikely use their status to gain election advantage. In this connection, she requested the Administration to provide information on the number of DB members who succeeded in retaining their DB membership in the 1994 election. The Administration noted the request.Adm

12. In view of the different views expressed by members, DS(CA)3 said that the Administration would only consider suspending the operation of PDBs or the future DCs before holding the ordinary election if members agreed to the approach. She would welcome members' views on the suggestion.

13. Mr LEE Wing-tat was of the view that, during election period, incumbent members of PDBs/DCs should not be invited to participate in government-funded activities ad hold meetings in their capacity as PDB/DC members. In response to Mr LEE, DD(HA) said that while there had not been formal complaints in this connection, he had received similar views from other members. Ms Emily LAU agreed with Mr LEE that the Administration should consider either amending the legislation or providing administrative guidelines to prohibit incumbent members of PDBs/DCs from holding meetings and handle business or attend government-funded activities for a prescribed period before the ordinary election. DS(CA)2 undertook to consider members' suggestions and provide a response.Adm

14. Regarding Mr SIN Chung-kai's earlier suggestion of adjusting the term of office of DC members to coincide with the beginning and ending of a financial year, members noted form the Administration's written response that such adjustment would not be necessary. In response to Mr SIN's enquiry, DD(HA) informed members that the first three terms of DBs ended on 31 March, while the subsequent terms ended on 30 September 1994, 30 June 1997 and 31 December 1999. He said that there were pros and cons for adjusting the term of office to coincide with the financial year or other activities. With regard to Mr SIN's concern, the Administration did not consider that ending the term of a DC on a date other than 31 March would cause operational difficulties to the DCs or their secretariats. Mr SIN asked whether the Administration had actually consulted the 18 PDBs before coming to the conclusion. DD(HA) responded that due to the time constraint, the Administration was unable to conduct formal consultation with all PDBs, but had obtained the views of the District Officers and some PDB chairmen. Mr SIN maintained the view that as this would affect the long term operation of DCs and their secretariats, it would be worthwhile for the Administration to conduct formal consultation with all PDBs.

15. Mr Andrew WONG disagreed with Mr SIN that the term of DCs needed to synchronize with the financial year, since the annual estimates were already finalized in the previous year and was binding on the subsequent term of the DC. With prudent financial planning of the DCs, there should not be worries about exhaustion of funds for organization of DC activities even if the term of the DCs was to commence in the middle of a financial year. He suggested that the term of the DC should end on 31 August or 30 September to enable DC elections to take place in summer, and he urged the Administration to rationalize the commencement and ending dates of the future DCs. The Administration noted these comments.Adm

Directions by the Chief Executive to a District Council

16. Members noted that the omission of "in the public interest" in Clause 83 was inadvertent and the Administration would re-instate the phrase by way of a Committee stage amendment (CSA). Mr CHEUNG Man kwong asked the Administration to advise whether there were any precedents of invoking section 24 of the Provisional District Boards Ordinance (Cap. 366), and to provide information on the circumstances under which the provision was invoked. DD(HA) undertook to provide the information.Adm

Powers of the Chief Executive and Chief Executive in Council

Referring to the comparison table on the provision in the Bill with the Provisional District Boards Ordinance and the District Board Ordinance [List A in Paper No. CB(2)1027/98-99(01)], Mr Andrew CHENG queried why the Bill had sought to expand the powers of the Chief Executive and the Chief Executive in Council, as some of these powers were not provided for in the existing and previous legislation. He was particularly concerned about the provisions in clause 6 and clause 79. With regard to the absence of corresponding provisions on the constituencies in the Provisional District Boards Ordinance and the former District Boards Ordinance, PGC explained that these constituencies were declared by the then Governor in Council under section 3(1)(c) of the Electoral Provisions Ordinance having regard to the recommendations of the Boundary and Election Commission (BEC). Clause 6 of the District Councils Bill sought to bring a previous subsidiary legislation to the principal ordinance. DS(CA)2 added that clause 6(2) also required the Chief Executive in Council to have regard to the recommendations made by the Electoral Affairs Commission (EAC) in making the declaration of constituencies.


17. Mr Andrew CHENG pointed out that clause 79(1) empowered the Chief Executive in Council to make regulations for the better carrying out of the purposes of the Ordinance (the District Councils Bill), and such purposes as set out in the preamble of the Bill included the functions of the DCs. He was worried that the Chief Executive in Council could then vary the functions of a DC without prior consultation or approval of the LegCo. DS(CA)2 clarified that clause 79 referred to such examples as the number and qualifications of subscribers, election deposits and forfeiture of election deposit. There was a similar provision (section 82(1)) in the Legislative Council Ordinance, Cap. 542. The Chairman remarked that the Schedules would be subsidiary legislation which could not exceed or contravene the provisions in the principal ordinance. In response to the Chairman, Assistant Legal Adviser 5 (ALA5) confirmed that clause 79(1) was to enable the Chief Executive in Council to set out in detail by way of regulations how the provisions in the principal ordinance should be carried out. The spirit and scope of such regulations should not be inconsistent or go beyond any of the provisions in the principal legislation. As regards section 82(1) in the Legislative Council Ordinance, ALA5 pointed out that that Ordinance did not seek to provide for the functions of LegCo as these were already prescribed in the Basic Law. Mr Andrew CHENG maintained the view that the drafting of clause 79(1) would confer too much powers on the Chief Executive in Council and the circumstances for exercising these powers should be clearly stipulated in the law.Adm

18. Referring to the comparison table prepared by the Administration, Miss HO Sau-lan noted that subsequent amendments to the number of elected and appointed members under clause 5 were to be made by the Chief Executive in Council by order published in the Gazette, while the former District Boards Ordinance required the Governor to have regard to the recommendations made by the BEC. She asked whether the Chief Executive would be subject to any checks and balances when exercising his powers. DS(CA)2 pointed out that EAC was only responsible for matters relating to the 390 elected seats but not the appointed membership. Nevertheless, any amendments to Schedule 3 under clause 5 on the number of elected and appointed members would be subsidiary legislation subject to negative vetting of the LegCo. Miss HO maintained the view that the Bill had conferred too much powers on the Chief Executive and the Chief Executive in Council. For example, the Chief Executive had the sole power to appoint members to the DCs despite the fact that the public was not even aware of the appointment criteria. In this connection, Mr Andrew WONG asked the Administration to consider specifying the appointment criteria in the Bill or by way of subsidiary legislation or administrative guidelines. He further suggested that the Administration could consider specifying the categories of people who should not be appointed to DCs. DS(CA)3 said that SCA had explained at the last meeting that it would not be appropriate for the Administration to specify the criteria, in order to retain some flexibility in the selection of appointees.

19. Mr CHEUNG Man-kwong expressed dissatisfaction that clause 8 had not required the Chief Executive in Council to have regard to the recommendations of EAC when making amendments to Schedules 1, 2 and 3 concerning the declaration of districts. He said that this should warrant more careful consideration by the Administration because delineation of district boundaries and constituencies were highly sensitive issues which would have bearing on the election results. He considered that as the Chief Executive was not politically neutral, it would be desirable to restrict his powers especially in the delineation of district boundaries and constituencies. He strongly proposed that amendments on delineation of district boundaries and constituencies should be based on the recommendation of an independent body such as EAC, and that such amendments should be endorsed or 'rubber-stamped' by the Chief Executive in Council and the legislature. PGC advised that EAC did not make recommendations on the number of members for each DC as the number was based on the population ratio. He reiterated that any amendment to the Schedules must still have regard to the provisions in the principal ordinance, and that such amendments would be subsidiary legislation subject to negative vetting by the LegCo. At the request of members, DS(CA)2 undertook to provide a written response.Adm

20. Ms Emily LAU sought clarification from the Administration on the legislative procedures for the Chief Executive or the Chief Executive in Council to exercise those powers conferred by the Bill. DS(CA)2 advised that the powers conferred on the Chief Executive were administrative powers while those conferred on the Chief Executive in Council would be subsidiary legislation subject to the negative vetting of the LegCo. PGC further advised that section 34 of Cap. 1 set out the procedures for negative vetting and LegCo Members would be allowed 28 days to move amendments to the subsidiary legislation. As requested by Ms Emily LAU, DS(CA)2 agreed to provide a written response as to whether the Administration would consider restraining the powers of the Chief Executive in Council through legislative provisions.Adm

21. Mr CHEUNG Man-kwong referred to clause 83 and asked the Administration whether there were precedents for the Chief Executive or the former Governor to give directions to a PDB or DB. DS(CA)2 said he did not have such information and he would check before reporting to members.Adm

22. Mr CHEUNG asked why the former District Boards Ordinance and the Provisional District Boards Ordinance did not have similar provisions as clause 80 in the Bill. He considered that the DCs should have the power to stipulate in their Standing Orders the procedures for electing the DC Chairman and Vice Chairman. DS(CA)2 responded that as the procedures had been provided for as a Schedule in the Bill, any amendment to the Schedule would require an order published in the Gazette by the Chief Executive in Council.

Term of office of an appointed member

23. Mr Howard YOUNG asked about the purpose of clause 11(3) and the circumstances that a member would be appointed for a shorter term of office. DS(CA)3 responded that the clause had no specific purpose except to provide for flexibility in the appointment of members to DCs. She pointed out that similar flexibility clauses also existed in other ordinances such as the Surveyors Registration Ordinance (Cap. 417), the Pharmacy and Poisons Ordinance (Cap. 138), the Open University of Hong Kong Ordinance (Cap. 1145) and other legislation for universities. Ms Emily LAU expressed doubt on the propriety of drawing an analogy between the District Councils Bill and these ordinances. Mr SZETO Wah, Mr Howard YOUNG and Miss HO Sau-lan also queried the need for such a flexibility clause and asked about the criteria for the Chief Executive to exercise such discretion. In response to members, DS(CA)3 undertook to provide a written response on the purpose and application of clause 11(3).Adm

Functions of a District Council

24. Referring to clause 59(a) which sought to add 'matters relating to food and environmental hygiene services' to the functions of a DC, Mr Ambrose CHEUNG asked the Administration whether they had assumed LegCo agreement to the abolition of the two provisional municipal councils (PMCs). In this respect, he asked why the Administration had not included recreation and cultural activities which were also existing functions of the PMCs. DS(CA)3 responded that the Administration had not assumed LegCo agreement to the abolition of the PMCs and would further explain this matter to Members in another forum. She added that the Bill did not seek to introduce significant changes to the principal functions of the DBs/DCs which would still be advisory in nature, and the addition was only to reflect the majority view obtained during the public consultation exercise on the review of the district organizations in 1998. She added that the Administration had consulted and obtained support of the 18 PDBs on the proposed addition. As regards Mr CHEUNG's proposed inclusion of organization of recreation and cultural activities under clause 59(a), DS(CA)3 said that the drafting of clause 59(b) was wide enough to enable districts to carry out such activities where funded were made available for such purposes. The Administration would also provide more resources to DCs to enhance their future role and functions.

25. Mr Ambrose CHEUNG commented that the Administration's position on the functions of DCs was rather ambiguous. If the functions of DCs were to remain largely the same as before, it would not be necessary to add 'food and environmental hygiene services' under clause 59(a). He was of the view that this should not be included if recreation and cultural activities were also not mentioned in this clause. DS(CA)3 undertook to consider this suggestion.Adm

26. Ms Emily LAU said that she supported the proposal to enhance the functions of a DC and would like to know how this would be implemented. In this connection, she asked whether the Administration would consider including in clause 59 other matters affecting the 'well-being of people in the District', such as medical and health, education and housing services. Mr LI Wah-ming and Mr Andrew WONG were of the view that 'matters affecting the well-being of the people in the District' in clause 59(a)(i) was sufficiently wide and they disagreed with Ms LAU's suggestion.

27. DS(CA)3 noted members' comments and undertook to provide a written response at the next meeting.Adm

Clerk 28. As members had raised several concerns during the meeting, Ms Emily LAU suggested and the Chairman agreed to ask the Clerk to compile a complete list for response by the Administration.

III. Committee stage amendments proposed by the Administration

29. DS(CA)3 informed members that the Administration had proposed some technical amendments to the Bill and the draft Committee stage amendments (CSAs) had been tabled at the meeting [Paper No. CB(2)1053/98-99(01)]. He requested members to consider these amendments and give their views at the next meeting.

IV. Submissions received on the Bill

30. The Chairman informed members that advertisements had been placed on Ming Pao and South China Morning Post on 5 January 1999 inviting public submissions on the Bill. A total of 62 submissions had been received as at 3:30 pm. on 11 January 1999. A list of these submissions had been tabled for members' information. The Bills Committee would meet deputations at its next meeting.

V. Date of next meeting

31. The Chairman invited views from members on the date of the next meeting to meet deputations. As several members indicated that they would have to attend hearings and meetings of the Select Committee on the New Airport in the coming fortnight, the Chairman asked the Clerk to ascertain the availability of members and confirm the date of next meeting by circular.

(Post-meeting note : The next meeting was scheduled for Tuesday, 19 January 1999 at 2:30 pm.)

32. There being no other business, the meeting ended at 6:45 pm.

Legislative Council Secretariat
2 August 1999