Ref : CB2/H/5

Members present :

Dr Hon LEONG Che-hung, JP (Chairman)
Dr Hon YEUNG Sum (Deputy Chairman)
Hon James TIEN Pei-chun, JP
Hon David CHU Yu-lin
Hon HO Sai-chu, JP
Hon Cyd HO Sau-lan
Hon Albert HO Chun-yan
Hon LEE Wing-tat
Hon LEE Cheuk-yan
Hon Martin LEE Chu-ming, SC, JP
Hon LEE Kai-ming, JP
Hon Fred LI Wah-ming
Hon NG Leung-sing
Hon Margaret NG Ngoi-yee
Hon Mrs Selina CHOW LIANG Shuk-yee, JP
Hon MA Fung-kwok
Hon James TO Kun-sun
Hon CHEUNG Man-kwong
Hon Ambrose CHEUNG Wing-sum, JP
Hon HUI Cheung-ching
Hon Christine LOH Kung-wai
Hon Bernard CHAN
Hon CHAN Wing-chan
Hon CHAN Kam-lam
Hon Mrs Sophie LEUNG LAU Yau-fun, JP
Hon LEUNG Yiu-chung
Hon SIN Chung-kai
Hon Andrew WONG Wang-fat, JP
Dr Hon Philip WONG Yu-hong
Hon WONG Yung-kan
Hon Jasper TSANG Yok-sing, JP
Hon Howard YOUNG, JP
Hon YEUNG Yiu-chung
Hon LAU Kong-wah
Hon Mrs Miriam LAU Kin-yee, JP
Hon Ambrose LAU Hon-chuen, JP
Hon Emily LAU Wai-hing, JP
Hon CHOY So-yuk
Hon Andrew CHENG Kar-foo
Hon Timothy FOK Tsun-ting, JP
Hon TAM Yiu-chung, JP
Hon FUNG Chi-kin
Dr Hon TANG Siu-tong, JP

Members absent :

Hon Kenneth TING Woo-shou, JP
Hon Edward HO Sing-tin, JP
Hon Michael HO Mun-ka
Dr Hon Raymond HO Chung-tai, JP
Hon Eric LI Ka-cheung, JP
Dr Hon David LI Kwok-po, JP
Dr Hon LUI Ming-wah, JP
Prof Hon NG Ching-fai
Hon Ronald ARCULLI, JP
Hon CHAN Kwok-keung
Hon CHAN Yuen-han
Hon Gary CHENG Kai-nam
Hon LAU Chin-shek, JP
Hon LAU Wong-fat, GBS, JP
Hon SZETO Wah
Hon LAW Chi-kwong, JP

Clerk in attendance :

Mrs Justina LAM

Clerk to the House Committee

Staff in attendance :

Mr Ricky C C FUNG,

JP Secretary General

Mr Jimmy MA,

JP Legal Adviser

Mr LAW Kam-sang,

JP Deputy Secretary General

Mr LAW Wing-lok

Chief Assistant Secretary (2)5

Miss Mary SO

Senior Assistant Secretary (2)8

1. The Chairman reported on his meeting with the Chief Executive (CE) in the afternoon of 15 May 1999. He said that the meeting lasted about ten minutes. He handed to CE the letter which he had written on behalf of the House Committee and briefed CE on its content, i.e. the motion passed by the House Committee on 14 May 1999, and Members' requests that CE should attend a meeting of the Council to discuss the right of abode (ROA) issue and that the Secretary for Justice (SJ) and the Secretary for Security (S for S) should brief Members on their recent Beijing trip at the earliest possible time. The Chairman added that he had also raised the issue of the relationship between the Executive and the Legislature, and conveyed to CE the view expressed by some Members that the public and the Legislative Council (LegCo) should be consulted before the Administration arrived at a decision.

2. The Chairman informed members that CE had told him that the Administration had not yet come to a decision as to what option would be adopted for resolving the ROA issue. CE had also said that he had taken note of the House Committee's motion. As regards whether he and the public officers concerned would meet Members to discus the ROA issue, CE had responded that he would need to discuss the request with his senior officers.

3. The Chairman sought members' views on the way forward, particularly in the light of some reports in the press that the Administration would announce its decision after the Executive Council (ExCo) meeting on the following day. The Chairman said that there were three possible scenarios, viz. the Administration announcing its proposed option; the Administration announcing its decided option; and the Administration making no announcement.

4. Mr Martin LEE said that having swayed public opinion to its side with the figure of 1.675 million people in the Mainland who were entitled to ROA, it was more than likely that the Administration would announce after the ExCo meeting on Tuesday its decision to request the State Council to seek an interpretation of Articles 22(4) and 24(2)(3) of the Basic Law from the Standing Committee of the National People's Congress (NPCSC). He anticipated that the Administration would give notice to move a motion on its decision at the coming Council meeting on Wednesday, in the knowledge that it would be able to gain sufficient support for the motion. He expressed dissatisfaction that such a course of action was unfair to the Council since up to this moment, Members had no knowledge of what the Administration's proposed options were.

5. Mr LEE proposed that, setting aside the question of whether an amendment or interpretation of the Basic Law should be sought, a consensus be reached that the rights of children born out of wedlock to Hong Kong permanent residents should not be affected. As for those persons born to Hong Kong parents, either of whom was not a permanent resident at the time of their birth, the Democratic Party would not object in principle if the Administration sought to close the door on them through amending the Basic Law. He pointed out that there was no question of depriving these persons of their rights as they were not entitled to ROA until either one of their parents subsequently became a permanent resident. He hoped that members could consider reaching a consensus on his two proposals.

6. Mr LEE added that Mr Denis CHANG, SC had said at the special House Committee meeting on 14 May 1999 that the CFA's adjudication was to be binding not only as between the named applicants and Government in the two test cases but was also intended to affect others who were similarly situated. Mr LEE asked the Legal Adviser whether Mr CHANG had stated the position correctly.

7. The Legal Adviser said that as far as he understood it, the CFA's adjudication on the two test cases had no binding effect on subsequent cases where the litigants were in similar situations as those named in the test cases. However, he pointed out that according to the "doctrine of precedents" under the common law system, it would be up to the court to determine to what extent the CFA's adjudication on the test cases would be applicable to subsequent comparable cases coming before the court for decision.

8. Miss Margaret NG said that her understanding was that the counsel for the applicants, the Legal Aid Department and the Immigration Department had agreed prior to the CFA hearing that only a few cases were to be selected for trial as test cases, in order to save public funds and time, and to avoid flooding the court with an unmanageable number of applications. She pointed out that under such an arrangement, the court's adjudication on the test cases would affect other persons similarly situated as the applicants named in the test cases. She further said that similar arrangement was adopted in past cases of Habeas Corpus proceedings brought by Vietnamese migrants. Mr Martin LEE concurred with Miss NG.

9. Mr LEE Wing-tat expressed disappointment that CE was unwilling to even undertake that public officers would explain the Administration's decision after one had been made. Miss Emily LAU concurred with Mr LEE. Mr LEE further said that he would not agree to the Administration announcing its decision on Tuesday and moving a motion on Wednesday as the public must be allowed time to give views. He further asked the Legal Adviser to undertake a research on whether an interpretation of provisions in the Basic Law from the NPCSC would need to be supported by local legislation before it could be brought into force.

10. The Legal Adviser said that whether or not local legislation was necessary to bring into force an NPCSC interpretation of the Basic Law was a complex issue. He added that the Legal Service Division would try its best to provide a paper for members' information the next day.

[Post-meeting note : LC Paper No. LS 191/98-99 was issued to members vide LC Paper No. CB(2) 2078/98-99 on 21 May 1999.]

11. Mr Howard YOUNG was of the view that an interpretation from the NPCSC should not affect the rights of those persons born to Hong Kong permanent residents under "de facto marriage" in the Mainland, nor should it affect the rights of those who were born to Hong Kong permanent residents and who arrived before 10 July 1997.

12. Miss Margaret NG said that the Administration must consult the public on its proposed options. Moreover, the Administration could not just announce its decision, and not give details of its decision as well as the reasons for arriving at such a decision. She added that the most important issue was that the Executive Authorities must consult the Legislature.

13. Mr Martin LEE shared Miss NG's view and said that he had decided to withdraw his earlier proposals made in paragraph 5 above. He would like to wait until the Administration announced its proposed options.

14. Mr CHEUNG Man-kwong said that in his view, the rule of law was now hanging in the balance because of the on-going argument as to whether it was lawful or constitutional to seek an interpretation of the Basic Law from the NPCSC. He further said that should the Administration make a decision on Tuesday morning, CE should come personally in the afternoon to brief Members on the Administration's decision, particularly in regard to the legal basis for arriving at the decision.

15. Miss Emily LAU reminded members that the motion passed by the House Committee meeting on 14 May 1999 was that the Administration should move a motion on its proposed option and not its decision. She stressed that there should be thorough deliberations and consultation on the Administration's proposed options before it gave notice to move a motion. She therefore objected to the House Committee's motion.

16. The Chairman said that the wording of the motion passed by the House Committee on 14 May 1999 was as follows -

17. Dr YEUNG Sum said that in the case of the Cyberport project, the Administration had consulted the relevant Panel before a submission was made to the Finance Committee. Mr Albert HO said that regardless of Members' views on the ROA issue, he hoped that Members would safeguard LegCo's role of monitoring the Executive Authorities. He also expressed concern about the impact on the relationship of the Executive, Legislature and Judiciary.

18. Miss Emily LAU agreed with Mr HO that tripartite relationship of the Executive, Legislature and Judiciary was under great pressure. Referring to press reports that a senior Judge had said that members of the Judiciary who felt that seeking an NPCSC interpretation would undermine the rule of law and independence of the Judiciary should speak out rather than resign, she pointed out that this reflected the concern of some members of the Judiciary about the ROA issue. .

19. Mr Andrew CHENG said that in his view, should the Administration move a motion on its proposed option at the coming Council meeting on Wednesday, this would only be the first step in the consultation process. He suggested that members should discuss how the consultation should be conducted, and for how long it should take.

20. Mr LEE Cheuk-yan said that one of Members' most important responsibilities was to ensure that there was public discussion and consultation on Government policies. The Council would be undermining its power to check and balance the Administration if it gave immediate agreement to the Administration's decision without consultation. He added that the debate on the Government's motion should be deferred until after CE had come to discuss the ROA issue with Members and after SJ and S for S had briefed Members on their recent trip to Beijing.

21. Miss Cyd HO said that prior to the Administration making a decision on the option for resolving the ROA issue, there should be extensive public consultation on the Administration's assessment of the impact of the arrival of the estimated 1.675 million Mainland residents on service provisions, and of the impact of the options for resolving the ROA issue on the rule of law as well as independence of the Judiciary.

22. Mr Ambrose CHEUNG said that the Administration should consult LegCo on the available options and convey LegCo's views to ExCo before ExCo made a decision on the proposed option. The Administration should then give notice of its intention to move a motion on the proposed option at a Council meeting and allow sufficient time for Members to propose amendments to the motion. Mr CHEUNG hoped that members could come to a consensus that the Administration be requested to follow these procedural steps before arriving at a decision on how to resolve the ROA issue. He further suggested that LegCo should convey its requests to ExCo direct.

23. Mr LAU Kong-wah said that given the motion passed by the House Committee at its meeting on 14 May 1999, he did not consider it appropriate to ask the Administration to defer moving its motion. Mr LAU further said that should the Administration announce its proposed option or decision after the ExCo meeting on Tuesday morning, the House Committee should then meet in the afternoon and also request the Administration to send representatives to attend.

24. Mr CHAN Kam-lam echoed Mr LAU's views and said that the House Committee should come to an agreement on the procedure for dealing with the Government motion at the Council meeting on Wednesday. Referring to Mr Martin LEE's earlier proposals in paragraph 5 above, he added that a Member should give prior notice if a Member wished the House Committee to consider any proposal.

25. The Chairman said that it would be up to the President to decide whether or not to waive the notice requirement should the Administration submit a request to move the motion on Wednesday. He stressed, however, that Members should be given time to propose amendments to the motion.

26. Mr James TO suggested that in the event that neither CE nor any public officers would come to explain the Administration's decision prior to the debate on the Government motion, the Chairman could seek the permission of the President to ask an urgent oral question without notice at the Council meeting on Wednesday so as to enable Members to put questions on the ROA issue to the Administration. The President's permission should also be sought for the duration of he question time to last a few hours.

27. The Chairman asked whether Mr TO's suggestion was permissible procedurally. The Secretary General said that according to the rule of anticipation of overseas legislatures, matters under consideration by the Council should not be unnecessarily duplicated. He explained that given that a motion was more effective than a question, the asking of a question on a subject matter substantially the same as that of a motion would not be allowed.

28. The Chairman sought members' views as to what action the House Committee should take if no announcement was made by the Administration after the ExCo meeting on Tuesday and if no indication was forthcoming that the Administration would move a motion on the ROA issue at this week's Council meeting.

29. Miss Margaret NG was of the view that the Administration should still be asked to explain to Members the timeframe for arriving at a decision to resolve the ROA issue. Mr Andrew WONG added that the Administration should also be asked to explain the legal basis for the various options under consideration and the procedures involved in such options. Mr LEUNG Yiu-chung further said that SJ and S for S should come to brief Members on their recent Beijing trip.

30. The Chairman asked members whether they would support the Administration moving a motion at the coming Council meeting on Wednesday, on the assumption that the Administration would give a briefing on its decision immediately after the ExCo meeting on the following day.

31. Miss Emily LAU, Mr Martin LEE, Mr LEE Wing-tat and Miss Margaret NG said that they would not agree that a debate on the Government motion should take place on Wednesday, i.e. 19 May 1999 as Members would not have adequate time to prepare for the debate. They also considered that the public should be given the opportunity to express views before the Government motion was debated at a Council meeting.

32. Mr Martin LEE further said that the Chairman should suggest to the President that she should refuse to grant waiver of the notice requirement should the Administration submit a request to move the motion at the Council meeting on 19 May 1999. If the President acceded to the Administration's request, a Member's motion should be moved by the Chairman to adjourn the debate on the Government motion.

33. Mr CHAN Kam-lam said he would not agree to the view that the rule of law was hanging in the balance and added that such a view would lead to confrontational and negative thinking. He further said that he was not in favour of adjourning the debate on the Government motion, given that there had been extensive public discussion of the ROA issue since the delivery of the CFA judgment on 29 January 1999 and that the visits to Beijing by SJ and S for S as well as the available options for resolving the ROA issue had been widely reported in the press.

34. Miss Margaret NG said that public discussion following the delivery of the CFA judgment centred mainly on general issues relating to the judgment, rather than on the options available for dealing with the ROA issue. She pointed out that when the Administration in February this year sought clarification from the CFA on its judgment, the Administration had stated that it was not seeking to overturn the CFA judgment. However, there was now indication that the Administration would decide at the ExCo meeting on the following day to seek an interpretation from the NPCSC in order to overturn the CFA judgment. This clearly demonstrated that the Administration had no intention to consult LegCo or the public prior to its decision on how to resolve the ROA issue.

35. Mr Andrew WONG said that it would be difficult for the Administration to strike a balance between the need for public consultation on the one hand and the importance of resolving the ROA issue expeditiously on the other. He further said that if the Administration did not wish to send public officers to brief the House Committee on the details of its decision, it could move a motion under Rule 16(1) and (2) of the Rules of Procedure to adjourn the Council for the purpose of a debate. Such a motion needed not be formulated in express terms and would not require prior notice, and it could be moved by a Member with the permission of the President if the President was satisfied that the adjournment was for discussing an issue of urgent public importance. He added that debate on the Government motion on the proposed option could be deferred to a future Council meeting.

36. Mr Howard YOUNG said that as the House Committee had agreed at the meeting held last Friday to urge the Administration to move a motion on the ROA issue as soon as possible, he would not object to the Government motion on the Administration's decision being debated at the Council meeting on 19 May 1999. Mr CHAN Kam-lam concurred with Mr YOUNG. Mr Andrew WONG said that it would be acceptable to him if the Administration proceeded to move a motion on its decision but added that he would also support a Member's motion to adjourn the debate on the Government motion should such a motion be moved by a Member.

37. Mr TSANG Yok-sing said that the Administration would only be acting in response to the House Committee's request if it gave notice to move the motion on 19 May 1999. He further said that it would be up to the Administration to decide whether it would proceed to move the motion in the light of the view expressed by a few members that a Member's motion might be moved to adjourn the debate on the Government motion.

38. In summing up, the Chairman said that he would urge the Administration to brief members at the earliest possible time before giving notice to move a motion on its proposed option for debate. The Chairman also sought members' views as to whether he should move a motion to adjourn the debate on the Government motion in the event that the Administration gave notice to move a motion on its decision at the Council meeting on 19 May 1999.

39. Dr YEUNG Sum said that if ExCo made a decision on Tuesday morning and if the Administration did not come to brief members on the decision in the afternoon, the Chairman should move a Member's motion to adjourn the debate on the Government motion at the Council meeting on Wednesday. Miss Emily LAU added that how Government would tackle the ROA issue would be known after the ExCo meeting. She suggested that further discussion on the moving of a motion to adjourn the debate on the Government motion should be deferred to the special meeting scheduled to be held in the afternoon of 18 May 1999.

Legislative Council Secretariat
27 August 1999