A Task Group has been formed by the Education Department since 1992 to look into the question of student suicide. The Task Group meets regularly to follow up on the recommendations made by the Coroners Court and the Board of Education Advisory Committee on School Guidance and Support Services to streamline the co-ordination and the departmental procedures in dealing with student suicide. The Group also advises on how the specific measures mentioned in paragraph (a) above should be reinforced or strengthened.
Compassionate Rehousing for Divorced Women
14. MR WONG WAI-YIN asked (in Chinese): Regarding the application for compassionate rehousing by divorced women, will the Government inform this Council of the following:
- how many divorced women have applied for compassionate rehousing over the past three years; of this, how many have failed in their applications, and what the reasons are;
- how long it will normally take for an applicant to obtain rehousing; and
- whether the existing application criteria for compassionate rehousing will be reviewed and whether consideration will be given to increasing the number of units provided for this purpose?
SECRETARY FOR HEALTH AND WELFARE: Mr President, the aim of the compassionate rehousing scheme is to help individuals and families who have a genuine and immediate housing need. Applications for compassionate rehousing are first assessed by the Social Welfare Department (SWD) which then recommends eligible cases to the Housing Department (HD) for the allocation of units. In assessing eligibility, factors taken into account by the SWD include the housing need, the financial and residential status of the family concerned and relevant social and medical grounds.
- The number of applications for compassionate rehousing by divorced women which were referred by the SWD to the HD in the past three years are 140 in 1992-93, 269 in 1993-94 and 212 in 1994-95. We do not have readily available data on the number of applications from divorced women which were found to be ineligible on assessment by the SWD. The most common reasons for turning down such applications were a lack of need for rehousing or applicants having incomes which were too high.
- Provided that all the relevant information is furnished at the time of application, a case can normally be processed by the SWD in about six weeks. It will then take about four weeks for the HD to identify and allocate a public housing unit to the applicant. This can take longer if the applicant is slow in producing the necessary documentation or is choosy regarding the acceptability of the units offered.
- The eligibility criteria of the compassionate rehousing scheme are kept under review to ensure that they meet the genuine and immediate housing needs of applicants. Each year, a number of public housing units are reserved to serve the scheme, by reference to the estimated demand. In 1995-96, a quota of 2 000 units has been set aside for this purpose. The quota set is for planning purposes only and does not create a cap on the number of units available. For example, in 1994-95, a total of 2 049 units were actually allocated for compassionate rehousing, a number which exceeded the quota of 2 000 units originally reserved for the scheme in that year.
Charges on International Calls
15. MR LAU CHIN-SHEK asked (in Chinese): Regarding the charges for international telecommunications services, will the Government inform this Council:
- of the breakdown, by region, of the percentage increase or decrease in the international telephone charges for calls from Hong Kong to overseas countries and territories in each of the past three years;
- of the differences between the international telephone charges levied by Hongkong Telecom International Limited and those levied by other companies offering similar services in each of the past three years;
- whether the Government has any plan to negotiate with Hongkong Telecom International Limited to secure a further reduction in international telephone charges levied by the company; and
- whether the Government and Hongkong Telecom International Limited have formulated any specific measures to reduce the international telephone charges for calls between Hong Kong and mainland China?
SECRETARY FOR ECONOMIC SERVICES: Mr President,
- A breakdown by region of the percentage changes to the international telephone charges for calls from Hong Kong to overseas countries and territories during the past three years is at Annex A.
- Within the Hong Kong Telecom Group, IDD charges are collected by the Hong Kong Telephone Company (HKTC). Details of the differences between the international telephone charges levied by HKTC and those levied during the past three years by other companies offering similar services in respect of the more popular routes is at Annex B.
- The Government considers that reduction in international telephone charges through market competition is more effective than through regulatory action. Under its licence condition, the Hong Kong Telecom International's (HKTI) exclusive right is restricted to the delivery of external telephone traffic from the Hong Kong international gateway to places outside Hong Kong, and places outside Hong Kong to the international gateway. The HKTI is not permitted to deliver telephone traffic directly to customers in Hong Kong and must rely on a local Fixed Telecommunication Network Service (FTNS) operator, such as its sister company, the HKTC, to deliver calls to the customers. The local FTNS operator charges the customer for the IDD call and retains a share of it (the delivery fee) for providing the connection between HKTI's gateway and the customer's home or office. From 1 August 1993, all the mobile telephone operators are also permitted to deliver telephone traffic directly from the HKTI international gateway to their own mobile phone customers. Following the introduction of FTNS competition on 1 July 1995, the three new FTNS operators are providing IDD service in competition with HKTC and are offering very competitive rates. Further, with effect from 1 October 1995, the Telecommunications Authority (TA) has revised the delivery fees. The new delivery fees are more favourable to the FTNS operators on outgoing calls and give them a higher margin which enables them to offer further IDD reductions to customers. Local mobile phone operators also receive the same delivery fee from HKTI on the delivery of international telephone calls and are also offering competitive IDD charges to their customers. In addition, in March 1995 the TA confirmed his ruling that call-back services are legal in Hong Kong. There are now a large number of companies providing IDD call-back services in competition with HKTC/HKTI and the three FTNS operators. The TA will continue to monitor the market situation and review the effects of competition.
- As explained in (c) above, the Government considers competition to be more effective than negotiations with HKTI to reduce international telephone charges. The revised delivery fees introduced in October 1995 will give local FTNS operators a significant margin over IDD rates to China and it is expected that they will pass some of this margin back to the consumers through competition. The effect of increased competition is expected to be seen in the next few months. For the time being, some call-back operators are already providing competitive charges on calls to China, for example, a charge of $8.50 compared with $9.50 from HKTC for calls to Beijing, Shanghai and other cities outside Guangdong. As competitive market pressures are taking effect, it is premature to consider intervening in HKTIs rates through regulatory action.
Annex A
Changes in IDD Standard Rates of Hong Kong Telephone Company
From 1993 to 1995
|
|
|
|
|
|
|
|
Total
|
|
before
|
after
|
Change
|
after
|
Change
|
after
|
Change
|
Change
|
|
1/8/93
|
1/8/93
|
in %
|
1/8/94
|
in %
|
1/8/95
|
in %
|
in %
|
|
Countries
|
($/min)
|
($/min)
|
(Vs 92)
|
($/min)
|
(Vs 93)
|
($/min)
|
(Vs 94)
|
(Vs 93)
|
|
|
|
|
|
|
|
|
|
|
Oceania
|
|
|
|
|
|
|
|
|
|
Australia
|
12.3
|
8.1
|
-3.4%
|
7.2
|
-11%
|
7.2
|
0%
|
-41%
|
|
New Zealand
|
12.3
|
8.1
|
-34%
|
8.1
|
0%
|
8.1
|
0%
|
-34%
|
|
|
|
|
|
|
|
|
|
|
America
|
|
|
|
|
|
|
|
|
|
Canada
|
11.7
|
8.9
|
-24%
|
7.9
|
-11%
|
6.7
|
-15%
|
-43%
|
|
United States
|
12.3
|
9.8
|
-21%
|
8.6
|
-12%
|
6.8
|
-21%
|
-45%
|
|
|
|
|
|
|
|
|
|
|
Europe
|
|
|
|
|
|
|
|
|
|
Germany
|
15.8
|
12.5
|
-21%
|
12.5
|
0%
|
12.5
|
0%
|
-21%
|
|
France
|
15.8
|
12.5
|
-21%
|
12.5
|
0%
|
12.5
|
0%
|
-21%
|
|
Netherlands
|
15.8
|
12.5
|
-21%
|
12.5
|
0%
|
12.5
|
0%
|
-21%
|
|
United Kingdom
|
10.5
|
9.8
|
-7%
|
8.8
|
-10%
|
8.8
|
0%
|
-16%
|
|
|
|
|
|
|
|
|
|
|
Africa
|
|
|
|
|
|
|
|
|
|
South Africa
|
15.8
|
14
|
-11%
|
14
|
0%
|
14
|
0%
|
-11%
|
|
Egypt
|
24
|
21
|
-13%
|
21
|
0%
|
21
|
0%
|
-13%
|
|
|
|
|
|
|
|
|
|
|
Asia
|
|
|
|
|
|
|
|
|
|
Singapore
|
7
|
6.9
|
-1%
|
6.9
|
0%
|
6.9
|
0%
|
-1%
|
|
Japan
|
7.9
|
7.9
|
0%
|
7.9
|
0%
|
7.9
|
0%
|
0%
|
|
Philippines
|
7.9
|
7.9
|
0%
|
7.9
|
0%
|
7.9
|
0%
|
0%
|
|
Taiwan
|
7.9
|
7.9
|
0%
|
7.9
|
0%
|
7.9
|
0%
|
0%
|
|
|
|
|
|
|
|
|
|
|
China
|
|
|
|
|
|
|
|
|
|
Shenzhen
|
2.4
|
2.4
|
0%
|
2.4
|
0%
|
2.4
|
0%
|
0%
|
|
Guangdong
|
3.7
|
3.7
|
0%
|
3.7
|
0%
|
3.7
|
0%
|
0%
|
|
Rest of China
|
9.5
|
9.5
|
0%
|
9.5
|
0%
|
9.5
|
0%
|
0% |
Annex B
International Telephone Rates 1993
|
Country
|
Hong Kong Telephone Company
|
City Telecom (HK) Limited
|
|
Peak
|
Non-Peak
|
Peak
|
Non-Peak
|
|
United States
|
$9.80
|
$8.00
|
$8.33
|
$7.04
|
|
Canada
|
$8.90
|
$7.80
|
$7.57
|
$6.86
|
|
United Kindom
|
$9.80
|
$8.50
|
$14.22
|
$13.38
|
|
Australia
|
$8.10
|
$6.60
|
$15.46
|
$14.55
|
|
China - Shenzhen
|
$2.40
|
$27.03
|
$23.32
|
|
|
Guangdong
|
$3.70
|
$27.03
|
$23.32
|
|
|
Rest
|
$9.50
|
$27.03
|
$23.32
|
|
International Telephone Rates 1994
|
Country
|
Hong Kong Telephone Compnay
|
City Telecom (HK) Limited
|
|
Peak
|
Non-Peak
P
|
Peak Stored Value
|
Non-Peak Stored Value
|
|
United States
|
$8.60
|
$6.90
|
$7.31
|
$6.94
|
$6.07
|
$5.77
|
|
Canada
|
$7.90
|
$6.90
|
$6.72
|
$6.38
|
$6.07
|
$5.77
|
|
United Kindom
|
$8.80
|
$8.20
|
$7.48
|
$7.11
|
$7.48
|
$7.11
|
|
Australia
|
$7.20
|
$6.50
|
$6.48
|
$6.16
|
$6.48
|
$6.16
|
|
China -Shenzhen
|
$2.40
|
$27.03
|
$23.32
|
|
|
|
|
Guangdong
|
$3.70
|
$27.03
|
$23.32
|
|
|
|
|
Rest
|
$9.50
|
$27.03
|
$23.32
|
|
|
|
table
Clearance of Temporary Housing Areas
16. MR LEE WING-TAT asked (in Chinese): With regard to the clearance of Temporary Housing Areas (THAs), will the Government inform this Council:
- whether the decision to retain 13 THA's as announced by the Housing Authority is in contravention of its policy on THA's made previously;
- how the rehousing arrangements of those residents living in the above-mentioned THA's which are not yet scheduled for demolition compare with those who living in THA's with firm clearance dates; and
- what environmental improvement programmes will be implemented by the Government for these 13 THA's, and what the estimated cost is?
SECRETARY FOR HOUSING: Mr President, the number and location of Temporary Housing Areas (THAs) required to meet changing demand is subject to periodic review. The purpose of retaining 13 existing THAs beyond 1997 is to meet future demand arising from clearance programmes and immigration from China.
The Govemment's commitment to offer permanent rehousing in public rental estates, before the end of 1997, to all authorized persons living in THAs as at the end of 1993 remains unchanged. Indeed we will go one step further: by the end of 1997, all authorized persons living in THAs as at the end of September 1995 will be offered rehousing in public rental estates.
The rehousing arrangements for existing residents of the 13 THAs will be similar to those for residents of THAs which have firm clearance dates. Eligible households will be offered public rental housing by the end of 1997. They will also be entitled to apply, with priority Green Form status, for the purchase of Home Ownership Scheme flats or for assistance under the Home Purchase Loan Scheme.
The units in the 13 THAs will be refurbished by the Housing Authority before reallocation. Work has already started on vacated units. The cost in each case varies, depending on the size and condition of the unit and the renovation work required. The average cost for each unit is estimated at $8,000.
Charter for Safety in the Workplace
17. MRS SELINA CHOW asked (in Chinese): At present, many occupational diseases afflict employees in the retail industry as well as general office workers. There is however no legislation to protect them against health hazards arising from their employment. In this year's policy address, the Governor make reference to proposal to publish a "Charter for Safety in the Workplace" (the Charter). In this connection, will the Government inform this Council:
- What is the time frame planned for the full implementation of the Charter; and
- whether the Charter will provide safeguards for the occupational safety and health of employees in the retail industry and office workers; if so, who the Charter will be able to improve the occupational safety and health of these employees and office workers?
SECRETARY FOR EDUCATION AND MANPOWER: Mr President, it is the Government's intention to publish and implement the "Charter for Safety in the Workplace" in the middle of 1996. To this end, the Labor Department has set up a working group to draft the Charter. The Legislative Council Panel on Manpower, employers' associations, employees' unions and the professional bodies concerned will be consulted at a later stage.
The Charter will cover the whole range of occupational safety and health issues for employees in both industrial and non-industrial sectors, including employees in the retail trades as well as office workers. The Charter will make clear the rights of the worker to enjoy a safe working environment and the employer's obligations to prevent deaths and injuries. It will also emphasize the responsibility of the employees to co-operate with his employer in following safety working practices and reporting workplace hazards.
Implementation of the Charter will enhance the safety awareness of the employers and employees. We believe that if employers and employees abide by the Charter, use appropriate personal protective equipment and follow operational manuals and guidelines, the standard of occupational safety and health will be greatly enhanced.
Underground Marble Caverns in Ma On Shan
18. MISS EMILY LAU asked: It is reported that a Housing Department development project in Area 90 of Ma On Shan is several months behind schedule. According to the report, the piling contractor of the project blamed the delay on the discovery of underground marble caverns but this was denied by the Chairman of the Building Committee of the Housing Authority. The piling contractor further accused the Chairman of the Building Committee of having a "substantial conflict of interest" because he is also a senior partner of the architectural firm which designed the development project. In this connection, will the Administration inform this Council:
- whether the problem of underground marble caverns was anticipated and whether allowance for such problem was made in the design of the project;
- whether there are other reasons for the delay in the project; if so, what those reasons are;
- how much more money the project will cost;
- whether the accusation of conflict of interest has been investigated; and
- when the project is expected to be completed?
SECRETARY FOR HOUSING: Mr President, the Government was aware of the marble caverns in Ma On Shan Area 90 before the commencement of the housing project. As Area 90 is a Scheduled Area under the Buildings Ordinance, detailed investigations, which covered all six phases of the project, were conducted by geological and engineering sub-consultants engaged by the Housing Departrnent's consultants between 1989 and 1993 in consultation with the Housing Department. The dispute in question relates to the piling contract for Phase 5.
Owing to minor localized subsidence, the piling contractor for Phase 5 has made an allegation that it would be unsafe to carry on with the work. The Housing Department's consultants are firmly of the view that it is safe to continue according to the specialist design of the piling work and the detailed technical requirements specified in the contract. Foundation work was already about seven months behind schedule before the subsidence occurred. The Housing Department's consultants have ascribed the delay to the piling contractor's use of inadequate plant and machinery and insufficiently experienced workers.
It is not possible at this stage to provide an estimate of additional cost for the project since much will depend on how quickly and in what manner the piling work will be carried out in future. The contractor is liable for liquidated damages in respect of any delay.
Members of the Housing Authority are required to declare their interests at meetings, including those concerning the appointment of consultants and the award of contracts and consultancies, and to refrain from discussing such matters. This requirement has been complied with in respect of this project.
If the piling contractor continues to work at his present pace, piling will be completed in January 1998. The Housing Department is exploring with the consultants and the contractor ways and means of expediting the work. The revised completion date for Phase 5 of the project is June 2000.
Health Hazards at Petrol Filling Stations
19. DR JOHN TSE asked (in Chinese): Will the Government inform this Council what measures the Government has to: (a) protect those workers at petrol filling stations and residents nearby against health risk and even chronic illness which may be cause by the inhaling of gases such as benzene over a long period of time; and (b) safeguard the occupational safety of the workers and the health of the residents?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President,
- The adverse impacts of petrol filling stations are minimized through land use planning and statutory control over emissions. Under the Hong Kong Planning Standards and Guidelines, all new petrol filling stations have to be located on open ground with specified distance from neighbouring buildings. Oil companies are also required to keep the benzene level in petrol within the European Community standard of 5%. So far, the average benzene content in Hong Kong has been maintained at about 3.2% to 3.4%, and recent surveys have confirmed that workers in petrol filling stations are not exposed to air-borne concentrations of the chemicals in excess of the relevant occupational hygiene standards. Under the Air Pollution Control Ordinance, the Environmental Protection Department also ensures that petrol filling stations comply with specified emission levels for toxic chemicals.
- In addition to the planning controls referred to in (a), administrative and engineering controls such as proper work practice to avoid spillage and the provision of bottom loading system for road tankers are implemented to safeguard the health of workers in petrol filling stations. In addition, a study on toxic air pollution in Hong Kong is being conducted, which will also address the question of controls on benzene from petrol filling stations, and will be completed at the end of 1995. The Administration will consider the findings carefully to see whether further control measures will be necessary.
Flood Protection Schemes
20. MR WONG WAI-YIN asled (in Chinese): In his 1994 policy address the Governor pledged that a sum of 190 million would be spent over the next three years on flood protection schemes for some 12 villages which were particularly vulnerable to flooding. However, it is learnt that the schemes are now running behind schedule because the time taken for land resumption has been longer than expected. In this connection, will the Government inform this Council:
- of the villages where the flood protection schemes are running behind schedule, and how far have these schemes fallen behind the original schedule;
- what measures does the Government have to ensure that there will be no further delay in land resumption; and
- whether inadequate manpower in the Lands Department is a factor contributing to the delay in land resumption; if so, whether the Government will consider increasing the Lands Departments manpower?
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS: Mr President, the answers to the three-part question are as follows:
- The construction of three flood protection schemes covering nine villages, originally scheduled to start in 1995-96, will begin in 1996-97. The slippage is about 10 months. The villages are Sha Po Tsuen, Chau Tau Tsuen, and seven villages at San Tin: Tsing Lung Tsuen, Wing Ping Tsuen, San Lung Tsuen, Fan Tin Tsuen, On Lung Tsuen, Tung Chan Wai and Yan Shau Wai. The schemes for Pok Wai Tsuen and Chuk Yuen will be delayed by about 12 months.
- The Drainage Services Department is working closely with the District Lands Offices on land resumption and clearances required for the implementation of the village protection schemes. We have also set up a special committee comprising representatives from all relevant offices to review what can be done to overcome the problems encountered and to speed up the necessary procedures so that work can begin as quickly as possible. However, the Government has to proceed carefully with land resumption because it involves the property rights of land owners. This may sometimes mean taking longer than expected to complete the process.
- Manpower in the Lands Department is only one of the factors. Other factors such as statutory procedures and the time required to deal with objections are also relevant. We are looking at ways to streamline the procedures and improve efficiency. We are also reviewing the priorities of the various activities undertaken by the Lands Department.
BILLS
First Reading of Bills
MERCHANT SHIPPING (REGISTRATION) (AMENDMENT) BILL 1995
LAND REGISTRATION (AMENDMENT) BILL 1995
TOWN PLANNING (AMENDMENT) BILL 1995
Bills read the First time and ordered to be set down for Second Reading pursuant to Standing Order 41(3).
Second Reading of Bills
MERCHANT SHIPPING (REGISTRATION) (AMENDMENT) BILL 1995
THE SECRETARY FOR ECONOMIC SERVICES to move the Second Reading of: "A Bill to amend the Merchant Shipping (Registration) Ordinance."
He said (in Cantonese): Mr President, I move that the Merchant Shipping (Registration) (Amendment) Bill 1995 be read the Second time.
The Bill seeks to plug a potential legal loophole in the Merchant Shipping (Registration) Ordinance. Under the existing law, where the Registrar of Ships receives a notice that a ship has ceased to be registrable by virtue, for example, of its change of ownership or termination of its demise charter, and if the Registrar is satisfied that the ship has indeed ceased to be registrable, he will close the registration of the ship. In case where notice of unregistrability is received from the representative person or the demise charterer, a ship may be de-registered from the Hong Kong Register of Ships without the knowledge of its owner or mortgagee. Although under present administrative practice this is unlikely because the Registrar will normally notify the owner and any outstanding mortgagee on receipt of the notice before closing the registration of a ship, the loophole is that there is no statutory obligation for the Registrar to give such notification.
There is concern in the industry and amongst banks that this loophole may provide an opportunity for fraud if the demise charterer submits a notice of unregistrability and transfers the ship's registration without any outstanding mortgage first being cleared.
The Bill aims to plug this loophole by requiring the Registrar, on receipt of a notice of unregistrability, to give 30 days' notice to the owner and any registered mortgagee before the closure of the ship's registration is effected. This will give sufficient time for the existing owner or mortgagee to take any appropriate action to protect their interests and thereby eliminate the opportunity for fraud.
Thank you, Mr President.
Question on the motion on the Second Reading of the Bill proposed.
Debate on the motion adjourned and Bill referred to the House Committee pursuant to Standing Order 42(3A).
LAND REGISTRATION (AMENDMENT) BILL 1995
THE SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS to move the Second Reading of: "A Bill to amend the Land Registration Ordinance."
He said: Mr President, I move that Land Registration (Amendment) Bill 1995 be read a Second time.
Land registration in both the urban areas and the New Territories is governed by the Land Registration Ordinance and the Land Registration Regulations.
To improve its services to the public, the Land Registry will introduce a Document Imaging System in mid-1996. This is basically a new method of storage and retrieval of land records, whereby the memorials or registered instruments are scanned and the information recorded in them is converted into electronic images which are stored on electronic storage media such as optical disks. The information can then be speedily retrieved for viewing on screen and printing onto paper.
In order that the image record of memorials retained on the disk can be treated for all purposes as an original copy of the memorial as with the microfilm records, a new provision similar to section 29 of the Land Registration Ordinance is necessary. Amendment to section 26A(1) of the Ordinance is also required to make clear that a document purporting to be a copy, print or extract of or from an image record after certification by the Land Registrar will be admissible in evidence in court proceedings. The imaging method should also be added to the Land Registration Regulations as an additional method of recording memorials and registered instruments.
Separately, the Land Registry is launching a project to record the register cards in the urban area on microfilm. Register cards in the New Territories are also being converted into computerized records. The Register cards will serve no practical use afterwards. We therefore propose that the Land Registrar should be able to destroy or otherwise dispose of them so as to achieve savings in having to store them. Regulation 19 of the Land Registration Regulations needs to be amended to reflect this.
Under section 22 of the Land Registration Ordinance, a person can deposit at the Land Registry any deed, conveyance, power of attorney or other instrument in writing for safe custody until he requires them back again. It is uneconomical for the Land Registry to continue providing this service in view of the cost involved and the fact that safe deposit services are widely available from banks. We therefore propose that this section should be deleted, but the Land Registry will keep safe custody of the deeds already deposited with it
The main proposals of the Land Registration (Amendment) Bill 1995 are:
- clause 2 defines the terms "image", "image record", "imaging", "imaging method" and "register card";
- clause 3 repeals section 22 of the Ordinance such that the Land Registry will not further accept deposit of any deeds or conveyances for safe custody. Notwithstanding this, the Land Registrar will continue to keep safe custody of the deeds and conveyances deposited with him until such deeds and conveyances are delivered back to the person depositing them;
- clause 5 makes it clear that a document purporting to be a copy, print or extract of or from an image record after certification by the Land Registrar will be admissible in evidence in court proceedings. The use of printed signature of the Land Registrar or of any person authorized by him for certification purposes is allowed;
- clause 6 enables regulations to be made in respect of the use of the imaging method;
- clause 7 provides that the microfilm record of register cards, the image record of memorials, and the image record of the microfilm record of the memorials be treated for all purposes as the original register cards or memorials.
Mr President, the Land Registration (Amendment) Bill 1995 will enhance the compatibility of the recording system of memorials and registered instruments with new information technology and improve the economic efficiency of the registration process. I recommend it to Members for favourable consideration. Subject to the enactment of the Bill, the (Amendment) Regulation will be made by the Land Registrar.
Thank you, Mr President.
Question on the motion on the Second Reading of the Bill proposed.
Debate on the motion adjourned and Bill referred to the House Committee pursuant to Standing Order 42(3A).
TOWN PLANNING (AMENDMENT) BILL 1995
THE SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS to moved the Second Reading of: "A Bill to amend the Town Planning Ordinance."
He said (in Cantonese): Mr President, I move that the Town planning (Amendment) Bill 1995 be read a Second time.
There is now a considerable backlog of cases concerning objections to draft plans and planning appeals to be heard by the Town Planning Board and the Town Planning Appeal Board respectively. The appointment of judges to the Appeal Board panel and the interpretation of continuing offence under the Town Planning Ordinance also need clarification.
The existing Town Planning Ordinance provides that the Town Planning Board will give preliminary consideration to an objection to a draft plan in the absence of the objector. If the objector refuses to withdraw the objection after being notified of the Board's view, he has the right to attend a hearing before the Town Planning Board.
At present, the Town Planning Board may delegate some of its powers and functions to a committee appointed by the Governor, but review of the Board's decisions on planning applications and consideration of objections are two of the matters that cannot be delegated to a committee and must be dealt with by the Board itself.
Up till mid September 1995, the Town Planning Board has yet to give preliminary consideration to some 3 089 objections and to hear 1 150 outstanding objections. We estimate that if the objections are to be heard by the Board according to the present hearing procedure, it would take several years to clear the backlog.
The Bill will enable the Town Planning Board to appoint its members to form committees to hear objections to the draft plans. Such committees will each consists of not less than five members drawn from the Board. The majority of committee members shall not be public officers. It is expected that the hearing of objections can be expedited when these committees are in operation.
The Town Planning Ordinance provides that an applicant for planning permission who is aggrieved by a decision of the Town Planning Board on review may lodge an appeal to the Town Planning Appeal Board. Upon receipt of a notice of appeal, the Chairman or the Deputy Chairman of the Appeal Board panel shall nominate an Appeal Board to hear the appeal. The Appeal Board shall consist of the Chairman or the Deputy Chairman of the panel and four other members.
In recent years, there has been a significant increase in the number of appeals. Up till mid September 1995, there are 29 outstanding appeals yet to be heard by the Appeal Board. The present constitution of the Appeal Board only allows two hearings to be held concurrently, as only the Chairman or the Deputy Chairman of the Appeal Board panel can act as Chairman of the Appeal Board.
The Bill will enable the Governor to appoint more than one Deputy Chairman to the Appeal Board panel, so that additional Appeal Boards may sit simultaneously.
The Appeal Board panel was created in 1991 by way of an amendment to the Town Planning Ordinance. When the amendment was debated in this Council in July 1991, the ad hoc group studying the bill expressed the view that the Chairman of the Appeal Board panel should be drawn from the judiciary. However, due to the shortage of judges, a senior lawyer was appointed by the Governor to be its Chairman when the Appeal Board panel was first constituted. He was subsequently appointed as a judge in the Court of Appeal but continues to serve as Chairman of the Appeal Board panel. The validity of his appointment and the validity of the decisions made by the Appeal Boards under his chairmanship is currently subject to legal challenge on the ground that a judge is a public officer. Legal advice obtained by the Administration is that "public officer", viewed in the context of the Ordinance, does not include a judge. However, if the court challenge is successful, any decisions of the Appeal Boards made under his chairmanship subsequent to the validity of his appointment first being raised would be affected. The validity of his appointment was first raised in May 1995, so there are a number of such decisions. As it is the intention of the Administration that the Chairman of the Appeal Board panel would continue to be able to be drawn from the judiciary, the problem will continue.
To put it beyond doubt that a judge may be appointed to the Appeal Board panel, it is proposed that a new subsection should be added to the Ordinance to define that "public officer" does not include a judge. In addition, a new section is proposed to validate decisions made by an Appeal Board of which a judge was a member unless the validity of the judge's appointment was challenged in court on or before 31 October 1995. The latter exception ensures that proceedings currently before the court will not be interfered with.
To clarify the nature of a continuing offence under section 23 of the Ordinance, the Bill provides for a daily fine to be charged for continuing offence on each day after the date in a notice served under section 23, during which the convicted offender continues to fail to comply with the requirements of such notice.
The Bill will improve the efficiency and operation of the Town Planning Board and Town Planning Appeal Board. I recommend it to Members.
Thank you, Mr President.
Question on the motion on the Second Reading of the Bill proposed.
Debate on the motion adjourned and Bill referred to the House Committee pursuant to Standing Order 42(3A).
AIR PASSENGER DEPARTURE TAX (AMENDMENT) BILL 1995
Resumption of debate on Second Reading which was moved on 18 October 1995
Question on Second Reading proposed.
MR HOWARD YOUNG (in Cantonese): Mr President, the Air Passenger Departure Tax (Amendment) Bill 1995 seeks to enable visitors to pay for the departure tax in advance at places such as hotels. I fully support and agree to this proposal for the convenience of visitors.
There have been times when visitors touring Hong Kong would find to their surprise that they do not have enough money in Hong Kong currency to pay for the departure tax after they have bought souvenirs, other consumer goods, gifts and so on, and I believe that the chance of such embarrassment will be reduced following the introduction of this new measure. I would also suggest that visitors should be allowed to buy the tax coupons at such places as travel agencies other than hotels because travel agencies may be fully responsible for making travel arrangements for some visitors.
Besides, some visitors coming to Hong Kong may not reside in hotels. If visitors who stay in hotels can buy tax coupons in advance while those who do not stay in hotels cannot, it may give a wrong impression that visitors who do not check in at a hotel are not welcomed in Hong Kong.
Yet, Mr President, in the long term, it is still my hope that the Government would consider abandoning the concept of departure tax. Air passengers are the main users of the airport. The departure tax that passengers are required to pay now merely constitutes an additional income to the Treasury and, quite on the contrary, payers cannot enjoy any additional service in paying this tax. This seems to be rather unfair to departing passengers. The Government has long advocated the "user pays" principle, which also forms part of the bedrock of Hong Kong's financial philosophy. If the Government considers it necessary to charge departing passengers a fee, I think it would be more appropriate to change the concept from an airport tax or a departure tax to an airport service charge. The fees collected can be spent on improving the services, maintenance and facilities of the airport, in which case departing passengers will find it worthwhile to pay such fees. In so doing, the spirit of "user pays" will be realized and the Airport Authority will be able to attain better development in its finance with its competitive edge further enhanced in future. I believe that this will be beneficial to the development of tourism in Hong Kong in the long run.
Mr President, I support this Bill.
SECRETARY FOR THE TREASURY (in Cantonese): Mr President, I am very grateful to the Honourable Howard YOUNG for his support for the Bill. I am prepared to consider Mr YOUNG's proposal, that is, the selling of tax coupons by organizations other than hotels.
Mr YOUNG put forward some ideas about Air Passenger Departure Tax. I believe Mr YOUNG will understand that the Financial Secretary is consulting Legislative Council Members on tax matters. We will certainly consider Mr YOUNG's ideas.
Question on the Second Reading of the Bill put and agreed to.
Bill read the Second time.
Bill committed to a Committee of the whole Council pursuant to Standing Order 43(1).
Committee Stage of Bill
Council went into Committee.
AIR PASSENGER DEPARTURE TAX (AMENDMENT) BILL 1995
Clauses 1 to 6 were agreed to.
Council then resumed.
Third Reading of Bill
THE SECRETARY FOR THE TREASURY reported that the
AIR PASSENGER DEPARTURE TAX (AMENDMENT) BILL 1995
had passed through Committee without amendment. He moved the Third Reading of the Bill.
Question on the Third Reading of the Bill proposed, put and agreed to.
Bill read the Third time and passed.
MEMBER'S MOTIONS
INTERPRETATION AND GENERAL CLAUSES ORDINANCE
MR EDWARD HO to move the following motion:
"That the Marine Fish Culture (Amendment) Regulation 1995, published as Legal Notice No. 467 of 1995 and laid on the table of the Legislative Council on 25 October 1995, be repealed."
MR EDWARD HO: Mr President, I move the motion standing in my name on the Order Paper.
The Marine Fish Culture (Amendment) Regulation 1995 seeks to increase the fee for the grant or renewal of a marine fish culture licence for 12 months from $7.40 per sq m of the site area to $8.80 per sq m.
A Subcommittee under my chairmanship was formed to study this Regulation and the Building (Administration) (Amendment) (No. 3) Regulation 1995. The Subcommittee has met the Administration and received a submission from the Hong Kong Federation of Hong Kong Aquaculture Associations which raises objection to the increase in licence fee. The Subcommittee has noted the Administration's explanation that the existing fee, which represents 84% of the cost calculated at 1995-96 prices, was last revised in October 1994 under a phased programme aimed at achieving full-cost recovery in 1995-96. The Administration therefore proposes to increase the fee by about 19% to recover the full costs in issuing licences. The Administration envisages that the proposed new fee should not cause hardship to mariculturists as it would represent less than 1% of the total operating expenses of a typical fish farm.
Nevertheless, in the light of the information provided by the Administration that the net income of a typical marine fish culture farm only amounts to an average of $120,000 per year, the Subcommittee considers the proposed increase inappropriate as it would adversely affect the livelihood of the mariculturists. The existing fee level has already been set at recovering more than 80% of the costs, the Subcommittee expresses doubt on the necessity to recover the full costs within a short period of time. The Subcommittee therefore agrees that the licence fee should remain at the existing level and the Regulation setting out the fee increase should be repealed.
Mr President, I beg to move.
Question on the motion proposed.
SECRETARY FOR ECONOMIC SERVICES (in Cantonese): Before Honourable Members consider this motion, I would like to give two brief explanations only.
Firstly, the basic principle underlying the Government's proposal of increasing the existing fee from $7.40 per sq m to $8.80 per sq m is to recover the full costs. As the Honourable Edward HO said, the licence fee of $7.40 was set 13 months ago. At that time, 93% of the administrative costs could be recovered. However, due to inflation since October 1994, this level of licence fee can now only recover 84% of the existing costs. Before the Government introduced this proposal, the Agriculture and Fisheries Department had consulted the Aquaculture Subcommittee of the Advisory Committee for Agriculture and Fisheries. The Subcommittee did not object to the cost recovery principle at that time. Mr President, thus from the angle of principle, the Government can see no reason why it should not recover all the costs incidental to the marine fish culture licences. Since the enactment of the Marine Fish Culture Ordinance, this level of licence fee has always been lower than the full cost level.
Secondly, in regard to the impact of this licence fee on fish farms, I would like to quote a simple example. For a fish farm with an average area of 180 sq m, the annual licence fee is about $1,300 according to the existing rate, which is a little lower than 1% of the operation cost of the fish farm. If, according to the present proposal of the Government, the fee of this type of marine fish culture licences will be increased by $250 per year, the increase will be equal to one fifth of the above-mentioned 1% operation cost. After considering that the estimated total annual operation cost of this kind of fish farms is as high as $162,000, this rate of increase, that is $250, will indeed be negligible. This low level of licence fee increase should not cause any financial difficulties to the licence holders, or have any appreciable effect on the consumers in respect of the fish prices.
Thank you, Mr President.
MR CHEUNG HON-CHUNG (in Cantonese): Mr President, before I make a decision as to whether or not I should support the Honourable Edward HO's motion, I need to pose a question. Whom has the Government consulted? Representatives of the 42 members of the Hong Kong Federation of Hong Kong Aquaculture Associations have pointed out that it appears the Government has never consulted them. However, according to the documents the Government gave us, mariculturists are agreeable to the revised fees. I need to ask further whether the 42 organizations I mentioned were among those consulted. Is the Government trying to mislead us? Thank you, Mr President.
SECRETARY FOR ECONOMIC SERVICES (in Cantonese): Mr President, do you allow me to answer the question just raised?
PRESIDENT: Go ahead, Secretary for Economic Services. It is a point of elucidation.
SECRETARY FOR ECONOMIC SERVICES (in Cantonese): Thank you, Mr President. I just want to clarify a fact. I have mentioned in my speech that when the Agriculture and Fisheries Department proposed to revise the licence fee to $7.4 per sq m in 1994, that is, well before the fee was proposed to be revised to $8.8, the Aquaculture Subcommittee of the Advisory Committee on Agriculture and Fisheries had already been consulted. Some of the members of the Joint Conference do sit on this Subcommittee. I could only say that "some" of the Members do sit on it because the membership list of this Joint Conference as tabled to the Members today is very long.
Thank you, Mr President.
SECRETARY FOR THE TREASURY (in Cantonese): Earlier on, the Secretary for Economic Services has explained in detail the background of and the grounds for the adjustment of this fee. I hope that Members can understand that the Government's proposal on the fee is a reasonable one. When discussing the present proposal concerning this licence fee, some Members have expressed doubts about the Government's cost supervision and I would like to take this opportunity to respond.
First, I would reiterate that the Government has a healthy system to ensure that users can obtain services that are cost effective. Every government department and the policy branch to which it is answerable would regularly review their work in order to simplify their operation and reduce costs as far as possible. Generally speaking, the departments and policy branches have to cope with the increase of demand for their services with the current level of resources provided to them. If a policy branch wishes to ask for an increase of resources in order to expand or improve their services, they will have to compete against similar proposals made by other policy branches in the resource allocation exercise carried out every year. The purpose of these arrangements is to urge the departments and policy branches concerned to review their efficiency. At the same time, the Efficiency Unit under the Chief Secretary's Office would also give assistance to the departments and policy branches concerned so that the departments can function and use their resources more efficiently.
Besides, the Director of Audit would also employ the value-for-money audit method and provide independent information and proposals to the Legislative Council in relation to the economic effectiveness and efficiency of the policy branches and the government departments as well as the results they have achieved. After the Public Accounts Committee has scrutinized the reports submitted to the Legislative Council by the Director of Audit, it has the power to summon public officers to testify. The Government attaches a lot of importance to Members' opinions and would adopt them as far as possible in order to improve its efficiency and cost effectiveness.
We have already submitted a paper on the principles and mechanism of adjustment of government charges to the Economic Services Panel of the Legislative Council. In the meeting of the Panel held last Friday, we discussed the matter with Members. I am very pleased to know that many Members actually agree with the "user pays" principle of cost recovery. I also understand why Members are concerned about the Government's supervision of the costs of its services. I hope that the measures to monitor cost effectiveness that I have mentioned just now can allay Members' worries in this respect. The Government will certainly not let up on its efforts in this regard.
I would again call on Members to oppose this motion.
Question on the motion put and agreed to.
INTERPRETATION AND GENERAL CLAUSES ORDINANCE
MR EDWARD HO to move the following motion:
"That in relation to the Building (Administration) (Amendment) (No. 3) Regulation 1995, published as Legal Notice No. 466 of 1995 and laid on the table of the Legislative Council on 25 October 1995, the period referred to in section 34(2) of the Interpretation and General Clauses Ordinance for amending subsidiary legislation be extended under section 34(4) of that Ordinance until 29 November 1995."
MR EDWARD HO: Mr President, I move the motion standing in my name on the Order Paper.
The Building (Administration) (Amendment) (No. 3) Regulation 1995 seeks to increase the fees for the inclusion, retention or restoration of names in the Authorized Persons' Register, the Structural Engineers' Register, the Contractors' Register or the Register of Ventilation Contractors by about 9%.
The Subcommittee formed to study this Regulation and the Marine Fish Culture (Amendment) Regulation 1995 has identified some issues of concern, in particular, the total costs incurred by the Administration in relation to such registrations. To allow time for the Subcommittee to consider further information from the Administration on the issues identified, it is necessary to extend the time allowed for making amendment to the subsidiary legislation until 29 November 1995.
Mr President, I beg to move.
Question on the motion proposed, put and agreed to.
INTERPRETATION AND GENERAL CLAUSES ORDINANCE
MR EDWARD HO to move the following motion:
"That the Building (Administration) (Amendment) (No. 3) Regulation 1995, published as Legal Notice No. 466 of 1995 and laid on the table of the Legislative Council on 25 October 1995, be amended in section 1 by repealing "23 November 1995" and substituting "1 December 1995"."
MR EDWARD HO: Mr President, I move the motion standing in my name on the Order Paper. The motion seeks to extend the commencement date of the Building (Administration) (Amendment) (No. 3) Regulation 1995 until 1 December 1995.
Under section 1 of the said Regulation, the fee increase will come into operation on 23 November 1995. As we have earlier extended the period for amending the subsidiary legislation until 29 November 1995, the fee increase will take place before this Council decides whether to amend the Regulation or not. To avoid an anomaly that the Regulation will become effective during the extension period, and to allow sufficient time for any amending resolution to be published in the Gazette, it is necessary to defer the commencement date of the Regulation to 1 December 1995.
Mr President, I beg to move.
Question on the motion proposed, put and agreed to.
PRESIDENT: I have accepted the recommendations of the House Committee as to the time limits on speeches for the motion debates and Members were informed by circular on 13 November. The movers of the motions will have 15 minutes for their speeches including their replies and another five minutes to speak on the proposed amendments. Other Members, including the movers of the amendments, will have seven minutes for their speeches. Under Standing Order 27A, I am required to direct any Member speaking in excess of the specified time to discontinue his speech.
URBAN RENEWAL POLICY
MR JAMES TO to move the following motion:
"That this Council expresses deep regret at the failure of the Government to set out in its consultation paper on "Urban Renewal" a comprehensive policy in resolving the long-standing problems in urban renewal, and therefore requests the Government to expeditiously formulate a comprehensive policy to speed up the pace of urban renewal and improve the living standard of people residing in old urban districts, with due emphasis on tackling the problems relating to the acquisition of properties by developers and ensuring that residents affected will be rehoused in the same locality and reasonably compensated."
MR JAMES TO (in Cantonese): Mr President, I move the motion standing in my name on the Order Paper.
This is the fourth time I have moved a motion on urban renewal in this Council. The Democratic Party is extremely discontented with the Government's failure over the years to put forward a substantive urban renewal policy and its inability to solve the long-standing problems arising from urban renewal. Over three years had lapsed before the Government finally issued a consultation document on urban renewal. Three years ago when I moved that motion, Members received a sleeping mat when they entered this Council. Two years ago, I received a floor mop. The local residents gave us a mop to mean that the Government had always been procrastinating. Today, what I have received is a large pile of policy papers on urban renewal. However, what we can see in this large pile, according to the inner voice of the public, is a set of "window dressing" papers, lacking substance and going wide of the mark. The consultation document is devoid of content, failing to propose a directional and forward-looking policy on overall urban renewal for the future and unable to offer specific solutions to the core problem of urban renewal, that is, how the private developers should compensate and rehouse the tenants. The Government only seeks to elaborate on the problems of urban renewal and stops at that. It then invites the public to give their opinions. We do not object to the practice of collecting views, but the Government bears some responsibilities on the problem of urban renewal and it should offer solutions.
Let us, in the first place, consider the objectives of urban renewal. The Government has all along been focusing on improving the physical environment and has been targeting at the economic benefits that this will bring. However, the Government has turned a blind eye to the affected residents' right of residence, their right to rehousing and the tenants' right to rent and live. In the eyes of the Government, urban renewal is simply "demolishing the old community and erecting new buildings". The developers reap the profits and the Government is glorified for "beautifying" the environment. The ones who suffer and make sacrifices are the low-salaried tenants and the unit owners who have not been adequately rehoused and are forced to move away from the original community. The prevailing so-called urban renewal policy relies only on market mechanism so that the developers may erect new buildings, thereby providing more capital for commercial and industrial development. This is not a "people-oriented" urban renewal policy.
The Democratic Party finds it difficult to agree to the Government's concept of urban renewal. We believe we should focus on the benefits of the whole community when launching any urban renewal programme, that is, we should improve community environment and upgrade the residential quality of the people. When such programme is launched, the rights of residence and of property of the owners must be respected and protected so as to, as far as possible, ensure that their original living environment, community network and neighbourhood relationship can be preserved. For the tenants, their right to rent and live must be protected so that they will not become homeless, nor will they have to endure the pressure of high rental.
The difficulties as highlighted by the Government in the Public Consultation Document on Urban Renewal are the high costs and enormous administrative difficulties, which have hindered private developers from launching major redevelopment projects. The Government is also adamant that it is difficult to rehouse the residents and the tenants, but it does not look into the problem of what rehousing arrangement the private developers should provide to the tenants. That was actually the major reason behind the motion I moved in 1992. The Government only suggests in the consultation document that the statutory compensation to be offered to the tenants of smaller units should be raised and that land should be allocated to the Land Development Corporation (LDC) at one-third of the premium in order to facilitate rehousing. Does the Government mean to say that this can solve the problem of rehousing?
In fact, most of the urban renewal projects are taken up by private developers. On commercial grounds and for the purpose of reaping windfall profits they often, displace the original residents from the old community. The lives of the elderly residing alone and the singletons are even more desolate because they often have to move away from their original districts or may be even rendered homeless. With the meagre amount of compensation in hand, the tenants could only afford to rent a place for about two to three months in view of the high rental level prevailing in the market. They will then have to move to another building and be forced to move away for another time or they may be forced to become street sleepers. Are these "public interests" or the "economic benefits" of the private developers? I am sure everyone can tell. If urban renewal is reduced to a tool for the developers to reap commercial benefits instead of a principle for improving community environment and ensuring that all residents can share the fruit of redevelopment and upgrade their living conditions, "urban renewal" will become nothing but an euphemistic term for "demolishing old buildings, erecting new buildings and benefiting the developers".
We should not just satisfy ourselves with erecting new buildings, nor should we brush aside the residents' and the tenants' right to rehousing. We think that the rehousing policy must set its target at rehousing the residents in the same locality and respecting the private property ownership of the owners. At present, the tenants in the old districts are often the victims of "urban renewal". The amounts of compensation offered to tenants in urban renewal projects undertaken by the Government, the LDC, the Hong Kong Housing Society (HS) and private developers differ in great magnitude. The compensation offered by private developers is only enough for several months' rental and after that, the tenants are left to themselves. Their fate therefore is determined by which redevelopment agency undertakes the project. Such rehousing policy is tantamount to determining the fate of the tenants by tossing a coin. It is ridiculous. We suggest that the redevelopment compensation be significantly raised from the current level of 1.7 times the rateable value of the premises to five times the rateable value, for the purpose of mitigating the difficulties that the tenants face during the transition period of moving from one unit to another and at the same time providing some assistance to those tenants who have to live in premises at higher rentals. At present, when the LDC undertakes a renewal project, the compensation offered to the tenants is generally set at five times the rateable value and that provides some sort of protection for the tenants' right to rent and live. That should help them to tide over some difficulties. We believe the private developers should bear the responsibility of rehousing the tenants, but the Government is silent on this point in the consultation document, trying to evade the biggest difficulty. The West Kowloon Development Statement published by the Planning Department also mentions that when private enterprises undertake renewal projects, they have to provide affordable rehousing arrangement in the same locality for the residents of West Kowloon. It is also mentioned in the Statement that land has been identified in the district to meet the need of rehousing the residents of West Kowloon in the same locality. In other words, in the Development Plan of West Kowloon, the Government, or at least the Planning Department, recognizes the importance of in situ rehousing and providing rehousing for residents at an affordable level. To ensure that the rehousing programme is in line with public interests, we suggest that redevelopment agencies submit rehousing plans to the Government at the time when they submit redevelopment plans. The Government should assess each and every rehousing plan under open and concrete guidelines. One of the principles should be that the conditions of the rehousing units shall not be worse than the conditions of the units the tenants currently are residing in.
On the strategy of redevelopment, the HS and the LDC should enjoy priority, but at the same time, the support for and the supervision over them must be strengthened. The Government should allocate more land to the LDC and the HS to rehouse the affected residents and should supervise the way in which their profits are used. It should be provided that the LDC and the HS should use the profits derived from redevelopment on redevelopment. Therefore, we welcome the idea that the Government grants land to the LDC at one-third of the premium for the purpose of rehousing the residents affected by redevelopment projects undertaken by the LDC alone. We also welcome the arrangement that tenants affected by the LDC's redevelopment projects be rehoused through the HS.
The Government suggests in the consultation document that "Where a developer has a scheme which offers significant planning gains but is unable to acquire all of the properties needed to implement it, he should be able to approach the LDC with a view to taking the project forward as a joint venture." However, the Government does not define the term "significant planning gains", nor has it specified the responsibility of the developers on compensation and rehousing when developers approach the LDC and when the Crown Lands Resumption Ordinance is to be invoked. This provides no protection for the residents' rights of residence and of rehousing.
In the past, some people boldly suggested that the Government should assist private developers to resume land for the purpose of redevelopment by invoking the Crown Lands Resumption Ordinance. The Democratic Party believes that this would be seen as using the powers of the Government to serve the benefits of private enterprises. Therefore, we object to this proposal in principle, except for the case where non-price factors, such as unclear ownership status or failure to get in touch with the owners, are the factors behind the developers' inability to procure the properties.
When resuming property, the developers usually would encounter the problem that the owners do not accept the procuring arrangement or that the ownership of the property is problem-plagued, thereby hindering the redevelopment plans from making headway. In an extreme case, although the developers have set aside some of the redevelopment profits for the owners, a few owners would still ask for an extremely unreasonable price, preventing the redevelopment plans from moving forward. Public interests are therefore jeopardized. As far as I know, there was a case in which an owner operating in a corporate capacity asked for $50 million for a flat of 600 square feet. Although such cases are rare, it is sufficient to adversely affect the pace of redevelopment.
The Democratic Party believes that the Government has the responsibility to expedite the pace of urban renewal. In particular, at the time when market mechanism can no longer effectively solve the problem, the Government should introduce a problem-solving mechanism. Meanwhile, the Government must protect the interests of the unit owners. To solve this problem, the Democratic Party has come up with an enterprising proposal. We believe that the Government may amend the laws so that when the developers succeed in procuring a significant majority of ownership but fail to reach an agreement with the remaining owners, they may apply for a court order to put the ownership and development right of the entire building on public auction. We believe this mechanism can take care of the overall benefits of the community and protect all owners (whether the owner of the building or the unit owners) to ensure that they will get the highest price in the market and are poised to share the potential benefits of land redevelopment. The owners may share the auction price according to the assessed value of the building and according to their proportionate shares in ownership. This can ensure that all parties get a fair share of the benefits. When considering the application from developers, the court shall consider the public interests involved in the redevelopment plans and decide whether or not the application should be approved. If the Government still does not take a proactive approach to overcome the difficulties and solve the problems arising from urban renewal, urban renewal will make no progress in the days to come.
To put in a nutshell, when launching redevelopment projects, the Government must attach due importance to the residents' right of residence and their right to rehousing, as well as the tenants' right to rent and live. It should not focus only on the economic benefits brought about by urban renewal, but should commit itself to improving the living conditions of the residents residing in the old district. In respect of the protection offered to the property right and the right of residence of the unit owners, we suggest that the proposal of public auction be adopted to solve the problem of "owners sticking to their old premises". On rehousing the tenants, we hold that the developers have the responsibility to rehouse the tenants in the same locality. Specifically, we suggest the establishment of a fund to solve the problem of rehousing the tenants and we agree that more land should be allocated by the Government to the LDC and to the HS for the purpose of rehousing. Only in so doing may a redevelopment project take into account both community benefits and other interests.
We cannot agree to the amendment moved by the Honourable Edward HO because from the viewpoint of the residents, moving to other districts will entail social, economic and cultural impacts on the original district, for example, they will be severed from the original community support network and the neighbourhood relationship. Redeveloping an old district and rehousing the original residents in separate districts is tantamount to forcing apart an inter-supportive community that has been built up with flesh and blood. It is already not an easy thing for youngsters to attune themselves to a totally new environment. Therefore, it would be even more difficult for the elderly to adjust themselves if they lose their old neighbours, good friends and the support network in one go. In view of this, we hold that for the residents to be "rehoused according to the principle of equity as applied to all" simply means that they should be "rehoused in the same locality".
In addition, we believe that if residents cannot be rehoused in the same locality, then the overall benefits so created are just derived through sacrificing the minority's interests. This is something not permitted in a democratic society.
Mr President, with these remarks, I so move.
Question on the motion proposed.
PRESIDENT: Miss Christine LOH and Mr Edward HO have given notice to move separate amendments to this motion.
Since then, Miss LOH advised, shortly before the sitting, that the amendment to the motion was drafted originally in English and therefore the English version of the amendment reflects accurately what she intended to say in the amendment. However, the Chinese version of the amendment does not represent truly her intention. She therefore would like to change the terms of the Chinese version of the amendment.
Under Standing Order 22(1)A , a notice of amendment to a motion shall be in English if the motion is in English and shall be in Chinese if the motion is in Chinese. As Mr James TO's motion was submitted in Chinese, the Chinese version of Miss LOH's amendment should therefore be regarded as the original version. Therefore, Miss LOH's request for change to the terms of the Chinese version of the amendment is not merely a request to change the translation of the amendment, but amounts to a change of the terms of the amendment. As Miss LOH's request is to enable the Chinese version of her amendment to tally with the English version and as no new matter will be introduced by the change, I have decided to give approval to Miss LOH to change the terms of the Chinese version of her amendment to Mr TO's motion. The old version and the revised version of Miss LOH's amendment have been tabled for Members' perusal.
As Members were informed by circular on 10 November, under Standing Order 25(4) I shall ask Miss Christine LOH to speak first, to be followed by Mr Edward HO; but no amendments are to be moved at this stage. Members may therefore debate the main motion as well as the two amendments listed on the Order Paper.
MISS CHRISTINE LOH: Mr President, I would like to thank you first of all for allowing the indulgence to allow me to make the amendment. I would also like to thank the staff of your office for being very helpful, and I would also, of course, like to thank Mr TO and Mr HO for their understanding. I hope I will not be causing too much inconvenience to other Members of the Council who had perhaps looked at the Chinese translation earlier.
Having said that, this is the third time that this Council is debating urban renewal in the last two years. Each time we implored the Administration to formulate a comprehensive urban renewal policy, but each time we are disappointed with the response. I am proposing an amendment to the Honourable James TO's motion in order to set out more specifically the changes necessary to speed up urban renewal. If we continue to be unspecific, the Administration will remain unspecific ¢w no help to anyone. My amendment aims to propose a policy direction that is fairer, more open and still expeditious.
The Government's consultation paper states that urban renewal is plagued by two difficulties. The first is consolidating property ownership to allow for redevelopment. The second is the need to compensate residents and businesses affected by redevelopment. These are, of course, competing interests. Urban renewal is a resource-intensive and time-consuming process. Therefore we have to be careful not to water down the incentive to the private sector. Thus, on the one hand, in order to prevent an indefinite delay caused by the unreasonable demands of perhaps a single owner, we need to increase the powers of resumption to speed up the process of urban renewal.
Let me first make clear what I mean by increased powers of land resumption. Mr James TO has led the debate on this issue with the idea of forced auction adapted from company law which compels minority shareholders to sell at the highest market price. The Government proposes to allow the Land Development Corporation to team up with private developers to force minority shareholders to sell. These ideas are not dissimilar and deserve further consideration. The first part of my amendment is simply an endorsement of this principle to speed up urban renewal. I am not suggesting to increase the powers of the Executive Council and I hope this is made clear to Mr James TO.
But on the other hand, we cannot belittle the interests of the tenants. Mr James TO's motion rightly highlights the fears of people affected by urban renewal. For them, it is a bitter experience made worse by a system that uproots them and yet shuts them out of the decisions that disrupt their lives. Anyone who has visited areas scheduled for urban renewal knows that those who will be kicked out are the most vulnerable in society. They include the elderly, single parents and struggling families with young children. The crumbling, low-rise buildings provide the only housing option for those who cannot get into Hong Kong's over-burdened public housing system. Tenants are likely to be paying rents that range from $500 to $2,000 per month. Legal compensation is a mere 1.7 times the rateable value. Almost always, this amount is nowhere near enough to secure alternative space and I think this is unfair.
The goal of urban renewal must be to use the redevelopment value of land to fund comprehensive urban upgrading. This should include better housing for those affected. My amendment calls for an increase to the minimum level of compensation paid to tenants. The Government's paper proposes a ceiling on compensation payments. What is needed, Mr President, is a floor. Land is a community asset. Those who are uprooted by redevelopment deserve to be able to adequately resettle themselves. The Land Development Corporation pays at least five times the rateable value, so why should it be different for private developers? Why should there be a double standard?
I want to make a further point about the current planning process. The Town Planning Board is composed of appointed members. It has the power to decide all building applications and rezoning for redevelopment, and yet the entire decision-making process is shut off from the public. The Board meets in secret. Its minutes and agenda are mostly confidential. All building applications are withheld from the public, even after approval. Citizens can file written objections to rezoning decisions but these are virtually always overruled by the Executive Council and there is no right of appeal. It is, therefore, impossible for the public to learn what deals are struck between the Government, the Town Planning Board, the Land Development Corporation and private developers. It is impossible to learn what other financing options were available or profits granted in rezoning and redevelopment. The lack of accountability of the system poses a danger that our community resources may be unfairly traded away in secret.
That is why my amendment also calls for a more open and accountable planning system. Furthermore, the Town Planning Board should have open meetings except in rare and well-defined circumstances. The public must have a statutory right to planning information, to be consulted at the initial stages of planning and to appeal decisions to an independent tribunal. It must be recognized that a more open planning system checks the priorities of decision-makers against the concerns of those affected and invariably brings full assessment of the impact, alternatives and uncertainties of development projects.
Mr President, the changes proposed in my amendment are modest and I believe fair. They recognize that urban renewal requires an accountable planning system to balance the competing interests mentioned above. I urge this Council to support my amendment.
MR EDWARD HO (in Cantonese): Mr President, the resumption of land necessitated by urban renewal has forced people to give up their private property rights. Domestic tenants and occupants of commercial premises are forced to leave their familiar locality. These are very drastic actions and the Government should be very careful in dealing with them. These actions should be carried out in the interests of the public, consideration has to be given to the pressing needs of the people and reasonable compensation has to be offered to those affected.
Although I support the spirit of the motion moved by the Honourable James TO, resettlement in the same locality may not be practicable and I would therefore propose an amendment. I would like to emphasize that I am not ruling out the arrangement of resettlement in the same locality. Rehousing those affected in the same urban districts is undoubtedly a more preferable arrangement because it will avoid public anxiety. However, the question we have to consider is whether we should stop carrying out the Urban Renewal Scheme just because resettlement in the same locality cannot be achieved.
At present, the areas which need urban renewal most are often densely populated and their hygiene conditions are poor. It is most difficult to carry out resettlement in the same locality in these areas. Therefore, we have to adopt the most feasible method in the public interest so that the Urban Renewal Scheme can be carried out smoothly. My colleague, the Honourable Mrs Selina CHOW, will put forward a fair and reasonable proposal in connection with the question of resettlement.
I oppose the amendment proposed by the Honourable Miss Christine LOH. Miss LOH asks for an increase in transparency of the Town Planning Board (TPB), but in fact, the minutes of the TPB are made public. However, I think that the public should not be allowed to sit in on the meetings of the TPB because questions like land use and restrictions on building density will often be discussed in the meetings. These are very sensitive issues which will greatly affect the price of private property. If Miss Christine LOH's amendment is carried, my colleagues from the Liberal Party and I will have no choice but to oppose Mr James TO's motion as amended.
Besides, I would like to say that urban redevelopment is not the only way to renew the urban ares. Many countries renew their old districts by improving the conditions of the buildings and maintaining premises which have cultural and historical value. This method will not only avoid moving a large number of residents of the locality away from their community, it will also keep places of cultural and historical interests intact. These policies would certainly have to be implemented with mandatory measures and public resources may also be involved to give people monetary compensation or subsidies.
At present, many buildings in Hong Kong are awaiting refurbishment or renewal not because of their age, but because of the lack of suitable repair and maintenance. The Government should consider seriously whether legislation should be enacted to impose a duty on owners to carry out suitable repair to maintain the structure and appearance of buildings.
Development which proceeds according to proper procedures and with high efficiency would be most beneficial to all concerned. The amount of compensation payable to owners and tenants affected usually constitutes a major problem. Since they are officially forced to leave, I think the Government should be benevolent in this respect and follow the principle of increasing the amount of compensation as far as it is reasonable.
Another controversial issue is whether the small owners can share the profits arising from redevelopment and, if so, how much. I think it is impracticable for the small owners to participate in the redevelopment projects which may even bring considerable risks to them. However, I would put forward a practicable proposal, namely, when the profits arising from land resumption or redevelopment projects by the Government exceed a certain extent or amount, the small owners can share part of the profits. That will avoid criticisms such as collusion between the Government and businessmen and so on.
Mr President, in a debate speech which lasts less than seven minutes, one cannot really discuss the very complicated issue of urban renewal. It is even more difficult to discuss this consultative paper concerning urban renewal within such a limit of time. This "long-awaited" consultative paper, as Mr James TO put it, should contain a list of specific proposals so that the public can give their comments after they have referred to it. However, what this consultative paper has listed are the "ifs" and "buts". How then can the public make any specific suggestions? This consultative paper shows that the Government's thinking on the question of urban renewal is fragmented. Apparently, there is a need for the Government to set up the Urban Renewal Board which will compose of representatives from various government departments, professional bodies and private organizations concerned to formulate a comprehensive policy and to set out a clear guideline concerning urban renewal.
Mr President, with these remarks, I hope that Members will support my amendment under the circumstance that it is in no way contradictory to Mr James TO's original motion.
DR HUANG CHEN-YA (in Cantonese): Mr President, "urban renewal" is not merely a matter of "policy" but also a matter of "implementation". Therefore, I would like to talk about the aspect of implementation during this motion debate.
Since the Hong Kong Government has to entrust others to do the work, it usually appears to be fairly weak during the "implementation" of the Renewal Scheme. Part of the Renewal Scheme, from delimitation of the comprehensive redevelopment areas to demolition of the buildings, is always delayed. A typical example is the comprehensive redevelopment project relating to the five streets in Western District of Hong Kong Island.
This example is worth mentioning. It is because the focus of the Honourable James TO is on private participation in the Urban Renewal Scheme, while I will talk about the problems exposed in the course of public organizations' involvement in the Urban Renewal Scheme. Although the Government marked the five streets in Western District as the comprehensive redevelopment area as early as 1988, while the Town Planning Board also approved the implementation of the Renewal Scheme by the Hong Kong Housing Society (HS) in 1992, no work has ever been done to date. Besides, not only is the implementation date unknown, but the landlords and the tenants have also not yet entered into negotiation with regard to the issues of compensation and rehousing. Since the HS and the Hong Kong Government are still attempting to lay the financial responsibility at the door of each other, the residents become the victims as a consequence.
Most of the buildings in the comprehensive redevelopment areas are very old. Mr President, the age of these old buildings is similar to yours and mine. During the rainy season this year, we carried out a door-to-door inspection of the five streets. We found that the ceilings of 70% of the flats had concrete spalling problem, half of the buildings had their steel rods exposed to the air, and rain water seepage almost happened to every flat. Just like the residents, I would think that the original intention of comprehensive redevelopment is to improve the living environment, but the result is just the opposite.
Last week, I paid a site visit to the area again. To my surprise, I found a tree growing inside a building. In fact, the many residents should not have been living inside the buildings. There is a family who have to sleep under the bunk bed owing to incessant spalling from the ceiling. Why have such situations happened? Obviously, it is because the tenants cannot afford to move away from these low rental buildings, while the landlords are not willing to refurbish these buildings. The landlords are not interested in refurbishing the buildings because they think that the buildings will be demolished at any time and yet they do not know how much the compensation will be. Besides, since these buildings are within the redevelopment area where the Renewal Scheme will be implemented by the HS, although the HS does not acquire the property from the landlords, the landlords cannot sell the old buildings to other developers. Such being the case, everybody can only keep on waiting.
Here, I would like to urge the Government again that while implementing urban redevelopment, it cannot only emphasize the regulatory policy but should also consider the policy on implementation. Apart from working out the regulatory policy, it also has to complete its duty of monitoring the organization concerned to make sure that redevelopment is being done on time, so as not to repeat the example of the redevelopment project relating to the five streets in Western District which is being procrastinated endlessly. It is particularly obvious that at present there is no intention to get on with the project. Neither the HS nor the government department concerned is willing to meet the residents. Even when the Legislative Members' Offices request to discuss the case with them, they seem unwilling to hold meetings again. This kind of attitude is extremely abominable. We can thus see that not only do various kinds of flaws and hitches occur during the acquisition of property by private developers for urban renewal purpose, but projects undertaken by the Government or public bodies will also have different kinds of adverse effects. Hence, I hope that the Government can change this approach.
Finally, I would like to remind the Government not to forget the urban comprehensive redevelopment projects in hand which are being delayed, including the projects of the five streets in Western District and the seven streets in Tsuen Wan District. This is to prevent any redevelopment projects "falling flat" halfway through or to prevent giving people the impression that this Government is also "falling flat" halfway through.
With these remarks, I support the motion of Mr James TO.
MISS CHAN YUEN-HAN (in Cantonese): Mr President, I have observed that in the past numerous problems, including rehousing and compensation problems, would emerge during the acquisition of properties in old urban districts whether the acquisition be undertaken by some private developers, the Land Development Corporation (LDC) or the Hong Kong Housing Society (HS), and that these problems were always caused by the improper prearrangement under the Government's policies concerned. I am, therefore, totally in support of the Honourable James TOs opinions in that respect.
Besides, I would like to point out another problem. Apart from property acquisition by the LDC and the HS, when some private companies are also involved in the urban renewal projects, quite a number of illegal means will usually be adopted. In order to acquire the properties, these private developers will resort to some illegal measures, including threatening the residents and even using some triad tactics. This will cause a lot of troubles to the residents concerned. When these situations occurred in the past, we did, from time to time, lodge complaints with the Government. But unfortunately, the present consultation paper fails to mention any concrete measures to tackle these problems. Therefore, I think that the Government should work out some strategies in respect of the overall renewal programme, with due emphasis on tackling the illegal problems which used to emerge when private participation was also involved. I very much hope that the Government can pay more attention to the problems in that regard.
Thank you, Mr President.
MR LEUNG YIU-CHUNG (in Cantonese): Mr President, numerous residents residing in the old areas have to bear the brunt of urban renewal. The elderly singletons, new immigrants and those fringe-group families who do not qualify for public housing are being troubled the most. Many Members of this Council have criticized and resented the past practice of the Government in the area of urban renewal because government policy in this area cannot address the genuine needs of the people. As a result, many people might ultimately be forced to sleep in the streets. I believe that the plight of the hundreds of thousands of elderly persons or residents residing in the old areas would worsen.
Today, I would not raise too many specific proposals because many of my colleagues will be voicing their opinions. I just want to make use of this time slot to reflect the sentiment of those residents who have been affected by the redevelopment of the old areas, in particular the elderly singletons. They wrote an "Elegy on Urban Renewal" to spell out their sorrow. I would like to take this opportunity to read that elegy out. I hope that Members of this Council and government officials will share that sentiment. This is how it goes:
"With urban renewal come new flats,
Leaving poor elderly persons just like that;
Cash compensation what of it,
The elderly's need is a housing unit.
Building Hong Kong I shared the toil,
Relocating the elderly to me a ploy;
Far far I have to go for no conceivable goal,
Abandon me like junk that is old.
Send me far from my district, that is my end,
Relocate me from my home, woe of woe;
Government and developer joining to reap the gold,
Chase away the elderly, how heartless and cold.
Giving no rehousing, arousing people's hatred,
Causing in people sickness and dizziness;
Tigers devour human, spit out the bone,
Government devours people, no sign is shown."
I hope that the Government can show more understanding of the situation of those elderly persons living in the old areas, so that they can be rehoused as soon as possible. We, in particular, hope that they can be rehoused in the same locality.
Thank you, Mr President.
MR FREDERICK FUNG (in Cantonese): Mr President, the consultation document on urban renewal released by the Government in July can be said to be the worst paper I have ever seen. That the Government which has an enormous amount of resources and a vast pool of talent should have produced such a slapdash 12-page document to pass for an assignment duly completed at the request of Members is incredible! Not only is the document lacking in substance, but also in embellishment. As the paper has offered no statistics, the public has no idea what areas or number of people will be involved in the future renewal projects. There is also no specific mention of what responsibilities the Government should take up, and this shows that the Government is in a "shirking responsibility" state of mind.
Renewal is an important social project. It involves the relocation of environment, regional economy and community culture. In some countries, and particularly a place like Hong Kong where there are communities which have their own political culture, renewal will even affect the geo-political power of some political parties. If the Government is bent on being partial to the interests of private developers without having laid down a comprehensive renewal policy and codes for developers to comply with and without having struck a balance between the interests of the Government, the developers and the public, then what we will find at the end of the day will be this: Although the new communities after renewal look better than what they were, they are probably communities put together with money and are merely places for overseas visitors to roam about and where lower class people are nowhere to be found. Those who cannot afford to live in the new communities will be squeezed out by market forces and constrained to live in some remote places of the urban area where slums will form, a common sight in western countries.
Paragraph 13 of the document clearly states: "The only way to ensure site assembly is to resume properties which cannot be acquired." And in paragraph 16, a proposal that worries the residents is put forward: "Where a developer has a scheme which offers significant planning gains but is unable to acquire all the properties needed to implement it, he should be able to approach the LDC with a view to taking the project forward on a joint venture." This implies that if developers are unable to acquire properties, once they join forces with the Land Development Corporation (LDC) to share the profits, they can apply the Crown Lands Resumption Ordinance (CLRO) to "get their way" with the property owners and tenants.
The application of the CLRO has all along been a controversial issue. Now, the document has gone even so far as to depict vividly the scenario of "collusion between government officials and businessmen" without any reservation. Blinded by greed, the Government has even shown no respect for people's property rights. The document has made no mention of the length of time required in land acquisition before the Ordinance can be applied, and this could easily lead to the adverse consequence of having the Ordinance abused, the prospect of which frightens the ordinary citizens day and night.
As to the concept of a linked site, it is intended that the LDC may subsidize one site with the profits of another site in order that the operation will not be a money-losing deal. Of course, for private developers, profit-making is their prime target, and if renewal projects cannot generate profits, it is understandable that they will not carry out any renewal project. But if the Government also has profit-making as its target, then whenever there is no ideal linked site, it would imply, would it not, that some areas will be accorded very low priority so that some old areas will be left to rot, which will eventually become a concentration camp for the poor? The Government will have to consider this very carefully.
There is another nettle to grasp as regards renewal and that is rehousing in the same locality. However, from the point of view of justice, unless residents themselves request that they be rehoused in some other locality, their forced removal for various reasons will import a sense of unfairness, unwillingness and wrongful treatment. Moreover, the existing level of compensation prescribed by the law for the households involved is really too low and a somewhat higher level of compensation is not being offered for removal, which shows even further that residents are being forced out by developers willy-nilly. If the Government does not work out a more reasonable compensation package, its failure to do so will smack of connivance at developers' effort to drive out the residents.
I am making the following two recommendations and I hope that affected residents will be rehoused in the same locality. In fact, areas requiring renewal and which are below the flight path, including Hung Hom, Kowloon City, Sham Shui Po and To Kwa Wan, are areas where rehousing in the same locality will be highly feasible. In these areas, the buildings do not have too many storeys and the number of households is not large, so that the gains as a result of renewal will be high. This is because for buildings of three or four storeys to be demolished, new buildings of 30 to 40 storeys will be put up after the renewal. In such circumstances, guidelines should be set down in the renewal policy to the effect that whenever developers are unable to rehouse affected tenants, they are required to sell a certain number of units to the Housing Society (HS) at preferential prices, and the HS will in turn rent out these units to affected tenants with these units being managed by the HS. Such an arrangement will have several advantages: (1) It will solve the developers' nightmare of having to rehouse residents; (2) it will solve the problem of having to rehouse people in the same locality; (3) residents will be able to rent the units at prices lower than the market rate. Another way would be, in my opinion, for the Government to allocate to developers more land in areas below the flight path at preferential prices, and developers will rehouse residents in the same locality in return for that.
As for the original motion and the amendments, the Hong Kong Association for Democracy and People's Livelihood (ADPL), having weighed up the matter, will not support in the first place the amendment motion put forth by the Honourable Edward HO because Mr HO has deleted the phrase "rehoused in the same locality". Mr HO proposes to add the phrase "rehoused according to the principle of equity as applied to all", and I think this is really a striking phrase. The way the principle of equity is applied and interpreted very often depends on how policy-makers understand it. In our opinion, urban renewal not only seeks to renew buildings; what is more, it seeks to improve the residents' living environment in their original locality. Therefore, we cannot agree having the basic principle of "rehousing in the same locality" left out.
As to the amendment motion put forth by the Honourable Miss Christine LOH, having considered it carefully, the ADPL finds that it cannot be supported as it would enhance the land resumption power. And as I have said, it is no different from investing the Government, the LDC or certain developers with a discretionary power. Since I have expressed my worries, I shall not repeat them any more. As to the other views expressed by Miss LOH, I find them acceptable. Therefore I shall abstain from voting on her amendment.
MRS SELINA CHOW (in Cantonese): Mr President, two weeks later, it will be six months since the last motion debate on urban renewal was held. At the time of the debate, a consensus was reached to the effect that we were all dissatified with the Government's lack of determination and courage in its implementation of urban renewal.
I remember that the only superficial divergence of views in the last motion debate is that I put forth an amendment to urge for rehousing in the same locality as far as possible. The Honourable James TO said that he could not support the amendment. But in delivering his concluding remarks, he said that he was willing to arrive at a compromise. He said, I quote, "Frankly, I hope I can persuade other Members. I am in fact trying to force the Government to speed up its work and to rehouse the affected people in the same district. If the Government cannot achieve this objective, it should explain it to us and try to convince us. By the time when the percentage of same-district rehousing is as high as 90% or 80%, a compromise, to a certain extent, will have been reached."
In fact, his stance is not much different from ours. But his motion was purely based on strategic consideration and did not allow for flexibility in the wording of his motion. We think this is not a pragmatic approach.
We all agree that the prime objective of urban renewal is to improve the poor environmental conditions which are the result of high population density in the old areas. Some old areas, such as Tai Kok Tsui, have made the best use of plot ratio, and any urban redevelopment will bring about a reduction of population density. For instance, 20 to 30 residents are now living in a 500-square-foot flat. A flat with the same area will probably accommodate 5 to 10 people after redevelopment. Can all the displaced people be rehoused in the same district? Can they find accommodation in the same locality? This is a question of reality which should not be glossed over lightly.
Perhaps, Mr James TO is waiting for the Government's counter-proposal to his proposal of same-district rehousing in his motion today. However, we do not want to send out a wrong message to the people because, in so doing, we will be raising the expectation of the people who will suffer a bitter disappointment which will in turn lead to social unrest.
The Honourable Edward HO is seeking to amend the motion by adding the words "fairly compensated, and rehoused according to the principle of equity as applied to all". I hope there will not be any misleading statement like: this amendment is to sacrifice the interests of the displaced residents. I have to emphasize that social equity is a macro point of view. Individual interests should not override the interests of the public. Nor should individuals be deprived of their interests arbitrarily.
In relation to the rehousing of domestic tenants, I think the Land Development Corporation (LDC) should not be responsible for rehousing any more. I suggest that the Housing Authority (HA) should step into the shoes of the LDC and provide rehousing for the eligible tenants.
The Government should allot to the HA the land which is originally earmarked for allocation to the LDC for rehousing purpose. The LDC will then calculate how much one rehousing unit will cost and provide the equivalent amount in cash to the HA. In other words, the HA will be responsible for rehousing while the LDC will have to reimburse the HA the cost of rehousing.
For those tenants who are affected by LDC's redevelopment programme, I think there should be an eligibility test in respect of their rehousing in public rental housing. Since the rehousing of these people in the public housing estates will mean years of housing subsidies in the future, the eligibility test can be formulated in the light of the criteria set for the squatter dwellers and the applicants on the general waiting list. For instance, they should have been living in the area subject to renewal before the redevelopment programme is officially announced; most of the family members have lived in Hong Kong for at least seven years or were born in Hong Kong; and they do not own any property but comply with the income limits criteria for public rental housing.
The Housing Society is operating well in regard to redevelopment and rehousing. We consider that there is no need to change just for the sake of change. Neither should it take up rehousing work for the LDC.
It is impractical to require those private developers who have taken up urban renewal projects to provide rehousing for displaced residents, because the Government cannot provide them with any extra land to do so. Instead of making an unrealistic attempt to strive for this, we suggest that the Government should raise the minimum compensation amount from 1.7 times the current rateable value to a higher amount by taking into consideration the actual situation. And that amount should be the minimum compensation for the displaced tenants.
Some would say that it would be unfair to the displaced tenants if they are required to pass the same eligibility test set for the applicants on the general waiting list.
I am of the opinion that cash compensation provided by the LDC can be increased when necessary in order to reflect the loss of right to low rentals enjoyed by these people and to subsidize their extra financial burden for a certain period of time in the future.
In regard to rehousing the displaced residents in public rental housing, as this issue involves the 150 000 families on the waiting list for public rental housing, it will be unfair to these families and those Temporary Housing Areas residents if displaced residents can be rehoused immediately regardless of their eligibility. A balance should be struck between the public's interests and the interests of the minority.
On the other hand, eligible displaced residents should be given special treatment. So I would propose that those who are aged 50 or above or those who have special needs should be rehoused immediately in the same locality as far as possible, subject to resources being available. There is a greater need for the singletons who are aged 60 or above to be rehoused in the same locality because this is our special commitment to ensure that these elderly people will continue to live and go about their daily activities the way they have been doing.
Those displaced tenants who comply with the income limits criteria for public rental housing should be presumed to have been on the HA's waiting list for six months. Even though they are new arrivals and not eligible for public rental housing for the time being, they should be allowed to reserve these six months' eligibility. When they become eligible, they are presumed to have been on the waiting list for six months. As far as I know, 45% of the tenants who demand rehousing by the LDC are new immigrants. If they obtain immediate rehousing, will it be fair to all other applicants on the waiting list?
Mr President, there is a lack of orientation and direction in the Government's consultation paper on redevelopment. It has made short shrift of executive-led government. In fact, there is much for the Government to do in this issue which does not pose any political difficulty at all. On the contrary, it will certainly bring a lot of benefits to the people's livelihood and the community as a whole.
MR LAU CHIN-CHEK (in Cantonese): Mr President, it can be said that having a comfortable place to live in is an ideal for the lower class. However, at present in Hong Kong, this is almost an unattainable ideal for many people.
At present, hundreds of thousands of people are still living in extremely poor conditions which include squatter huts, temporary housing units, cage apartments, rooftop structures, pre-war tenement units and so on. These residents have been hoping to move into public housing units as soon as possible so that their living conditions can be improved. However, in recent years, the public housing policy has been inclined towards the market-led approach and the needs of those on the Waiting List who are now living in private premises have not been taken care of adequately. Some residents are not even allocated a flat after they have waited for more than 10 years. In recent years, property prices have been soaring and the speed of the redevelopment process in the old districts has been quickened. However, the living conditions of residents of the old districts have not been improved. Sometimes, their living environment would even worsen because of redevelopment.
Hung Hom is a typical old district and a lot of old private premises are situated in the Wuhu Street area. The problems faced by residents of the old districts are exemplified by Mrs CHENG's experience. Mrs CHENG has been living in a tenement in Wuhu Street for more than 10 years. She has applied for allocation of a public housing unit for many years and has still not succeeded. In recent years, a property developer wishes to redevelop the building she has been living in and has expressed an intention to recover possession of the premises. Although Mrs CHENG is not earning a high salary, she has decided to apply for a Home Ownership Scheme flat so that she can move earlier. However, she has only been picked by ballot in the Home Ownership Scheme in the beginning of this year and she can only occupy the flat in mid-1997. Unfortunately, pleasant hours fly fast. Mrs CHENG finally has to give up possession of the unit she has been living in in the middle of this year and Mrs CHENG has no choice but to move to a unit in another old tenement in the same street. Not only are the living conditions there poorer, the rent is also higher than before.
Speaking on the redevelopment of the old area of Wuhu Street, the present situation of "one street, two systems" very specifically reflects the drawbacks of the present policy of urban redevelopment. Recovery of possession of the buildings with odd street numbers in Wuhu Street is now being sought by private property developers who often only give the affected residents the minimum amount of compensation stipulated by law which is 1.7 times the rateable value and there will be no rehousing arrangement for the tenants affected. However, on the opposite side of the same street, the Land Development Corporation is now considering acquiring and redeveloping the buildings with even street numbers. Therefore, the amount of compensation will be five to six times the rateable value and there will be resettlement in the same locality. The situation of "one street, two systems" for similar buildings in the same street has arisen because the Government favours the private developers. That is something which is really very unreasonable.
I would reiterate that having a reasonable place to live in is a right of the public. The Government should provide, by means of legislation, for resettlement in the same locality and a substantial increase in the amount of compensation for those who are affected by redevelopment.
Mr President, with these remarks, I support the Honourable James TO's motion.
Thank you.
DR SAMUEL WONG (in Cantonese): Mr President, from 1986 to 1987 I was appointed a Member of the provisional Managing Board of the Land Development Corporation (LDC) and from 1990 to 1992, I was a Board Member of the LDC. All along, I have been very concerned about urban redevelopment projects. However, I am greatly disappointed by the resources and support that the Government has provided for urban redevelopment.
The Government has finally completed the review of urban renewal after spending some three years' time on it and under pressure repeatedly brought to bear by Members. Having read the consultation paper, I think the Government is now playing the role of a "fire fighter" which means implementing stopgap measures to deal with problems and does not have any long-term objective and overall strategy at all in respect of urban renewal. What is more, the Government is reluctant to make any commitment in this respect and has shifted the responsibilities onto the LDC or private developers instead.
As we all know, many old districts in Hong Kong are decaying continuously. The living environment there is appalling and other than this, many social problems have also cropped up. Urban redevelopment is indeed a task which can brook no delay. Regrettably, while the Government, on the one hand, undertook to attach importance to this issue, on the other hand, the attitude it has adopted cannot be regarded as positive by any standard. As far as I know, the LDC has two major redevelopment projects being held up for more than two years with no progress being made at all because its application for resumption has yet to be processed by the Government. Even if we put aside the economic losses caused by the delay, the livelihood of the residents has been seriously affected and the conditions of premises and the living environment in the redevelopment districts are also deteriorating. While the Government has set up the LDC and assigned to it the responsibility to implement urban redevelopment projects, it has failed to work in concert with the LDC. The Government has only paid lip service to its commitment to "attach importance to the LDC" and remained indifferent to the ordeal of the people. This attitude is definitely not the attitude that a responsible government should have.
On the other hand, although the Government has made some suggestions on urban renewal, it has expressly stated in the consultation paper when speaking of government resources that "the ability of Government to devote the necessary resources to the public works programme will therefore to some extent dictate the pace and extent of urban renewal". It is evident that the Government is reluctant to pledge any commitment in respect of urban redevelopment. It is indeed questionable that the Government is determined to take vigorous steps to facilitate urban redevelopment.
All along, the Government has been unwilling to provide additional resources to assist urban renewal. Even with the establishment of the LDC, the Government has only provided a stand-by loan to the tune of $100 million to the LDC. Apart from assisting the establishment of the LDC, this so-called "capital" is not in the least conducive to the implementation of the urban renewal scheme. The Government simply "sits idly and reaps others' benefits" by collecting an enormous amount of premium. It is not totally unfounded to criticize the Government for being minded to carry out "zero-cost redevelopment".
I am of the view that the institutions concerned should share the work of urban redevelopment in order to make good use of the resources. Under this circumstance, the LDC should make an effort to provide impetus for urban redevelopment. The Housing Authority, which supplies the most rehousing units, should be responsible for tackling the rehousing problem that goes with redevelopment and the cost involved should be borne by the LDC.
The Government stated in the consultation paper that it may consider allocating land for the construction of premises for rehousing purpose in an effort to redress the difficulties that the LDC has long faced. While on the surface this proposal is quite attractive, I dare to ask the Government these questions: Does it have any timetable for the implementation of the proposals? After the consultation is completed, how many more years will be required before the Government can formulate policies for subsequent implementation?
The question of urban renewal is giving cause for increasing concern. I urge the Government not to give us empty talk any more. It should take actions in earnest to assist the implementation of urban redevelopment so that not only residents of old urban areas will be benefited, the environment in Hong Kong will also be improved as a whole.
Thank you, Mr President.
MR ALBERT CHAN (in Cantonese): Mr President, there is a well-known saying by the famous German philosopher, Immanuel KANT, that "concept without percept is empty, percept without concept is blind". Urban renewal in Hong Kong is both empty and blind because the Government has neither a comprehensive plan nor a specific objective for it. The Consultative Paper on Urban Renewal published in July 1995 lacks substance and far-sightedness. If this is regarded as a consultative exercise in respect of the Government's policy, then it can be regarded as a preposterous joke.
Urban renewal gives people an impression that old buildings are torn down and new buildings are put up. The urban renewal which has been taking place for years in Hong Kong is merely a product of pragmatism. But I must point out that urban renewal should be a living and continuous process of communal development and social evolution, just like the processes of birth, ageing, illness and death of a human being. The existence of a community often has its own value and needs. When the buildings of a community begin to age and deteriorate, it does not mean that the community as a whole will be doomed. What it needs is a chance of rejuvenation. But it is a pity that when our community is facing the above problems, it will not have such a chance. What it will get instead is the fate of extermination.
Even though the redevelopment of old buildings in a resilient old district in Hong Kong will bring huge economic benefits, the original residents in that area will not get a share. On the contrary, these aged and weak people are forced to quit and uprooted from the community which they are familiar with. This is a painful feeling and experience.
Urban renewal in Hong Kong is undertaken under a fine-sounding name of environmental enhancement of the old areas. But in fact, the Government and some big syndicates are making use of their powers given by some unfair legislation to deprive the residents in the old areas of social and political rights either by hook or by crook. Private developers who have taken up redevelopment projects in the old areas are not required to rehouse the affected residents. Further, compensation is merely based on 1.7 times the rateable value of the units. Whenever they encounter any obstruction in land resumption, the government-subvented Housing Society and the Land Development Corporation (LDC) can invoke the Crown Lands Resumption Ordinance, which is as powerful as an imperial sword, to make the residents in the old areas submit. Nevertheless, the residents will not share any economic benefits generated from property redevelopment. They are the vulnerable and the victims of urban renewal!
When talking about urban renewal, we have to mention the LDC, which has been established for years and criticized by people from all walks of life. It has been criticized for being an agent to facilitate the collusion between the officials and the businessmen. It has been called the "last big brother" or the Khmer Rouge by some academics. The Government established the LDC to help accelerate urban redevelopment. This was well-intended. However, a lot of variables appeared during the formation and growing up process of the LDC, which has eventually become an "alien" over the past seven-odd years. Those affected residents, commercial tenants, small flat owners, and even those who are rich and influential, such as the Honourable CHMI Pui-chung, have shown great dissatisfaction with the LDC, even though it is difficult to find somebody who will see eye to eye with Mr CHIM. This is an interesting phenomenon, yet it is tragic.
The LDC was established on 10 December 1987 under the Land Development Corporation Ordinance (Cap. 15) and commenced operation on 15 January 1988. The principal activities of the Corporation are to improve the standard of housing and the environment in Hong Kong as well as to achieve better quality development by undertaking and promoting urban renewal on the basis of prudent commercial principles. In the Corporation's 1990/1991 Annual Report, the four key objectives of the Corporation were outlined: (1) Environmental enhancement; (2) Social enhancement; (3) Optimum use of land; (4) Better quality development. Its operation over the last seven years can show that it has maximized its profits from optimum use of land although the profits have only gone to the pocket of the developers and the LDC. The residents in the old areas hardly get a share. For the other three objectives, superficial improvement has been made, yet the residents in the old areas have benefited from nothing.
Let us look the LDC's financial situation and how it implements its development projects. The total gross floor area generated from projects under planning and completed projects is 867 808 sq m. Yet, area for commercial purpose has taken up 651 952 sq m, representing 75.1% of the total development area; whereas the number of residential units is only 3 314, providing a total of 172 128 sq m of residential space (19.8% of the total development area). For those projects under construction, it is surprising to find that there will be only 26 residential units, providing 1 242 sq m of space, which represents 0.5% of the total project area. This figure is really too trivial to mention.
The objective of setting up the LDC is to help rejuvenate the old areas so that the residents in the old areas can enjoy enhanced living conditions and catch up with the modern life. However, the LDC abuses its powers and co-operates with the private developers. The residents in the old areas are forced to move away while the history of the old areas is destroyed. The traditions of the old areas are abandoned and the interests of the residents are sacrificed. Making use of its privilege and special status in town planning, the LDC put up commercial buildings on sites of old residential buildings in order to make huge profits. I would cite an example to show that my criticism is not calculated to please the audience with claptrap. The site area for the redevelopment project at Queen's Road Central/Jubilee Street is 8 816 sq m. While the gross floor area of offices is 118 268 sq m, the gross floor area for residential purpose is zero. This project alone will generate an income of not less than $8 billion for the LDC.
Mr President, urban renewal is not to destroy the history nor to reform a soulless community. Neither is it to create a "brave new world". I hope the LDC and the Government will be awake to realize that urban renewal should be predicated on the well-being of the people.
Thank you, Mr President.
MR LO SUK-CHING (in Cantonese): Mr President, I have to point out , in particular, the following.
- Under the urban renewal scheme, tenants who are not owners of properties and in particular, the domestic tenants, are most affected. Tenants of these dilapidated low-cost domestic premises are very often the lower class or grassroots people. Many of them are on the Waiting List of public housing and have yet to be allocated a housing unit.
- These tenants will lose their homes once the old premises that they reside in are demolished. Many will be forced to rent accommodation in private premises and, unfortunately, it is usually difficult for them to rent a flat at the original rental level. As they do not hold any title to property, they will only receive a limited amount of compensation. The compensation they can get is just 1.7 times the rateable value, which is indeed inadequate to cover the expensive rent that they have to pay in renting accommodation in other private premises.
- For these reasons, the tenants have fallen victim to urban renewal. On the contrary, the Land Development Corporation (LDC) is making a profit in the implementation of urban redevelopment projects. Such being the case, the LDC or the Government should give the tenants more reasonable compensation and, in particular, more resources should be allocated to subsidize the tenants to find a new home.
- There are three ways to help them find a new home:
- To rehouse the affected tenants as soon as possible in public housing estates. However, those who are now on the Waiting List may find this unfair unless the Government provides, aside from the existing public housing programme, additional land for the construction of public housing estates to rehouse them.
- The Government can provide additional land for the Housing Society or the LDC to build premises to rehouse the tenants. The Housing Society can be made responsible for the management of these premises.
- Given that the disposal of land for the construction of rehousing units takes time, the LDC may consider acquiring or renting private premises and then renting them to the affected tenants at a lower rental level in order to cope with the pressing need. In setting the rental level, consideration may be given to two factors:
- The income of tenants and their affordability. The rental level of public housing units under the Housing Authority, which is around 8% of the income, may be considered.
- The original rental that the tenants paid for renting the old premises can be used as a standard.
- With a view to plugging loopholes, the LDC should have the right to freeze the number of tenants of the premises concerned as soon as it announces the redevelopment plan in a particular district and upon the completion of the vetting of the tenants' status. This is to prevent new tenants purposely moving in the premises to gain an advantage, hence burdening the LDC to a greater extent with the rehousing arrangements. If the powers of the LDC can be further strengthened, it will help speed up the progress of urban renewal.
Thank you, Mr President.
MR TSANG KIN-SHING (in Cantonese): Mr President, this consultation document of merely 12 pages, produced by the inter-departmental group headed by the Planning, Environment and Lands Branch after three whole years and with a tremendous amount of input in terms of government resources and professional knowledge, is both slapdash and lacking in foresight.
Not only has this consultation document on urban renewal failed to outline the blueprint for the future overall urban land use, but it also has neglected to deal with the various problems as a result of renewing old areas, for example, the criteria for land resumption, compensation, rehousing and so on. This paper is hardly convincing.
This consultation document focuses mainly on probing the role played by the Land Development Corporation (LDC). But it has overlooked the fact that most of the urban renewal projects are taken up by private developers, and affected households can only get the compensation prescribed by the law, that is to say, 1.7 times the current rateable value, and there is no rehousing on offer. This document has ignored the needs of tenants belonging to the lower classes, such as elderly people who live alone, cage home tenants and new immigrants. They are the most helpless group of people who worked their whole life for Hong Kong. Yet at the end not only are they not able to enjoy the fruits of economic success, but they also become victims of the urban renewal programme. Both the LDC and the Government have arranged to rehouse these tenants, but private developers would not do anything to rehouse them. Government policies are permitting the existence of such double standards. Is it a practice of favouritism?
Mr President, the fact that this document focuses on the discussion of the role played by the LDC in future renewal matters gives residents the false impression that only the LDC takes part in the renewal of the old areas of Hong Kong. Actually, in doing so, it has disregarded the disastrous consequences caused by private developers to tenants. Also, the document has proposed to allow joint ventures by private developers and the LDC and to speed up land resumption and the renewal process by resorting to the Crown Lands Resumption Ordinance. This would in effect be murdering people with a borrowed knife and a collusion between government officials and businessmen. This has shown that the Government only looks after the interests of developers but ignores the needs of the residents.
On the 10th of this month, Mr MAK Chun-fong, Deputy Secretary for Planning, Environment and Lands, told the press that if it should be made mandatory that private developers should provide rehousing in the same way the LDC does, it would only reduce the profit margin of developers and, as a result, they would not be willing to take part in the old areas renewal programme and the progress of old areas renewal would be slowed down. I think it is an absolutely preposterous statement. We must bear in mind that apart from making profits, businessmen should also have morality and conscience and that they should cherish their social conscience and bear their own social responsibility. Are we to let restaurant proprietors discharge sewage into the sea for fear that they cannot make money if we do not let them? Never! For the same reason, are we to let developers bully the helpless tenants and drive them onto the streets for fear that the developers cannot make money if we do not let them? Never!
Mr President, in the final analysis, problems have arisen from the current urban renewal programme because the Government's renewal policy is oriented in favour of the Government itself and the businessmen instead of the people. In order to solve the renewal problem as a whole, the Government will have to work out an "urban renewal programme with the people as the basic consideration" which not only takes economic benefits into consideration, but also shows respect for the needs of the individual and the culture, lifestyle and inter-personal connections unique to every community. Once these elements are undermined, urban renewal would only degrade into a term synonymous with the grabbing of land, profiteering and expoitation of the residents by the consortia and the Government.
Mr President, I would also like to mention three cases. The first case is about the intervention by the Government in the process of possession of property by a private developer. This is a case that I have dealt with, and the location concerned is in the vicinity of Marsh Road and Lockhart Road. In 1993, a squad of Special Duties Unit carried out a drill without prior notice to the residents. It was at a time when the residents were negotiating with the developer on the question of compensation, and the drill carried out by the squad of course scared the life out of the residents.
The second case occurred at an old building near Tin Lok Lane. In that case, the developer sealed the whole building with bamboo scaffolding and nylon sheets before the residents had all moved out, so that they were unable to have fresh air in those summer days. And, what was more, the developer even cut the supply of water and electricity. Such practice not only involved triad activities interfering with the possession process, the Government also directly played a part in it.
Of the many cases of old area renewal that I dealt with, there are residents that I have become familiar with. This is because these are the people who have moved from one old area to another old area as they are unable to afford renting new units, the market rents of which are beyond their means.
With these remarks, I support the Honourable James TO' motion.
MR CHAN KAM-LAM (in Cantonese): Mr President,
Government Should Have An Overall Planning First
Urban renewal and its progress in Hong Kong have always been the subject of criticism. And it has caused disappointment to numerous residents who are looking forward to environmental improvement through redevelopment. The crux of the problem is the lack of a macro and overall planning in respect of urban renewal on the part of the Government. It is necessary to make changes to this phenomenon.
The Consultative Paper on Urban Renewal was published in July 1995. The public has been looking forward to a policy put forth by the Government to solve the difficulties encountered in urban renewal. However, the Government, having pointed out all the "technical" difficulties, fails to explain a question which has aroused public concern: How is the Government going to implement communal improvement in the old areas step by step? And how far will improvement in old areas go? It seems that the Administration is still at a loss as to how it should proceed with urban renewal.
In this year's policy commitments, the Secretary for Planning, Environment and Lands promised at long last that a new team which will focus on formulating an integrated urban renewal strategy will be established in 1996-97. The Democratic Alliance for the Betterment of Hong Kong (DAB) hopes that the Administration will have the team established as soon as possible and delegate to the team the responsibility of briefing the public on the blueprints of redevelopment projects.
The Principle of Compensation
Mr President, the Consultative Paper has also discussed different methods of compensation to encourage the owners and the tenants to surrender their properties. Yet it fails to propose a clear criteria for compensation. It is our long-held opinion that the most reasonable and the most effective solution for compensation is "flat-for-flat" and "shop-for-shop".
Besides, if the residents demand same-district rehousing, the Government should do its best to finds suitable accommodation in the same district for them, especially for those who have been living or conducting business for years in the district concerned.
Clarify the Definition of "Public Use" As Soon As Possible
The Consultative Paper has also emphasized the importance of resumption powers to the operations of the Land Development Corporation (LDC). It has also pointed out that "the only way to ensure site assembly is to resume properties which cannot be acquired."
The DAB is worried that when the pace of redevelopment accelerates, there will be more occasions for the LDC and the Government to invoke the Crown Lands Resumption Ordinance, which confers on the Government the power to resume land on the basis of "public use". Yet the definition of "public use" is far from clear and there is no protection for the public. The DAB is of the opinion that the Government should make clarification on this point immediately and it should suspend invoking the Ordinance before there is any clear and reasonable definition.
Co-operation between Private Developers and the LDC
The document also recommends that the LDC can accept joint ventures proposed by private developers in order to assist private developers in acquiring properties and rehousing the affected residents. The DAB is of the opinion that this suggestion can help solve a lot of difficulties faced by the LDC. However as the LDC is conferred with the power of land resumption through the Crown Lands Resumption Ordinance, it is worrying that improper exercise of this power will lead to collusion between the Government and the business sector or that this power will be used by private developers as a tool to bring pressure to bear on the people.
Although the Paper has indicated that the Government will work out the criteria for acceptance of joint ventures by the LDC, and the government members of the LDC Board will ensure that the criteria are applied, these are just empty talk. It will not put the mind of the people at ease nor persuade the people to support the Government's proposals.
To avert people's worries, the DAB is of the opinion that the Government should first of all come up with clear and acceptable criteria for joint ventures before the question whether the LDC can co-operate with private developers is decided. The criteria should clearly stipulate that the LDC will not consider co-operating with private developers unless the latter can successfully acquire a certain proportion of property interests on their own. And this proportion should not be lower than the LDC's own standard.
Further, the unfairness arising from discrepancies in compensation to affected residents offered by private developers and the LDC has not been addressed by the consultation document. We urge the Government to responds as soon as possible. The DAB is of the opinion that the Government should stipulate that the compensation offered by private developers should be on a par with that offered by the LDC.
The co-operation between the private developers and the LDC will also give rise to the problem of rehousing of the affected residents. The Housing Authority and the Government have insisted that since it is a private matter involving the private developers and the tenants, there is no justifiable ground on which the Government, instead of the profit-making private organizations, should be responsible for rehousing the tenants.
But we think that this is only the authorities' excuse. Mr President, the Government is bound to play a more active role in rehousing so that whether it is the LDC or the Housing Society or private developers, the one which has taken up redevelopment will provide proper rehousing or compensation to the affected tenants. This is to show respect for the residents' right to accommodation and to minimize the impact on the life of the people in the concerned district.
Resources Required for Urban Renewal
Huge expenditures will be incurred in respect of site assembly, rehousing and compensation for the residents in the course of redevelopment. But we find that apart from a promise of devoting resources to the Public Works Programme, the Government has not provided sufficient financial support to urban renewal projects. For instance, apart from a $100 million equity injection in 1988 to cover its initial running costs, the LDC has to consider the returns and the costs of its development projects. As a result, communal facility projects which will yield a low return are not carried out.
The DAB is of the opinion that, in addition to the "linked site" approach as suggested in the consultative document, more resources should be injected by the Government into the organizations concerned for the redevelopment of communal amenities in the old areas.
Mr President, urban renewal schemes play an important role in improving the living standard of Hong Kong people. This requires the authorities' determination and adoption of prudent policy to ensure that the pace of urban renewal can be accelerated and the living standard of the people in the old areas can be improved.
I so submit.
MR LEE WING-TAT (in Cantonese): Mr President, colleagues from the Democratic Party have put forth a number of views on the urban renewal document. I only wish to discuss three points.
First of all, when we are discussing the document, we should firstly find out whether or not the Government has set out the direction in which the urban renewal programme as a whole is to proceed. If we cannot resolve this matter and concentrate on some detailed and specific means, it would be difficult for us to reach any unanimous conclusion. In fact, even the Government does not wish to give an answer to this question. And the question is: from the Government's point of view, exactly how important the role of urban renewal is; exactly what kind of arrangement and what social resources the Government is prepared to provide for the sake of improving the old urban areas; if there is any essential responsibility the Government has towards the land owners, property owners and tenants; and what conclusion has been drawn in the discussion on the balance to be struck between the interests of private developers and those of the community. My view is that the consultation document has attempted no discussion of the above-mentioned points. Instead, it has merely put forth some measures the Government thought would work. But if the above-mentioned principles have not been worked out, I believe it will be very difficult for us to reach an agreement just by debating the various measures.
Secondly, it is the question of strategy as related to this document. The paper adopts a very fragmented approach and we are unable to see the overall picture. I wonder if the Government has any confidence or ambition to renew the urban areas within a certain period of time. For example, has it given any consideration to renewing the urban area within 30 or 50 years so that there will be a new community environment approved of and accepted by us? The document discloses no such direction or strategy, nor does it suggest any steps or options so that we will know how the Government is going to implement the programme.
Moreover, the whole document discusses at great length the Land Development Corporation (LDC) and the Housing Society (HS). Just as some colleagues have said, 80% to 90% of the entire urban renewal programme is to be taken up by private developers, and unless there is a change in the Government's strategy, work in future will mainly be taken up by statutory bodies established by the Government, for example the LDC or the HS. Otherwise, it would simply be putting the cart before the horse if we do not focus on the urban renewal work done by private developers. We see that problems concerning urban renewal over the past few years are mainly problems in connection with compensation for property owners and rehousing for tenants. Apart from a number of adjustments with regard to the question of compensation, the document has not addressed the long-standing problem of rehousing, rehousing in the same locality or the housing problem of residents as evidenced by its failure to suggest any option for consideration. Therefore, if the Government does not address this old problem but thinks that private developers will be able to carry out the urban renewal work in the new environment, it would be no different from fishing in the air. It is beyond my understanding why the policy branches concerned are unwilling to tackle this knotty problem that has been in existence for years.
Thirdly, I would like to talk about the role played by the Housing Authority (HA). Should the HA play a role in the urban renewal work? My view is that it should. Years ago, I had said that the duty of the HA was to provide housing to the needy. However, I have also commented on many occassions that the scope of service of the HA at present is confined to some committed categories, that is to say, redevelopment of public housing or applicants on the Waiting List. Should it not also provide service to people who are in need, including tenants of cage homes, households affected by urban renewal and people who live in partitioned units in private property? I think there is the need. A feasible way is to dispose extra land in favour of the HA so that this experienced and capable housing organization will be able to work in joint ventures with the LDC and the HS to build some rental housing units. What I want to stress is that the work must be carried out subject to extra land being made available. Otherwise, the proposition will not be workable with the existing land disposal arrangements and housing construction programme.
There are merits in the proposition to have the HA carry out this work. It is because the HA has housing units in all the districts; moreover, the units are of various types, for example, old units as well as new units, and there are also units for single persons, two persons and large households. Furthermore, the HA is certainly experienced both in housing construction and housing management. Therefore, I hope that when views with regard to this consultation document are collated and summarized, the policy branches concerned will consider whether or not the HA can assume a more positive role in the event of extra land being disposed in its favour.
Finally, I would like to talk about the crux of the urban renewal problem. I think that the problem before us is not just one that relates to the concept of "renewal without invested capital" as Dr the Honourable Samuel WONG has put it. Rather, it is one that relates to the concept of the Government "generating interest without having to put in any money" in the urban renewal programme. No government in the world can carry out urban renewal efficiently and humanely according to plan when resources, mainly land, are not being adequately provided. The Government makes a mere $100 million (actually it is less than $100 million) so-called capital injection and then lets the LDC as well as other corporations carry out the work and run on their own. I think this is sheer fantasy. I wonder how we can achieve this "interest generating business without capital injection" mode of urban renewal as this will only bring about myriads of problems, and the projects will be tangled up and delayed, so that both developers, property owners and tenants will end up unhappy. Mr President, I hope that in its conclusion to be drawn with regard to the whole urban renewal programme, the Government will, from the angle of public interest, propose how much resources it should committed itself to, the resources being mainly land resources for the urban renewal programme. Just as we have to think of how many hectares of land ought to be disposed of every year in order to address the housing problem of the grassroots people, the Government faces the same problem on the question of urban renewal.
My last point, which is a finer one, is that in carrying out the urban renewal programme, it can be observed that in those areas marked for renewal the population would generally increase. Thus I agree with the Honourable LO Suk-ching that the Government or the development body ought to have certain powers to freeze the population when it first announces the renewal, otherwise, no development body will be interested in or capable of rehousing the residents in the same locality.
Thank you, Mr President.
THE PRESIDENT'S DEPUTY, DR LEONG CHE-HUNG, took the Chair.
MR CHIM PUI-CHUNG (in Cantonese): Mr Deputy, in this debate today, I very much hope that the Government can learn a lesson in earnest with a serious attitude and spirit and give us a final comment on this issue and complete the final consultation.
We have had motion debates on this issue in the past few years but so far only Members have spoken. We have also expressed a diversity of opinions on the Crown Lands Resumption Ordinance (Cap.124) but the Government has not taken any action. This attitude of the Government has precisely reflected the mentality of a colonial government.
To begin with, the Land Development Corporation (LDC) must not be excluded in the discussion over the renewal issue. I have to declare a minor interest here. Although the matter concerned is settled, no decision has yet been reached as to which side, the LDC or myself, shall be liable for the legal fees and charges incurred. For this reason, I must declare an interest.
Dr the Honourable Samuel WONG, a former Board Member of the LDC, spoke of the position of the LDC earlier. It seems that the LDC has indirectly lodged a protest against the Government through the speech of Dr WONG, pointing out that with a provision of less than $100 million from the Government the LDC has now gained a profit of over $10 billion and that if the Government does not implement policies to further empower the LDC, the LDC will be unable to proceed with the resumption of land.
This shows that the relationship between the Government and the LDC ought to be defined in clear terms. At present, with the privileges granted by the Government, the LDC has been making profits out of the several tens of millions of dollars and its foreseeable profit in future will be over $10 billion. Could it be that the profit is taken out from the pocket of Mr Abraham RAZACK? It is perfectly reasonable that Mr RAZACK gets paid every month and he deserves what he gets. However, this can well prove that under the renewal scheme the LDC is making money out of the public and owners of properties in old urban areas. I think the Government must review and admit this.
We have two observations about land resumption and they are worth serious consideration by the LDC. First, the LDC is supercilious and works arrogantly. For example, in respect of a case of which the hearing has not been concluded and which is pending court decision, the LDC went so far as to hold on its own the "ribbon-cutting" ceremony. This is indeed contempt of court. I think the Government should conduct a review in this regard.
Secondly, for fruit stalls located adjacent to properties owned by big landlords, the operators of these fruit stalls, who are unquestionably licensed hawkers, are guaranteed continual operation subsequent to demolition actions carried out by other government departments. However, the private owners of the adjoining premises do not have the right to express their views when their premises are resumed by the LDC. Some owners may refuse to accept compensation at first but when they agree to the compensation in the end, the LDC says that the consent of other owners should also be obtained before the relevant formalities can be carried out collectively to grant compensations. What attitude is this? It is outrageous that the LDC can do this. We know that not all of the owners are like CHIM Pui-chung who has the means to resort to legal proceedings and appeal to the Privy Council in a bid to solve the problem; and not all of the owners are like CHIM Pui-chung who can hire the Honourable Martin LEE, QC. I hope that the Government will review this attitude of the LDC seriously. Many colleagues have put forth their brilliant ideas earlier and I hope the Government can take them into consideration. Of course, the LDC has its own merits but the Government must examine its administrative measures.
Recently, I have been reminding the LDC time and again that the Government will definitely disagree with the invocation of the Crown Lands Resumption Ordinance for the purpose of land resumption before the matter is settled. Under the circumstance, some major construction projects on the Island and in Kowloon are unable to proceed. This can also prove that the LDC is not genuinely working for the development of districts. So long as the LDC finds out after calculation that the project is far from profitable or difficulties are envisaged, the LDC will invariably "beat a retreat" and shelve the project. This simply runs counter to the grand objective that the LDC always speaks of.
Being residents in the old urban areas in Hong Kong, we will definitely stand by the renewal scheme. As a matter of fact, I am in full support of the Kowloon Walled City project personally. There were complaints from many residents at that time. I even tried to convince them that the Government was doing the right thing and asked them to put up with it with an appropriate degree of tolerance. As a result, the residents gave way. Therefore, I think the problem must be handled separately.
My view is that in the first place, it is obvious that the Government should amend the Crown Lands Resumption Ordinance. This Ordinance sets out the four circumstances under which land can be resumed. (1) Such places are unfit for habitation; (2) The renewal scheme affects other projects; (3) In times of war; (4) Lastly and most importantly, the resumption is in the public interest.
However, we have to realize that the LDC invokes the Crown Lands Resumption Ordinance to resume land not for the benefit of members of the public, but in light of the private interests of the LDC and the developers. In this connection, while we do not oppose the continual invocation of this Ordinance by the Government, we hope that the Government can amend this Ordinance to make it more explicit by, for instance, defining "public interest" clearly and unequivocally to prevent the term from being abused.
Just now many colleagues have put forward many constructive opinions but somehow the Government has pointed out that private developers can also make use of the Crown Lands Resumption Ordinance. As the LDC has already been criticized for invoking this Ordinance, I do not see why private developers are in a position to make use of this Ordinance. Personally, I support the proposal of the mover of this motion, the Honourable James TO, of putting up the resumed land for auction. A special condition which accords priority to the LDC or big landlords can be laid down subsequent to the auction as the LDC or big landlords may find the successful bid in the auction too expensive. But if they are given a cooling-off period to give some thoughts to the matter and are given priority, I think it will be a very reasonable arrangement.
Of course, there are still many other details which need to be straightened out. I very much hope that the Government and the policy branches concerned can deal with the matter sincerely and should not brush aside the matter, giving the LDC a free hand in handling the matter or letting the matter drag on. This is a very wrong attitude.
Moreover, I have reservations about the proposal of local rehousing because, in order to gain a greater profit, it is only natural to convert residential premises into commercial ones which means the ratio will be increased eight times, 10 times or even 15 times in the reconstruction. This is something that we know perfectly well. Under these circumstances, it is, in fact, very difficult to provide local rehousing.
My view is that developers and the Government must deal with this issue sincerely under all circumstances and the original owners should not be regarded as exploiters because they are also the victims.
Mr President, these are my remarks.
DR JOHN TSE (in Cantonese): Mr Deputy, I would like to analyse today's motion from the perspective of human rights. On the development of land use, it is of paramount importance that the affected residents can participate in the process of land utilization, so that their right of residence can be safeguarded. Paragraph 1 of article 11 of the International Covenant on Economic, Social and Cultural Rights recognizes the right of everyone to an adequate standard of living, including to the continuous improvement of living conditions.
The right to an adequate standard of living is part of basic human rights. In the process of urban renewal, the Government indeed has the responsibility of taking care of the interests of those who are affected. This consultation paper on urban renewal lacks not only a comprehensive and long-term redevelopment policy, but also the sincerity to upgrade the standard of living of the people through urban renewal.
The entire consultation paper has put urban renewal on a par with the issue of property repossession. It focuses on economic benefits rather than the original residents' right to domestic accommodation. Urban renewal has not brought improvement to the living environment of the tenants of old premises. Rather, it has made their living conditions even worse. The meagre cash compensation can at most cover the rental for several months and making ends meet afterwards will remain a problem. At the end of the day, the people affected will have to move from big rooms to medium rooms, from medium rooms to small rooms, from small rooms to bedspaces, and from bedspaces to caged homes. Basically, their right of residence is being exploited. The prevailing cash compensation is hardly adequate to meet the exorbitant rental.
The consultation paper has failed to discuss the existing measures designed to tackle illegal repossession of property and the issue of penalty. On the contrary, it mentioned in paragraph 25 that to avoid the question of illegal repossession of property, compensation should be subject to an overall compensation cap. This reflects that the Government has no idea of the rule of law at all and it is willing to bow to the pressure of the forces of evil. In a case that took place in Causeway Bay, the tenants were forced to move out by the developers who employed the dirty tactic of damaging the staircases, making it difficult for the tenants to enter and leave the building. In fact, in the process of urban renewal, the right of private property ownership is always being trampled upon.
After the Town Planning Board approves the redevelopment plans submitted by the Land Development Corporation (LDC) and the Housing Society (HS), the nightmare of the owners begins. Being completely stripped of the opportunity to develop their own property, the owners are at the mercy of others. At present, the LDC enjoys substantial land resumption power and small owners have essentially no say at all. The fact that the right of private property ownership has been unreasonably trampled upon also reflects that the Government's redevelopment plans belittle the basic human rights of the owners.
Obviously, the existing legislation is grossly inadequate with regard to supervising the Town Planning Board and the LDC. Surprisingly, the consultation paper has done nothing to deal with this problem. In the process of formulating urban development plans, small owners have absolutely no say at all. To ensure the representativeness, accountability and operational transparency of statutory bodies is indeed a matter that cannot be neglected.
On the other hand, in empowering the LDC to invoke the Crown Lands Resumption Ordinance for land resumption, the Land Development Corporation Ordinance has not established any compensation criteria. In fact, the legislation in relation to the Mass Transit Railway and public reclamation works does prescribe the compensation criteria for land resumption. Why is there none for urban renewal? The only explanation is that in order to enable the LDC to have more bargaining power, the Government has done nothing at all to protect the interests of small owners.
Lastly, as I cannot see in the consultation paper any comprehensive, long-term and specific redevelopment policies, I would like to reiterate that the Democratic Party requests the Government not to focus its attention merely on the economic benefits of urban renewal. Instead, it should make a bigger commitment and show greater resolution by expeditiously formulating a set of comprehensive urban renewal strategies which is "people-oriented" to improve the livelihood of the residents. At present, the right of residence of the affected residents is being exploited and their right to participate has also been slashed in the course of urban renewal. I hope the Government can take care of the basic human rights of the tenants and the small owners so as to protect them from being exploited.
I so submit.
MR IP KWOK-HIM (in Cantonese): Mr Deputy, I am a new Member to the Legislative Council, and yet when going over Hansard, I can see that motion debates on urban renewal have been held a number of times. This shows that the Government has all along failed to tackle the problem effectively and has failed to formulate a proper policy in dealing with this issue. As a result, debate after debate was held.
The objective of urban renewal is not only to redevelop buildings, but also to improve the transport, cultural, recreational and social facilities. Only in this way will it be able to improve the life of our people and the environment. However, most of the urban renewal projects are undertaken by the Land Development Corporation or private developers. Hence, a macro view is impossible and not much improvement to the infrastructure can be made. It is therefore necessary to effect changes.
The crux of this problem is a lack of positive commitment on the part of the Government in urban renewal. On the other hand, it allows private developers to adhere to commercial principle and redevelop buildings in different districts. There is a lack of a specific direction in urban renewal and a lack of co-ordination and planning arrangement.
In July this year, the Government published the consultation paper on urban renewal, which we have long been looking forward to. Incidentally, today is the last day of the consultation period. This paper has pointed out the technical issues relating to urban renewal which include the resumption of land, rehousing and compensation for the affected residents. But to our disappointment, it fails to explain how the Government will implement step by step the improvement of the old districts and it also fails to tell us how far improvement work for old areas will go.
Presently a number of old districts are facing varying degrees of difficulty in redevelopment. Take the five streets in Kennedy Town in Western District as an example, the Town Planning Board in 1988 decided to undertake urban renewal in this area. In early 1992, the project was announced in the District Board and the Housing Society was specifically appointed to take up the project. The Housing Society then planned to start clearance and redevelopment in early 1996. However, no progress is seen so far. Because of the above reasons, most residents are at a loss to decide what to do in regard to their accommodation problem. The buildings in the five streets are in bad repair and in poor conditions. Rainwater will seep through the buildings in rainy days and leakage of electricity will occur. As the plan for redevelopment is not clear, residents there cannot make any long-term planning in relation to employment, education of their children and purchase of property. There are 350 affected units in the five streets and the 1 500 affected residents are living there as long as they can. In other old areas, similar examples of urban renewal are too numerous to recount.
To solve the urban renewal problem completely, the Government is duty bound to formulate a comprehensive urban renewal policy expeditiously and to find a solution for the land resumption problem faced by developers. Besides, affected residents should be provided with rehousing in the same district and with reasonable compensation. Since the Government is willing to inject huge resources into its metro plan, it should not let people live in constant fear of being housed in "dangerous buildings".
I so submit.
MR RONALD ARCULLI: Mr Deputy, I cannot remember how many times this Council has debated this issue. All I can say is that the frustration and the disappointment of Members with the lack of a comprehensive policy for urban renewal from the Administration is quite understandable. It seems that if the Administration is determined to pursue a given policy, however controversial, it will pray in aid of public interests and as well as, of course, our executive-led Government.
The fact that the subject under discussion has over the years attracted a whole range of views because of the different interests and expectations is not, in my view, a reason for our executive-led Government to shy away from the issue. Why then, I ask, does the Administration appear to turn its back on the problem? The answer may comprise a few factors, but I suspect that it is because housing is a pretty emotional issue. A second reason could be that the Administration does not know, or worse still, cannot be bothered to assess the cost to the community as a whole.
One example, Mr Deputy, is that I have on many occasions asked the Administration to let this Council have the facts. How many tenants are we talking about? What resources, land and otherwise, do we need to rehouse tenants? Is rehousing in the same district feasible? If yes, what is the cost? If not, where else and again, at what cost? What is a realistic time frame to achieve urban renewal? What impact will it have on the provision of land, whether in our urban areas or otherwise, on our public as well as our private housing programmes? Do we have one queue or more than one? The community, I believe, is entitled to the answers to these very basic questions before it can indicate its support or otherwise for any urban renewal programme.
THE PRESIDENT resumed the Chair.
Mr President, I would like now to offer a few comments on today's motion, firstly, as to compensation. A few Members today continue to berate the property industry for the allegedly low level of compensation when compared to that paid by the Land Development Corporation (LDC). Members need hardly be reminded that the purpose and the function of the LDC and the property industry are wholly different. That having been said, the Real Estate Developers Association (REDA) have no problem for a reasonable increase in the current level of statutory compensation because developers, by and large, pay compensation in excess of the statutory compensation level, but the industry needs a speedier process and greater flexibility.
The second point that I would like to deal with is rehousing. I believe that rehousing in the same district is unattainable, but if that is so, let the Administration explain to us why it is not attainable. The sooner we know the sooner those expectations will subside.
Mr President, the REDA, I believe, has put forward a sensible proposal for rehousing, and, that is, for the Housing Authority to obtain quicker release of public rental units by encouraging the better-off tenants to buy flats from the Authority. Another REDA solution could be to encourage the redevelopment of our decaying industrial areas into residential projects which, coupled with a judicious use of bonus plot ratio, could well produce residential units for rehousing some of the families displaced by urban renewal programmes.
Mr President, I believe we are about to be handed a golden opportunity to plan for a fair and workable urban renewal programme when Kai Tak Airport is decommissioned. I believe we must plan ahead, and plan ahead with a bold vision. We can use that to plan not just for urban renewal, but also for renewal of our decaying industrial districts like San Po Kong and Kwun Tong and the like. Furthermore we can also redevelop some of our decaying public housing estates. What I have suggested, Mr President, requires an Administration with determination and vision. I ask the Administration not to disappoint Hong Kong.
SECRETARY FOR PLANNING, ENVIRONMENT AND LANDS (in Cantonese):¡@Mr President, I have listened carefully to Members' views on urban renewal. In particular, I have noted their concern over the progress of the policy review, which is understandable, since the pace of urban renewal has a profound impact on the urban environment and the quality of life of the community. I can assure Members that the Administration is committed to expediting urban renewal.
I welcome today's motion debate as it enables the Administration to listen to the views of this Council to mark the completion on of the public consultation an urban renewal. However I must say I am disappointed with the strong wording of the motion, which expresses deep regret at the failure of the Government to set out a comprehensive policy of renewal in the consultation document. With due respect, Mr President, I find the wording a little odd and feel that it reflects Members' misunderstanding of the purpose of the consultation paper. It is believed that Members have clearly read the public consultation document, which we published in July this year. The document contains a comprehensive package of proposals to facilitate urban renewal. Its aim was, as always, to encourage discussion on the subject and invite comments from the general public, interested professional and other bodies and, of course Members of this Council, on the Administrations proposals so that different views might be taken into account before a policy is formulated. The public consultation period has been extended partly, at the request of Members of this Council.
Having listened carefully to what Members have said, I find that many of their views are basically in contradiction with the definition of urban renewal as contained on page two of our consultation document. And that is, I believe, one of the reasons why we hold different views on this issue. Members have just now expressed various views in connection with the redevelopment of old buildings, but the issue under discussion is urban renewal. If, according to the views of certain Members, residents affected by the redevelopment f some old buildings have to be rehoused in the same locality, then the redevelopment of a three-storey or four-storey building by a few small property owners will become involved in this issue.
Other Members have touched on the question of how the Land Development Corporation (LDC) should have rehoused the affected residents. I believe that these Members are still not fully in the picture. The LDC has so far undertaken a number of redevelopment schemes, and all the residents affected by such schemes have been rehoused. The LDC has not just paid them compensation and asked them to vacate the buildings. Some Members said that since the LDC and pulled down the old buildings to make way for office buildings, there were no more resident buildings available to the affected residents. They have, however, failed to take into account that the LDC has in fact acquired houses in other districts to accommodate the affected residents. Never has there been any case of residents finding themselves homeless as a result of redevelopment project undertaken by the LDC.
I would carefully study the constructive views of some Members in this Council, very much with the expectation that I would be able to take into account the solution they have proposed to solve the very complex problems of urban renewal. I hope that we shall be able to set out a set of policy soon which will have the support of this Council and the community.
We have now received the views of a broad cross-section of the community and in a moment I shall give Members a brief summary of the main comments. Our task now is to draw conclusions from those comments and consolidate a policy on how to bring urban renewal forward. We will then turn to the specific details of implementation.
The motion asks us to formulate expeditiously a comprehensive policy to speed up the pace of urban renewal. Mr President, this is exactly what the Administration intends to do. The Honourable James TO's motion and the Honourable Miss Christine LOH's amendment also urge us to give due emphasis to ensuring that residents affected will be rehoused in the same locality and reasonably compensated. It surely goes without saying that the compensation should be reasonable. We have debated many times, both in this Council and elsewhere, the question of "same-district" rehousing. We recognize that many residents of older buildings which have to be redeveloped want to remain close to their communities, employment and schools. But we are also acutely aware that same district rehousing is simply not possible in many cases, if only because one of the primary aims of urban renewal is to lower the development and population densities of overcrowded areas. In its projects to date, the Land Development Corporation has been able to offer rehousing in the urban area and to make available limited rehousing in the same districts for allocation on a priority basis to those who would otherwise face genuine hardship. That is the best that can be practically achieved. I am grateful that some Members have recognized this in their speeches today and in previous debates.
Mr President, I said that I would give a brief summary of the main results of our consultation. I do so for Members' information and to illustrate in particular that there are diverse views on this important issue in the community. Members will no doubt note that some of the comments we have received are mutually conflicting and difficult to reconcile.
First, there was unanimous support for accelerating urban renewal. Respondents generally wished the Government to inject more resources into the process. However, most of them also believed that more should be done to address the problems encountered in private sector redevelopment schemes, since private developers would continue to be one of the principal agents in urban renewal, instead of having the Government to identify resources to help them.
Second, view on the Administration's resumption proposal to overcome the site assembly problem were mixed. While some acknowledged that resumption was the only practical means to ensure site assembly, other considered that private property rights should be respected and resumption should only be resorted to under exceptional circumstances, such as when redevelopment would bring significant benefits to the community.
Third, some respondents had reservations on the suggestion of expanding the role of the Land Development Corporation to include that of acting as a facilitator of private sector schemes, mainly owing to concern over the interests of small property owners. Others supported the idea, provided there were adequate "checks and balances" and Government supervision of such joint ventures between the Corporation and private developers.
Turning to the relocation of affected tenants, a clear majority of the respondents welcomed the Administration's proposal to grant land at concessionary premium to the LDC or the Housing Society (HS) for the construction of rehousing units. They also supported making the HS as a rehousing agent in LDC's redevelopment schemes.
The provisions of "same-district" rehousing in all redevelopment projects was advocated by some respondents. Others, however, considered that the idea was not always practical, particularly when a change in land use, or a thinning out of population density, is envisaged for planning reasons.
As regards how to assist affected domestic and commercial tenants to relocate, most of the views received called for a suitable increase in the relevant statutory compensation and ex-gratia allowances.
Finally, most respondents considered the proposed "linked site" concept a sound approach in addressing the financial viability problem in urban renewal.
The pubic have expressed their views and wishes on urban renewal. It is now time for the Administration to fully such views and make the necessary decisions. In doing so, we will aim at balancing the interests of different parties: the affected owners and tenants, the developers and the community as a whole. We will, of course, also take into account the views of this Council.
As promised in our 1995 Policy Commitments, we will aim to finalize the way forward by the end of this year. We will announce the appropriate policies on urban renewal as soon as possible afterwards and set up a new dedicated urban renewal team in the Planning, Environment and Lands Branch to work on their implementation.
Mr President, I am grateful to Members for the views they have expressed in this debate and elsewhere and, in particular, to the Housing Panel and the Planning, Lands and Works Panel of the previous and current Legislative Council for the opportunities they have given us to discuss the issue with them. I would also like to thank publicly those bodies and individuals, who have taken the time and trouble to write to us with their comments.
PRESIDENT: As I said at the beginning of this debate, two Members, Miss Christine LOH and Mr Edward HO, have submitted separate amendments to this motion and their amendments have just been debated together with the motion. I now call upon Miss Christine LOH to formally move her amendment first so that Members may take a vote on it.
MISS CHRISTINE LOH's amendment to MR JAMES TO's motion:
"To delete "expeditiously formulate a comprehensive policy" and substitute with "take forward proposals to increase powers of land resumption in conjunction with measures to increase the transparency and accountability of the Town Planning Board, increase minimum levels of statutory compensation to tenants with the aim of increasing payments to the poorest tenants forced out by urban renewal, and increase the availability of public resources, especially land, in order" and to delete "with due emphasis on tackling the problems relating to the acquisition of properties by developers and ensuring" and substitute with "and to ensure"."
MISS CHRISTINE LOH: Mr President, I move that Mr James TO's motion be amended by my amendment as set out on the Order Paper which has just been revised.
Question on Miss Christine LOH's amendment proposed.
PRESIDENT: Mr James TO, do you wish to speak? You have a total of five minutes to speak on the two amendments.
MR JAMES TO (in Cantonese): Mr President, I have stated that I do not support the amendment motion proposed by the Honourable Edward HO. However, I have not stated whether I support or oppose the amendment motion moved by the Honourable Miss Christine LOH when I rose to speak just now. It is because I want to have a better understanding of her amendment motion, especially those ambiguous parts, before I make up my mind. After listening to her speech, I now have a clear picture of her concept. Even though we have a better understanding of her motion after she has explained wording such as "increase powers of land resumption", we still fear that it will be interpreted as increasing the Government's powers to resume land. It is because different people may have different interpretation of the same wording. I think it will be dangerous if Members accept such ambiguous wording and allow the Government to interpret it. Therefore, we will vote against Miss Christine LOH's amendment motion.
Nevertheless, the Democratic Party does agree to a number of points raised by Miss Christine LOH. One of these points which we heartily agree to is that the Government should increase the availability of public resources, especially land. Many Members mentioned just now that it was impossible for the Government to "carry out redevelopment without paying any cost" or, as the Honourable LEE Wing-tat has said, it was impossible for the Government to "make profit without paying any cost". We also agree to the principle of increasing the transparency of the Town Planning Board. In addition, we are also in support of the call for more compensation to tenants. I think, except the Honourable Ronald ARCULLI, most of the Members who spoke just now will agree to increasing the levels of compensation. I hope ......
MR RONALD ARCULLI: Mr President, a point of elucidation.
PRESIDENT: Do you want to explain that part of speech which has been misunderstood or do you wish to seek Mr James TO's elucidation on a point he was making?
MR RONALD ARCULLI: Either one will do, Mr President.
PRESIDENT: Are you saying that you have been misunderstood?
MR RONALD ARCULLI: Certainly, from the context in which Mr TO is speaking now.
PRESIDENT: Mr TO, are you prepared to yield to Mr ARCULLI so that he can make his explanation?
MR JAMES TO: Yes, if I have misunderstood him.
MR RONALD ARCULLI: In my speech, I made it very clear that the Real Estate Developers Association's position was that a reasonable increase in the current level of statutory compensation was acceptable. So I do not understand why Mr TO is suggesting that I said otherwise.
MR JAMES TO (in Cantonese): Mr President, it is probably because 18 Members have spoken on this subject that I have omitted to jot down that argument of the Honourable Ronald ARCULLI when scribbling my notes. For that, I would like to apologize to Mr ARCULLI and the association to which he belongs.
This will be even better. That means it is the wish of all Honourable Members that the Government increase the amount of compensation. I hope that the Government will implement this proposal in the near future, within the coming few months if possible. Otherwise, the Democratic Party or the other Members will exert greater pressure on the Government. We have prepared a Private Members Bill which will be moved at any time if the Government does not implement this proposal. I believe that many Members will give their support to it.
Question on Miss Christine LOH's amendment put and negatived.
PRESIDENT: Now that we have disposed of Miss LOH's amendment, Mr Edward HO may formally move his amendment now so that Members may take a vote on it.
MR EDWARD HO's amendment to MR JAMES TO's motion:
"To delete "rehoused in the same locality and reasonably compensated." and substitute with "fairly compensated, and rehoused according to the principle of equity as applied to all"."
MR EDWARD HO: Mr President, I move that Mr James TO's motion be amended as set out under my name in the Order Paper.
Question on Mr Edward HO's amendment proposed.
PRESIDENT: Mr James TO, do you wish to speak on Mr HO's amendment? You have a balance of 1 minute 52 seconds.
Question on Mr Edward HO's amendment put.
Voice vote taken.
THE PRESIDENT said he thought the "Noes" had it.
Mrs Selina CHOW claimed a division.
PRESIDENT: Council shall proceed to a division.
PRESIDENT: May I now remind Members that they are now called upon to vote on the question that Mr Edward HO's amendment be made to Mr James TO's motion. Will Members first register their presence by pressing the top button in the voting units on their respective desks and cast their votes by selecting one of the three buttons below?
PRESIDENT: One short of the head count. We are voting on the question that Mr Edward HO's amendment be made to Mr James TO's motion. Before I declare the result, Members may wish to check their votes. Are there any queries? The result will now be displayed.
Mr Allen LEE, Mrs Selina CHOW, Mr LAU Wong-fat, Mr Edward HO, Mr Ronald ARCULLI, Mrs Miriam LAU, Dr LEONG Che-hung, Mr CHIM Pui-chung, Mr Eric LI, Mr Henry TANG, Dr Samuel WONG, Dr Philip WONG, Mr Howard YOUNG, Miss Christine LOH, Mr James TIEN, Mr Paul CHENG, Mr CHOY Kan-pui, Mr David CHU and Mr Ambrose LAU voted for the amendment.
Mr Martin LEE, Mr SZETO Wah, Mr Albert CHAN, Mr CHEUNG Man-kwong, Mr Frederick FUNG, Mr Michael HO, Dr HUANG Chen-ya, Miss Emily LAU, Mr LEE Wing-tat, Mr Fred LI, Mr James TO, Dr YEUNG Sum, Mr WONG Wai-yin, Mr LEE Cheuk-yan, Mr CHAN Kam-lam, Mr CHAN Wing-chan, Miss CHAN Yuen-han, Mr Andrew CHENG, Mr CHENG Yiu-tong, Mr Anthony CHEUNG, Mr CHEUNG Hon-chung, Mr Albert HO, Mr IP Kwok-him, Mr LAU Chin-shek, Dr LAW Cheung-kwok, Mr LAW Chi-kwong, Mr LEUNG Yiu-chung, Mr Bruce LIU, Mr MOK Ying-fan, Mr NGAN Kam-chuen, Mr SIN Chung-kai, Mr TSANG Kin-shing, Dr John TSE, Mrs Elizabeth WONG and Mr YUM Sin-ling voted against the amendment.
Mr LO Suk-ching and Miss Margaret NG abstained.
THE PRESIDENT announced that there were 19 votes in favour of the amendment and 35 votes against it. He therefore declared that the amendment was negatived.
PRESIDENT: Mr James TO, you are now entitled to reply and you have four minutes six seconds out of your original 15 minutes.
MR JAMES TO (in Cantonese): Just now the Government said that it was grateful to many Members. As a matter of fact, I also have to thank Members because we had debated this issue numerous times. However, many Members or the organizations or bodies they belong to have really put forward a lot more substantive suggestions this time. Whilst the means as suggested may be different, we do have plenty of common ground amongst us. This time we surely can point to a direction and offer views for consideration by the Government.
First of all, I would like to respond to some of the views of the Government. The Government is of the view that this is merely a consultation exercise and therefore views of Members are being sought. For this reason, the Secretary for Planning, Environment and Lands has found it strange that we should have criticized the document for being a mere 12-page one. However, I hope he will understand that for the purpose of consultation, there are the so-called blank options as well as substantive options. For example, as regards transport, the Government makes numerous points in a consultation paper on how the problem of traffic congestion can be solved. In spite of the fact that some of them are quite controversial, nevertheless, the Government is bold and resolute; it has got a sense of direction and broadmindedness on the matter, to say the least, and it is of the view that the traffic congestion problem can be solved. But now on the question of urban renewal, the Government is only conducting a consultation exercise on some blank options, that is to say, there is no offered option at all, particularly when it comes to joint ventures with private developers on the renewal projects. Just as the Honourable Ronald ARCULLI remarked that they looked forward to the speeding up of the renewal works, members of the public also hope that more reasonable terms in respect of compensation and rehousing can be offered. The Government should have appreciated that there is a conflict of interests in these two aspects. And it should be bold and broadminded to suggest some options. I think if the Government had done so, views presented by members of the public would have been a lot more substantive, and they could have made it clear whether they would support certain views or not.
Just now the Secretary for Planning, Environment and Lands said that the Land Development Corporation (LDC) had all along been making arrangements to rehouse affected residents, and that the rehousing rate was 100%. In fact we can see this point, too. That is why we have spoken well of it since basically we concur with this mode of the LDC in dealing with matters, and we think that such kind of rehousing is good. However, what many Members are concerned with now is the question of private developers. This document mentions the increase of compensation only, and there is absolutely no mention of rehousing. But it is interesting to note that the document does mention the difficulties faced by the residents, and the substance of the document is almost exactly the same as a speech of mine delivered three or four years ago. The Government is also of the view that the residents do have difficulties, but at the end it merely states that the compensation is to be set at 1.7 times the rateable value of the premises, or a bit higher at the discretion of the authorities concerned. I think this simply has not solved the problem of rehousing.
Today many Members are wrangling over the question of whether or not rehousing in the same district is feasible. Perhaps let me respond to the views in this respect. My view is that rehousing in the same district is feasible, and my reasons are as follows:
Firstly, there is a lot of land the plot ratio of which has not been fully utilized. The Honourable Frederick FUNG spoke of the land below the flight path. What we are talking about is not just a block or two but the entire area the plot ratio of which has not been fully utilized. However, the Secretary for Planning, Environment and Lands said that if Members recommended the full utilization of the plot ratio, there would not be any improvement to the environment as the density of those areas had already been very high, and if the density was to be increased any further, the environment would then be worse than what it was now.
This brings me to the second reason that I would like to put forth, which is that we have an expansive area of reclaimed land. Just now Mr ARCULLI also mentioned the land at Kai Tak as well as, for example, land for industrial use. At the time when the Government was in the process of planning, it should have realized, in view of the industrial situation of Hong Kong, whether or not such land should be reserved for that purpose and, whether or not we had other land to ease the density problem as a result of the urban renewal, and so on.
Thirdly, most of the problems we are having are actually the result of some developers having altered the use of land from one of residential use to commercial use.
Fourthly, as a matter of fact, there are examples of success in same-district rehousing for those larger areas of land. For example, the six streets of Yau Ma Ti and Li Chit Street of Wan Chai, and so on. We very much agree with the Honourable LO Suk-ching's idea of freezing the number of tenants. This is because if the number of tenants is not frozen, once the Government announces that a certain area is to be renewed, a large number of people will rush into that area, and the number of residents to be rehoused in the same area will likely be several times more, which is not fair since we must not allow people to rush there suddenly.
There are such a myriad of views that I find it impossible to respond to each and every one of them. However, in a nutshell, I think the Government ought to be bold and resolute in dealing with this matter and put forth some constructive recommendations for us to consider.
Question on Mr James TO's motion put.
Voice vote taken.
THE PRESIDENT said he thought the "Ayes" had it.
Mr James TIEN and Mrs Miriam LAU claimed a division.
PRESIDENT: Council shall now proceed to a division.
PRESIDENT: Will Members please register their presence by pressing the top button in the voting units and cast their votes by selecting one of the three buttons below?
PRESIDENT: Three short of the head count. Before I declare the result, Members may wish to check their votes. Are there any queries? The result will now be displayed.
Mr Martin LEE, Mr SZETO Wah, Dr LEONG Che-hung, Mr Albert CHAN, Mr CHEUNG Man-kwong, Mr Frederick FUNG, Mr Michael HO, Dr HUANG Chen-ya, Miss Emily LAU, Mr LEE Wing-tat, Mr Fred LI, Mr James TO, Dr Samuel WONG, Dr YEUNG Sum, Mr WONG Wai-yin, Miss Christine LOH, Mr LEE Cheuk-yan, Mr CHAN Kam-lam, Mr CHAN Wing-chan, Miss CHAN Yuen-han, Mr Andrew CHENG, Mr CHENG Yiu-tong, Mr Anthony CHEUNG, Mr CHEUNG Hon-chung, Mr CHOY Kan-pui, Mr David CHU, Mr Albert HO, Mr IP Kwok-him, Mr LAU Chin-shek, Dr LAW Cheung-kwok, Mr LAW Chi-kwong, Mr LEUNG Yiu-chung, Mr Bruce LIU, Mr LO Suk-ching, Mr MOK Ying-fan, Mr NGAN Kam-chuen, Mr SIN Chung-kai, Mr TSANG Kin-shing, Dr John TSE, Mrs Elizabeth WONG and Mr YUM Sin-ling voted for the motion.
Mr Paul CHENG and Mr Ambrose LAU voted against the motion.
Mr Allen LEE, Mrs Selina CHOW, Mr LAU Wong-fat, Mr Edward HO, Mr Ronald ARCULLI, Mrs Miriam LAU, Mr CHIM Pui-chung, Mr Eric LI, Mr Henry TANG, Dr Philip WONG, Mr Howard YOUNG, Mr James TIEN and Miss Margaret NG abstained.
THE PRESIDENT announced that there were 41 votes in favour of the motion and two votes against it. He therefore declared that the motion was carried.
PROPOSALS OF THE LEGAL SUBGROUP OF THE PRELIMINARY WORKING COMMITTEE
MR ALBERT HO to move the following motion:
"That this Council strongly objects to the proposal by the Legal Subgroup of the Preliminary Working Committee to repeal in 1997 certain provisions of the Bill of Rights Ordinance as well as to reinstate laws amended by this Council to comply with the Bill of Rights; and urges the Government to review immediately existing laws and present to this Council for amendment those laws which are in breach of the Bill of Rights, so as to enhance the protection of human rights in Hong Kong."
MR ALBERT HO (in Cantonese): Mr President, I rise to move the motion standing in my name on the Order Paper.
Mr President, in modern civilization, people should enjoy a high degree of freedom and rights. This exemplifies the lofty political aspiration of "acting in the interest of the people". This is also the goal that every democracy should pursue. Nowadays, any country or regime that seeks to manipulate the people by exploiting and trampling on their human rights is bound to be despised and held in contempt by the international community, despite the fact that they may thus attain economic growth and strong military might.
In fact, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights only set out the minimum standard of the fundamental freedoms and rights of individuals. The Bill of Rights Ordinance (BRO) is enacted only to extend to the Laws of Hong Kong this minimum standard that Hong Kong should observe after 1997. However, in order to safeguard human rights, we cannot simply depend on a piece of paper, thinking that the matter is settled once and for all. It is just the beginning of a long-lasting task and is definitely not the end. The BRO only sets out the bottom line that is generally accepted internationally in the protection of human rights. It is definitely not an absolute guarantee of human rights.
With regard to the protection of human rights, the international community has clearly expressed their concern about human rights in different parts of the world through the Charter of the United Nations, the Universal Declaration of Human Rights and the two international covenants on human rights. At present, a close to 100 countries have signed the two covenants on human rights, undertaking to safeguard human rights in their home countries in accordance with the covenants. As a matter of fact, the international community has reached a consensus, rendering the defending and safeguarding of human rights a common goal to pursue in this century and over the next century.
Mr President, although the two international covenants on human rights were brought into effect in Hong Kong as early as in 1976, the Government has as yet taken any positive step to formulate legislation and make amendments accordingly. Such being the case, in 1989 when the Governor announced the formulation of the BRO, public opinion at the time generally regarded this commitment 13 years overdue! In fact, the BRO has its deficiency in the protection of human rights. For instance, the BRO binds only the Government and public authorities but excludes dealings among members of the public and under BRO, there are reservations about certain provisions of the covenants, which are subsequently excluded from implementation. Besides, the Government has always dragged its heels in reviewing laws for consistency with the BRO and worked conservatively. Therefore, in order to improve human rights, we must keep up our efforts and remain vigilant. To improve human rights in Hong Kong is one of our important tasks spanning this century and the 21st century.
Mr President, it is utterly regrettable that at this point in time, the Legal Subgroup of the Preliminary Working Committee (PWC) has gone so far as to rest on their laurels, turn the clock back and take a retrograde step by arbitrarily reinstating some obsolete colonial laws.
First, the Subgroup holds that sections 2(3), 3 and 4 of the BRO contravene Articles 8, 11 and 39 of the Basic Law, and suggests that the National People's Congress (NPC) should have them repealed. Secondly, the Subgroup has specifically opined that the amendments made by the Legislative Council to the six ordinances to comply with the BRO, namely the Societies (Amendment) Ordinance 1992, Television (Amendment) Ordinance 1993, Public Order (Amendment) Ordinance 1995, the 1993 amendments of the Telecommunication Ordinance, the 1993 amendments of the Broadcasting Authority Ordinance and those in respect of the subsidiary legislation of the Emergency Regulations Ordinance in 1995 are in breach of the principle of the Sino-British Joint Declaration that the original laws of Hong Kong shall remain basically unchanged, thus undermining the executive power and also jeopardizing the stability of Hong Kong. The Subgroup has also suggested that the Standing Committee of the NPC should exclude them from the laws of the Special Administrative Region (SAR) and restore the ordinances to their earlier forms before amendments were made.
Mr President, in fact, the Subgroup has also claimed that the BRO in its entirety as well as many other ordinances, including the New Territories Land (Exemption) (Amendment) Ordinance 1994 and the Legislative Council Commission Ordinance, are packed with problems. No suggestion has been made for the time being in regard to these ordinance just because they can be left to the SAR Government to handle. In our view, the Legal Subgroup's suggestion is totally devoid of legal basis and has no regard for the wish and rights of the Hong Kong people. We must express our strong opposition to it.
I have found it distressing that all the six ordinances which the Legal Subgroup specifically earmarked for reinstatement have a bearing on the civil and political rights and the right to gain access to information. The Subgroup's suggestion that the NPC should reinstate these laws has aroused suspicion in the community that the Legal Subgroup is actually calling on the Standing Committee of the NPC to ignore the provisions of the Basic Law and directly formulate laws for the future SAR on its won. These two points have given a very bad message to the people of Hong Kong and have aroused an enormous furore.
In fact, of the six ordinances earmarked for reinstatement, the Societies Ordinance, the Emergency Regulations Ordinance and its subsidiary legislation are originally formulated by the British-Hong Kong Government in the 1960s to counteract the leftist activities. Now, in making such suggestion, are the Legal Subgroup and the Chinese side thinking to control the people of Hong Kong and clamp down on the democrats and dissidents after 1997 by laws originally designed to contain the leftist? This is grossly ironical!
Mr President, both China and Britain have expressly stated in the Joint Declaration that the International Covenants on Human Rights shall "remain in force" in Hong Kong. Article 39 of the Basic Law also stipulates that the covenants on human rights shall be "implemented through the laws of the Hong Kong Special Administrative Region". This is precisely the very legal basis on which BRO is formulated. Therefore, in the light of the Basic Law, the BRO can be taken as a piece of consequential legislation formulated on explicit jurisprudence grounds.
Any debate on the question of supremacy is indeed unwarranted. This is due to the difference in the perceptions of the status and the specific operation of the BRO. In terms of legislative procedure and the formulation of law, the BRO is, in fact, no more than a piece of ordinary legislation. The fact that it can repeal pre-existing laws is premised on the legal principle of "the later laws being superior to the earlier ones". Where possible, legislation made after the enactment of the BRO must be construed in such a way as to be consistent with the BRO and this is also in line with the basic principle of the interpretation of the existing laws. The Letters Patent has adopted the provisions of the second paragraph of Article 39 of the Basic Law which stipulates that any laws intended to restrict the rights and freedoms of the people must comply with the two covenants on human rights and this largely explains the reason why legislation made after the enactment of BRO must be consistent with the BRO.
Given that the BRO embodies the provisions of the covenants on human rights, it is, therefore, reinforced by the Letters Patent today and will be equally safeguarded by the Basic Law in future to ensure that the later laws are consistent with the BRO. Only in this sense that the BRO is deemed overriding. We cannot simply say that the BRO is therefore running counter to the Basic Law. In short, given that the unique status and power of the BRO are derived from the Basic Law, the BRO cannot possibly override the Basic Law after 1997. The Basic Law should provide an all-embracing protection on human rights. It must also accommodate and tolerate the BRO.
Where the overall operation is concerned, while the Government has proposed a series of amendments in law after the BRO came into operation, the standard of the BRO has yet been fully met so far. On the whole, there are still not many pieces of legislation ruled by the court as inconsistent with the BRO. The legal profession generally thinks that the rulings are justified and that reasonable improvements have been made in the protection of human rights, entailing a progress in the development. After the BRO was brought into effect, our legal system has been functioning in a completely normal manner.
I believe that the Government, the Legislative Council, the court and the general public all agree that the BRO has been working well and has not caused the Government or the executive branches any problems in the governance of the territory. We do not see the public order of Hong Kong has become chaotic. Nor do we see that the territory has become a haven for criminals to lie low. On the contrary, it is worth noting that the restoration of laws in their earlier forms conveys a very bad message, manifesting the intention of the Chinese side to stifle public opinion and control the political activities of the public. This will give rise to even more frequent instances of confrontation between the Government and the general public in future, thus compelling the police and law enforcing agencies to frequently engage in unnecessary conflicts with peaceful petitioners, which is extremely detrimental to Hong Kong.
Mr President, in fact, the BRO has conferred to the court the ultimate monitoring power over the protection of human rights. It seeks to counterbalance and check not only the executive, but also the legislature. It seeks to prevent the legislature to use a transient majority vote to formulate draconian laws to suppress the minority or even individuals. Under the BRO, the court is empowered to make a ruling as to whether certain ordinances, policies and acts of the Government are in breach of the BRO, thus rendering the court the ultimate monitoring agent in the protection of human rights. Under the circumstance, the freedoms and rights of individuals will be brought under independent judicial protection. This is the important principle based on which the BRO functions.
In all fairness, the BRO is a new experience to Hong Kong and many modern countries. Through the accumulation of experiences in judicial operation, Hong Kong can establish a culture and a jurisprudence tradition of protecting human rights. It is our hope that the idea and a culture of respecting human rights can be extended effectively to all sectors in the community and become part of our lives and the social culture. In the long run, a genuinely free and democratic country with the rule of law prevails has to build on a culture which upholds the protection of human rights.
We are of the view that the BRO and the Basic Law are compatible and are vitally important to the protection of human rights in Hong Kong. Now that the suggestion of the Legal Subgroup of PWC has brought them into conflict, this has prompted the community to cast doubt on the authority and the legality of the Basic Law. It even gives the impression that the Basic Law is in contravention of the two international covenants on human rights.
In making such suggestion, the Legal Subgroup is thinking to "recolonize" Hong Kong by restoring colonial laws which are draconian and which impinge on human rights. This has reflected the fear of the Chinese side for the insufficient credibility of the SAR Government and its inability to face up to public monitoring and criticisms. Therefore, it has to emasculate the BRO to attain the purpose of securing political control.
All in all, the BRO carries symbolic significance and constitutes an important foundation for the development of Hong Kong to sustain. If we give up this bottom line of a BRO and cease to defend our freedoms and rights, then the success of Hong Kong, the prosperity of Hong Kong and our lifestyles will vanish altogether. In future, more and more draconian laws will be restored and Hong Kong will return to the time when it was under colonial rule several decades ago. We will be gradually deprived of our rights. Freedom will suffocate slowly and eventually wither completely! As a body representing the people, the Legislative Council cannot shirk its responsibilities. I sincerely urge Members to support my motion.
I so submit. Thank you, Mr President.
Question on the motion proposed.
PRESIDENT: Miss Christine LOH has given notice to move an amendment to the motion. Miss LOH's amendment has been printed on the Order Paper and circularized to Members. I propose to call on her to speak and to move her amendment now so that Members may debate the motion and the amendment together.
MISS CHRISTINE LOH's amendment to MR ALBERT HO's motion:
"To add after "to comply with the Bill of Rights" the following: ", to repeal the New Territories Land (Exemption) Ordinance which has the effect of providing all indigenous inhabitants of the New Territories to enjoy equal inheritance rights to rural land, as well as to dissolve the Legislative Council Commission"."
MISS CHRISTINE LOH: Mr President, when the Legal Subgroup of the Preliminary Working Committee (PWC) turned its attention to human rights law, there were ways in which it could have contributed positively to legal development. It could have initiated real, detailed discussion about the Basic Law itself which one would expect to be the PWC's natural area of expertise. PWC members often assert that Chapter III of the Basic Law sets out Hong Kong people's fundamental rights so comprehensively that any other legal protection is unnecessary. But Chapter III, like the Bill of Rights, is phrased in general terms so that we have no idea how it will be interpreted and applied in practice after 1997.
Had the PWC and its subgroup directed their attention to these matters, its comments and proposals might have been welcomed. The subgroup, however, failed to take the constructive high road. Instead it opted for a low road characterized by relentless and strident attacks on existing human rights protection, along with direct efforts to undermine the Bill of Rights. The subgroup has recommended that six laws, separately amended to meet internationally-accepted human rights standards, be restored to their pre-Bill of Rights state.
Different sources in and close to the subgroup have offered a rather haphazard variety of explanations for these proposals, but the most plausible explanation can be discerned if we examine the subgroup's choice of which laws to target among the several dozen that have to date been changed to conform with the Bill of Rights. The six targeted laws all restrict the Government's powers to control some aspect of political expression and behaviour, ranging from television and radio broadcasting to public assembly and demonstration, to private, social and political organization. That the Legal Subgroup has chosen to attack these reforms in particular suggests that its concern is not really law but power, specifically, the removal of any fetters on the power of the future Special Administration Region Government should it desire to do so, to suppress criticism and dissent.
The proposals create the impression that the subgroup is little more than a tool serving a future regime that wants very much to reserve the right to be heavy-handed. The subgroup's proposals have already been declared by some Chinese officials to represent official thinking, even though the proposals have not yet even been endorsed by the full PWC for formal transmission to the National People's Congress in Peking.
Unfortunately, PWC members appear to be unable to stand up to, or disinterested in standing up to, the harsher winds that blow occasionally from the North. It is clear, if there was ever much doubt, that the public cannot rely on the PWC to articulate and defend Hong Kong's interests as 1997 approaches. It is, therefore, essential that this Council expresses itself clearly and strongly on behalf of the public as this motion does.
While I strongly support this motion, I am amending it because I believe that it leaves certain important matters unaddressed. The motion focuses on the subgroup's attack on the Bill of Rights itself and on the six specific laws that the subgroup wants restored to their pre-Bill of Rights shape. These have drawn the most public attention, but it should not be forgotten that the subgroup has at the same time launched equally ill-conceived and regressive attacks on two other important items of legislation. First, the subgroup has recommended that certain parts of the New Territories Land (Exemption) Ordinance be repealed after 1997. This Ordinance gives women in the New Territories the same rights to inherit land as everyone else by overturning antiquated customary laws. A more retrogressive move than the subgroup's proposed restoration of Ching Dynasty inheritance law in the New Territories is scarcely imaginable.
Second, the subgroup has called for repeal of the entire Legislative Council Commission Ordinance and consequent dissolution of the Commission. No justification has been offered for this startling proposal except the bare observation that the Commission originated from the Governor's political reform package. The Commission is far too important to allow it to be thrown away so casually. This Council cannot be a truly independent and effective monitor of the Administration unless we have the equally independent administrative support that the Commission provides. We owe it to ourselves to speak up for our Commission. As this motion is now worded, I am afraid that the subgroup's retrograde proposals in respect of these two important laws may slip through today's debate without ever really coming under the spotlight.
This motion will likely represent our one definitive response to the subgroup's proposals, and it should be complete and unambiguous. We cannot overlook threats made against the equality of inheritance rights for which so many people fought vigorously for last term, or against the independence of this Council itself. I am therefore moving an amendment that makes clear that this Council also deplores the subgroup's attack on the New Territories Land (Exemption) Ordinance and the Legislative Council Commission Ordinance.
Mr President, I urge Members to support the amendment.
Question on Miss Christine LOH's amendment proposed.
MR CHEUNG HON-CHUNG (in Cantonese): Mr President, the Legal Subgroup of the Preliminary Working Committee has proposed recently to repeal certain provisions of the Bill of Rights Ordinance (BORO) and to reinstate laws amended by this Council to comply with the BORO. Its proposal has aroused much discussion among the people of Hong Kong. Many professionals from the legal field and some people who claim to be expert have expressed their opinions about this proposal. They hold different and opposing views as regards the overriding nature of the BORO and the reinstatement of the six ordinances.
As a member of the general public, I will think that I am not an expert and I do not understand the overriding nature of the BORO or the significance of reinstating the laws. But one thing I am sure is that the proposal of the Legal Subgroup of the Preliminary Working Committee (PWC) has provoked a new political conflict. Hong Kong people were confident about the transfer of sovereignty in 1997. However, with the incessant political conflicts and arguments in recent years, Hong Kong people have lost all their confidence. Sino-British relations which had become better are once again strained as a result of this row. This does not help the smooth transition of Hong Kong. However, as human rights issues have a significant impact, it is necessary to discuss these issues in a rational manner. It cannot help us solve the problem if we cause it to become a political issue. It will only add to the complexity of the problem.
Mr President, if the public can enjoy better protection in terms of human rights, it is natural that the Government's administrative power will be reduced and those who are responsible for the enforcement of law will find themselves bound. The overemphasis of human rights may lead to anarchy. However, inadequate protection of human rights may lead to the emergence of an authoritarian government. We have to get the right balance between human rights and the Government's authority according to the situation of Hong Kong. The balance between the two should be based on the two international covenants relating to human rights. The BORO should be consistent with the principles laid down by these two covenants. Therefore, Hong Kong people should uphold the BORO. Although ever since its implementation the BORO has caused some changes to Hong Kong's legal system and has had an impact on the law enforcement departments, the daily life of the general public is not much affected. In the past hundred years or more with Hong Kong under British rule, people's voices were being suppressed. We did not enjoy a greater measure of freedom of speech until recently. Hong Kong people are not interested in guessing the intention of the Hong Kong-British Government in proposing the BORO. However, they do welcome greater protection of human rights.
Mr President, as the BORO has been implemented for a period of time, I think it is high time to hold discussions and conduct a review of the impact it has on society as a whole. Therefore, the Democratic Alliance for the Betterment of Hong Kong (DAB) cannot agree to the motion moved by the Honourable Albert HO which calls on the Government "to review immediately existing laws and present to this Council for amendment those laws which are in breach of the Bill of Rights ......". We should, first of all, review the BORO.
The Chinese Government states that it has reservations about the BORO and reserves the right to repeal the same in 1997. I believe that the Chinese Government does have the right to do this politically. However, is it really necessary to exercise this right?
If the proposal put forward by the Legal Subgroup of the PWC is accepted by the Chinese Government, Hong Kong people will become desperate and doubt whether the promise of "Hong Kong people ruling Hong Kong" will realize. In fact, our future government should not think that the BORO is in any way frightening. What it will have to do is only to pay attention to the public's opinion and to understand their needs. On the contrary, if a government practises authoritarian rule, no law can ensure social stability. Ever since the signing of the Sino-British Joint Declaration, Hong Kong people have become increasingly aware of political issues. Hong Kong people have paid attention to the political argument between the British and the Chinese Governments. They have thought over it and memorized it. They know who is right and who is wrong.
The DAB urges the Chinese Government to become the signatory of the two international covenants relating to human rights. We hope the Chinese Government will not refuse to become the signatory of these two covenants on the grounds that the United States of America (USA) has double standards towards human rights issues (for example, immediate repatriation of the Haiti boat people illustrates the double standards adopted by the USA) and the British Government refuses to allow the people of Northern Ireland to enjoy self-determination. Also, it should not offer the excuse that China has unique social and cultural backgrounds and so it will not sign the covenants. We understand the position of the Chinese Government. If it really becomes one of the signatories, it can no longer implement the one-child policy to control population growth and the results of China's recent development will vanish as the population grows incessantly. However, we hope that the Chinese Government can adopt other administrative measures to control population growth and become one of the signatories of the two covenants as soon as possible. There is no difference between countries or races as regards human rights. No matter what colour a person is, he, as a human being, should have the rights that a human being should have. No government can disregard these rights.
Mr President, we should wait for the legislature of the future government to discuss the proposal put forward by the Legal Subgroup of the PWC and to make the relevant decision. Only by doing this will the principle of "one country, two systems "and" Hong Kong people ruling Hong Kong" be implemented. With the withdrawal of the colonial government, laws which were once used to serve the purpose of suppressing the people should be eradicated and more enlightened legislation should be adopted instead. If things are done in a perverse way, the government will only lose the support of the people. What is the difference between "Hong Kong people ruling Hong Kong" and to be ruled by a colonial government if things happen in such a way? I sincerely hope the Chinese Government can understand that most Hong Kong people take it as an honour to reunite with their mother country. We urge the Chinese Government to strictly implement the principles of "one country, two systems" and "Hong Kong people ruling Hong Kong". We are expecting not only the return of sovereignty to our mother country but also the return of the people's confidence and support.
Mr President, these are my remarks.
MR ALLEN LEE (in Cantonese): Mr President, the Liberal Party is in support of the Honourable Albert HO's motion and the Honourable Miss Christine LOH's amendment. As for the original motion, the Liberal Party considers that the successful incorporation of the Bill of Rights as part and parcel of Hong Kong's laws and the widespread support and recognition given to it by the public is because its introduction conformed to the traditional pattern of legislative enactment in Hong Kong. At that time, to meet the need of society, we established a Bills Committee for the Bill of Rights in 1990 with the Honourable Mrs Selina CHOW and the Honourable Ronald ARCULLI as the chairman and vice-chairman respectively to gather opinions throughout the territory. The Bill was then submitted to and endorsed by this Council and later officially enacted as the law of Hong Kong. From the drafting to the examination of the Bill, all concerned bodies and the general public put forward abundant ideas and the Bill was finally amended and passed. The introduction of the Bill was to cater to the needs of the Hong Kong people and this has been recognized by society and enshrined in the law.
Mr President, to maintain the people's confidence in "Hong Kong people ruling Hong Kong" and a high degree of autonomy, it will not do just by paying lip service. It requires continued efforts on the part of China, Britain and Hong Kong and all three parties must prove to the people of Hong Kong through positive action that after 1997 the freedoms and legal system that the people have always enjoyed will not be lightly disposed of. In general, the people of Hong Kong may not have a deep understanding of the Bill of Rights but they do understand that it is a basic concept built upon the two major international human rights covenants. The people of Hong Kong have generally, in their ideology, accepted the Bill of Rights, believing that it will safeguard human rights and have a certain balancing effect in terms of how the territory will be administered and governed. To repeal the Bill of Rights or reinstate the old provisions rashly will, I can clearly say, dampen the people's confidence and will not be conducive to the prosperity and stability of Hong Kong.
Mr President, about a year ago, Mr Ronald ARCULLI, the Honourable James TIEN and I visited Director LU Ping in Beijing. We asked about and explained the Legislative Council Commission Ordinance because the Secretary General of the Legislative Council Secretariat, Mr Ricky FUNG, was very much concerned about it at that time. Director LU gave us a very clear reply that nothing in that respect needed to be changed. Therefore, we told Mr Ricky FUNG about that when we came back. We had also asked about the provisional legislature and Director LU Ping answered that under the circumstance that the political systems could not converge, it would either be the Standing Committee of the National People's Congress (SCNPC) or the Preliminary Working Committee (PWC) who would legislate for Hong Kong. If neither was the case, then it would be the Chief Executive who would do so. On the other hand, as a compromise, another option would be a provisional legislature. He indicated that in the absence of convergence of the political systems, that would be the only feasible option. The worst scenario would be to have the SCNPC legislate for Hong Kong. I also quoted Article 160 of the Basic Law at that time. Under this provision, if any laws are found to be in contravention of the Basic Law after the establishment of the Hong Kong Special Administrative Region, they shall be amended or ceased to have force in accordance with the procedure as prescribed by the Basic Law. Therefore, are we to do that now? Why has the PWC made such a suggestion? I am really baffled. If we accept the explanation of Director LU Ping of the Hong Kong and Macao Affairs Office, then we will have to wait till after the establishment of the Hong Kong Special Administrative Region Government to decide whether to amend any law having regard to the situation then prevailing.
Recently, three legal experts from China came to Hong Kong to hold a seminar to which many NPC delegates and Hong Kong affairs advisers were invited. We attended the seminar and listened to their explanations for one and a half to two hours. We did not hear the legal experts point out how the Bill of Rights actually contravened or overrode the Basic Law. They only talked about some political factors as well as the disputes between China and Britain. We have seen enough of the disputes between China and Britain and every time it is us, the people of Hong Kong, who suffer the consequences.
They also talked about the Opium War but that had happened over one and half centuries ago. Would anyone look back on what happened in China since 1949? Hence, I felt that I had to ask about this matter. Very fortunately, I was the first one to grab the microphone to speak. I stated my disagreement with their points and hoped that they would understand the heartfelt views of the people of Hong Kong. What matter most are the views of the people of Hong Kong. I want to tell the PWC members in this Council: If you do not agree with the suggestion of the Legal Sub-group, you should reflect it to the Chinese leadership frankly. Hong Kong people ruling Hong Kong will be no easy matter. The Bill of Rights is part of our law. The people of Hong Kong have accepted this Bill and they support and uphold this Bill. You should not follow the PWC's views just because others have agreed to the repeal or reinstatement of the ordinances concerned. I have many friends in the PWC and I hope that they will remember firmly that no matter what they do, they have to be fair to the people of Hong Kong.
MR LAU CHIN-SHEK (in Cantonese): Mr President, now I rise to do my bit to defend human rights. I know that the defence of human rights will turn into a massive long-term struggle and this debate today has a crucial part to play.
The Bill of Rights Ordinance (BORO) must be defended because the law is meant to protect the people, safeguard the individuals and stand up for dissidents. It is not meant to enable the powers-that-be to control the people more easily, bully the individuals arbitrarily and deprive the community of the freedom of ideology and freedom of speech. Hong Kong is a conspicuous example. In the heyday of the overbearing colonial rule, there was no BORO. It was when decolonization began and when Hong Kong started on the process of gradually breaking away from the colonial yoke that BORO took shape. Now, some people have gone so far as to call for the restoration of colonial laws. What is their intention? Are they thinking of depriving Hong Kong people of the honour to become legitimate Chinese nationals?
It is my hope that this Council will support the Honourable Albert HO's motion to denounce the Preliminary Working Committee (PWC), in particular its Hong Kong members. This is a Legislative Council elected by the people and so it must live up to the wishes of the people. It must go by integrity and put across a message and that is, PWC must not do bad things in haughty disregard of others.
These are my remarks. Thank you.
DR PHILIP WONG (in Cantonese): Mr President, after the suggestions of the Preliminary Working Committee (PWC) Legal Sub-group were made public, heated discussions among the community have been aroused. In fact, when the Government passed the Hong Kong Bill of Rights Ordinance (BORO) in 1991, many voiced their disapproval. It is common knowledge that the Chinese government repeatedly indicated that they did not accept it. As early as a year before the passing of the Bill, the then Director of the Hong Kong and Macao Affairs Office, Mr JI Pengfei, already queried why the British did not introduce it in their own territory but had to do so in Hong Kong; and why they had not done it earlier but had to do it when the end of their rule in Hong Kong was pending. This is worth pondering. Since Article 2(3), 3 and 4 violate the Sino-British Joint Declaration and the Sino-British agreements, are in breach of the Basic Law, and will have a negative impact on the thorough implementation of the Basic Law by the future Special Administrative Region (SAR) Government, the PWC Legal Sub-group should of course put forward suggestions on how this is to be handled. Their suggestion is to retain the BORO but not to adopt the three provisions against the Joint Declaration and the Basic Law; in other words, to repeal the part overriding the Basic Law. This suggestion has solid legal grounds which many legal professionals have already talked about. I suggest Members take a serious look at the article in the 1 November issue of Wen Wei Po written by legal expert WU Jianfan.
Here I would like to talk about one point, which is, the Standing Committee of the National People's Congress has the right and need to deal with the BORO and other related laws. Under Article 3(3) of the Joint Declaration, "the laws currently in force in Hong Kong will remain basically unchanged". The laws currently in force refer to those in force at the time when the Joint Declaration, signed on 19 December 1984, later came into effect. That the laws currently in force remain basically unchanged is a principle which both the Chinese and British sides are obliged to follow. It is not the obligation of the Chinese side or the future SAR Government only. Under normal circumstances, there is no problem with the retention, repeal, amendment and enactment of a law. If there is indeed such necessity, a law can be amended after discussions have been held with the Chinese side and their approval obtained. The problem now is that, in this transitional period, the British unilaterally introduced and implement the BORO and has accordingly made substantial alteration to the existing laws of Hong Kong. This act has violated the above principle of the Joint Declaration. From the point of view of international covenants, the Chinese have the right not to recognize these substantial changes. Under Article 160 of the Basic Law, the Standing Committee of the National People's Congress has the right to adopt the laws previously in force in Hong Kong as the laws of the SAR and it also has the right to declare those laws to be in contravention of the Basic Law and not to adopt them. If things are indeed according to the desire of some, that is, before the withdrawal of the British, they can alter the laws of Hong Kong as much as they please and China, as the sovereign state, can only accept them in full, will that be very astonishing?
The BORO is in many ways in contravention of the Basic Law. The Chinese Government could have repealed the whole Ordinance altogether. And now the Legal Sub-group only proposes not to adopt the three articles which may jeopardize social stability but retain most parts of the Ordinance, letting the SAR Government handle the rest of the Ordinance apart from the three provisions. I feel that this way of handling the BORO is very restrained and showing good sense. As for the six ordinances which have been altered significantly in accordance with the BORO, the Standing Committee of the National People's Congress has the right to adopt their original form "currently in force" at the time when the Joint Declaration came into effect so as to avoid any legal vacuum and to guarantee a smooth transition. This act suits the practical situation of Hong Kong well and is very reasonable.
Mr President, I will not comment on the motive of today's motion. But I want to stress one point: Section 6 of the BORO vests considerable power with a court or tribunal which can strike down at any time any legal provisions which the Executive Council tabled to the Legislative Council and the Legislative Council read three times and passed. This is a major alteration to the existing legal system which infringes upon and saps the power which is originally vested in the legislature. Why has the Democratic Party failed to question this?
By the way, I would like to mention that two years ago when I criticized the BORO as "the friend of the criminal" in this Council, I already pointed out that human rights are not exclusively owned by the west and we have no need to dance to the westerners' human rights music. If we allow an individual's rights to expand without limit, they are bound to infringe upon others' rights which will heighten a society's instability and the individual will finally have to eat his own bitter fruit. I agree to the enhancement of civic education in Hong Kong and protection and promotion of the people's basic rights. However, when some seize upon this opportunity and attempt to make use of the BORO to jeopardize the stability and prosperity of Hong Kong, I will not agree to that.
Mr President, if I describe the ones waving the banner of "democracy" and "human rights" as those who are slow to accomplish anything but are quick to botch things up, I am sure most people will agree. The reason is very simple ¢w they cannot communicate with the Chinese side as they fail to gain the latter's trust. I want to ask: Of all the motions that they have moved all these years, is there any one that can really benefit the country and the people and thus gain the approval and praise of the Chinese? This is not a question that bears on the presence or absence of democracy or human rights. Rather, it is an issue regarding the national consciousness, an issue regarding the sincerity in striving for the well-being of the Hong Kong people as well as an issue regarding whether an objective stance and a correct way of doing things have been taken. The people of Hong Kong should have seen very clearly that, even an apparently routine matter, if it is for these people to strive for, the chances of success will be lowered substantially.
Mr President, these are my remarks.
DR YEUNG SUM (in Cantonese): Mr President, during this transitional period of 600 days or so, we have seen with our own eyes people calling a stag a horse and distorting the facts. It is even more intolerable that some professionals have breached their professional ethics for political advantages and made specious judgements. These situations have occurred frequently in the Preliminary Working Committee (PWC).
Mr President, the recent proposal made by the Legal Subgroup of the PWC to reinstate laws which have been found to be inconsistent with the Bill of Rights Ordinance (BORO) has provoked on outcry from the media and the public and has, once again, aggravated the negative feelings of the people of Hong Kong towards the PWC.
First of all, the proposal made by the Chinese Government and the Legal Subgroup of the PWC together with the declaration of their stance borders on irrationality and they are close to being impervious to reason. They are so impervious to reason that their behaviour can almost be described as hysterical.
Both the spokesman for the Chinese Government and the representative of the Legal Subgroup of the PWC have strongly opposed the overriding status of the BORO over the Basic Law. Although China can look at the question of the purported supremacy of the BORO from the point of view of legal binding force and substantive effect, I would question whether it is necessary to deny or negate in its entirety the impact from such purported supremacy. Is it necessary to mobilize so much manpower and resources in an all-out effort to oppose it?
From the point of view of the people of Hong Kong, it is most important that human rights will be protected, especially after 1997. If the BORO can better protect the human rights of the people of Hong Kong, I believe the people of Hong Kong will support it and they will continue to support it and strongly oppose the proposal made by the Legal Subgroup of the PWC. A few days ago, I read an article written by Mr ZHANG Xin, an expert in Chinese law. He pointed out that the protection of the freedom of thought provided by the BORO is very much wider and more thorough than that provided by the Basic Law. This view contradicts the argument of the representative of the Chinese Government who thinks that the Basic Law has already provided complete protection for the human rights of the people of Hong Kong.
Mr ZHANG pointed out in his article that since China puts much emphasis on the thoughts of MAO Zedong and Marxism-Leninism, there is no provision in the Basic Law to protect the freedom of thought. It was also pointed out in the article that during the anti-rightist Cultural Revolution in China, many people were convicted because of the speeches they had made and the thoughts they had expressed. As a result, there was a vast number of casualties and the dignity and freedom of the people were severely crushed.
Mr President, considering this particular part of history, do we think that it is even more important for us to insist on supporting the BORO in order to protect the human rights and freedoms of the Hong Kong people and oppose the stance taken by the Legal Subgroup of the PWC and the representative of the Chinese Government? Besides, as we all understand, the power to interpret the Basic Law will eventually rest with the National People's Congress.
Second, Mr President, I do not understand why the Chinese Government and the Legal Subgroup of the PWC have to adopt such a negative attitude towards the BORO. According to Article 39 of the Basic Law,
"The provisions of the International Covenant of Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and International Labour Conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.
The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article."
Mr President, the above provisions and the BORO simply provide that the two international covenants covered by the Basic Law shall be implemented through the laws of Hong Kong. Why is it such a shock to the Chinese Government and the Legal Subgroup of the PWC? The two international covenants have already been accepted by the Basic Law.
Do the Chinese Government and the Legal Subgroup of the PWC wish to indicate to the people of Hong Kong that the pledge to implement the two international covenants contained in Article 39 of the Basic Law can be wiped away? If that is the case, they may as well clarify whether the provisions of Article 39 of the Basic Law can be wiped away as if they were words written on a blackboard. If so, please make it clearer. If that is the case, can be Basic Law serve any purpose at all?
The Chinese Government gives people the impression that its policy towards Hong Kong has been inconsistent. Why did it say that the Basic Law provides complete protection for human rights? Why did it also say that the BORO is a contravention of the Basic Law? These remarks are really baffling.
Mr President and Members of the Legislative Council, whatever your political views may be, you would at least understand that the BORO is simply a reproduction of the two international covenants which has been scrutinized and passed by the Legislative Council. However, the Chinese Government and the Legal Subgroup of the PWC have openly and repeatedly pointed out that BORO is a contravention of the Basic Law. How else would one describe it if it is not a distortion of facts and calling a stag a horse?
Finally, Mr President, we should not have too much fantasies about the future. To apply the principle of "one country, two systems" is not easy at all, and it seems that it is becoming even more difficult now because the Chinese Government and its appointed followers have often acted according to their own ideas contrary to the wishes of the people of Hong Kong. Members of the PWC who lack representativeness and acceptability will certainly be glad that they may become Members of the Preparatory Committee. However, I believe Members seated here know only too well what influence the PWC members will have on Hong Kong.
Mr President, the principle of "one country, two systems" can only be applied well in the future if it is formulated on the basis of democracy and the rule of law. To maintain and develop the more reasonable systems of Hong Kong, to protect the human rights and freedoms of the people of Hong Kong and to show China a good example in the future, we have to uphold our principles and pool our efforts in fighting for human rights and democracy.
Mr President, with these remarks, I support the Honourable Albert HO's motion.
MR DAVID CHU: Mr President, our civil liberties were well protected before the Bill of Rights as they are today. They will certainly be protected in the SAR, the Basic Law of which commits us to United Nation's accepted standards of human rights. Guarantees for our freedoms are also insured in a clutch of Basic Law clauses, among them Articles 28, 39 and 87.
Our rights will not be endangered simply because we will go from British rule to rule by Hong Kong people. We will indeed enjoy rights never before available to us ¢wthe right to be chosen for the highest office now reserved for a Briton, the right to be tried in the Chinese language, the right to hold our heads up high because ours will no longer be a colony.
So, Mr President, the current controversy is about politics and fear, a fear that is being fanned by some who hope to gain from a nervous society and from divisions within that society.
We have many practical problems to solve and a lot of work to do. So let us not blow things out of proportion.
We know the history leading up to the Bill of Rights, a Bill which even the United Kingdom has not adopted. Britain in its haste to deliver the Bill, at a time when it had imposed diplomatic sanctions on China, also ignored the Joint Declaration. Annex II, paragraph 5, states, and I quote:
"The two Governments have agreed that in the second half of the period between the establishment of the Joint Liaison Group and 1 July 1997 there will be need for closer cooperation which will therefore be intensified during that period. "
May I humbly remind Members that the British side of the JLG had consistently refused to discuss the Bill with China even though it was sure to have an impact on the legal system of the SAR. China, therefore, will not take the charge as fait accompli.
Defenders of the Bill say it has been running smoothly and so must be left intact. The evidence, however, suggests just the opposite. The Bill has already caused disruptions to the law and afforded a shield for those who break the law.
The Bill has also fostered excessive leniency to the point of indulgence for criminals in the courts. The Judiciary has in the name of the Bill sided with Vietnamese migrants in their suits against the Government and thus delayed the repatriation of these people. The Bill has induced one judge to rule against a key Independent Commission Against Corruption power to compel a civil servant who lives beyond his means to prove that his unexplained wealth is legally obtained.
The Attorney General's Chambers now hesitates to prosecute some cases because of the four provisions in the 1991 Bill. Customs authority filed 206 drug trafficking charges in 1991 but only 70 in the very next year. Also in 1991, the police charged on the average between 300 to 400 drug dealers a month but only 100 a month one year later. What happened? Does that mean fewer people are taking illegal drugs? No. The Governor has said recently addiction is on the rise and earlier this year held a crisis summit on this issue.
The Immigration Department also may not stop and detain a tax dodger upon exit from Hong Kong. The heritage of indigenous people in the New Territories has been assaulted in violation of the Joint Declaration and the Basic Law which endorse rural traditions.
Today the legal profession and the Judiciary have different opinions on the Bill. Should we not be trying dialogue instead of monologue and working with rather than fighting against China? We still have time, more than a year, to work things out about the Bill. I suggest that the legal community, the future Preparatory Committee, and the two sovereign powers through the JLG resolve the contentions in an atmosphere of mutual respect and with the interests of the Hong Kong people in mind. As long as our goal is the same, we could reach a consensus.
We are today at another crucial junction, 16 months after the previous Legislative Council passed, by one vote, the "reform" package. Unless this Council backs away from more confrontation, such as that implied in today's motion, it may also halt the other train, the legal through train.
Mr President, I was in Beijing for a week when the orchestrated hysteria directed at China and the PWC over the Bill was at its worst. Believe me, the threats against the future sovereign and the war cries for the British Hong Kong Government to amend even more laws regardless are counter-productive. They can only bring the opposite results.
We legislators have to face the reality that the future sovereign is China which has the constitutional authority to ensure that the Basic Law is observed. Let me emphasize that Councilors had miscalculated in June 1994, and let me plead with them now ¢wnot to miscalculate again in November 1995. Thank you.
MISS MARGARET NG: Mr President, better protection of human rights is an acknowledged aim of the whole world, and the clear aspiration of the people of Hong Kong. The proposals of the Legal Subgroup of the PWC are therefore to be deplored, in that they attempt to weaken the present framework of human rights protection in Hong Kong, and moreover, raise serious doubts about China's attitude towards human rights protection after 1997.
This is not all. The way in which these proposals are meant to be implemented is itself extremely worrying. It has been suggested that the Standing Committee of the National People's Congress is empowered under Article 160 of the Basic Law not only to repeal certain sections of the Bill of Rights Ordinance, but also reinstate laws amended by this Council.
This is hitherto unsuspected use of Article 160. The autonomy of the law and legal system of the Hong Kong SAR is protected under the Basic Law, see particularly Articles 11, 17, 18 and 73 subparagraph 1. Article 160 assures us, quite clearly, that "the laws previously in force in Hong Kong" shall continue to be in force after 1997, except for those which are declared by the Standing Committee of the NPC to be in contravention of the Basic Law. So the Standing Committee is empowered only to repeal; and moreover, it can repeal a Hong Kong law on one ground only: that it contravenes the Basic Law.
In other words, it has no power to repeal any Hong Kong law on any other ground ¢w for example, that it "weakens the power of the executive", and it has no power whatsoever to reinstate a law which has been amended. To do so requires re-enactment of the unamended law, and only the Hong Kong legislature has the power to do so under the Basic Law.
In this respect, Article 17 is instructive. There, it is provided that the Hong Kong SAR shall be vested with legislative power. If a law enacted by the Hong Kong legislature is considered by the Standing Committee of the NPC not to be in conformity with the Basic Law, the Standing Committee "may return the law in question but shall not amend it."
It is argued on behalf of the Chinese authorities that, under Article 160, the Standing Committee of the NPC can both repeal a Hong Kong law and to re-instate another in its place, in order to "avoid a legal vacuum". If Article 160 were to be given this interpretation, then some very serious implications would follow for the law and legal system in Hong Kong.
Once the precedent is set, that a Hong Kong law can be repealed on vague political grounds, for example, that it was passed as a result of a British plot, or that it represented too great a change to the laws of Hong Kong, then no law is immune from repeal by the NPC. This, coupled with the power to choose to re-instate any law already amended or repealed by the Hong Kong legislature, would mean that the effective law-making body for the SAR is the Standing Committee of the NPC, not the Hong Kong legislature.
In other words, the autonomy of the Hong Kong legislature will be completely undermined. Moreover, it would mean an executive body in the Central People's Government will legislate for Hong Kong as and when it wishes. Since the criterion for repeal and reinstatement can be political rather than legal, it would also mean that what is, or is not, Hong Kong law after 1997 will be totally uncertain. This will, without doubt, deal a terrific blow to Hong Kong's stability which is founded on the certainty of its laws and its legal system.
The apparent arbitrary and ad hoc manner in which Article 160 is given this interpretation also gives cause for the deepest concern. There is no serious attempt to justify such an interpretation, which is fundamentally contrary to the whole spirit and purpose of the Basic Law, apart from the vague reference to "legal vacuum". In any event, any "legal vacuum" can be dealt with by the SAR legislature.
The aim of such an interpretation is not in doubt. It has been stated that the matter is treated as a political contest between China and Britain, and the aim is to stop the British administration from "unilaterally making extensive amendment to the present laws of Hong Kong". Unfortunately, it seems what counts as "extensive amendment" is unilaterally decided by China.
Thus, the proposals of the Legal Subgroup aims at interfering with the Hong Kong legislature and the legislative process now, even before 1997, and the protection of human rights is remorselessly sacrificed in that exercise.
Mr President, it is difficult to imagine a more serious blow to the confidence of the people of Hong Kong so very close to the date of the transfer of sovereignty. I would therefore most strongly oppose and deplore these proposals of the Legal Subgroup, and urge the Chinese authorities to re-consider their position given the implications I have outlined above.
Thank you.
MR PAUL CHENG: Mr President, which of us here today is not for human rights? No-one, I am sure. Human rights is a subject we all feel very strongly about. Therefore, the very name "Bill of Rights" is guaranteed to stir emotions and create a highly-charged atmosphere, which, unfortunately can hinder rational debate, and emotions have certainly been running high in recent weeks.
It is particularly unfortunate that, just as we were seeing signs of improved relations between Britain and China, another disagreement flares up over different interpretations of the Bill of Rights. There are even inconsistencies and disagreements amongst members of our own legal profession.
The crux of the current debate seems to be more about legal technicalities regarding the relative supremacy of the Bill of Rights vis-a-vis the Basic Law, and whether or not certain legislation will make Hong Kong less governable after the 1997 transition.
Of course, the Bill of Rights does carry with it a fair amount of political baggage. China objected to the Bill's enactment, and vowed to repeal the entire Ordinance come 1 July 1997.
There are those of us who have argued that, in the light of China's past stance on the Bill of Rights, for the Ordinance to survive at all through the transition would be a victory for moderation and common sense.
The main focus of attention now, however, seems to be on what might not be included in the Bill of Rights after 1997. Yet we should not lose sight of the fact that, if the proposals referred to in today's motion are accepted by the Chinese, Hong Kong will still have a Bill of Rights after the transition.
And then there is the Basic Law, our framework for the future, a document which guarantees Hong Kong people the rights and freedom to which they have all been accustomed. I feel we should start to have rather more faith in this.
Unlike some of my honourable colleagues here today, I do not have a legal background, so I shall leave the debate on the technical legal points to them.
On top of which, the Chief Justice has said he will shortly be submitting his views on the issue to the Chief Secretary. I trust his report will clarify matters in a rational and balanced way for the people of Hong Kong, and also for the broader international community, who will doubtless be following developments with interest and concern.
Indeed, what must those watching from the sidelines be thinking of us at this moment in time ¢wthe international community, the multinational corporation, the potential investors? I am sure those of our regional neighbours hoping to benefit from any loss of international confidence in Hong Kong must be rubbing their hands in gleeful anticipation.
I must again appeal to all sides involved in Hong Kong's transition to keep in mind the bigger picture. International perceptions of Hong Kong have a major impact on our economic well-being, our prosperity and, ultimately, our stability.
As I have said before in this Council, now is the time for as much certainty as possible, and as little change; the time for rational debate, not emotional outbursts.
Human rights is an issue of absolutely fundamental importance to us all. Like all Hong Kong people, I want to see my rights and those of my fellow citizens protected, but I am rather concerned with the way some of my honourable colleagues believe we should go about this. I do not agree with the "Let's change as much as possible before China takes over" approach. That will not make for a smooth and stable transition.
Yet the second part of the motion is exactly that type of approach, calling for legislation to be amendment or introduced with almost indecent haste.
Therefore, Mr President, I cannot support either the motion or the amendment.
MRS SELINA CHOW (in Cantonese): Mr President, the proposal by the Legal Subgroup of the Preliminary Working Committee (PWC) to reinstate after 1997 six ordinances which have been amended to comply with the Bill of Rights has aroused excessive reaction in society.
It is obvious that the response of the community was not expected by the Legal Subgroup. They thought that it was already a very mild proposal not to repeal the Bill of Rights. However, it has never occurred to them that the Hong Kong people are so insatiable and even regard the PWC as nothing. As a result, the mud-slinging has escalated into a political struggle. The pro and anti camps are pitted against each other in a struggle that is getting fiercer and fiercer. In these few days, with the disclosure of the "Zhang-Yang private conversation incident", the mass media are having a field day.
I believe that no one will object that the Legal Subgroup of the PWC has the absolute right and obligation to make proposals. During the earlier public consultation and discussion of the Bill of Rights, the Chinese side already, from time to time, stated that it retained the right to review the Bill of Rights to make sure that it was in line with the Basic Law. The PWC is now only fulfilling the intention of the Chinese side then. No wonder the Chinese side, knowing that it has a good case, is so bold and assured in respect of this proposal of reinstatement. It even regards the voices of opposition as coming from those who are bent on waging a struggle. The Hong Kong people are indeed unfortunate enough to be misunderstood.
As the convenor of the ad hoc group on the White Bill on the Bill of Rights and the Bill of Rights Bill years ago, I have to request the Chinese leaders, when considering the proposal of the Legal Subgroup, to get to understand thoroughly how the Legislative Council exhaustively deliberated and amended the Bill then in order to make sure that the Bill of Rights eventually passed would not in any way override the status of the Basic Law. This viewpoint was also recognized by not a few present PWC members when they, as Legislative Council Members at that time, participated in the deliberation work and the Second Reading Debate of the Bill. This is also the view expressed recently by a few respected legal professionals, including Mr Johannes CHAN and Miss Elsie LEUNG, as well as Dr J, the expert on human rights.
There are some comments to the effect that the Bill of Rights will weaken the power of the Government and threaten the stability of Hong Kong. This worry actually aroused much public concern during the examination of the Bill. Therefore, the ad hoc group in charge took great pains in discussing the Bill exhaustively in order to strike a balance between human rights protection and effective governance. The amended Bill was passed in the Legislative Council with Members' full support. And since the Bill of Rights Ordinance came into effect, there has not been any social disturbance or unrest. This proves that the decision of this Council at that time was right.
In a free and open society, nothing is absolute. Opinions are bound to differ. And the Bill of Rights is no exception. However, I hope that the leaders in Beijing can see the truth behind this incident. The truth is: the fear of 1997 is still existent among the Hong Kong people and the Bill of Rights is just like a safety blanket. Now that there is strident talk from people in authority that this safety blanket is not even useless but harmful and should be taken away, how is it possible that we would not react strongly? What we do not understand is that since China has already undertaken in Article 39 of the Basic Law that the International Covenant on Civil and Political Rights be implemented in Hong Kong, and as the Bill of Rights is totally in line with the International Covenant, why should the Chinese side be so mean? What baffles the Hong Kong people even more is that the Chinese, Hong Kong and British sides insisted respectively that the row is not directed against the Hong Kong people. However, the fact is that the Bill of Rights was born in Hong Kong, has gone through comprehensive public discussion and is supported by the Hong Kong people. The Hong Kong people will definitely not be convinced and prevailed upon to abandon the Bill simply by a couple of arguments. The argumentation has really disappointed us in terms of our perception of the Chinese side's attitude. And the attitude as perceived is that the Chinese side takes things personal and lacks objectively and magnanimity.
Mr President, there are 594 days before Hong Kong will revert to China. Is it possible that all those Hong Kong people who object to the proposal of the Legal Subgroup, including those who love the country and love Hong Kong, have set themselves against China and participated in an anti-China conspiracy? This is absolutely not the fact. We are only disappointed with the PWC which is unable to understand and represent our thoughts and sentiments. Now we can only hope that Beijing can really accept Hong Kong people's demand by not regarding those holding different views from the Legal Subgroup as traitors. We hope that Beijing will accept the conclusion reached by the Hong Kong people through the Legislative Council's wide consultation, respect the kind of freedom most treasured by the Hong Kong people, abandon the patriarchal mentality, and trust that we have the determination and the ability to provide the most favourable arrangement for Hong Kong. The way the Chinese side deals with the Bill of Rights crisis is relevant not just to this particular ordinance or the related ordinances, it also reflects the stance of the Chinese side towards this Council, the Hong Kong Government and the Hong Kong people. If only the Chinese side can let the future legislature and the Special Administrative Region Government deal with the incident on a logical, reasonable and legal basis as well as in accordance with social interests and needs, I believe that the Hong Kong people will adopt a changed view towards this incident and will pay tribute to China.
Mr President, up till now, the Bill of Rights row has already dampened considerably the Hong Kong people's confidence in their future. If it goes on like this, what the Chinese side will take back will not be the present society which derives its dynamism from freedom and openness, but a society with an atmosphere of absolute obedience, hypocrisy and dullness. This is exactly what the enemies of China want to see. The leading characters of the tragedy will be the Hong Kong people, while the big loser will, however, be China.
With these remarks, I support the motion.
MR NGAI SHIU-KIT (in Cantonese): Mr President, today, when there are only 594 days left in the run-up to Hong Kong becoming a Special Administrative Region (SAR) of China, we need a smooth transition rather than erratic dissension. China and Britain signed the Sino-British Joint Declaration in 1984. In accordance with the basic content of the Joint Declaration and with a view to honouring the pledge of "one country two systems with Hong Kong people ruling Hong Kong", the Chinese Government formulated the constitution of the SAR, namely the Basic Law, which contains three major magic tools:
- The capitalistic system in Hong Kong will continue.
- The way of living of the Hong Kong people will be preserved.
- The common law, which is consistently well-tried, will continue on the premise that the laws in force at the time remains unchanged basically.
There have been great changes to the original laws of Hong Kong since 1991 when the Bill of Rights Ordinance (BORO) was enacted in Hong Kong. It is because the BORO empowers the judges to strike down or amend drastically any existing piece of legislation which they consider to be in contravention of the Bill of Rights.
The Hong Kong Government has amended 47 ordinances and newly enacted 10 ordinances since the enactment of the BORO in 1991. Another three ordinances will also be enacted this legislative year. Moreover, several tens of ordinances have been struck down by the judges in the 230-odd hearings in which the BORO was invoked. Should things go on this way, will the legal system of Hong Kong not be "riddled with holes and sores"?
Some laws, which were originally compatible with the Basic Law, nevertheless became inconsistent with the Basic Law in principle after amendments were made. While Hong Kong is an international financial city, it should not be a centre for overseas political activities. The Societies Ordinance, which was amended to tie in with the BORO, has removed limitations on political activities carried out by overseas political organizations in Hong Kong and on the connection between local societies and overseas political organizations. This has virtually turned Hong Kong into an open international battlefield for political wrangles, which is disastrous to the stability of society. Another example is the amended Public Order Ordinance which provides that prior notification, rather than prior application and approval, is required for processions to be launched and which limits the powers of the police in dealing with public meetings. Besides, tax dodgers are able to leave Hong Kong under the protection of the Bill of Rights. The Dangerous Drugs Ordinance is stripped of the power to fight drug traffickers. The Drug Trafficking (Recovery of Proceeds) Ordinance fails to confiscate effectively the property of drug traffickers, hence making Hong Kong a money-laundering paradise for international drug traffickers. And under the Police Force Ordinance, the power of arrest exercisable by police officers is also limited, thus undermining the competence of the police in maintaining law and order. The overriding power of the BORO has been degraded to become "a protection umbrella for criminals". Such being the case, the Bill of Rights is unable to attain the original objective of safeguarding the rights of the people. Is our legal system, which has always been running well, not being trampled on in its entirety? This is not something that members of the public wish to see. The industrial and commercial sector is even worried that social instability will impact on society, in which case the overall interests of society will be jeopardized.
Honourable Members, I believe that no one in the world would oppose the protection of human rights. Yet, we cannot let some people do evil in the name of "human rights". Again, the Preliminary Working Committee (PWC) has not raised any objection to the Bill of Rights. The PWC only takes exception to changing the original laws drastically with the use of the BORO, which will give rise to social chaos and anxieties. As a matter of fact, as some Members have mentioned earlier, Article 39 of the Basic Law has clearly provided for the protection of human rights for subsequent implementation by the future SAR.
Mr President, some High Court judges have pointed out that the Bill of Rights has overriding power over the original laws and this can be destructive to the legal system of Hong Kong. Some High Court judges are of the view that the BORO will have enormous adverse effects on criminal and civil proceedings and that it will constitute a primary attack on the administration of justice, jurisprudence, procedures and law enforcement agencies. Under the circumstance, the powers of these agencies in maintaining law and order will be undermined indirectly. Even earlier, a judge of the District Court described the BORO as "a can of worms ordinance" which means that the BORO is like scattering tens of thousands of worms over the legal system, continuously eating away the original statute books. Are these honest remarks made by experts not convincing enough to command our vigilance?
What is more, Lord WOOLF, a Law Lord of the Privy Council of Britain, has sincerely made these remarks: "While the Hong Kong Judiciary should be zealous in upholding an individual's rights under the Bill, it is also necessary to ensure that disputes as to the effect of the Bill are not allowed to get out of hand. ...... If this is not done, the Bill will become a source of injustice rather than justice and it will be debased in the eyes of the public." Mr President, could it be that it is not worthwhile to draw on these honest words that legal professionals said on various occasions?
The above explains why there is only one or two countries, of the many signatories of the International Covenant on Human Rights, which have enacted an independent code or set of legislation on human rights while the others, particularly countries which have adopted the common law system, generally implement legislation on human rights through the constitution. It is also because of this reason that Britain does not have an independent code on human rights. Then why is this to be tested just in Hong Kong in only a few years' time?
What I oppose is the use of the Bill of Rights by some people as the weapon to effect drastic changes to legislation.
With these remarks, I oppose the motion and the amendment.
MR MARTIN LEE (in Cantonese): Mr President, in the face of the imminent transfer of sovereignty in 1997, the colonization of Hong Kong will soon become history. At this critical point in time, it is my greatest wish that Hong Kong will be blessed will a good legal system, which will continue beyond 1997. What the people in Hong Kong treasure most is the existing right to enjoy legal protection because a good and independent legal system is the cornerstone to safeguard freedom and human rights of the citizens.
To maintain judicial independence in Hong Kong, a very important tradition must be upheld ¢w that is, judicial officers should refrain from making known their stance on controversial political issues. For once they are parted from the protection of the judicial system, they will be subject to criticism by the public and public opinions, no matter what stance they will take, thereby affecting the independence and the impartiality of judicial officers.
Chief Justice, Sir T L YANG, revealed in private his views on the Bill of Rights Ordinance (BORO) to the Deputy Director of the New China News Agency. On 13 November, Wen Wei Po reported that another Justice of Appeal, Mr Justice LIU criticized that the BORO had adverse effects on both civil and criminal litigations. He also stated that Lord Goff of the Judicial Committee of the Privy Council has privately expressed that the Hong Kong BORO has had contraventions with the Basic Law.
As for the effect of the BORO on Hong Kong, it is inevitable that its introduction will have impact to a certain extent on the legal system in Hong Kong. However, impact as such will arise sooner or later because even if the BORO were not passed in 1991, in accordance with Article 39 of the Basic Law, the Hong Kong Special Administrative Region would have to implement the two International Covenants through legislations. As a matter of fact, subsequent to the passage of the BORO, there are about 50 law cases on an average in relation to this Bill annually. According to a survey, the total number of court cases in 1992, 1993 and 1994 are 609 188, 661 946 and 690 305 respectively, and among them, 76, 56 and 43 respectively are related to the BORO, contributing to a percentage of 0.0125, 0.0085 and 0.006 respectively. These figures demonstrate that the Hong Kong BORO has not been abused in any way, and rather, it has even protected the human rights of the citizens. The legal profession, Judiciary and the Legal Department do not think the BORO will bring about any adverse effect on Hong Kong either. Hence, I would like to ask my colleagues ¢w what are we afraid of?
Concerning the report on the quote made by Mr Justice LIU of the words of Lord Goff, I have specifically written to Lord Goff to confirm the case. In his reply, he said, "it is simply inconceivable that I have expressed this kind of idea."
The present "ZHANG YANG incident" has exposed another important issue, which is, what is the attitude that senior government officials should adopt when they meet the Chinese officials? I am convinced that they being public officers would understand that they have a responsibility towards the people of Hong Kong and those of China. If they only tell the Chinese officials the things which they would like to hear, and do not make use of the chance to speak the truth and express public opinions, they will have failed in being accountable to the compatriots in Hong Kong and China.
We can see the spread of such sycophancy among high ranking government officials towards their Chinese counterparts. In view of 1997, If senior government officials, confronted with the issue of 1997, are always engaged in making assessments as to whether or not they can make a smooth transition, how then can they be expected to rise in protection of the interests of Hong Kong?
There is a saying in the Bible that, "One man cannot serve two masters."
If government officials cannot do their job well, how can they convince their future master that they will be able to make a better performance then?
If the government officials cannot show their loyalty to their present master, how can they convince their future master that they will pledge their loyalty to him then?
To resolve this knot of conscience, the only way is to consider neither the British nor the Chinese Government as their master, and instead, take the people of Hong Kong as their master and show loyalty to the people of Hong Kong. It is only by doing so then we will not suffer from "dissociation of personality" or "schizophrenia".
Mr President, for the past few years, I have tried my best to prevent China from intervening with the spirit of legalism in Hong Kong and have worked strenuously to maintain the independence of the judiciary in Hong Kong.
Ironically, starting from last Sunday, it was first disclosed that Chief Justice, Sir T L YANG, mentioned to a Chinese official in private about his attack on the BORO. On the following Monday, Wen Wei Po reported that Mr Justice LIU criticized the BORO. Lastly, on Tuesday, the Chief Secretary requested Chief Justice, Sir T L YANG, to make a submission. For three days, they made up a nightmare to the judicial circle in Hong Kong, one after another, the incidents have shattered the public's confidence on our judicial independence. Why do our Government and the Judiciary have to ruin the long standing independence of the judiciary with their own hands? Once this long standing faith is shattered, what else can we rely on to maintain our confidence in the legal system?
Mr President, despite the above, most of the judicial officers in Hong Kong still are impartial and just. They will adhere closely to the tradition of the judicial officers and refrain from making known their stance on controversial political issues. I would like to call upon the legal profession, every political party, every Member to come out and to prove, in a concerted effort, our will to protect human rights and freedom. Meanwhile, it is hoped that views of this Council could be clearly stated by way of this debate, which hopefully can give fortify the morale of the Judiciary, so that they can be encouraged to try their best to stand in defence of judicial independence. The Judiciary is our hope to safeguard human rights and freedom because the public has great expectation on them and will certainly lend them their support.
Lastly, I hope the Chinese Government can listen to the voices of this Council and the people in Hong Kong, and reject the proposal of the legal sub-group of the Preliminary Working Committee to castrate the Hong Kong BORO.
With these remarks, I support the motion and the amendment.
MR LAU WONG-FAT (in Cantonese): Mr President, when the Hong Kong-British Government unilaterally enacted the Bill of Rights Ordinance (BORO) in Hong Kong in 1991 in defiance of the position that the Chinese side repeatedly elucidated at the time, the Chinese Government explicitly stated its strong objection and disapproval, pointing out that the BORO was inconsistent with the Joint Declaration and the Basic Law. On 7 June 1991 the Ministry of Foreign Affairs even specifically issued a declaration in which it was stressed that China reserved the right to scrutinize the existing laws of Hong Kong, including the BORO, in accordance with the relevant provisions of the Basic Law after 1997. Therefore, we should be psychologically well prepared as regards the fate of the BORO. This is similar to the case of the constitutional reform where the Hong Kong-British Government, without reaching an agreement with the Chinese side, unilaterally came up with proposals concerning the political system, which, I believe, does not stand much chance of straddling 1997.
The proposals that the Legal Subgroup of the Preliminary Working Committee (PWC) announced recently are, in fact, not shocking at all. Speaking from an objective point of view, the proposals of the Subgroup are practical and comparatively restrained. I have to point out that the Subgroup is not asking for the repeal of the BORO. All it is suggesting is the exclusion of sections 2(3), 3 and 4 from the laws of the Special Administrative Region (SAR) Government because these provisions are contrary to the Joint Declaration and the Basic Law. Besides, the Subgroup also proposed that laws which had undergone significant changes should not be adopted as the laws of the SAR after 1997 and, instead, the original versions of these laws before amendments were made are to be reinstated. This proposal is also made to meet the actual needs.
Some people rashly raised objections as soon as they heard of the proposals of the Legal Subgroup, completely ignoring the underlying reasons and subsequent effects of these proposals as well as the explanation given by the Subgroup and even from other authoritative sources. This is not helping the situation at all. It is natural that people with different backgrounds and different political persuasion will hold different views but, anyhow, the majority of people will find certain objective criterion acceptable. In a long article published days ago, a legal expert, Mr WU Jianfan gave a detailed account of the background of this issue and made, with substantial corroboration, an in-depth analysis of BORO provisions that specifically contradict the Joint Declaration and the Basic Law. The arguments are well-founded and profoundly convincing. There have been controversies over many aspects of the BORO and I will speak on two such aspects due to the time constraint.
Mr President, it is difficult to refute the argument that the BORO is inconsistent with the Joint Declaration because, under the Joint Declaration, it is stipulated that the existing laws of Hong Kong will remain basically unchanged and that the provisions of the two covenants on human rights as applied to Hong Kong will also remain in force. That is to say, the two covenants on human rights will be implemented in Hong Kong continuously through the existing laws in such a way as they have been implemented in the past. However, with the enactment of the BORO, the provisions of the covenants are directly extended to Hong Kong and become part of the laws of Hong Kong. Moreover, the Hong Kong Government has made drastic changes to the existing laws of Hong Kong on the basis of the BORO since its enactment. This is obviously in contravention of the stipulation in the Joint Declaration about keeping the existing laws of Hong Kong basically unchanged.
It is also difficult to deny the fact that the BORO has overriding status. Over the past few years, Hong Kong has consistently amended numerous pieces of legislation to tie in with the BORO. They include the New Territories (Exemption) Ordinance, which is strong evidence to substantiate the present argument. Besides, the report on human rights in Hong Kong that Britain submitted to the United Nations in 1995 also admitted that the overriding status of the BORO will affect the implementation of the Basic Law. If this problem remains unsolved, it will be detrimental to the governance of Hong Kong as well as the maintenance of the territory's stability and prosperity.
Mr President, some days ago a newspaper quoted the words of an experienced High Court judge that the hasty implementation of the BORO in Hong Kong has had a profound impact on the conduct of criminal and civil proceedings and constituted a primary attack on the administration of justice, jurisprudence and the law enforcement agencies, in which case the powers of these agencies in preserving law and order will be indirectly undermined.
Mr President, experienced High Court judges in Hong Kong in general rarely air their views and any comment they made is naturally invaluable advice. It is most worthwhile that we draw on their advice to enlighten ourselves.
With these remarks, I oppose the motion and the amendment.
MR ANTHONY CHEUNG (in Cantonese): Mr President, with regard to the motion moved by the Honourable Albert HO today, I would like to talk about three basic questions related to the Bill of Rights.
(1) Is the Hong Kong Bill of Rights Ordinance (HKBORO)enacted in Hong Kong in 1991 directed against the Chinese Government?
The Chinese side always thinks that the Hong Kong British Government's introduction of the Bill of Rights is directed against China, and is thus determined to have it overturned. This conspiracy argument is based on the various measures or the three magic weapons introduced by both the British Government and the Hong Kong British Government after the "June 4th" Incident in 1989 in order to save the teetering confidence of the Hong Kong people (including the proposal to expedite democratization of the political system, the right of abode in the United Kingdom and the Bill of Rights).
Whether the British Government ever adjusted, and if so, the way it adjusted, its policy towards the Chinese Government after the "June 4th" Incident is immaterial as far as the Bill of Rights issue is concerned. No matter what the British Government might have thought, it is very true that quite many Hong Kong people are really disappointed with and have lost confidence in the Chinese Government after the "June 4th" Incident. They are really worried that after China resumes sovereignty over Hong Kong in 1997, it will restrict and interfere in the lifestyles and freedoms now enjoyed by the Hong Kong people. Therefore, any measure which could serve to restrain any outside force from interfering in the rights and freedoms of the Hong Kong people would bear special urgency during the confidence crisis at that time. From that point of view, the Bill of Rights is really directed against the Chinese Government in its political aspect. But this is not unusual. At the time when the Chinese Government expressed its intention to resume sovereignty over Hong Kong in 1997, was it not the case that quite a number of Hong Kong people were worried lest the Communist Party would transfer its system and administrative policies in the Mainland to Hong Kong? It was not until the Chinese side announced that the policies of one country, two systems and Hong Kong people ruling Hong Kong be implemented in Hong Kong, and had these policies enshrined in the Sino-British Joint Declaration that the Hong Kong people could temporarily set their heart at ease. From the point of view of the Hong Kong people, one country, two systems, the Sino-British Joint Declaration and so on are all directed against the Chinese Government. This is an unavoidable fact during the process of Hong Kong's reversion to Chinese rule.
The Chinese Government should show respect for history and be pragmatic when it deals with the Bill of Rights issue. That the British did not introduce the two international covenants on human rights as part of Hong Kong's domestic law or the British Government has never introduced human rights legislation in the United Kingdom does not constitute any reason for overturning human rights legislation in Hong Kong. Similarly, although China is not a signatory of the two international covenants at present, this should not be a reason for not allowing human rights legislation to be introduced in Hong Kong.
(2) The Bill of Rights is directed against all forms of authoritarian rule
Mr President, in fact, not only does the Bill of Rights address the Hong Kong people's worries with regard to the future. Leaving aside the specific political circumstances which gave rise to the HKBORO, a Bill of Rights is also very much needed in a stable and democratic society. Its purpose is to provide the most basic protection to some of the rights and freedoms which are regarded as "basic human rights" so that they will not be encroached upon by momentary vagaries of public sentiments or prejudices. The Bill of Rights is directed against all forms of authoritarian rule, including the privileges enjoyed by "the majority" or "the groups in power". Hong Kong has long been a colony. A substantial number of laws were to serve the authoritarian rule of the colonial government in the past. With the reversion of Hong Kong to China in 1997, Hong Kong people ruling Hong Kong should mark the end of colonial authoritarian rule. Therefore, the enactment of the Bill of Rights and the corresponding amendments to other domestic laws can rectify not only various authoritarian and outdated laws, it can also help promote a new people-oriented political order.
(3) The Bill of Rights is not in violation of the Basic Law
Both the Sino-British Joint Declaration and the Basic Law have confirmed that the provisions of the two international covenants as applied to Hong Kong shall remain in force. And Article 39 of the Basic Law even stipulates that these provisions "shall be implemented through the laws of the Hong Kong Special Administrative Region."
Therefore, the introduction of human rights legislation is totally in line with the requirements of the Sino-British Joint Declaration and the Basic Law and will not constitute any challenge to the sovereignty of China. The implementation of the Bill of Rights indeed has significance of a directory nature. However, this is not founded on the basis of whatever supremacy over other laws that the HKBORO may purport to have. Under the legal system customarily practised in Hong Kong, no law can override or restrict future legislation. And the Basic Law has not provided for different tiers of laws with varying degrees of legal force or effect. Nor has it provided for different legislative processes with varying degrees of effectiveness. The HKBORO alone cannot bind or fetter future legislation which may contravene human rights, nor can it prevent its own repeal by the legislature.
Nevertheless, the kind of human rights protection that can be provided by the HKBORO still has a reinforcing and overriding nature of its own. Both natures are in fact derived from the provisions of the Basic Law. The second paragraph of Article 39 provides in clear terms that "The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article." And the preceding paragraph stipulates that the provisions of the two international covenants on human rights and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Special Administrative Region.
Mr President, it is totally logical, reasonable and legitimate that this Council passed the Bill of Rights in 1991. Now the proposal of the Legal Subgroup of the Preliminary Working Committee to emasculate the HKBORO and to "reinstate" the six oppressive and unreasonable laws which have been amended to comply with the Bill of Rights is not only a retrogressive move that flies in the face of social progress and history, it also amounts to turning a blind eye to the provisions of the Sino-British Joint Declaration and the Basic Law. Any attack on the HKBORO under the excuse that it has not been agreed by both the Chinese and the British Governments or that the right of legal interpretation rests with the National People's Congress is in fact a move to override jurisprudence with political force, to sacrifice Hong Kong people's interests during the Sino-British row, and to set a most abominable and alarming precedent prior to Hong Kong's reversion to Chinese rule in 1997. Members of this Council and members of the public in Hong Kong cannot remain silent and passive, nor can we just take it as cast in stone and accept it simply because some Chinese officials have said something and spelt out their stance. If that is the case, what grounds do the Hong Kong people have to defend the high degree of autonomy, freedoms, human rights and the rule of law to be enjoyed by Hong Kong under the principle of one country, two systems?
Mr President, with these remarks, I support the motion moved by Mr Albert HO.
MR CHIM PUI-CHUNG (in Cantonese): Mr President, as many Members have rightly said a while ago, there are still 594 days left before the territory is to be returned to China in 1997. Naturally, in the 594 days ahead, there are going to be a lot of debates and expressions of different political viewpoints. A number of events involving politics will also take place. The 60 Members present, including you, Mr President, may have different goals, backgrounds or even the support of different forces. All of them may want to contribute politically in a manner they deem very clever and decisive. I very much hope that everyone is determined to search for the truth through debates. If one gets too carried away in boasting of his or her views, one may one day discover that the views hold are entirely wrong. This is because politics changes with space. In Hong Kong, in particular, in which one or two sets of political circumstances are at play, even the unthinkable may take place. Recently, many of us have probably watched a television drama series. A number of ideas depicted in the drama series are worthy of our study and discussion.
Mr President, our subject for debate today is the Bill of Rights Ordinance (BORO). Indeed there are nine Members in this Council who come from the legal sector. One other person may be said to be quasi-legal. So, altogether, there are 10 of them, amounting to 15% of the whole Legislative Council. To say the BORO does not override other statutes is gross hypocrisy.
We need to point out clearly that the BORO does have a status superior to other ordinances. Previous and future laws must not contravene the BORO. As I pointed out at a certain meeting, we should not accuse each other. However, after saying that I was criticized for having accused others without letting others say anything against me. In this case, I was not overriding but I had probably contravened certain principles. Since the BORO was enacted, many court cases have been decided on the basis of the BORO. As a matter of fact, many judges have had different interpretations of the BORO and applied the same with varying degrees of strictness. Now, this is very dangerous. Laws on human rights should be absolutely clear and the BORO should be clearly spelt out. Thus it can be seen what the disputes are all about. After the enactment of the BORO, many statutes have been amended only to comply with the BORO. If this is not overriding, what is? Although I am not from the legal sector, I pay much attention to law and I know something about it.
So, we know the BORO overrides other statutes. How can one say that it does not? The reason why it is overriding has been explained clearly by a number of Members earlier on. The BORO was intended to provide checks and balances against influence or intervention from the Chinese Government. It was feared that after 1997, the Chinese Government under the "one country, two systems" policy would introduce communist ideas into or influence the administrative policy of Hong Kong. The BORO was thus enacted with ulterior motives.
We need to understand that only in recent years was the BORO passed. It was passed in 1991, only four years ago. Since then, it has indeed caused a great impact on Hong Kong laws. Of course, we know most of the people are law-abiding. As long as they do not violate any law, the human rights issue would not bother them. Now that the issue is raised, people are just joining the discussion and give their views.
The Legal Subgroup of the Preliminary Working Committee (PWC) certainly has its own views on the BORO, just as those who proposed the debate today have theirs. If I were asked to say who is right and who is wrong, I could only say that all of them have grounds for what they think. The PWC's ideas are given pursuant to the powers conferred by Article 160 of the Basic Law. People holding a different political viewpoint will have other ideas basing on their own grounds. People somehow will not put forward ideas without any reason behind them. Of course, people are free to comment on these ideas the ways they like. As I said earlier, it is more important for politicians to know how to assess and interpret the way ahead and the facts laid before them.
Mr President, my personal view is that the BORO has been brought up at this moment as some kind of alternative constitutional reform package. For the benefit of the majority of Hong Kong people who do not understand the BORO or why it has attracted so much controversies, here is why: As we all know, the constitutional package was adopted on 29 June last year with 29 votes for and 28 against it. We all know that on 30 June 1997, all the 60 of us will surely have to "get off the train". This is a fact that we must accept, though a number of us are reluctant to do so. That is also the time for the BORO to cease to have effect. We should let the public know that not the entire legislation but a small part of the BORO will cease to have effect. This is related to diplomatic issues. Although China and Britain have not gone through 17 rounds of talks on it, both sides are having discussions with mutual understanding. However, no consensus could be reached and so the BORO cannot make its way through 1997.
Therefore, I do hope to take this opportunity to let the public know the key points in a straightforward manner. People have often criticized me and said that my theories are incorrect. Nevertheless, I am not doing this to lobby for support ¢w between now and 1997, there will not be another chance for me to canvass more votes anyway.
Mr President, it is my conviction that the Chinese Government is prepared to grant powers to Hong Kong to implement the "one country, two systems" concept. This is almost equivalent to confirming that all the Hong Kong Government needs to do is take proper care of its own affairs. If Hong Kong can co-operate with the Chinese Government on all fronts, the development of Hong Kong will go one step further. The Chinese Government will surely not insist on denying Hong Kong a Bill of Rights. On the contrary, it very much wants Hong Kong to have a more comprehensive Bill of Rights. But personally, I think it is pure fantasy or wishful thinking to try to use international influence or external pressure to effect changes in China's policy or to use external forces to compromise China's rule. We should never try to do that.
We really hope to put forward ideas for the Chinese Government to give Hong Kong assistance so that both China and the future Special Administrative Region will have a brighter prospect. I do not want anyone to bring in international influence to add pressure on Hong Kong and China. Therefore, the gist of our discussion today will form part of our future discussions.
Mr President, I am very much against the original motion and the amendment. I so submit.
DR LEONG CHE-HUNG: Mr President, may I start by stating my support both to the original motion and the amendments and to support the call for moving further legislations in line with the aspirations of the people of Hong Kong, and that in no way that the protection of the public through promulgation of laws be halted because of threat.
Mr President, much has been said to substantiate the fallacies of the recent recommendations of the Preliminary Working Committee (PWC) Legal Subgroup which was accepted by China to ad nauseam, and I am sure more will be coming today. Being no legal expert, I thought I would present my thought in a simplistic way and from another angle. In short, Mr president, I am concerned with the reasons put forth by the PWC subgroup in making their recommendations and the implications it may have on the future of Hong Kong. Let me assure Mr David CHU that has nothing to do with fear.
Mr President, when the Joint Declaration was signed, the people of Hong Kong were told that there will be no change for 50 years and that the laws in force in Hong Kong, which we all are so used to, will be applicable after 1997. Article 3(3) of the Joint Declaration specified: "The laws currently in force in Hong Kong will remain basically unchanged."
I daresay that the majority of Hong Kong people interpret this as 50 years after 1997. Little do we know and little do we realize that count-down of 50 years of no change started in 1984 when the Joint Declaration was signed, as China's mouthpieces say nowadays; and that any laws or amendments to the then existing laws promulgated after 1984 are subject to scrutiny and may be completely denounced by the National People's Congress by July 1997.
Yes, Mr President, laws are flexible and should meet the needs of the people and changing times. Any law could be repealed or amended and no laws should be set in concrete, be they promulgated before or after the signing of the Joint Declaration. Yet, if this were to be done after 1997, should the process not be done with initiative of the Special Administrative Region Government through careful and detailed debate of the then legislature? To take this prerogative and power out of the future legislature and to impose a decree by the National People's Congress to repeal and discard any law passed by the current legislature makes a joke, if not a mockery, of the concept of "Hong Kong people ruling Hong Kong" and the principle that the SAR Government shall be in charge of everything other than foreign affairs and defence.
The recommendation to repeal the Legislative Council Commission Ordinance opens yet another area of concern. It has been reported that the recommendation of the PWC in this area was based on the concern that the independent Legislative Council Secretariat essentially diminishes administrative control over the legislature, or to put it another way, weakens the power of the executive. This, Mr President, is exactly at variance with the setting up of this Commission which seeks to ensure the complete functional autonomy of the Legislative Council. It is ironic to have a body entrusted with the monitoring of the Government's activities and efficiency when that body is staffed by personnel from the Government itself.
Article 73 of the Basic Law empowers the future legislature to impeach the Chief Executive, and Article 50 states the situation under which the Chief Executive can dissolve the legislature. These simply imply that the executive administration and the legislature are to check and balance one another. How could this be made effective if the two organizations are not independent of each other?
The question remains therefore: Did Britain and China have a different interpretation of the Joint Declaration and the Basic Law from the word go? Or did either party move the goal posts as we move to the final leg of transition?
Mr President, on a practical basis and as a member of the Legislative Council Commission, I would urge this Administration, and hopefully in consultation with China, on a contingency plan from either of them for the current secretariat staff, many of whom have left their previous employment to devote to the Legislative Council and most have contracts with the Commission that extend beyond 1997.
With these remarks, I support both the amendment and the original motion.
MR LEE CHEUK YAN (in Cantonese): Mr President, in my opinion, today's motion is very important not only because the incident under debate is concerned with the reinstatement of the six pieces of legislation, but it also reflects the Chinese attitude towards the politics of Hong Kong. And this attitude is worrying me very much.
Recently, I read the Wen Wei Po more often than before. But the more I read, the more I am worried. So I would like to discuss the Chinese stance vis-a-vis the politics of Hong Kong which is reflected by the way this incident has been handled by the Chinese side.
The first attitude, I think, is still inseparable from the "conspiracy theory". There is a commentary from the press, that is the Wen Wei Po, that the debate we are holding today is "orchestrated by Chris PATTEN who pulls strings behind the scenes, and the Legislative Council coordinates with him on the front stage". If every debate concerning the Chinese approach towards Hong Kong held by the Legislative Council is so criticized, I think it is entirely meaningless. In so doing, not only the integrity of the Legislative Council Members is affronted but also it is assumed that we have no independent thinking, that we are mere parrots and Chris PATTEN's puppets. But obviously we are not. Our mandate comes from the voters, and absolutely not from the British Hong Kong Government. Does it mean that such remarks from the Chinese side just represents their mentality: that the reinstatement of the legislation is manipulated by Chinese authorities backstage while the Preliminary Working Committee Legal Sub-group is the front-stage player. Is it because this that the Chinese side imposes its own way of handling affairs on the Legislative Council and on Chris PATTEN? I think such kind of remarks is unwholesome. Once again, I urge the Chinese side not to include any such remarks as "PATTEN is backstage manipulator" in its discussions on the politics of Hong Kong in the future.
The second point that worries me is the explanation given by the Chinese side as to why such proposal is put forth. According to their explanation, the Hong Kong Bill of Rights Ordinance (BORO) and the amendment of the six pieces of legislation as a result of the BORO are contrary to the stipulation of the Sino-British Joint Declaration that the laws currently in force in Hong Kong will remain basically unchanged. In my understanding, or according to my understanding based on the advice of my friends in the legal profession, "the laws currently in force in Hong Kong will remain basically unchanged" means that the legal system and the spirit of the rule of law will remain unchanged. But the understanding of the Chinese side can be reflected by the commentary in Wen Wei Po today which says: "How to treat unchange and change". The article points out that "the laws currently in force in Hong Kong will remain basically unchanged", of course, does not mean that no change is allowed. Some legislation can be changed because of social development and evolution. But change should be subject to certain criteria. As the Joint Declaration has stipulated that the laws will remain basically unchanged, then should there be any change, it must be minor change instead of substantial or major change. And according to the Joint Declaration, any affairs that straddle 1997 should be subject to the consultation of the two Governments. According to the article, "the laws will basically remain unchanged" means that it is the legal provisions that will remain unchanged, not the legal system. If it is so, then the impact will be far-reaching. If the provisions remain unchanged, then all ordinances that were passed during the period from 1984 to 30 June 1997 are not the original laws and should not be able to straddle 1997, just like the fate of this Legislative Council. Aren't they?
To ensure continuity of Hong Kong laws after 1 July 1997, then time should go back to 13 years ago. If so, all the 20 to 30 amendments made to the Employment Ordinance since 1984 should be scrapped. Numerous ordinances that were enacted after 1984, such as legislation to protect the consumers or combat organized and serious crimes, or legislation concerning film censorship or indecent and obscene articles, or legislation seeking to establish the Land Development Corporation, the Hospital Authority, the Hong Kong University of Science and Technology or even the Court of Final Appeal Ordinance and the Mandatory Provident Fund Schemes Ordinance that have been passed recently, are not the original laws. Should all these pieces of legislation be dealt with in such a way as to restore the original position before they were passed? Should we freeze our history in 1984?
Most unfortunately, Hong Kong people do not know which ordinance will be reinstated and which one will not. They have no idea which ordinance can straddle 1997 and which one cannot. Neither do they know why some ordinances cannot be changed nor do they understand what change can be made and what change is disallowed.
Based on the logic of the Chinese attitude towards the politics of Hong Kong, we can see that China wishes to have the colonial system as in 1984 frozen. In other words, it would be glad to see the revival of the colonial system after 1997, which we have been so much opposed to.
Hong Kong people are opposed to the colonial system. We do not want to see the colonial system survive after 1997. In recent years, we feel that there is some change. The original colonial system will hopefully go through a democratic process. But now the Chinese side seems to be telling us that Hong Kong has to go back to the past, that Hong Kong has to go back to the pre-1984 system. I think this will cause us great anxiety. Our efforts in trying to change the colonial system over the past 10 years will be in vain. I think this is one of the reasons why the Chinese attitude towards this incident is so worrying.
Thirdly, the whole incident reflects the lack of trust on the part of the Chinese side in Hong Kong people. Nor does it have trust in the concept of "Hong Kong people ruling Hong Kong". It seems to impose the Chinese approach on the politics of Hong Kong. The Chinese approach means that patriarchal consciousness overrides public opinion. If the Chinese approach is imposed on the politics of Hong Kong, there will not be any room for participation by Hong Kong people and the concept of Hong Kong people ruling Hong Kong cannot be implemented. If we extend this logic, either at present or in the future, the basis for Hong Kong people to participate in social affairs will become shaky. So I hope the Chinese side is not imposing its mentality on the politics of Hong Kong as I said. Thank you, Mr President.
MR CHOY KAN-PUI (in Cantonese): Mr President, the Honourable Albert HO initiates a motion debate on the proposal of the Legal Subgroup of the Preliminary Working Committee (PWC). Since it is a basic consensus among the people of Hong Kong that the human rights of the people of Hong Kong have to be protected, I would not dwell on this particular point at any length.
When we talk about the freedom of speech, we should also respect the freedom of speech enjoyed by those people who are outside the Legislative Council. If the Legislative Council holds lengthy debates on whatever views expressed outside of this Council that we disapprove of, I am worried that some of the substantive business of the Legislative Council may be affected.
In recent days, the proposal of repealing certain provisions of the Bill of Rights Ordinance (BORO) and reinstating some of the original laws has already caused a storm. If we seek to intensify such wrangles, it will not help in improving people's livelihood but will only arouse much more public unease. On the contrary, we should focus our attention on and devote our efforts to strengthening our economy with a view to resolving the unemployment problem and improving people's livelihood, so that the people of Hong Kong would enjoy better lives. I oppose flame fanning and I hope that we can always be pragmatic.
Amendment to the Honourable Albert HO's motion as moved by the Honourable Miss Christine LOH
Mr President, by taking a retrospective look at the entire history of the development of the New Territories, we would observe that the indigenous inhabitants of the New Territories have already established their own cultural characteristics and unique living style. Throughout the history of the colonial era, they have also contributed to the territory's development and made numerous sacrifices.
Today, the indigenous inhabitants in the New Territories do not intend to become the privileged class. They respect the living style of non-indigenous inhabitants and are willing to co-operate and live together with non-indigenous inhabitants, so that the two can join hands to work for the well-being of Hong Kong. They do not want to see the delineation between urban and rural areas, instead, they cherish the hope that other people will respect their traditions.
As to the right of inheritance, estates should be distributed in accordance with the wish of the individuals concerned. The law should keep its interference into family affairs at a minimum. In addition, we should also encourage our citizens to distribute their estates to their successors through the making of wills. This will give more flexibility. In rectifying the concept of "men are superior to women", we should start from civic education and should not seek to impose compulsory changes by means of enacting laws.
In addition, Article 40 of the Basic Law has laid down in clear terms that the lawful traditional rights and interests of the indigenous inhabitants of the "New Territories" shall be protected.
In view of this, the repealing of the relevant legislation on exemption will be in contravention of the spirit of Article 40 of the Basic Law.
Mr President, with these remarks, I oppose the amendment moved by Miss Christine LOH. I will not support the original motion either. Thank you, Mr President.
MR IP KWOK-HIM (in Cantonese): Mr President, on behalf of the Democratic Alliance for the Betterment of Hong Kong (DAB), I would give an account of the position of the DAB on the Honourable Albert HO's motion. The focus of the recent controversy over the Hong Kong Bill of Rights Ordinance (BORO) lies in whether the BORO has an overriding status. Before the enactment of the BORO, all laws enjoyed equal status under the original legal system and no law could override other laws. From 1 July 1997 onwards, the Basic Law will be the only law in Hong Kong which has constitutional status and no other laws will have overriding power. It is on the basis of this principle that the Legal Subgroup of the Preliminary Working Committee (PWC) proposed to remove from the BORO provisions which enable the BORO to override other laws.
The provisions that the Legal Subgroup of the PWC proposed to delete do not touch on any rights and freedoms under the International Covenant on Civil and Political Rights (ICCPR) as incorporated in the BORO. The provisions to be deleted merely provide for the relationship between the BORO and other laws of Hong Kong. Some claimed, on the one hand, that the BORO does not have overriding status and so it is consistent with the Basic Law but, on the other hand, they pointed out that the deletion of those provisions will be tantamount to "castrating" the BORO. This, we think, is self-contradictory.
The DAB is of the view that if those controversial provisions will indeed make the BORO overriding, then it is reasonable for the PWC to propose the deletion of those provisions. On the contrary, if the BORO, just as the Legal Department of Hong Kong pointed out, does not have overriding status, then the status of the BORO will not be in the least affected even if some provisions are repealed.
In 1991 when the BORO was enacted, the Chinese side, in fact, expressly stated their objection at the time. Now the Legal Subgroup of the PWC is proposing to repeal certain provisions of the BORO and reinstate the six laws which were amended to tie in with the BORO. It is believed that this proposal is made after the Chinese side has taken into consideration the views of the people of Hong Kong. But from another point of view, the proposal of the PWC has precisely reflected that China recognizes the BORO and is therefore willing to preserve the BORO for continual implementation in Hong Kong after 1997. While it is proposed that certain provisions will have to be repealed, the spirit of the BORO, that is, protecting the human rights of the people of Hong Kong, will not be undermined. Nor will the implementation of the BORO be affected. Therefore, this proposal of the PWC cannot be described as a devastation of the BORO.
According to the Basic Law, the Standing Committee of the National People's Congress has the right to declare the exclusion of existing laws which are inconsistent with the Basic Law from the laws of the Special Administrative Region (SAR) Government. However, the DAB is of the view that if there is any aspect in the laws of Hong Kong that the Chinese side wants to comment on, it should be left directly to the SAR, subsequent to its establishment, for it to discuss and handle and make amendments where necessary. It is because laws cannot be amended, and are impossible to be amended, without taking into account the social environment. The question of how to strike a balance between the rights of individuals and the right of the Government to rightly govern must also be handled carefully. In this connection, if the matter can be passed onto the future SAR Government which can then make amendments in the law that correlate with the circumstances at that time after taking into account the actual situation and listening to the views of all sectors in the community, it will be more advantageous to the effective operation of the SAR Government and the protection of citizens of Hong Kong. Therefore, we disagree with the first half of Mr Albert HO's motion.
Mr President, while the BORO has been in force for more than four years, the Hong Kong Government has not made any specific and detailed assessment of the implementation of the BORO to see whether the BORO has been properly invoked and whether it has actually performed the function of safeguarding the human rights of the people of Hong Kong. Recently, inmates at the Stanley Prison filed a lawsuit against the Government to seek to restrain officers of the Correctional Services Department from taking out the racing page from newspaper. The Association of Expatriate Civil Servants of Hong Kong also filed a lawsuit against the Government on account of the localization of the Civil Service. In the end, the Hong Kong Government won one case and lost the other. In the past few years, the Hong Kong Government has made drastic changes in many pieces of legislation which were considered to be inconsistent with the BORO following court decisions made in favour of the BORO. The DAB thinks that provisions under the ICCPR as applied to Hong Kong must be safeguarded and laws which are contrary to the ICCPR should be amended. Yet, as the ICCPR has been extended to Hong Kong for years and the laws concerned have long been adopted, it is indeed unreasonable that drastic changes are to be made so hastily now. The DAB is of the view that those contentious laws amended in recent years should be dealt with by the SAR according to the Basic Law after 1997. As for other laws which may also be affected, they should be dealt with in a discreet manner after a review has been conducted in regard to the impact of the BORO, which has been implemented for several years, on the laws of Hong Kong and the administration of justice. Therefore, we oppose the latter part of Mr Albert HO's motion.
With these remarks, I oppose the motion of Mr Albert HO and the amendment of the Honourable Miss Christine LOH.
MR LEUNG YIU-CHUNG (in Cantonese): Thank you, Mr President. When the Legal Sub-group of the Preliminary Working Committee (PWC) suggested repealing some of the provisions of the Bill of Rights, I was shocked to hear of it as, I believe, most of the people in Hong Kong were. It was because these suggestions could reduce, in the twinkling of an eye, the originally most powerful weapon for the protection of our human rights to nothing and deprive the people of Hong Kong of their basic rights that they could have enjoyed. But when one finds out whom these suggestions were put forward by, one will have no difficulty seeing the "dreadfulness" of these suggestions. We all know that these suggestions have been put forward by a body which is neither legal nor reasonable. I say that the PWC is illegal because its establishment had no legal basis whatsoever. Even in the Basic Law which was created under an extremely undemocratic procedure imposed by China, nothing is ever mentioned about the setting up of the PWC to prepare for the Preparatory Committee before the latter's establishment. Therefore, the PWC has failed even to conform to the legal basis as set out in the Basic Law. When I say that it is unreasonable, that is because all members of the PWC have been appointed by the Chinese Government. They are in no way able to represent the interests of the majority of the people here and therefore they do not command the people's recognition and acceptance.
As all its members are appointed by China, the PWC is made up of three kinds of people only. The first are the "mutes" who will not speak for Hong Kong people's interests; the second are those who wish that China will intervene less but will only wag their tails ingratiatingly like a "pekinese"; and the last kind are those "yes-men" who, in order to protect their own vested interests, spare no efforts in fawning on the Chinese Government. Therefore, it is not difficult to imagine why the PWC can, in just two years' time, put forward such astounding and sensational suggestions as the "provisional legislature" which the people of Hong Kong will neither recognize nor accept and the "reinstatement of laws amended pursuant to the Bill of Rights". In fact, the sole purpose of this group of advisers in the PWC is to keep Hong Kong under colonial rule unchanged for 50 years and turn Hong Kong into a colony of China.
I believe that it is Hong Kong's freedom of the press and of speech which will be most affected by the PWC's reinstatement suggestion. Some of the suggestions will directly or indirectly curtail the freedom of speech which the people of Hong Kong have gained from the Government after years of striving. Take the Television Ordinance as an example. If this Ordinance is reinstated, the Special Administrative Region (SAR) Government will be empowered to pre-censor or even ban any television programmes. For instance, the popular current affairs programmes or programmes containing direct or indirect criticisms against the future SAR Government or the Chinese Government will be pre-censored or banned. In fact, who can guarantee that the Chief Executive will not abuse the powers that these ordinances have vested with him to suppress the freedom of speech that we, the people of Hong Kong, enjoy?
And there is also the Public Order Ordinance. If it is reinstated, the various former restraints on processions and protests will be revived. Consequently, the processions and protests that the people stage to voice their grievances against the future SAR Government or the central government will come under great restrictions. In fact, the fruit of the numerous efforts of us, the people of Hong Kong, in fighting for our rights will all turn into bubbles in just a second and our basic right of expression will again be pushed to the edge of a fiery pit.
Of course, the PWC has their own political purpose in their selective amendment of these ordinances, which, borrowing a term frequently used by the Chinese Government, is "having an axe to grind". In fact, in the past, these ordinances to be reinstated or may be reinstated were used to suppress the leftists who were against the rule of the British Hong Kong colonial government. The Chinese Government also understands well the special effect of these ordinances; today it is treating us as the British treated them before and is seeking to retain this effective tool to suppress the dissidents. On the face of it, the reason is to maintain the status quo for 50 years but their real intent is to have the people of Hong Kong succumb to the future SAR Government and the central government.
Mr President, what I want to emphasize is: all these ordinances now proposed to be reinstated had only been amended as a result of years of efforts made by us, the people of Hong Kong, and many civic bodies. Although there are still imperfections within these ordinances, the direction in which we successfully proceeded to amend them is, after all, favoured by the public. Going against this direction will be like countering public opinion and it will not be accepted by the people of Hong Kong.
Therefore, as the pooling point of public opinion in Hong Kong, the Legislative Council has the responsibility to censure any suggestion that jeopardizes human rights in Hong Kong. At the same time, I also call upon those colleagues here today who suffered such suppressions before to join all the people of Hong Kong in censuring these unreasonable suggestions of the PWC! I also hope that some will forsake what is wrong and support what is right and cast their efforts to further the cause of Hong Kong people ruling Hong Kong.
Mr President, I so submit. Thank you.
MISS EMILY LAU (in Cantonese): I speak in support of the original motion and the amendment. However, I could not understand why the Honourable Albert HO has amended his own motion. He had used the word "deplores" at first, and just now when the Honourable LEUNG Yiu-chung used the word "denounces", he then changed it to "objects to". I think the proper word should be "protests". So perhaps this shows a mild side of the Democratic Party. But Mr President, I believe we are going to see a lot more greater scenes later on.
Mr President, I believe that since the Hong Kong Bill of Rights Ordinance (BORO) was promulgated in 1991, it has been an "eyesore" or "the thorn in the Chinese Government's flesh", and the Chinese Government has been saying that it will deal with the Ordinance. That is why some Members from the Preliminary Working Committee (PWC) have told us just now that as the Chinese Government had forewarned people, it should not be surprising if it made the move now. I think the Chinese Government must have found it strange why the Hong Kong people should be reacting so strongly and violently.
Very often, Hong Kong people will speak out only when they are "at death's door". Over the years, the Chinese Government has kept stating the matter, yet the people of Hong Kong has made no response to it. A good example is the application for British National (Overseas) (BNO) passports. They had been doing nothing until the last two days when they flocked to the Immigration Department for that matter. So now when Hong Kong people are reacting so strongly, I hope that both the PWC members and the Chinese Government will listen hard to them. I say so because many Hong Kong people are not Democratic Party members, nor are they democrats. But they are the backbone elements of Hong Kong; they will stay in Hong Kong and build Hong Kong. Therefore, it is my hope that we respect the wishes of these 6 million people. Mr President, just now the Honourable IP Kwok-him said that what the Chinese Government has done seemed to be quite positive towards the BORO. I do not know Mr IP Kwok-him well. But during these few weeks I have found that he is in fact a very reasonable man. I myself have witnessed Members from the Democratic Alliance for the Betterment of Hong Kong (DAB) joining the Legislative Council to work together with other colleagues. Although he is not a Member returned through direct election, I do hope he will become a Member from direct election. However, I wonder why he has made such remarks today. Regarding the way this law is to be dealt with, some people have described it as "castration", and there are various kinds of remarks made by others, too. In a word, this a very bad approach. Yet, he actually said that this was a "positive" way of doing it. If that was a "positive" way of doing it, then we would rather that it was "not positive". If it should become more "positive", we would be scared to death because what the Chinese Government is doing now is to destroy Hong Kong people's faith in human rights and the rule of law. Hong Kong people may not be yearning very much for western-style democracy. But it is my belief that they are supportive of democratic elections, and both human rights and the rule of law are invaluable to them. Now what the Chinese Government is doing will give people the impression that the Chinese Government does not really have any respect for our freedom. Many people are now worrying that their freedom in future will be eroded.
Furthermore, what is the cornerstone of our freedom? It is the rule of law! But we can see a small handful of people who have done some mysterious thing behind closed doors, and after they would say, "There will not be any law that you ask for." They amend the laws in ways that are absolutely unknown to the people of Hong Kong; as it is, how can they make the people understand, identify with and accept the law? Mr President, this will, will it not, all the more strongly frighten and disappoint them?
Just now quite a few pro-China Members or Members from the PWC have mentioned history. But of course such history starts with the Beijing massacre. In fact, Hong Kong people had been asking for the BORO to be hammered out even before the massacre. But the British Government gave Hong Kong people the piece of paper, the law only after it had seen the massacre, in the hope that we would not feel frightened. The point is that the British should also be condemned. This is because in the 1980s, they deceived people, and they also deceived the United Nations Human Rights Committee since they told the Committee that Hong Kong did not need the legislation and that the laws of Hong Kong were not in contravention of the International Covenant on Human Rights (ICHR). But of course after the enactment of the legislation, what they said was another story. Also, it would involve the amendment of a large number of laws because many laws in Hong Kong are in contravention of the BORO. However, previously when they were in contravention of the BORO, the Government did not have to do anything. Mr President, the point is that what we have seen here is a replica of the situation in 1990 which involved the row over the seven diplomatic letters, as the Chinese and British Governments had talked over matters unknown to us behind closed doors. The seven diplomatic letters were about political reform, and the situation before us is about the BORO, about freedom arising from our human rights. I do not know whether it was true or not (perhaps the Secretary for Home Affairs can explain to us) that the British had told China there was nothing to fear, because in spite of the fact that the ICHR is applicable in Hong Kong, it was uneventful and there was no need to enact local laws. Later when there was the massacre, the British amended the laws hastily. The Chinese Government could say to the British, "You deceived us then." However, if Hong Kong people were allowed to take a good look at the truth, the whole matter would be just like the seven diplomatic letters, which were all meant to deceive and betray us. If Hong Kong people were in the know of all these, including the negotiations on political reform and on human rights, they would never accept them. So, the Chinese Government should not speak so plausibly and at length. This is the account between you and the British, and you had better settle it yourselves. But as matters so stand, Hong Kong people have reasons to demand that the Chinese and the British Governments make a clean breast of everything and tell us what had been discussed behind closed doors. In fact, I believe the people of Hong Kong will find, in the 590 days or so to come, that probably a lot of things will be brought to light. Many people have spoken to the Chinese Government in private. At some suitable time, things including those uttered by members of the PWC will be brought to light. They would do things at all costs and anyone can be sacrificed. Some people say "This does, does it not, show how concerned the Chinese Government is about the BORO?" Perhaps they are right. But the point is whether they know that we, the people of Hong Kong are also concerned about it? We have no intention to be embroiled in the scramble for positions and power. Some people yearn for the position of Chief Executive, whilst other people want this or that. But what the people of Hong Kong want are some very basic things. We just hope that our present free life style can be safeguarded. But we have been awakened from this dream by the proposal of the PWC. Therefore, Mr President, it is my hope that most of the Members of this Council, with the exception of those Members from the PWC (it would be even better if they do), can support this motion so as to deliver a message to the Chinese Government.
Finally, I would like to say something about the question of repealing the Legislative Council Commission Ordinance. Our civil servants are already worrying whether or not they can get through the transition. We may well say that they are on tenterhooks. There are about 300 colleagues, I mean 300 staff members, in the Legislative Council. I do not want to see them on tenterhooks too. Just now the Honourable CHEUNG Hon-chung has put it well that the return of sovereignty should not be just a "glorious return", it is also necessary to regain people's hearts. On this, I would like to ask Members, especially those pro-China Members, whether or not they think that the Chinese Government will be able to regain the Hong Kong people's hearts, and that it will be a glorious return of Hong Kong. I do hope that Members can give it some serious thinking. Thank you, Mr President.
MR SZETO WAH (in Cantonese): Mr President, the proposal of the Preliminary Working Committee (PWC) to castrate the Bill of Rights Ordinance (BORO) and to reinstate the six draconian laws attacks Hong Kong just like a low pressure, stirring up massive rainstorms in the town. Amid such low pressure and storm, some break their backbones, others sway, but some till maintain a firm footing. For the voters who have recently cast their votes, please observe clearly how the people to whom you give your support would vote today.
In Annex I of the Joint Declaration, that is, "Elaboration by the Government of the People's Republic of China of its Basic Policies Regarding Hong Kong", it is spelt out clearly in black and white that the provisions of the two International Covenants as applied to Hong Kong shall remain in force.
Article 39 of the Basic Law spells out in black and white that the provisions of the two International Covenants as applied to Hong Kong shall remain in force and shall be implemented through the laws. Meanwhile, even legislations restricting the rights and freedoms enjoyed by Hong Kong residents shall not contravene the above provisions of this Article.
Article 159 of the Basic Law spells out in black and white that no amendment to the Basic Law shall contravene the established basic policies regarding Hong Kong.
According to the above provisions, spelt out in black and white, the BORO only implements Article 39 of the Basic Law, enabling the provisions of the two International Covenants as applied to Hong Kong to remain in force and to be operated through the laws of Hong Kong. Any legislation relating to the rights and freedoms enjoyed by Hong Kong residents shall not contravene the provisions of the two International Covenants as applied to Hong Kong laws, which in effect is the BORO. Even if the Basic Law were to be amended, no amendment could be made to the BORO because it will contravene the established basic policies regarding Hong Kong. Some people say the BORO has overridden the Basic Law, I would again like to quote the second paragraph of Article 39 of the Basic Law, which says: "The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article." The preceding paragraph of this Article is the one which states that the provisions of the two International Covenants as applied to Hong Kong shall be implemented through the laws of the Hong Kong Special Administrative Region. If this is the so-called overriding (with the status given by the Basic Law), and if even so can be called overriding, then it means, in other words, one is overriding himself, and it means that his buttocks are resting on top of his head.
The question which we have to put to the PWC is: which section in the BORO constitutes a contravention of the provisions of the two International Covenants as applied to Hong Kong? Is the BORO not a piece of legislation to implement the provisions of the two International Covenants as applied to Hong Kong? Do the six vicious legislations which you are striving to revive contravene the provisions of the two International Covenants as applied to Hong Kong in many respects? Are you trying to relegate human rights in Hong Kong to only the right of life which even creatures are entitled to?
On the one hand, the attempted revival of the six vicious legislations is targeted at the freedom of speech and of the press, and the rights of association, assembly, parade and demonstration. On the other hand, the PWC also proposes to amend the electoral provisions in order to limit, weaken and root out the strength of democracy in the constitutional establishment. If we put the two aspects together, we can see the concealed vicious motives. Within and without the constitutional establishment, efforts to the fullest extent have been made to suppress, combat and destroy dissenting voices, with the intent of turning Hong Kong into a pool of stagnant water, a pool of stagnant water that can only breed flies, and that is the kind of "stability" they are aspiring to.
The PWC is but the legendary fox whose clout finds its backing from the tiger's might, and the PWC is also extending the tiger's paws; we have, however already heard the roaring of the tiger in the background, too.
Mr President, with these remarks, I support the motion and the amendment.
MR AMBROSE LAU (in Cantonese): Mr President, the dispute over the Bill of Rights (the Bill) has caused great concern in the community. Hong Kong residents are naturally concerned about human rights, and that is why Article 39 of the Basic Law states that the provisions of human rights covenants as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region (SAR). During the past few weeks, what the residents have been reading in the press or listening to over the radio are such alarming allegations as the emasculation of the Bill, the human rights being trampled on, the revival of draconian colonial laws and so on. How can they not worry?
The Hong Kong Government took the lead in raising objections to the way the Legal Subgroup of the Preliminary Working Committee (PWC) has dealt will the Bill. This is understandable as persons and political parties with different political beliefs do hold different views. Despite the fact that varied political stances and views exist in the community, Hong Kong residents have a general agreement that the rule of law should be upheld. I hope Hong Kong residents and Members in this Council would deal with this legal issue from a legal viewpoint and with an objective and rational attitude.
Mr President, the Legal Subgroup of the PWC proposes not to adopt as part of SAR laws three sections in the Hong Kong Bill of Rights Ordinance (BORO) and the six ordinances which have been substantially altered because the above sections and ordinances are inconsistent with the Basic Law. The Basic Law is the only law with superior status in the future SAR. However, the BORO has been given that status by virtue of sections 3 and 4 contained therein, and the six substantially amended ordinances have undermined the executive and administrative powers. This is not conducive to the maintenance of a stable Hong Kong. This is inconsistent with those provisions in the Joint Declaration and the Basic Law, which stipulate that the current social system and life-styles of Hong Kong shall remain unchanged, and that the laws currently in force in Hong Kong shall remain basically unchanged. How can the current social system and life-styles in Hong Kong remain unchanged if the executive powers of the Government are severely undermined, the stability of the society jeopardized, and the laws totally altered?
Mr President, the British Government has signed two covenants on human rights. In the 10 years between 1976 and 1986, the British Parliament had discussions on four versions of the Bill of Rights but none of them was adopted in the end. As a result, no Bill of Rights has so far been enacted in British law. Does it follow that there are no human rights in Britain? Only a few countries in the world have their Bill of Rights and they all put the Bill in a justified position rather than an overriding one. Section 4 of the New Zealand Bill of Rights Act 1990 provides that: "no court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights), hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or decline to apply any provision of the enactment ¢w by reason only that the provision is inconsistent with any provision of this Bill of Rights." Section 5 therein contained provides that: "subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Regrettably, the Hong Kong Government is totally oblivious of the New Zealand practice.
Are the countries mentioned above emasculating the Bill of Rights? As regards the United States, she is not a party to the two covenants on human rights, but the principles of the Universal Declaration of Human Rights are enshrined in her constitution, just as these principles are enshrined in the Basic Law. Do human rights thus not exist in the United States?
Mr President, some people have denied the overriding status of the BORO. However, the heading of the relevant bill was originally : "Ordinance to override existing law". The Fourth Periodic Report submitted by the British Government in July this year to the Human Rights Committee of the United Nations still admits that the BORO "overrides any existing law that cannot be so construed (as to conform to it)." So, the BORO is said to be overriding on the one hand but on the other hand its overriding status is denied. In this deliberate misrepresentation or self-contradiction? I hope everyone can remove their prejudices and think carefully about the reasons behind the matter. Some others say that section 3 is not meant to override. It was just the common law principle of "subsequent legislation being better than pre-existing legislation". However, section 4 contained therein reveals a complete reversal : "pre-existing legislation is better than subsequent legislation". Hence, both "pre-existing legislation and subsequent legislation are just as good". This is really confusing. I wish to categorically point out that when the enactment of the Bill was discussed in Britain, Lord Denning, an utmost authority in the British judicial community, was of the view that if the implementation of the Bill conferred judges the right to repeal the legislative power of Parliament, judges would become politicized, and their appointment would hinge on political incentives, thereby adversely affecting the goodwill of the judiciary.
Mr President, in the motion there is mention of the proposal by the Legal Subgroup of the PWC to repeal in 1997 certain provisions of the BORO. The notion of "repeal" is wrong, as Article 160 of the Basic Law states that "upon the establishment of the Hong Kong SAR, the laws previously in force in Hong Kong shall be adopted as laws of the Region except for those which the Standing Committee of the National Congress declares to be in contravention of the Basic Law. Because certain laws in force will be in contravention of the Basic Law, the PWC proposes not to adopt the same as laws of the SAR, under Article 160 aforesaid. Since these laws never exist in the laws of the SAR, how can they be "repealed" at all?
Mr President, the Basic Law has provided protection of rights and freedoms not only in Chapter III but also through the various provisions in other Chapters and Articles therein. I hope Hong Kong residents will understand that after 1997 their human rights will not only be protected through covenants on human rights as applied to Hong Kong but also be better protected through the Basic Law.
Mr Presient, I so submit.
MR ANDREW CHENG (in Cantonese): Mr President, I would like to begin my speech with a joke on the judiciary of China in a bid to harmonize the atmosphere. A young lawyer who had just entered into the legal profession was defending his client eloquently with an alibi. His eloquency could not impress the judge at all, but his eagerness to help the defendant had convinced the judge that he was in collusion with the defendant and so he was convicted as well. As regard the fate of the defendant, I believe there is no need for me to tell you here. There is tear in the laughter. I do not intend to see that the important officials of the judiciary of the future Hong Kong Special Administrative Region (SAR) Government will be like the protagonist of the above story, but it seems such worry is quite understandable. Justice YEUNG and Justice LIU of the Judiciary recently have made some criticisms on the Bill of Rights Ordinance, and Justice LIU even said the Bill of Rights Ordinance would make it difficult for the law-enforcing agency to collect evidences. These comments are in fact countered with the tradition of providing adequate evidences on the prosecution of the defendant by the plaintiff. How can we stop worrying if Justice LIU uses this kind of logic to handle cases?
Mr President, the retrogressive proposal of the Legal Subgroups of the Preliminary Working Committee (PWC) has become a political issue. Justice YEUNG also participated in this discussion and he spoke in one way but actually aimed at something different. It is doubted that the officials of the Judiciary who are supposed to be neutral in tradition will join the queue of political opportunists to get close to the centre of power, creating a crisis in the Hong Kong legal system. As 1997 is drawing near, officials of the Judiciary should keep to their own line and work hard to safeguard the "righteousness" and "fairness" of the legal system and the Bill of Rights Ordinance. They should not exercise excessive internal self-restraint or excessive self-inflation in view of the change of sovereignty. Otherwise, no matter how hard we defend the Bill of Rights Ordinance, it will finally fall victim to the politically-oriented officials and become political rubbish.
Mr President, I would like to raise some objections to the reasons of the PWC's retrogressive proposals. Considering that the Bill of Rights Ordinance has gravely undermined the administrative power of the Government, the Legal Subgroup of the PWC has decided to amend some legislations in order to revive the same administrative power as the Hong Kong British colonial regime for the future Special Administrative Region (SAR) Government. Mr President, human rights are the most invaluable natural gifts given to human beings. It is just like clouds in the blue sky and fresh air which belong to us naturally. We do not have to fight for it, and if we have to do so, it is because we have been deprived of this right or we have lost it. Also, the general public has been deprived of their rights and the special right is in the hands of the ruling class who have many vested interests. At present, the privileged class who once owned many vested interests is leaving and they are handing out the original right to the public. Regrettably, the members of the PWC, who are a new breed of the privileged class, are worried that they cannot continue to enjoy the privileges and have made some irresponsible remarks. These comments have rendered the "high degree of autonomy" and "one country, two systems" of the future SAR Government sheer nonsense. Mr President, the development of human rights is a trend of international concern, and it is also a historical trend that cannot be resisted. Members of the PWC should understand this very fact; they should not just take care of their vested interests and ignore the needs of the public and their aspirations for the return of human rights. The Democratic Party recently has collected tens of thousands signatures in a short time to inform the Hong Kong British Government that human rights cannot be stripped away.
Moreover, Mr President, the Legal Subgroup of the PWC also mentioned that to amend the Bill of Rights Ordinance does not mean that we are going to have no human rights in Hong Kong. This point seems reasonable, but on second thoughts, we have found that it can only be convincing in an utopian society. In a society where everyone is equal, everyone is contended with their status and there is no deprivation of human rights, the existence of legislations will be meaningless and valueless. This is because the enacting of any law is to counteract social unfairness and injustices with an independent legal system. However, a goal is just a goal; there are still many cases of unfairness and injustice in Hong Kong. If we do not have a set of comprehensive Bill of Rights Ordinance to protect human rights, it is not going to get us anywhere. If the Bill of Rights Ordinance is amended to provide special right to people who have vested interests, it is actually trampling on human rights.
Mr President, I would like to respond to the proposal of the Democratic Alliance for Betterment of Hong Kong (DAB) to leave the amendment of the Bill of Rights Ordinance to the SAR Government. It is just an attempt to bury their heads in the sand, but I can read between the lines that members of the DAB do, to a certain degree, acknowledge amendments to the Bill of Rights Ordinance. However, the DAB may consider that the amendments should be proposed, not by an illegitimate body, that is, the PWC, but by a legitimate body of the future SAR Government. However, Mr President, this will do Hong Kong people no good at all.
Mr President, with these remarks, I support both the original and the amended motion.
MR LO SUK-CHING (in Cantonese): Mr President, the controversies caused by the proposal of the Legal Subgroup of the Preliminary Working Committee (PWC) have gone beyond legal arguments to become political debates. Actually, the Legal Subgroup's recommendations did not call for amending Part II of the Hong Kong Bill of Rights Ordinance (BORO). In other words, it has not asked the Standing Committee of the National People's Congress (NPC) not to adopt any provision of Part II of the BORO. It has only recommended to delete some of the provisions in the Preliminary which give supremacy to the BORO. Such a move will not undermine the implementation of the BORO in Hong Kong.
In fact, the question of how human rights should be safegarded in Hong Kong has already been dealt with in the Sino-British Joint Declaration, and further specific stipulations have also been provided in the Basic Law. Section XIII of Annex I of the Joint Declaration stipulates that the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong shall remain in force. Besides giving effect to these two covenants, Article 39 of the Basic Law further provides that international labour conventions shall remain in force.
During the Sino-British negotiations in 1984, the British side informed the Chinese side that the two international covenants were directly applicable to Britian (including Hong Kong) through existing English laws. The report submitted by the United Kingdom in 1978 to the Human Rights Commission of the United Nations also mentioned this point, saying that it was unnecessary to incorporate the international covenants into the English laws. Indeed, the United Kingdom has so far not enacted any bill of rights. When enacting the Basic Law, China accepted some of the advice put forth by Britian. The two Governments have reached a consensus that the laws of Hong Kong should basically remain unchanged. Apart from stipulating that the two covenants as applied in Hong Kong shall remain in force, the Basic Law further elaborates that these covenants "shall be implemented through the laws of the Hong Kong Special Administrative Region".
The antecedent of the controversies over the BORO was the breach of the Sino-British Joint Declaration on the part of the British side. In 1989, Britian changed its China policy and on 28 June of the same year, the second report on Hong Kong was published by the Foreign Affairs Committee of the House of Commons of the United Kingdom in which it was suggested that the Hong Kong Government should enact a bill of rights and amend the existing laws. Subsequently, the BORO was passed in the Legislative Council.
Sections 2 and 3 of the Preliminary of the BORO stipulate that "the purpose of this Ordinance is to provide for the incorporation into the law of Hong Kong of provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong". By "incorporation into the law of Hong Kong", it means turning the provisions of the covenant into the law of Hong Kong so that it can be directly implemented in Hong Kong. This is totally different from the Sino-British consensus that these covenants "shall be implemented through the laws of the Hong Kong Special Administrative Region" and is divorced from the practice of Britian that these covenants are implemented through its existing laws. More obviously, these sections have contravened Article 39 of the Basic Law and shall therefore be discarded in accordance with the Basic Law. Such a fundamental change has given rise to political rows, as there have been no prior consultations with China and China's strong opposition has also been ignored.
Obviously, sections 3 and 4 of the Preliminary of Part I of the BORO give supremacy to this ordinance. The Government's assertion that the BORO enjoys the same status as other legislations and does not prevail over the others is therefore misleading. In 1995, the British Government, in its fourth regular report on the human rights in Hong Kong submitted to the Human Rights Commission of the United Nations, also admitted that the BORO prevailed over any legislation which was not capable of being construed in the same manner as the BORO.
Subsection 3 of Article 11 of the Basic Law provides that the Basic Law is supreme. After 1997, laws relating to safeguarding the rights and freedoms of the residents in the Hong Kong Special Administrative Region shall be based on the provisions of the Basic Law, instead of the BORO. If supremacy of the BORO is recognized, there will be confusion in the interpretation, which will undermine the implementation of the Basic Law or even erode the Basic Law. In view of the fact that sections 3 and 4 of the Preliminary of the BORO give supremacy to this ordinance which is contravening the Basic Law, it is therefore reasonable to have these sections deleted in accordance with the Basic Law.
Mr President, since the enactment of the BORO in 1991, more than 50 ordinances have been amended for contravening the BORO and quite a number of applications for judicial review have been submitted in accordance with the BORO. Besides, a lot of precedents have been established, which will be overriding as they are products of the overriding BORO. This will cause a lot of adverse impact on our legal system. The BORO has unprecedentedly empowered the courts at all levels to declare that certain legislations contravene the BORO and should be invalid. Obviously, this is contrary to the spirit that "existing laws shall remain basically unchanged".
Mr President, I would take this opportunity to recommend that this Council should urge the Government to review our existing laws and that those which are in breach of the Basic Law should be put before this Council for amendment as soon as possible so as to strengthen the constitutional status of the Basic Law. This is to avert the problem of legal discontinuity when more legislations are found to be not capable of being adopted by the NPC for breaching the Basic Law. Such a move will conform with the spirit of "Hong Kong people ruling Hong Kong".
I so submit.
MRS ELIZABETH WONG: Mr President, I share the views of all Honourable Members, in particular the Honourable Miss Emily LAU, who has spoken before me so eloquently and clearly in the interests of Hong Kong people. I shall not repeat what has been said but, as a humble human being, I do care about human rights. I believe human rights issues affect the very fabric of our society and the well-being of every single individual.
Human rights initiatives should be of concern to all of us, to government officials and citizens alike, as these issues permeate through every aspect of our daily lives. Simple things that we take for granted should illustrate for us the importance of adhering to human rights under the rule of law here. For example, little things like do we have freedom of speech to say what we want to say without disappearing into the night? Do we have public accountability or are we subjected to unpredictable and obscure reversals of laws or policies? Can we live predictably within the framework of law, or are we beaten with a stick and subjected to abuses?
Many of us actually live in fear of an uncertain future which becomes more uncertain as we argue about demolition all the time. We talk about demolishing this legislature, demolishing the law and the rules that have been accepted and passed. But we should be talking about smooth transition, about construction, not about demolition. For we know deep down inside that the value of our human rights will not be diminished even if we dismantle all our laws or limit them to attune to the wishes of our future masters. We are asked to face certain hard realities, are we not, here today?
On the threshold of the 21st century, I must say I find it very hard to believe that today some of us who claim to be leaders of our society are still blinkered with 18th century blinkers. We have heard arguments today which justify a reversal to the good old days of the past. These arguments may sound soothing to some ears and even plausible, but there is a time-honoured saying in Chinese that if you want to find fault with anything you will find the right words to fit it. But what is clear is that human rights initiatives present a challenge to all of us here today. To succeed, we must keep in view the essential linkage between democracy, the rule of law and human development as a whole. The retention of human rights in Hong Kong calls for a concerted effort by the legislature, by the executive and an active citizenry to cultivate the fragile flower of human rights. We must allow that flower to grow. We do it for our own sake. We owe it to our children, to the next generation to look to the sun and let the shadows of the past fall behind us.
But I think, Mr President, we are in a right old mess. If what is reported in the media is anything to go by, the independence of the Judiciary is compromised, the separation of powers between the Judiciary and the executive is also being compromised by the very people who should know better. The Government might even run the risk of being called schizophrenic. We want a Government, a system which is transparent, which is accountable. We want to fight against arbitrary, discretionary, discriminatory, repressive reversals of policies, we do not want to go back to old laws. Those who live in the past have no future. We might as well know that. We are going to be in the 21st century. We should not adopt an 18th century mentality. We should abandon the hapless inertia of the past. We should address and redress injustices.
History tells us that when human beings are suppressed there will be social disorder. And in extreme cases, these disorders will degenerate into violent confrontation and horrific civil war. Positive lessons are to be learned from experiences gained elsewhere. So, let us speak for the well-being of the people here. Let us protect for them what is rightfully theirs. Let us preserve what is already in our law and let us pursue the goals, legitimate goals of the Sino-British Joint Declaration, of a high degree of autonomy and Hong Kong people governing Hong Kong under Chinese sovereignty. Without that, you can kiss the future of Hong Kong goodbye.
With these remarks, I support both the motion and the amendment proposed.
MR BRUCE LIU (in Cantonese): Mr President, I speak on behalf of the Hong Kong Association for Democracy and People's Livelihood (ADPL) so that Members' time can be saved by three times.
The Legal Subgroup of the Preliminary Working Committee (PWC) recently proposed to repeal some of the provisions of the Bill Of Rights Ordinance (BORO), to repeal two ordinances which have already been passed by this Council and to reinstate six pieces of legislation which were amended for the reason that they are in breach of the BORO. The ADPL thinks that this proposal is not acceptable.
The proposal of the Legal Subgroup of the PWC can well be described as a "three-destruction" proposal:
Firstly, it destroys the commitment to the Hong Kong Special Administrative Region (SAR) as enshrined in the Sino-British Joint Declaration and the Basic Law, that the provisions of the two international human rights treaties shall be implemented.
Secondly, it destroys the provisions in the Sino-British Joint Declaration and the Basic Law that provide for the Hong Kong SAR independent legislative power.
Thirdly, it destroys the commitment of the Chinese Government to the Hong Kong SAR that there will be a high degree of autonomy and that Hong Kong people will rule Hong Kong, thereby seriously undermining the confidence of Hong Kong people in the protection of human rights in the future SAR. This argument over the BORO has seriously disappointed the people of Hong Kong with far-reaching repercussions. Some people are of the opinion that if this incident were to occur before 17 September this year, that is, before the Legislative Council election, even the Honourable Miss CHAN Yuen-han, whom I appreciate very much, might not have been elected to this Council.
The PWC proposes that certain provisions of the BORO should be repealed for the reason that the BORO is in breach of the Basic Law. However, the first paragraph of Article 39 of the Basic Law stipulates that "The provisions of the International Covenant on Civil and Political Rights, ..... as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region." Since the BORO is to provide for the incorporation into the law of Hong Kong of provisions of this international covenant, the enactment of the BORO is absolutely in line with the Basic Law. The enactment of the BORO aims at buying more time for the judiciary of Hong Kong to attune itself and to keep itself up to the standard of international human rights. That would also allow the establishment of more cases for future trial reference. If we do not have several years' time to accumulate experience and cases, the courts of the future SAR will have no time and experience to practically implement the provision as laid down in Article 39 of the Basic Law. In view of this, the BORO not only does not contravene the Basic Law, but is conducive to the implementation and enforcement of the Basic Law.
The PWC also proposes to reinstate the six pieces of legislation which have been amended in accordance with the BORO so that they would revert to their pre-amendment versions. The ADPL thinks that this "reinstatement" suggestion has seriously damaged the provisions of the Sino-British Joint Declaration and the Basic Law whereby the SAR shall have legislative power. The pre-amendment version of the six pieces of legislation have "died" in the legal context and the only means to revive them is for the legislature to re-legislate and pass them into laws again. Only by such means can these pre-amendment versions be revived. However, the PWC proposes to adopt the pre-amendment versions. This is tantamount to suggesting the Standing Committee of the National People's Congress (NPC) to directly interfere with the independent legislative power of the SAR. This would set a very bad precedent whereby the NPC interferes with the legislative affairs of the future SAR, thereby dealing a heavy blow to the legal system of the future SAR and undermining our confidence in Hong Kong people ruling Hong Kong.
Furthermore, as I have already mentioned, the original provisions of the amended ordinances have died in the legal context. They cannot be revived unless proper legislative channels and procedures have been gone through. If the amended ordinances were to be repealed while the original versions of these ordinances could not take their places in accordance with the proposals of the PWC, then a legal vacuum would arise in Hong Kong. Therefore, it is basically an option which asks for troubles because it is proposing a scenario under which a legal vacuum would arise. Therefore, the ADPL suggests to the Standing Committee of the NPC: if it is found that some of the laws of Hong Kong are in breach of the Basic Law and have to be amended, they should be handed back to the Legislative Council of the future HKSAR to handle.
The PWC proposes to reinstate the six pieces of legislation which have already been amended subsequent to the implementation of the BORO. Once these laws are reinstated, that would be tantamount to reverting Hong Kong's human rights situation to the situation before the enactment of the BORO. This is a kind of retrogression and is not acceptable to the people of Hong Kong. At the same time, the obsolete "Societies Ordinance" and the "Public Order Ordinance" are colonial laws and should be amended. The proposal of the PWC only reflects their colonial mentality. This is really disappointing.
It is shocking to learn that the Legal Subgroup of the PWC proposes to repeal two ordinances. The repealing of the "The Legislative Council Commission Ordinance" will bring no benefit to anybody but would only bring disaster to the fish in the moat. It is all the more astonishing that the Legal Subgroup of the PWC only proposes to repeal the "The Legislative Council Commission Ordinance" while no remedial suggestion is made: demolition but no construction.
Since the implementation of the BORO, some of the laws of Hong Kong have been amended to comply with the international human rights standards. The ADPL holds that the work in this area is commendable. However, right now, there are still a lot of legislation which is in breach of the BORO and some Hong Kong laws still have a long distance to go if they were to come in line with international human rights standard. The ADPL urges the Government to continue with its review over such legislation and to submit legislative amendment proposals to this Council for scrutiny with a view to strengthening the protection for human rights. The ADPL also urges the British Government to work through diplomatic channels and seeks to conduct discussions with the Chinese Government over this incident so that the opinions of this Council can be reflected.
I so submit.
MR CHEUNG MAN-KWONG (in Cantonese):
Refutation of the theory of re-instatement of laws to their 1984 position
Mr President, today I am going to refute some opinions that exist both within and outside this Chamber. The Honourable Ambrose LAU and Dr the Honourable Philip WONG said that, according to the Sino-British Joint Declaration, laws currently in force in Hong Kong will remain basically unchanged, and that "laws currently in force" refers to those laws in force as at 1984. They further argued that as the Bill of Rights (the Bill) was enacted after 1984, the National People's Congress might well refuse to accept it. This kind of opinion is playing tricks with words, a political sophistry. Just let us consider this. In the 13 years between 1984 and 1997, how can any society have laws that remain unchanged? Even on the Chinese side, in Annex III of the Basic Law, laws directly applicable to Hong Kong regarding the national flag and national emblem were altered in 1990. Why can Chinese laws involving the Basic Law be altered but local Hong Kong laws of Hong Kong cannot be altered according to the human rights covenants introduced through Article 39 of the Basic Law? This is self-contradictory. Is this not double standards allowing Beijing to burn down houses but forbidding Hong Kong even to light lamps?
Refutation of the theory of mildness and restraint exercised by the Preliminary Working Committee
In fact, the Preliminary Working Committee (PWC) has always been politically-oriented in its proposal to re-instate laws or to take or leave certain laws. Dr. Philip WONG asserted that the PWC has not abandoned the Bill altogether, saying that it has been mild and self-restraining in that it has proposed re-instating only six out of 50 ordinances involving human rights. However, it can clearly be seen that the six ordinances to be re-instated are all related to the freedom of assembly, procession, association, speech and so on. So, the most important political end for emasculating the Bill, and re-instating bad colonial laws is to suppress mass movements and freedom of speech. All in all, the proposal stems from a distrust of Hong Kong residents, fearing that they might lose control of their speeches and actions. So, the Bill is being treated as a serpent, whose poisonous teeth must be extracted to have it emasculated.
Refutation of the theory of targeting at the British
Mr SHAO Tianren, legal subgroup convener of the PWC for the Chinese side said that re-instating laws are done mainly to target at the British, and that Hong Kong residents being brothers, they are entitled to negotiations in future. I do not agree with such a view. The re-instatement of laws is in reality targeted at Hong Kong residents. I am afraid more than half of the Honourable Members present, including perhaps pro-China friends, have in the past been trodden upon by these six bad colonial laws, which have done great humiliation to us in our activities involving assembly, procession, and association. Today, have those who support emasculation of the Bill forgotten their past? Have they forgotten how many of their friends have been humiliated by these laws? One should not forget bitter past experiences simply because times have changed and the day for assuming power is nearing. Indeed, Britain will no longer be Hong Kong's sovereign state after 1997, and so will not be harmed at all then by the emasculation of the Bill. How can the British be targeted at? If Hong Kong residents are brothers after 1997, and are therefore entitled to negotiations, why are they not so entitled before then? Are Hong Kong residents not brothers before 1997? Are only pro-China rising stars brothers? Why should human rights in Hong Kong be emasculated by actions that are targeted at the British?
Refutation of the theory that the Legislative Council is not in a position to criticize the PWC
One view holds that the Legislative Council is not in a position to discuss the PWC's proposal to amend the Bill. Mr ZHENG Guoxiong of the New China New Agency even described the debate as "ridiculous". Mr President, the Legislative Council is a council elected by residents. Every Member has sworn allegiance to Hong Kong residents. Are we supposed to renege on our promises within less than two months of taking office, and to forget completely about the trust our electors have put in us? Recent polls and public opinions have revealed great resentment towards the PWC's act of emasculating the Bill. It would be negligent of duty and disappointing to electors for an elected councillor, being a residents' representative in the Legislative Council, not to criticize the PWC. Indeed, even the post-1997 legislature is entitled under Article 73 of the Basic Law to debate any issue relating to public interest. How can one say this is ridiculous? So, to say that the Legislative Council is not in a position to criticize the PWC or to unduly involve other Members in the matter is, put simply, a pretext to exercise self-restraint and impress the future boss. This is exactly the constraint enlightened pro-China persons are subjected to: Whenever material issues such as mistakes committed by China are involved, such persons either become silent or dodge. How can this kind of behaviour reflect the hopes and fears of Hong Kong residents or pave the way for democracy?
Refutation of the theory of postponing the issue for the Special Administrative Region (SAR)
Another idea to eschew the issue is put forward by the Honourable CHEUNG Hon-chung and the Honourable IP Kowk-him of the Democratic Alliance for the Betterment of Hong Kong: leave the amendment of the Bill to the SAR. This is a familiar argument, used in avoiding problems. In the past, whenever the June 4th incident was mentioned, some said: let history decide. Now, when human rights is mentioned, some say: let the matter be dealt with in 1997. But one must face the music anyway at the end of the day. Arguments for human rights are crystal clear. Why should we postpone the issue? One should be loyal to one's boss. Nowadays, by "boss" it is meant the public. If all difficult issues were to be put off until 1997, why bother to campaign for an election? Why not be a member of the provisional legislature in 1997 when the Bill will be emasculated more completely?
A regime that causes amnesia
Mr President, amnesia is in fashion. Recently, amnesia has occurred to the defendant, the witness and even the Chief Justice. The story of a forgetful Chief Justice Ti-liang YANG is one that in the eyes of many is laughable, pathetic and detestable. But what gave rise to the story is frightening. If not for the Sino-British bickering and the totalitarian policy the Chinese Government has adopted, would the honourable Mr Justice have resorted to please with a deceitful personality so as to survive post-1997 days? Hence, in criticizing the Chief Justice, one should at the same time criticize more forcefully a regime that makes people forget things; otherwise throwing more stones at the Chief Justice can only result in more scornful laughs from a regime following an extremely leftist line. Therefore, if we are still sufficiently moral and courageous, we should give the Bill our support, and unequivocally, tell the Chinese Government through the Legislative Council what Hong Kong residents think.
Mr President, with these remarks, I support the Honourable Albert HO's motion.
MR TSANG KIN-SHING (in Cantonese):
Let Me Refute Some of the Gossipy Remarks
Mr President, Mr ZHENG Guo-xiong, the Deputy Director of the New China News Agency said, "This motion itself is both inappropriate and absurd." Possibly, he implies that the Legislative Council has no right at all to discuss the proposal of the Preliminary Working Committee (PWC), and that it is nothing but a rubber stamp. However, can Mr ZHENG inform the Hong Kong people when and where the Chinese Government has undertaken that we can hold discussions and make decisions in regard to the politics, economy and social livelihood of Hong Kong?
As regards the Sino-British Joint Declaration and the Basic Law which are valued highly by the Chinese Government, have the Hong Kong people ever been permitted to select their own representatives to participate in the enactment? One can still argue that the Sino-British Joint Declaration is related to foreign affairs. However, one cannot deny that we have the right to participate in the enactment of the Basic Law. The whole process was undertaken by the Chinese Government while the Hong Kong people have no say at all. Subsequently, there is the so-called PWC which was also born in a similar way. Mr ZHENG remarked that the motion was absurd. But has he ever asked himself that through what channels can the Hong Kong people reflect their views? In regard to the creation of the PWC, it is "an illicit transfer". As regards its operation, it is "operation in the black box". For its composition, it is "autocracy of money authority".
Laws are to Serve the Ruling Class
Mr President, it is simply because of this that we hold this debate today. The PWC has never dared to present full grounds to justify itself. Is the purpose of legislation to serve the ruling class just as what Karl MARX said, or to protect the democracy, liberty and human rights of the masses? May I ask the PWC and the Chinese Government that if we take one step back, can we have a brighter future? As long as the laws are made by the British Government, they are colonial laws and are "political cards". Such being the case, why do you have to retain and even to revive the old colonial laws?
The Conspiracy Theory of Ruling Hong Kong
Mr President, all along, the Chinese Government's way of ruling Hong Kong has been on the basis of struggles. It has even adopted the "conspiracy theory" to deal with the British as well as the Hong Kong British Governments. Their guiding rule is to check the motives in every single issue. How can it be beneficial to the Hong Kong people?
Of course, we cannot blame our "great motherland", because this is a kind of rebound on her weaknesses in foreign affairs during the past century. She has now gone from one extreme to another, from being self-abased to being self-conceited.
To the Hong Kong people, nothing is more precious than freedom and democracy. "Administration back to China" and "Administration back to people" do not make any difference to us, unless the Chinese Government does not recognize us as members of the Chinese family or the masses are not the masters of our China.
Does the Democratic Alliance for the Betterment of Hong Kong (DAB) have the Sincerity to Serve Hong Kong?
Mr President, I would like to talk about whether the DAB is sincere in fighting for the Hong Kong people or whether it is actually deceiving the Hong Kong people. During the critical moment, they are still unable to openly defend the Bill of Rights, they are still speaking in favour of the PWC and the Chinese Government. I hope that a stag is a stag and a horse is a horse. Now that the real dragon has come, should they still behave like tortoises by hiding their heads in the shells? As a matter of fact, the proposal of reinstating the six old laws is by no means a coincidence. It is but a prelude of the chorus between the Chinese Government and those Hong Kong people with vested interests for grasping securely the power by means of a political tool called the PWC. Has the PWC not revealed this intention even more expressly before? Have the Chinese Government and the PWC not proposed the method of creating the so-called Provisional Legislature which is to be self-directed and performed by 400 people? On the one hand, they are skillfully taking away the democratic elections and the right to run elections from the Hong Kong people. On the other hand, they are also seizing the right of assembly, demonstration, speech, association, access to information and so on from the people.
From the PWC, the Preparatory Committee to the Chief Executive and the Provisional Legislature
Mr President, however, I would not like to reproach the PWC any more. As a tool, its mission is almost finished. Very soon, it will become the core of the Preparatory Committee. The existing farce of calling a stag a horse will only be transformed into a scramble for cakes. The epitaph of the noble is noble, while the epitaph of the contemptible is contemptible. Nevertheless, the spirits of these nasty ghosts will not disperse. They will be alive again by taking the form of the Preparatory Committee, the Provisional Legislature and the Chief Executive designate. To tighten up legislation in order to restrict freedom of the people is merely a reflection of their fragile nature. From the PWC, the Preparatory Committee to the Chief Executive and the Provisional Legislature, to criticize them is only the very first step of a long fight. I am not a member of the opposition camp in the organizational system. Instead, I am a member of the resistance camp fighting inside and outside of the system. There will be hope only if we can assemble the power of the public and co-ordinate the forces from both within and without. I would like to make use of the Legislative Council as the forum and do my modest part for the democratic movement.
The Story of the "Fire Bulls"
Mr President, I am also nicknamed "the Bull" which reminds me of an ancient story in China called the "fire bulls". When the enemies are gradually eating away the democratic power and freedom of the people and when our city is being encircled ring upon ring, I am willing to become a bull with my horns set on fire which can then rush out to fight against the enemies. Are the rights and interests of the Hong Kong people not being taken away bit by bit in these few years? I would like to be a fire bull and rush out for our defence.
Mr President, with these remarks, I support the motion.
MR NGAN KAM-CHUEN (in Cantonese): Mr President, because of shortage of time, the Honourable IP Kwok-him was not able to state the stance of the Democratic Alliance for Betterment of Hong Kong (DAB) completely. I now continue with the DAB's stance from where he has left off.
Respect for human rights is an indication of the advancement and development of a society. The protection of the rights and freedoms of the Hong Kong residents also comprises a major part of the Chinese Government's basic general and specific policies towards Hong Kong. All these have been set down in the Sino-British Joint Declaration and the Basic Law. Through the implementation of the Basic Law, the rights and freedoms of the Hong Kong people will receive full and proper protection. It is no doubt that in the latter part of the transitional period, the implementation of the Bill of Rights can, in the face of so many uncertainties, provide the people with an extra kind of legal protection which will bring in greater stability in the community and more confidence in the part of the investors in Hong Kong. To allow Hong Kong to continue maintaining this environment where people can feel at ease, the DAB considers that the implementation of the Bill of Rights should remain in Hong Kong after 1997.
Regarding the Honourable Miss Christine LOH's amendment, although the DAB always supports the equality between the two sexes, we feel that this must be achieved through an education process so that the whole plan of building up a concept of equality can be set in the people's mind. This cannot be achieved by simply supporting the amendment of a bill. Besides, we also have to consider and respect the will of most of the indigenous residents of the New Territories who are not ready to have their customs changed for the time being.
To sum up, we believe that whether the provisions are to be reinstated or repealed should be decided by the Special Administrative Region Government itself.
These are my remarks and I oppose Mr Albert HO's motion and Miss Christine LOH's amendment.
DR HUANG CHEN-YA (in Cantonese): Mr President, some Members say that many western countries do not have a comparable Bill of Rights; in other words, they wonder why Hong Kong should have this Bill. Is it that since no western countries have it, we should not have it either? Is it that since there are abundant cases of violation of human rights in the west, we should violate human rights too? Why should we belittle ourselves and feel so inferior as to think that we can only follow the lead of other countries? Why cannot we, the people of Hong Kong, make a Bill of Rights which is better than that of many western countries and let our people enjoy the human rights which westerners are yet to enjoy? Some Members say that we should not dance after the western human rights. This is correct. Human rights are not the product of the west, nor are they exclusively owned by the west. Westerners have human rights and so should the people of Hong Kong. The people of Hong Kong are not second class world citizens and neither should the Chinese be. This Council supports the Bill of Rights because we the people of Hong Kong and China should enjoy the rights and dignity given to us by the Bill of Rights. When those Members who support the stance of the Preliminary Working Committee (PWC) and the Chinese Government speak, why have they not the guts to affirm the demand for human rights by the Hong Kong people? Why do they not dare to emphasize the human rights that Hong Kong people should have? They say that there are imperfections with the present Bill of Rights, and that, after the implementation of the one-country-two-systems policy and the Hong Kong people ruling Hong Kong after 1997, if the Hong Kong Government and the legislature still find that there are problems, they can always amend the laws until perfection is reached. There is absolutely no need for the PWC to speak out of turn and for China to intervene, they maintain. When the PWC performed the sword dance, did they have something else in minds? Is it their purpose to weaken the Hong Kong people's power of ruling Hong Kong and set a precedent for Beijing to rule Hong Kong? Hong Kong is now experiencing an economic downturn and the people lack confidence in both consumption and investment. One of the most important factors is that China is now taking the ultra-leftist line and goes on dampening Hong Kong people's confidence. Such fierce bombardments on the Bill of Rights may serve as a typical example.
Someone says the Bill of Rights has been passed with indecent haste. No, indeed, Mr President; on the contrary; the attack on the Bill of Rights is an indecent act which should be rebuked. Everyone knows many laws in Hong Kong were initially made with the aim to safeguard the rule of the colonial government and to facilitate their trampling on the rights of the Hong Kong people. Is 150 years not long enough to have our rights trampled on? Is it really incorrect and too hasty to repeal these laws which trample on the Hong Kong people's human rights? That the PWC and the Beijing Government revive these vicious laws in such a hurry to deprive Hong Kong people of their human rights once again is apparently an indecent and hasty act. It is indecent indeed to turn Hong Kong into a colony without the colonial rule of the British after 1997. The Bill of Rights may weaken the administration of the colonial government and it may also weaken the administration of an autocratic government, but what is the government of a democratic society afraid of?
The current articles attacking the Bill of Rights are all counting the wrongs of the British Government. But do remember that whether you bombard the British or not, they will withdraw on 1 July 1997 anyway. No matter how fierce the bombardments are, they will not hurt the British. These bombardments will only break the Hong Kong people's hearts, hurt their feelings and ruin their trust in China. If this is not betraying the interests of China and Hong Kong, what else is it? If you are really patriotic to China, please do not mislead the Beijing Government. If you are really patriotic to China, please do not lie with a view to rationalizing the wrongs of the Chinese Government. If you are really patriotic to China, please tell the truth for the Hong Kong people.
Mr President, in only 600 days comes 1997; why are the bureaucrats in Beijing today still turning against the Hong Kong people by denying them their demand for democracy and freedom and their demand for human rights? Instead of just beating about the bush and talking only about whether the Bill of Rights is in breach of the Basic Law, why should they never dare to acknowledge the importance of human rights to the Hong Kong people and affirm the indispensability of human rights to them? I again call upon the Chinese Government to abolish the ultra-leftist line it is currently taking and to stop attacking the Bill of Rights so as to respect the Hong Kong people's reasonable demand.
Mr President, with these remarks, I support the Honourable Albert HO's motion.
MISS CHAN YUEN-HAN (in Cantonese): Mr President, I am very glad today to have heard my colleagues in this Chamber mention my name and the organization to which I belong. Originally, I did not intend to speak. However, under the circumstances, I am now prepared to voice my opinions.
First of all, I would like to respond to the remarks made by the Honourable Bruce LIU earlier. He believes that had the Preliminary Working Committee (PWC) made the proposal to extract certain parts of the Bill of Rights on 17 September, Miss CHAN Yuen-han would not have been elected to this Council. I think that Mr Bruce LIU has underestimated the decision of the Hong Kong voters. I think that when the Hong Kong voters decide whether to vote for a candidate, they are not merely looking at a certain period of service, or a certain deed, of the candidate, but whether this candidate can serve the Hong Kong people for a long time, as well as what the standpoint of that candidate will be in case of any contradictions between the Chinese and the Hong Kong Governments. I deeply believe that the voters decided to vote in favour of my entering the Legislative Council only after they had observed CHAN Yuen-han for a long time. I hope that Mr LIU will respect the decisions made by our voters.
The second question is that not a few colleagues have talked about the Democratic Alliance for the Betterment of Hong Kong (DAB) earlier. I also respect deeply the love and care of our colleagues towards us. However, I would like to raise a question. We should be able to understand that when a political party raises an idea, it is hoped that the idea can be studied thoroughly and systematically. Now let me turn to the DAB's point of view in respect of the PWC's proposal to extract certain parts from the Bill of Rights. As a matter of fact, when the proposal first came out, Mr TAM Yiu-chung, the Vice-Chairman of the DAB, also shared the worries of the Hong Kong people in regard to the extraction of certain parts from the Bill of Rights and he voiced his opinions to the PWC Subgroup accordingly. He was against the proposal at that time. However, within a subgroup, it is inevitable that the minority is subordinate to the majority. Thus, under the circumstances Mr TAM Yiu-chung reiterated his point of view to the mass media, spelling out at the same time what our worries were.
Firstly, we think that the PWC itself is an organization and what it has put forward is but a proposal. If the legitimate channel is to be followed, this proposal should be discussed by the Preparatory Committee of the Special Administrative Region (SAR) in future. If it is finally decided that amendment has to be made to certain parts of the present Hong Kong Bill of Rights Ordinance which, according to the PWC, does not comply with the Basic Law, that decision can only be made by the Basic Law Committee of the future SAR, which will then submit its decision to the National People's Congress for approval before any amendment can be made. It is on this basis that we have suggested the proposal of the PWC should be left to the future SAR Government for discussion. I very much hope that my colleagues in this Council can really understand this suggestion of the DAB, and will not denounce the DAB with very simple reasoning for making such a decision.
I also hope that we can respect each other during the discussion. I think that this is indeed necessary. Of course, whenever a political party raises an idea, it is my view that it should be discussed by the people concerned on the basis of mutual respect. As a matter of fact, in regard to the Bill of Rights, I cannot see that the viewpoint of the DAB is different from that of the other political parties in this Council. The greatest difference may be that some colleagues hope that this motion can be carried during the debate today, while our point of view is that this motion should be decided after 1997. According to jurisprudence, this is after all a post-1997 matter. I, therefore, think that this is possibly where our difference lies. However, even if our opinions are different from those of some other political parties, it does not mean that the DAB is against the human rights of Hong Kong and is obstructing the progress of democracy in Hong Kong. I think that this kind of remarks is extremely unfair to us.
Mr President, during the transition period, we think that we can make use of various kinds of discussions to reflect the different opinions of the community. In this connection, my colleagues and I share the same view. However, we are a bit worried because the present situation is so tense, if we want to have a better future development of Hong Kong, shall we discuss this issue again after the fervour? This is our thought behind the argument. Some of the colleagues in this Council, of course, may not agree with us. But we will still show respect for them.
Mr President, I have explained earlier why, confronted with the worries of the Hong Kong people, we have to leave this issue to the future SAR Government for discussion. This is because the proposal of the PWC has to be discussed by the Preparatory Committee of the SAR in future. Even if any discussion is to take place in the future, the issue will still be subject to examination by the Basic Law Committee in the course of the formation of the future SAR Government. After examination, the Committee will decide whether it should be submitted to the National People's Congress. In view of the above, we do not support the motion of the Honourable Albert HO today. Thank you.
THE PRESIDENT'S DEPUTY, DR LEONG CHE-HUNG, took the Chair.
MR FRED LI (in Cantonese): Mr Deputy, it has been a very long time since I last made an impromptu response, without any prewritten script, to my colleagues' speeches. I am going to try this once again today.
After listening to the speeches of quite a number of my colleagues, I would like to make an immediate response to what the Honourable Miss CHAN Yuen-han has said. Miss CHAN Yuen-han managed to get elected to this Council because of her excellent packaging. This is where her success lies. However, there are some key areas which we have to point out. When the debate is focused on some political directions, it is undeniable that the Democratic Alliance for the Betterment of Hong Kong (DAB) always has to follow the stance of the Chinese Government. When she mentioned the proposal of the Preliminary Working Committee (PWC) just now, she only touched on it lightly and kept it in a very low key. She said that the decision could be made by the Provisional Legislature of the future Special Administrative Region (SAR). However, Mr WANG Feng-chao of the Hong Kong and Macao Affairs Office has already stated clearly that the opinions of the PWC could fully reflect and represent the standpoint of the Chinese Government. It was certainly not the case that a group of people talking aloof among themselves and that the Chinese Government found their points acceptable. In our view, the PWC is merely a tool for expressing the standpoint of the Chinese Government.
In regard to our discussion of this issue today, some colleagues from the PWC remarked that it had been politicized or that the original discussion on jurisprudence had been elevated to a politicized discussion, which they felt extremely sorry. But when we look at the discussion today comprehensively, how much of it is related to jurisprudence? What are those six ordinances? Have we discussed whether they should be reinstated? The answer is in the negative. Have we discussed the contents of the ordinances? The answer is also in the negative. Who is the first one to elevate this incident to political issue? The Honourable LO Suk-ching, it is the Chinese Government which has elevated this issue to a political tug-of-war. It has even got the Chief Justice involved. This is a typical political tug-of-war which has turned our motion debate into a pro-British, anti-Chinese conspiracy. The discussion on the Bill of Rights has rendered the Chinese side a firm impression that we are against or are condemning the proposal of the PWC. It thinks that we are not in the position to discuss the issue, and that the Legislative Council should not discuss it. All these remarks are in fact politicized enough. We are here to voice our opinions because we are supported by the voters. We are returned by the voters. I think that we have the full representation to speak on the proposals of the PWC, because they will affect our human rights, freedom and rule of law in the future.
To leave the issue for decision by the Provisional Legislature of the SAR Government in 1997 is the opinion strongly emphasized by the Honourable TAM Yiu-chung. As a PWC Member who holds a different view from the others, he belongs to the minority. It is not the view of the main stream and has possibly been vetoed. But do not forget that when we leave the issue to the Government in 1997, how will the Government deal with it? At the end, it is only the National People's Congress which can decide whether these six ordinances are in violation of the Basic Law. I hope that Hong Kong Government should get a clear picture of the situation now. Things have in fact been confirmed now. The Chinese Government has already expressed through various channels that the six ordinances are confirmed to be in violation of the Basic Law. A lot of Members of this Council were also following this way in saying that the Basic Law had been violated when they spoke today. What will the SAR Government do after 1997? Will it also toe the line? As a matter of fact, what is the point of leaving this issue until 1997?
Everyone knows that before 1997, the Chinese Government or the Standing Committee of the National People's Congress, the PWC and the Preparatory Committee will not alter the ordinances enacted before 1997. This is obviously because Hong Kong is still under the rule of the Hong Kong British Government before 1997. Then what is the point of making this remark? In my view, this is only a trick to deceive people. It has never touched upon the core of the question. Shall the colleagues from the DAB answer me that among the six ordinances, which provisions contravene the Basic Law? Which amendments of the ordinances will you disagree? The Broadcasting Authority Ordinance? The Public Order Ordinance? Which amendments do you think are not appropriate, are in violation of the Basic Law and have impact on our future? Are you against the motion of the Honourable Albert HO Chun-yan because you agree with the reinstatement of these ordinances? I think that you have to account for all these facts.
Instead of starting a quarrel here today, I would rather hear your opinions. Up till now, I have never heard of any pro-China party, PWC Members, DAB members, Hong Kong Affairs Advisers and so on pointing out which provisions among the six ordinances are in violation of the Basic Law. How are these six ordinances related to national defence and foreign affairs? Or is it merely an internal affair of Hong Kong? It is very obvious that the issue concerning these six ordinances is an internal affair of Hong Kong. Apart from the Societies Ordinance from which you may find "colluding with foreign countries" controversial, what about the other five ordinances? All these are in connection with the internal administrative affairs of Hong Kong. Why are you so anxious about it? Why do you have to conclude so early that they have weakened the administrative power and damaged the executive-led system of Hong Kong, and will damage the administrative ability of the future Hong Kong SAR Government in that they may invite processions? On many issues, the DAB and the Hong Kong Federation of Workers share the same stance with the public. From time to time, we also demonstrate and present petitions to the authorities concerned. Do we have to give back the authority to the police on each occasion? In order to obtain approval, how many days in advance of the demonstration should an application be submitted? Do you wish that the freedom of assembly and association be subject to the colonial regulations of the old days? I think you will not want to see that happen. I think you will agree to giving more freedom of assembly, association, procession and expression to the public, even beyond 1997. I think that you cannot avoid but have to answer these questions. I hope in the future, not today, I can hear you answer directly these questions in this Chamber so as to clear the doubts and worries in my mind. If you reckon that the opinions of the PWC are correct, why do you not start a signature campaign in order to solicit public support for the PWC's proposal in reinstating the six ordinances, and see how many members of the public will give their support? This is fair in my view. I hereby appeal to them and hope that they will give their due consideration to it.
Mr Deputy, I so submit.
MR LEE WING-TAT (in Cantonese): Mr Deputy, the editorial of today's Wen Wei Po criticizes the debate proposed by the Honourable HO Chun-yan as an intervention of China's internal affairs and an infringement of its sovereignty. Mr President, over the past four years, whenever debates involving political arguments with China take place in the Legislative Council, China would hit us with the club of sovereignty. I wonder whether the officials of the central Government or the New China News Agency (NCNA) understand that sovereignty rests with the people. In fact, China's sovereignty belongs to its 1.2 billion people (including myself), not exclusively to the officials of the Chinese Government, the NCNA or the Communist Party. I hope they can understand this concept fully. I hope they will express their opinions by way of discussion and will not intimidate the people of Hong Kong with sovereignty whenever they are confronted with different political viewpoints.
Mr Deputy, earlier on, some Members of the Preliminary Working Committee (PWC) have expressed their opinions. One colleague has also pointed out that the Bill of Rights Ordinance has caused fundamental changes to the laws of Hong Kong. He said that section 3(3) of the Joint Declaration provides that the laws currently in force in Hong Kong will remain unchanged. China and Members of the PWC even said that the laws in force at the time when the Joint Declaration was signed in 1984 will remain basically unchanged. According to the opinions of China and Members of the PWC, there should not be changes to any of the laws after 1984. If that is the case, how can our society progress? Besides, if amendments made to the laws after 1984 are equivalent to fundamental changes to the laws and contrventions of the Joint Declaration and the Basic Law, then have our Honourable Members, Dr Philip WONG, Mr NGAI Siu-kit contravened the Basic Law and the Joint Declaration because over the past few years, they have amended many pieces of law with us, including the Broadcasting Authority Ordinance and the Legislative Council Commission Ordinance? Actually I sympathize with the two of them. Although they clearly know that what is said is illogical and wrong, they cannot do anything about it. China is now saying that such a move is in contravention of the Joint Declaration and the Basic Law, and therefore everyone who has taken part in the passing of the laws (including the Public Order Ordinance) over these few years has contravened the Joint Declaration and the Basic Law.
We are not worried about the performance of certain people among us, we are worried because people are confounding right and wrong and are turning things upside down under such a political climate. The Honourable Ambrose LAU, a Member of the PWC, has gone one step further and said that the Bill of Rights Ordinance has not only changed the provisions of the Basic Law, he said it has also changed our lifestyles in general. Mr President, I am very scared. I am afraid that Members of the PWC will later require us to wear the bell-bottoms of 1984 or to sing the Mandarin songs of YIU So-yung and will not allow us to sing the songs of CHAN Wai-han (not the Honourable Miss CHAN Yuen-han) or Faye WONG in karaokes. In that case, how can our society progress? Mr Ambrose LAU has spent a lot of time explaining from an academic point of view why he supports the decision of the PWC. After hearing the many speeches made by Members, I think Mr LAU's speech is preferable because it is comparatively well-founded. I think he should be commended, but it is pity that despite his wordy speech and his status as former Chairman of the Law Society, even the Law Society does not support him, not to mention the Bar Association. He should therefore reflect on the reasons why he is not supported. As former Chairman of the Society, even his fellow members do not support him. What is he going to do?
Mr Deputy, I think we should have a debate on the question of the Democratic Alliance for the Betterment of Hong Kong (DAB). I do not wish to provoke any conflicts and I hope Miss CHAN Yuen-han will not misunderstand me. However, as the Honourable CHEUNG Man-kwong said, over these two months, we have seen that the stance taken by many of our friends in the DAB has been very similar to ours on issues relating to the livelihood of the people and they have spoken the truth on many issues. However, sometimes there are things we cannot avoid, especially in regard to cardinal issues of right and wrong. The public would ask why we have to leave discussion of this issue to 1997. If the DAB thinks that the PWC and China are right, it should lend its unequivocal support to them openly, like what Dr Philip WONG and Mr Ambrose LAU have done. There is no need to be evasive. Perhaps it can even give its comments by copying what is said from the editorials of the Wen Wei Po and the Ta Kung Pao and read them out verbatim in order to show its loyalty, just like what some Members of the PWC have done. If the PWC is wrong, the DAB can rise to raise its objections, why should it be evasive? Will the matter be dealt with any better after 1997? After 1997, we will have the provisional legislature, but will it do any better than the present legislature? Will it be more representative than the present legislature? I do not wish to give such sarcastic remarks, but I feel that it is now the wish of the people of Hong Kong that the elected representatives in the Legislative Council (and all of us are elected Members) will voice their heartfelt wishes on their behalf. Our friends of the DAB can try and conduct a survey (and it is not necessary for them to carry out a signature drive), ask the people of Hong Kong and decide for themselves according to the voices of the 1990s, whether the people of Hong Kong wish them to reflect their opinions after the election held on 17 September. According to what is written on your election signboards, it is your political platform to adhere to the principle of reasonableness; if that is true, do you think it is in the interests of the people of Hong Kong to deal with the matter now? Is your approach heading towards a democratic and liberal direction? Actually, there are bound to be success and failure in any political election, but the most important thing is to live up to the expectations of one's constituents.
Mr Deputy, today's debate may only be the prelude to many more political debates to come in the next two years. On this occasion concerning the Bill of Rights Ordinance, what is most shocking to me is not that the democratic groups have been criticized by the Chinese authorities, but that many whom China has once considered to be her trusted followers and friends "within the circle" have also been criticized and classified to be "outside the circle". We can ask ourselves how big that "circle" will be in the future. Will the circle be drawn to include only members of the Communist Party and a few officials of the NCNA? Will these people represent the opinions of the people of Hong Kong? Today, the public wishes us to voice their opinions. Mr President, I will lend my unequivocal support to the Honourable HO CHUN-yan's motion and the Honourable Miss Christine LOH's amendment. Thank you, Mr Deputy.
THE PRESIDENT resumed the Chair.
MR HOWARD YOUNG (in Cantonese): Mr President, the issue of human rights is very sensitive. The views of China on human rights are particularly different from those of many western countries. It could easily be construed as a means of confrontation adopted by western countries against China or a concept with an international conspiracy.
In fact, I believe that today's debate has brought out many questions. It has also reflected that discussions in this Council may easily involve political stances or may even lead to some kind of political struggle. Sometimes, such situation would even overwhelm rational debates.
Recently, we can see on the streets many banners with slogans such as "The Preliminary Working Committee sells Hong Kong people out", "Reinstatement of draconian laws", and so on. We cannot but feel that this is a kind of "playing up" stunt, for it will not help to bring about a rational discussion, or an objective analysis, of the issue of whether the Bill of Rights Ordinance (BORO) is a legal problem or a political one.
During our visit to Beijing last week, the Honourable Allen LEE and I took the opportunity to talk with Vice-Chairman WANG Han bin over this problem. I observe that Mr WANG would like to send to us a message: it would be better to cool the issue down to a mere legal problem to study. Although I am not a lawyer, I feel that it is quite a specious argument to accuse the BORO as overriding the Basic Law or overriding other laws. Even after careful scrutiny, I still cannot convince myself that the BORO has extreme supremacy. I do not think that the BORO really overrides the Basic Law. However, upon comparing the Basic Law with the BORO, we could find that subsequent to the enactment of the BORO, some laws have to be amended. In certain cases, some people may feel that there are contradictions in law that may pose problems for future trial rulings. That may be the case. Take for example the Societies Ordinance. Some colleagues even advocate that according to the International Covenant on Civil and Political Rights, any society shall have the right to establish relationship with any international political forces. However, I can see that the provision in the Basic Law is quite different because it is specified that such relationship is not permitted. If a case is brought before the court for trial concerning whether it is in breach of the law for a particular political organization to establish relationship with a foreign political organization. I personally think that if an act is deemed legal under the Societies Ordinance but is rendered illegal under the Basic Law, then the solution is simple, for the Basic Law always prevails. In view of this, I do not think that we need to be over-cautious. The dispute has arisen simply because some legislation have been amended and the Chinese side thinks that it would bring a lot of troubles and would undermine their power to govern or that the problem of some laws overriding the Basic Law may arise.
In today's discussion, we have been concentrating on the issue of supremacy. However, actually, there is one more point about which the people of Hong Kong are very concerned, although it has hardly been mentioned by Members today. It is the question of tabling reports to the United Nations on the implementation and enforcement of the International Covenant on Civil and Political Rights in Hong Kong.
Recently, a certain Member published an article asserting that the protection of human rights and the tabling of reports are two different things. I agree to this opinion. However, does it mean that the two bear no relationship to each other even if they are two different things? I think that they do bear some sort of relationship. I have recently attended the United Nations Human Rights Committee hearing. I did not feel at the hearing that the discussion of human rights was a kind of international conspiracy or any sort of confrontation against China. On the contrary, I found that most signatories to the human rights treaties are third world countries, and they have not lost their power to control or to govern at all. Some Chinese leaders and members of the Preliminary Working Committee (PWC) pointed out that China did not have the responsibility to table a report to the United Nations. I think that if we emphasize this point, it would not help to restore the confidence of the people of Hong Kong, nor would it be conducive to our situation in the future.
I think that China need to be honest. In fact, I agree that in the legal context, China is not a signatory to these human rights treaties and therefore it does not have the obligation to file a report. This is the fact. However, I would ask, does it mean that you do not need to bother about it because you do not have the obligation? Can China table a report on a voluntary basis or through other means? I think that this can absolutely be done. For example, after 1997, if China keeps pace with the development of the world and sign the human rights treaties, then there will be no problem at all. Or, when a country signs the human rights treaties, it may make reservations as in the case for the United Kingdom. In the future, when China signs such treaties, it may also make reservations. This is one of the alternatives.
As a third alternative, since China promised in the Sino-British Joint Declaration and the Basic Law that the human rights treaties as applied to Hong Kong shall remain force, China may as well sign the treaties and declare that they are applicable to Hong Kong only but not to the other parts of the Mainland. This is also a viable alternative.
The fourth alternative would be for China to point out that in the legal context, China does not have the obligation to table a human rights report to the United Nations, but on a voluntary basis, China may authorize its regional governments to table some sort of reports. As to whether this practice is acceptable, it would be up to the discretion of individual organization. If this practice is found acceptable, then it would also be a kind of viable alternative.
Although I may not vote in line with members of the PWC or with the Democratic Alliance for Betterment of Hong Kong (DAB), I think that one of their points is commendable, that is, the issue may be left to the future Special Administrative Region (SAR) Government. If the future SAR Government thinks that the legislation amended in accordance with the BORO do jeopardize the governing ability of the SAR Government, then amendment to the relevant legislation may be made at that juncture. I believe this is also one of the acceptable alternatives for the people of Hong Kong.
Mr President, I so submit.
SECRETARY FOR HOME AFFAIRS: It is clear from today's debate and the response across the community that the proposals of the Legal Subgroup of the Preliminary Working Committee (PWC) have given cause for deep concern amongst many people in Hong Kong. Many Members speaking today, the Hong Kong Bar Association, the Law Society of Hong Kong, the Hong Kong Journalists Association and many other groups and individuals, have offered a chorus of support for the Bill of Rights Ordinance (BRO).
The British and Hong Kong Governments share these sentiments and have taken every opportunity to reflect to China the depth of the community's concern and our views on the mistaken nature of the PWC's proposals. The matter has been raised not only in the Joint Liaison Group(JLG) but also with the Chinese authority through other diplomatic channels and during the visit of the Attorney General to China. It will continue to be pursued through both formal and informal channels.
The Government is in no doubt that the BRO and the laws which have been amended are fully consistent with the Joint Declaration and the Basic Law. The BRO was drawn up in the full knowledge of the provisions of the Basic Law. Both the Joint Declaration and the Basic Law stipulate that the International Covenant on Civil and Political Rights(ICCPR), as applied to Hong Kong, shall remain in force after 1997. Moreover, Article 39 of the Basic Law states that the provisions of the ICCPR as applied to Hong Kong shall be implemented through the laws of the Hong Kong Special Administrative Region.
This is precisely what the BRO does. It provides for the incorporation into the laws of Hong Kong of the provisions of the ICCPR as applied to Hong Kong. It follows that the BRO is fully consistent with Article 39 of the Basic Law. The BRO has a status no different from that of any other ordinance. Like other ordinances, it will be subject to the Basic Law. What is entrenched by the Letters Patent now and by the Basic Law after 30 June 1997 is the ICCPR, not the BRO.
We do not accept the argument expressed by the Legal Subgroup of the PWC that section 3 of the BRO makes it supreme over other laws. This is not correct. Section 3 does no more than state expressly the common law principle that where two pieces of legislation are inconsistent, the later one impliedly reputes the earlier one to the extent of the inconsistency.
Some Members have cited, as support for their view that the BRO has an overriding status, the description of the BRO included in the United Kingdom Government's report to the United Nations on Hong Kong. The statement in question is simply a reference to the repealing effect of the BRO on pre-existing legislation, that is, laws which were in force prior to the enactment of the BRO in 1991. As I have said, this reflects the common law principle that where two pieces of legislation are inconsistent the later one repeals the inconsistency in the earlier one.
We do not consider section 2,(3) and section 4 of the BRO to be contrary to the Basic Law. Section 2,(3) deals with the interpretation of the BRO and states a principle that applies to all ordinances which implement treaties. Section 4 reflects an existing rule of interpretation that legislation should, if possible, be construed in accordance with the relevant international obligations. Both these sections are no more than a restatement of common law principles that apply to all ordinances. It is our firm conclusion, therefore, that the PWC's proposals are based on a misunderstanding of the legal effect of the BRO and we see no need to amend it in the manner that has been suggested.
Such a move would give rise to serious concerns in Hong Kong and overseas about the continued protection of human rights as well as the rule of law in Hong Kong. The BRO enjoys widespread support within Hong Kong and the international community. Most recently, the United Nations Human Rights Committee has welcomed the enactment of the Ordinance and expressed its appreciation for the progress that has been made in reviewing laws for consistency with the BRO and therefore with the ICCPR.
Members will be aware that the United Nations Human Rights Committee is deeply interested in the circumstances of Hong Kong. The Committee has recognized the sound legal basis offered by the Joint Declaration for the continued protection of rights provided for in the ICCPR. The Committee has issued a clear statement on the importance of the continued application of the ICCPR in Hong Kong and the submission of reports after 1997. It has taken the view that human rights treaties evolve with territory and that states continue to be bound by obligations under the covenant entered by the predecessor state. The Committee points out that Britain and China have agreed in the Joint Declaration that all the provisions of the covenant as applied to Hong Kong shall remain in force after 1 July 1997. These provisions include reporting obligations under Article 40. As the reporting requirements will continue to apply, the Committee considers that it is competent to receive and review reports that must be submitted in relation to Hong Kong.
The United Kingdom Government has explained to the Chinese Government how it fulfils its obligations and makes its views known to China through the JLG and other diplomatic channels. On how the reporting obligation could be fulfilled after 1997, we will continue to work for a satisfactory resolution of this question with the Chinese Government. On our part we will continue to take the necessary steps to implement the Covenant as applied to Hong Kong.
I now turn to say something about the review of legislation. Every society must update its laws to take into account changing circumstances and developing jurisprudence. New policies or international obligations lead to new legislation. Existing laws need to be updated by the removal of anomalies and obsolete provisions. This does not conflict with the Joint Declaration where it provides that the laws currently in force in Hong Kong will remain basically unchanged. The review of legislation for consistency with the BRO ensures that our laws are consistent with the provision of the ICCPR as applied to Hong Kong.
It is worth restating that both the Joint Declaration and the Basic Law stipulate that the provisions of the ICCPR as applied to Hong Kong shall remain in force and that Article 39 of the Basic Law provides that restrictions on the rights and freedoms enjoyed by Hong Kong residents shall not contravene the ICCPR as applied to Hong Kong. Amendments to laws which ensure consistency with the ICCPR are, therefore, consistent with both the Joint Declaration and the Basic Law. To leave these laws untouched would bring them into conflict with Article 39 of the Basic Law after 1997.
Since 1991, this Council has enacted 36 amending ordinances or orders to bring existing legislation into line with the BRO. The issues involved have been approached with realism and good sense, and with a firm understanding of the need to assess the impact of changes and to strike a balance between the protection of human rights and other needs of society, including law enforcement.
A few Members have asserted that these amendments are detrimental to the effective governance of Hong Kong. Let me put it on the record that the amendments that have been made have not undermined the Government's authority or ability to govern. Our Police Force and other law enforcement agencies continue to exercise their powers effectively. The crime rate in Hong Kong is still one of the lowest among international cities. The removal of restrictions on press freedom and freedom of expression, many of which have never been used or not been used for years, have not prompted our media to forego its high standards of journalism. Rights of assembly and association are not abused. People in Hong Kong have shown that they are well capable of exercising the rights and freedoms provided for in the BRO and the ICCPR in a responsible and civilized manner. It signifies a lack of trust to think otherwise.
All new legislation needs to be interpreted by the courts in order that its application to particular situations can be precisely determined. As time goes by and areas of difficulty are resolved, the effect of new legislation becomes settled. The BRO is not different from other legislation in this respect. BRO challenges have been primarily concerned with provisions of the criminal law which deviate from the principle that it is for the prosecution to prove the accused's guilt beyond reasonable doubt. Through decisions of the Court of Appeal and the Privy Council, the principles applicable to such provisions are now well established. In reaching these decisions, the Judiciary have followed the principle of proportionality which is well-established in international human rights jurisprudence, and in essence this principle allows for the protection of human rights to be balanced against the public interests.
To cite an example, the Court of Appeal in April 1995 confirmed the legality of section 10 of the Prevention of Bribery Ordinance, which makes it an offence for civil servants to maintain a standard of living not commensurate with their income in the absence of a satisfactory explanation. The Court said that the provision was dictated by the inherent difficulties in proving corruption, and goes on further than necessary. The balance is right. Similarly, the Court of Appeal decided in February 1993 to uphold the special investigatory powers of the Securities and Futures Commission under section 33 of the Securities and Futures Commission Ordinance.
Finally, there is of course the well-known case of the Attorney General vs. Lei Kong-kat, 1993, concerning the Drug Trafficking (Recovery of Proceeds) Ordinance where the Privy Council said that in order to maintain the balance between the individual and society as a whole, rigid and inflexible standards should not be imposed on the legislature's attempt to resolve the problems of dealing with serious crime.
These are only examples, but they do demonstrate that the protection of human rights in Hong Kong has contributed to a healthy development of jurisprudence rather than lead to any uncertainty. The PWC's proposals to restore six ordinances to an earlier form would mean the revival of legislation which we have found to be inconsistent with the BRO and therefore with the ICCPR. This would be a retrograde step and would bring the ordinances into conflict with Artcile 39 of the basic Law. In particular the PWC proposals would mean the re-adoption of absolute emergency powers from the 1950s' and 1960's which are unsuited to any situation which could arise in today's society, re-instating executive powers to pre-censure television and radio broadcasts, replacing the system of advance notification of public processions with the old requirement to obtain a licence, removing the right to appeal over the prohibition or imposition of conditions on public meetings or processions, prohibiting once more the use of loud-hailers in processions and restoring the old system of restricting societies.
I will not list all the issues but I will state that we see no need to re-adopt any of these powers nor have we heard any convincing argument why this should be done in respect of these six ordinances.
I share certain Members' concerns about the PWC Legal Subgroup's proposal to repeal the New Territories Land (Exemption) Ordinance and the Legislative Council Commission Ordinance. The New Territories Land (Exemption) Ordinance does not remove the indigenous villagers' rights to dispose of their property in the traditional way if they so wish. It only removes the inhibition for women to inherit land in the New Territories in cases of intestacy. We not consider that contravenes Article 40 of the Basic Law.
As regards the Legislative Council Commission Ordinance, Members all know that the purpose of the Ordinance is to set up a Legislative Council Commission to provide administrative support and services to the Legislative Council Members through the Legislative Council Secretariat, to provide office accommodation to Legislative Council Members and staff of the Legislative Council Secretariat, and to supervise the operation of the Secretariat. This Council needs to have a secretariat to provide administrative support and so will the SAR legislature. Staff of the Legislative Council Secretariat are not civil servants. They are employed by the Legislative Council Commission. The PWC Legal Subgroup's proposal to repeal this Ordinance has created uncertainty over the future of the Secretariat. If it is endorsed, it will seriously affect the morale of the Legislative Council Secretariat staff and undermine the smooth operation of the Secretariat. This will not benefit anyone.
Many Members have spoken of the need to push ahead with the amendment of those remaining laws which are considered to be inconsistent with the BRO. In my Policy Commitments, I have undertaken to monitor the introduction of draft amendments to a further four ordinances: the Marriage Ordinance, the Telecommunication Ordinance, and subsidiary legislation to the Prison Ordinance and the Mental Health Ordinance in this Session. Members will also be aware that we have put proposals to the Chinese in respect of treason and sedition and the Official Secrets Act. Our proposals are fully consistent with the BRO, the ICCPR and the need to ensure the safety and security of the community here in Hong Kong.
Separately we are awaiting the report of the Law Reform Commission relating to the interception of telecommunications and mail. The way forward will be considered in the light of the Commission's recommendations and with due regard to the BRO and the ICCPR.
We will continue to review laws for consistency with the BRO and to take into account developing jurisprudence in this area of law. We will take every opportunity to reflect the concern of this Council and the community, and to explain to the Chinese Government the misconceived nature of the Legal Subgroup's proposals. We will also urge the Chinese side to take full account of Hong Kong's views, including those expressed in this Chamber tonight.
Thank you, Mr President.
PRESIDENT: Mr Albert HO, do you wish to speak? You have five minutes to speak on the amendment.
MR ALBERT HO (in Cantonese): Mr President, I myself and members of the Democratic Party would support the Honourable Miss Christine LOH's amendment. I just want to add a short remark. Currently, the Legal Subgroup of the Preliminary Working Committee (PWC) is proposing to re-instate six ordinances and to repeal a number of others. In fact, the ordinances to be repealed under the proposal are not only the New Territories Land (Exemption) Ordinance and the Legislative Council Commission Ordinance. So, I hope we will support the amendment, as this will serve to remind us that we shall have to face more challenges of the PWC against other laws. In future, in the transition to 1997, more laws may face threats of repeals. I hope, therefore, everyone will bear this in mind. Thank you.
Question on Miss Christine LOHs amendment put.
Voice vote taken.
THE PRESIDENT said he thought the "Ayes" had it.
Miss Christine LOH and Dr Philip WONG claimed a division.
PRESIDENT: Council will proceed to a division.
PRESIDENT: I would like to remind Members that they are now called upon to vote on the question that the amendment moved by Miss Christine LOH be made to Mr Albert HO's motion. Will Members please register their presence by pressing the top button in their voting units and cast their votes by presssing one of the three buttons below?
PRESIDENT: Before I declare the result, Members may wish to check their votes. Are there any queries? The result will now be displayed.
Mr Allen LEE, Mrs Selina CHOW, Mr Martin LEE, Mr SZETO Wah, Mr Edward HO, Mr Ronald ARCULLI, Mrs Miriam LAU, Dr LEONG Che-hung, Mr Albert CHAN, Mr CHEUNG Man-kwong, Mr Frederick FUNG, Mr Michael HO, Dr HUANG Chen-ya, Miss Emily LAU, Mr LEE Wing-tat, Mr Eric LI, Mr Fred LI, Mr Henry TANG, Dr Samuel WONG, Dr YEUNG Sum, Mr Howard YOUNG, Mr WONG Wai-yin, Miss Christine LOH, Mr James TIEN, Mr LEE Cheuk-yan, Mr Andrew CHENG, Mr Anthony CHEUNG, Mr Albert HO, Mr LAU Chin-shek, Dr LAW Cheung-kwok, Mr LAW Chi-kwong, Mr LEUNG Yiu-chung, Mr Bruce LIU, Mr MOK Ying-fan, Miss Margaret NG, Mr SIN Chung-kai, Mr TSANG Kin-shing, Dr John TSE, Mrs Elizabeth WONG and Mr YUM Sin-ling voted for the amendment.
Mr NGAI Shiu-kit, Mr LAU Wong-fat, Mr CHIM Pui-chung, Dr Philip WONG, Mr CHAN Kam-lam, Mr CHAN Wing-chan, Miss CHAN Yuen-han, Mr Paul CHENG, Mr CHENG Yiu-tong, Mr CHOY Kan-pui, Mr David CHU, Mr IP Kwok-him, Mr Ambrose LAU, Mr LO Suk-ching and Mr NGAN Kam-chuen voted against the amendment.
THE PRESIDENT announced that there are 40 votes in favour of the amendment and 15 votes against it. He therefore declared that the amendment was carried.
PRESIDENT: Mr Albert HO, you are now entitled to reply and you have two minutes 25 seconds out of your original 15 minutes.
MR ALBERT HO (in Cantonese): I just want to briefly respond to the two points raised by the Democratic Alliance for Betterment of Hong Kong (DAB) at the debate. First of all, they held that the proposal of the Preliminary Working Committee (PWC) would not have any bearing on human rights but would even recognize the Bill Of Rights Ordinance (BORO). I am really amazed at this viewpoint. It is actually their own wishful thinking and it is but a self-deluding assertion. If that argument holds water, then why should Mr TAM Yiu-chung be encumbered with so much worry that he has to express reservations in the PWC? I believe that even they themselves could not trust their own words.
Secondly, they always stress that law amendment work or review on laws need not to be done at the present moment because they may be left to the future Special Administrative Region (SAR) Government. However, we must not forget that the present practice as suggested by the PWC is for the Standing Committee of the National People's Congress (NPC) to, on the day of handover and by virtue of the power conferred upon by Article 160 of the Basic Law, repeal certain Hong Kong laws that are deemed to be necessary to be repealed (including the BORO) and to reinstate some of the laws that they claim their amended versions are in breach of the Basic Law.
Therefore, it would be much too late if we leave the problem to the SAR Government because by that time, that would be fait accompli and that political choice would no longer exist. Is it not a mirror of their intention to evade that big challenge and to evade the cardinal questions of right and wrong? The Honourable Ambrose LAU mentioned that we did not need the BORO as our protection because many advanced countries also did not have BORO. In fact, I will not dwell on the last point because the last point is not valid at all. In fact, many advanced countries do have legislation on human rights and that is incorporated into their constitution. Not only do these provisions have supremacy, but they are also being constantly and regularly invoked to exercise checks and balances between the executive and the legislature. Furthermore, what harm will it do if more protection is offered by the BORO? If we took the deliberate step to repeal the BORO which is already in place, what does it imply? Therefore, we should not use any pretext to cover up the truth that the Chinese side finds it unacceptable for us to enjoy many human rights. On the contrary, it wants Hong Kong to retrogress to the old colonial era of aristocracy.
Lastly, I have not heard that anyone can point out why it is illegal for the BORO to enjoy supremacy, if any. Does the Basic Law specify that there should be no law that can override other laws? We have to bear in mind that this Ordinance is derived primarily from the Basic Law. I did not hear any argument in this regard. I therefore hope that the Members can support my motion.
Thank you, Mr President.
The digital timer showed 2.25
PRESIDENT: I am obliged to ask you to discontinue your speech.
Question on Mr Albert HO's motion as amended by Miss Christine LOH put.
Voice vote taken.
THE PRESIDENT said he thought the "Ayes" had it.
Dr Philip WONG claimed a division.
PRESIDENT: Council shall proceed to a division.
PRESIDENT: Members may wish to be reminded that they are now called upon to vote on the question that the motion moved by Mr Albert HO as amended by Miss Christine LOH be approved.
PRESIDENT: Will Members please register their presence by pressing the top button in voting their units and cast their votes by selecting one of the three buttons below?
PRESIDENT: Still one short of the head count. Before I declare the result, Members may wish to check their votes. Are there any queries? The result will now be displayed.
Mr Allen LEE, Mrs Selina CHOW, Mr Martin LEE, Mr SZETO Wah, Mr Edward HO, Mr Ronald ARCULLI, Mrs Miriam LAU, Dr LEONG Che-hung, Mr Albert CHAN, Mr CHEUNG Man-kwong, Mr Frederick FUNG, Mr Michael HO, Dr HUANG Chen-ya, Miss Emily LAU, Mr LEE Wing-tat, Mr Eric LI, Mr Fred LI, Mr Henry TANG, Dr Samuel WONG, Dr YEUNG Sum, Mr Howard YOUNG, Mr WONG Wai-yin, Miss Christine LOH, Mr James TIEN, Mr LEE Cheuk-yan, Mr Andrew CHENG, Mr Anthony CHEUNG, Mr Albert HO, Mr LAU Chin-shek, Dr LAW Cheung-kwok, Mr LAW Chi-kwong, Mr LEUNG Yiu-chung, Mr Bruce LIU, Mr MOK Ying-fan, Miss Margaret NG, Mr SIN Chung-kai, Mr TSANG Kin-shing, Dr John TSE, Mrs Elizabeth WONG and Mr YUM Sin-ling voted for the amended motion.
Mr NGAI Shiu-kit, Mr LAU Wong-fat, Mr CHIM Pui-chung, Dr Philip WONG, Mr CHAN Kam-lam, Mr CHAN Wing-chan, Miss CHAN Yuen-han, Mr Paul CHENG, Mr CHENG Yiu-tong, Mr CHOY Kan-pui, Mr David CHU, Mr IP Kwok-him, Mr Ambrose LAU, Mr LO Suk-ching and Mr NGAN Kam-chuen voted against the amended motion.
THE PRESIDENT announced that there were 40 votes in favour of the amended motion and 15 votes against it. He therefore declared that the amended motion was carried.
ADJOURNMENT AND NEXT SITTING
PRESIDENT: In accordance with Standing Orders, I now adjourn the Council until 2.30 pm on Thursday 16 November 1995.
Adjourned accordingly at twenty-six minutes to Twelve o'clock.
Note: The short titles of the Bills/motions listed in the Hansard, with the exception of the Merchant Shipping (Registration) (Amendment) Bill 1995 and Air Passenger Departure Tax (Amendment) Bill 1995 have been translated into Chinese for information and guidance only; they do not have authoritative effect in Chinese.
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THE PRESIDENT -- THE HONOURABLE ANDREW WONG WANG-FAT, O.B.E., J.P.
