LegCo Panel on Constitutional Affairs

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I. Confirmation of Notes of Previous Meeting and Matters Arising

The notes of meeting held on 18 March 1996 (issued vide LegCo Paper No. PL 1145/95-96) were confirmed without amendment.

(Members of the Administration joined the meeting at this point).

Arrangements for staff of the LegCo Secretariat if the Legislative Council Commission Ordinance were repealed

2. As regards the arrangements for staff of the LegCo Secretariat if the Legislative Council Commission Ordinance were repealed, Hon SZETO Wah, Chairman of the meeting, reported that the President had already written to the Secretary General of the Preparatory Committee, as Chairman of the Legislative Council Commission, on the subject matter. The President advised the Panel not to pursue the matter and the Legal Adviser (LA) was asked not to prepare the paper on the subject matter.

Provisional sitting dates of the Legislative Council for 1996/97

(LegCo Paper No. CB(2) 990/95-96)

3. Members noted the paper prepared by the Director of Administration, issued to members on 10 April 1996, on the provisional sitting dates of the LegCo for 1996/97.

4. In response to Mr LEE Wing-tat’s enquiry regarding the LegCo Standing Order No. 5(2), Mr Paul TANG advised that (a) the Governor would appoint the date for the commencement of a LegCo session, which would usually be the date of the first sitting of the session when the Annual Policy Address was delivered; and (b) the Governor would normally only fix the end date towards the end of each session, having regard to the date of the last sitting to be decided by the LegCo President. The Chairman then asked what would be the time requirement to announce the end date of each LegCo session. Mr TANG responded that the normal practice was to notify in the Gazette approximately one week before the end date. He further stressed that it was purely a matter of procedure. In this connection, Ms Emily LAU asked the Administration to provide information, since LegCo had had an elected President, on (a) when the LegCo President had decided the last sitting date of each LegCo session; (b) when the Governor had announced the end date of each LegCo session and (c) the time gap between these two dates. Mr TANG undertook to provide relevant information.

DA

5. In view of the change of sovereignty on 1 July 1997, Mr IP Kwok-him asked whether the Governor could fix the end date of a LegCo session after that date. Mr Nicholas NG reiterated the Government’s stance that the present LegCo was consistent with the provisions of the Joint Declaration and the Basic Law and that there was no reason why it should not be able to straddle 1997. In his view, the issue in question should be considered in this context. In response to Ms Emily LAU’s and Ms Margaret NG’s further queries, Mr Paul TANG said that according to the Government’s legal adviser, the Governor would be able, under the Royal Instructions, to appoint the end date (even if the date might be after 1 July 1997) so long as the Royal Instructions were still effective at the time he appointed the date. Most members expressed disagreement with the argument. LA also disagreed from a legal viewpoint. He drew members’ attention to the Hong Kong Act 1985 which provided clearly that the British Government and Her Majesty should no longer exercise sovereignty over Hong Kong as from 1 July 1997. The appointing by the Governor of an end date of a session of Legislative Council was an exercise of sovereign power by the Governor acting as Her Majesty’s delegate under Clause XX1A of the Royal Instructions. It therefore followed that this sovereign power could not now be exercised to have legal effect after 30 June 1997. He therefore took the view that it would not be legally effective for the Governor to appoint an end date of a LegCo session beyond 1 July 1997. At members’ request, Mr Nicholas NG agreed that the Administration would provide further information in writing to elaborate the Government’s legal position in writing, having regard to members’ and LA’s views expressed at the meeting.

CAB

DA

6. In response to Miss Margaret NG’s question on a related issue, Mr Nicholas NG said that it would be for the future SAR government to decide the transitional formalities with or without a through-train. He would not be in a position to respond.

II. Date and Items for Discussion at the Next Regular Meeting

7. The next regular meeting would be held on Monday, 20 May 1996 at 10:45 a.m. to discuss the review of legislation on disqualification of DB members and the setting up of a system for the removal of members of the three tiers of Representative Government from office.

8. Ms Emily LAU brought up the issue for consideration as to whether there would be a need to revise the register of electors, in light of a possible election in the near future. Mr Nicholas NG responded by saying that following the successful conclusion of the 1994/95 series of elections, the Government had no plan for any large-scale election until the next cycle and thus preparatory work in this regard would not be necessary. As regards the time required to revise the register of electors in accordance with any new electoral arrangements, Mr NG remarked that it would depend on whether there would be any changes to the future electoral system. Reference to past experience might not apply. In light of the Administration’s response, members agreed not to take the issue further.

III. Matters relating to LegCo Members’ tenure of office

(LegCo Paper Nos. PL 971/95-96 and CB(2)1007/95-96)

9. Members noted the Administration’s stance in response to the views of LA on "Matters relating to LegCo Members’ tenure of office". LA stressed that his paper was mainly a question of exploring governmental responsibility, although it was partly expressed in terms of indemnification because members had asked for that point to be covered. He drew members’ attention to the strict legal position on the issue as stated in his paper. As regards the Administration’s responses, he disagreed with (a) the interpretation in para. 2(h) of the Administration’s paper that transition of sovereignty constituted an exceptional circumstance to override the constitutional presumption of a four-year tenure of office of LegCo Members; and (b) the proposition in para. 2(g) that each Member should not presume to serve a term of 4 years in the light of para. 6 of the "Decision of the National People’s Congress on the Method for the Formation of the First Government and the First Legislative Council of the Hong Kong Special Administrative Region" which provided that Members might not continue in office beyond 30 June 1997 in certain circumstances. He took the view that the text and spirit of para. 6 of the Decision together with the 2 year provision for the first SAR LegCo (Art 69) was entirely consistent with the presumption of a four-year term whereas the Administration was now choosing to give it a negative interpretation. According to the provisions of the para. 6, Members of the last Hong Kong LegCo might become Members of the first LegCo in the region so long as its composition was in conformity with the relevant provisions of the aforesaid Decision and the Basic Law simply on the condition that they upheld the Basic Law, pledged allegiance to the SAR government and met the requirements set forth in the Basic Law.

10. LA therefore concluded that the Administration’s stance on the subject was more in the nature of political expediency rather than constitutional analysis. Some members expressed agreement with LA’s views.

11. Mr Nicholas NG said that the Administration’s position on the present LegCo was consistent. He reiterated that given that the current LegCo was elected through open and fair arrangements, there was no reason why it should not be allowed to serve their four-year term up to 1999. However, he cautioned that the main point of the discussion was whether the Government had a responsibility to indemnify incumbent LegCo Members against early termination of their tenure due to loss of office in 1997. According to the Government’s legal adviser, incumbent LegCo Members did not have a legal entitlement to indemnification in this regard given that LegCo Members could not be presumed to have an entitlement to tenure of office for 4 years. It would be up to the court to decide if Members wished to establish a case for such indemnification. He also reminded that Members’ own remuneration was paid for service to the public in recognition of the time and effort they contributed to LegCo business. There was therefore no justification for compensation for loss of office in respect of a period during which they were not holding any office.

12. Miss Margaret NG expressed her dissatisfaction that the Government insisted that Members should be allowed to serve their four-year term on one hand and yet they could not be presumed to have an entitlement to a continuous tenure beyond 30 June 1997. Such contradictory propositions would cause confusion to the public. Ms Emily LAU shared a similar view. In response, Mr Nicholas NG clarified that the Government had not changed its stance on the issue. He maintained that these propositions were two separate issues without contradictions. In this regard, LA remarked that although Members did not have an absolute right to assume a four-year term of office, they had the right to assume such an entitlement other than in exceptional circumstances.

13. Mrs Elizabeth WONG asked the LA to advise the following :

1. whether there was any provision in the Letter Patents and Royal Instructions for the British Hong Kong Government to dissolve the LegCo; and
2. whether it would constitute a breach of the Joint Declaration and the Basic Law if there was no continuity of the LegCo.

In response to the first issue, LA referred to Clause XXVIIIA of the Royal Instructions that the Governor might at any time, by Order published in the Hong Kong Government Gazette, dissolve the LegCo. As regards the latter one, if there was no continuity of the LegCo as envisaged in para. 6 of the aforesaid Decision, LA remarked that it would give rise to a perceived vacuum in the Basic Law regarding provisions for the first Legislative Council of the HKSAR.

14. In response to Mr IP Kwok-him’s enquiry regarding para. 6 of the Decision, LA clarified that to ensure conformity with the relevant provisions of the aforesaid Decision and the Basic Law was the duty of the present Government and was outside the control of the Members of the present LegCo. Members could easily comply with the other requirements (such as to uphold the Basic Law and to pledge allegiance to the SAR government) as specified in para. 6 of the aforesaid Decision. The present Government had a constitutional duty to deliver electoral arrangements that would straddle 1997. If this was not achieved, the Government should not avoid the indemnification issue simply on the grounds that it did not recognise the correctness of the new sovereign’s intended action to abolish Members’ tenure of office. In this regard, Mr IP informed the meeting that members of the Democratic Alliance for the Betterment of Hong Kong recognised the fact that the tenure of office of the present LegCo’s Members should end on 30 June 1997, with or without through-train of the LegCo.

15. Members agreed that the subject should be brought up for discussion at the next Panel meeting. LA agreed to prepare a paper to elaborate his comments for the Administration to address further. Mr NG also undertook to convey members’ request to the Attorney General’s Chambers for the attendance of Government’s legal adviser(s) at the next meeting so as to facilitate future discussion on the subject and on the provisional sitting dates of the LegCo for 1996/97.

LA

CAB

IV. Compensation to Members’ staff on dissolution of the Legislative Council

(LegCo Paper Nos. PL 920/95-96 and PL 1156/95-96)

16. Members agreed to defer this item to the next meeting for discussion.

V. Any Other Business

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

17. Mr Nicholas NG informed that no JLG plenary meeting had been held since early this year. Although meetings of various Expert Groups under JLG had resumed, there was not yet any concrete progress for reporting. Update would be provided in due course.

Issues related to the formation of the first SAR Government and co-operation with the Preparatory Committee

18. Members noted that a list of issues prepared by the Secretary General of the Preparatory Committee requesting the Hong Kong Government’s co-operation had been formally submitted to the Liaison Office of the Constitutional Affairs Branch. In response to the Chairman’s enquiry, Mr Nicholas NG confirmed that the list, which had been submitted from the Secretariat of the Preparatory Committee to the Liaison Office in early April, was under careful consideration. Clarification in certain areas needed to be sought from the Preparatory Committee and a decision had not been made. He was therefore unable to disclose detailed information about the list at the present stage and he undertook to report to the Panel once the Government had formulated its stance on the matter. Nevertheless, he advised members that assistance had already been offered regarding issue of visas to enable meetings of some Sub-Groups to be held in Hong Kong. Executives of the Hong Kong Monetary Authority would also attend the meeting of the Economic Sub-Group to explain the proposed arrangements of the Mortgage Corporation.

19. Mr LEE Wing-tat asked whether the Government would accede to requests relating to assistance to the provisional legislature which were reported to be included in the list. Mr Nicholas NG said that he was not able to confirm whether such specific requests had been included in the list or not. However, he reiterated that the stance of the British and Hong Kong Governments towards the provisional legislature was very clear. He assured that the Government would not take any action which would undermine the position of the present LegCo. In this regard, Mr LEE took the view that the Government should not offer any assistance to the provisional legislature in light of the known stance of the British and Hong Kong Governments. As regards Mr LEE’s further enquiry on whether the Government would render assistance to the provisional legislature on its own initiative or upon the request of the Preparatory Committee or the provisional legislature itself, Mr NG restated the Administration’s position on the provisional legislature and refused to be drawn on any hypothetical question.

20. There being no other business, the meeting ended at 12:50 p.m..

LegCo Secretariat
16 May 1996