LegCo Paper No. CB(2) 1841/95-96
(These minutes have been seen by the Administration)

Ref : CB2/PL/CA

LegCo Panel on Constitutional Affairs

Minutes of Meeting held on Monday, 24 June 1996 at 4:30 p.m. in the Chamber of the Legislative Council Building

Members Present:
    Hon James TIEN, OBE, JP (Chairman)
    Hon SZETO Wah (Deputy Chairman)
    Hon CHEUNG Man-kwong
    Hon Emily LAU Wai-hing
    Hon LEE Wing-tat
    Hon James TO Kun-sun
    Dr Hon YEUNG Sum
    Hon David CHU Yu-lin
    Hon IP Kwok-him
    Hon Bruce LIU Sing-lee
    Hon Margaret NG
Members Absent:
    AbsentHon Allen LEE Peng-fei, CBE, JP*
    Hon Ronald Arculli, OBE, JP*
    Dr Hon Philip WONG Yu-hong*
    Hon Christine LOH Kung-wai*
    Hon Ambrose LAU Hon-chuen, JP-out of town*
Public Officers Attending:
    Mr Nicholas NG, JP
    Secretary for Constitutional Affairs

    Mr Clement C H MAK
    Deputy Secretary for Constitutional Affairs

    Mr NG Sek-hon
    Deputy Secretary for Constitutional Affairs

    Ms Venner CHEUNG
    Chief Electoral Officer, Registration and Electoral Office
Staff in Attendance:
    Mr Jonathan Daw
    Legal Adviser

    Mrs Betty LEUNG
Clerk to the Panel
Chief Assistant Secretary (2)3

Miss Flora TAI
Senior Assistant Secretary (2)3

I. Confirmation of Minutes of Previous Meeting and Matters Arising

The minutes of the meeting held on 20 May 1996 (issued vide LegCo Paper No. CB(2) 1651/95-96 on 22 June 1996) were confirmed without amendment. |

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

LegCo Members' tenure of office

(LegCo Paper No. CB(2) 1637/95-96)

2.Members noted the letter dated 18 June 1996 from the Secretary for Constitutional Affairs, which attached the following information papers in response to members' requests at the last Panel meeting:
  1. written comments of the Crown Solicitor on the question of LegCo Members' tenure of office; and

  2. public statements which had been made by the Administration on LegCo Members' tenure of office.
3.Mr Nicholas NG reiterated that the Administration's position on LegCo Members' tenure of office was clear and consistent. Ms Emily LAU held the view that the British and Hong Kong Governments should have spent more efforts than they had so far to press for the continuation of the present LegCo after 1997 since they insisted that the present LegCo should be allowed to serve its full four-year term. In this connection, Mr NG maintained that although the ultimate decision was out of their control, the two Governments would strive for the continuation of the present LegCo after 1997 and in fact had striven to do so on various available occasions, even after failure to reach a consensus with the Chinese side on the subject after seventeen rounds of negotiation. He stressed that the Administration could not accept any allegation that the two Governments had made no effort to fight for the continuation of the present LegCo.

Proposed provisional legislature

(LegCo Paper No. CB(2) 1629/95-96)

4.Legal Adviser (LA) had set out in the paper his views about the legal and constitutional aspects of the proposed provisional legislature if it were to function before 1 July 1997, and the principle of upholding the certainty of the lawful source of legislation in Hong Kong. LA pointed out that paragraph 3 was based upon the principles of expression as provided for in the Bill of Rights Ordinance.

5.Members noted that the paper had been sent to the Administration for comment. At the invitation of the Chairman, Mr Nicholas NG made the following general observations:
  1. The electoral arrangements for the 1995 LegCo elections were open, fair and fully consistent with the Joint Declaration and the Basic Law. The present LegCo, as the only legislature with express legal basis and in compliance with constitutional arrangements before 1 July 1997, should be capable of transcending 1997. The Administration was committed to co-operate with the present LegCo; and

  2. There was no need to establish any provisional legislature which would cause confusion, and would not be conducive to a smooth transition. The Chinese Government would have to explain why and how it was compatible with the provisions of the Joint Declaration and the Basic Law.
He informed the meeting that the Administration would provide further response to the views expressed in the paper upon receipt of formal legal advice from the Legal Department. In this connection, Mr LEE Wing-tat requested the Administration to include a specific response on whether the Hong Kong Government would seek to prevent any breach of the Constitutional Instruments (as referred in para. 2(6) of LA's paper) in the Hong Kong courts by way of injunction.Adm
Adm


6.Miss Margaret NG and Mr Bruce LIU asked the Administration to seek advice from the China Law Unit of the Legal Department about the legality of the proposed provisional legislature within the context of Chinese law. Mr Nicholas NG stressed that it would not be appropriate for the Administration to explain or to clarify for China the legal basis for the proposed provisional legislature.

7.In response to Mr Lee Wing-tat's enquiry, LA confirmed that it would be difficult to institute and apply legal proceedings successfully in Hong Kong if the business in contravention of Constitutional Instruments was transacted outside Hong Kong, and that evidential difficulties would still exist even if the person(s) involved in such act returned to Hong Kong. LA further cautioned the meeting that it would be difficult now to give definite answers since this type of court proceedings would involve many other factors.

8.Ms Emily LAU sought LA's advice as to whether the principle as laid down in his paper in respect of the LegCo function for passing bills would apply to other LegCo functions such as controlling public funding and monitoring Government activities too. LA responded that the principle could apply to those functions of the LegCo for which lawful authority was clearly entrusted to the LegCo, such as its formal functions under the Public Finance Ordinance and other formal statutory functions. As to other monitoring functions such as the asking of questions and the passing of non-binding motions, they would be unlikely to form the basis of a successful injunction application, in LA's view.

9.In response to Ms Emily LAU's further enquiry, LA pointed out that name of a body could be an important factor for the court when deciding whether its activities were usurping or infringing the lawful and constitutional functions of the LegCo. Yet, it remained a matter of balance between the form and the substance and the latter could be reflected by its actual acts. DrEUNG Sum asked and LA commented that the location where the body transacted its business was also an important factor. LA supplemented that it would be strong support for a body's claim that its acts did not mean to have any effect on the Hong Kong community, if it transacted business outside Hong Kong.

10.Mr Bruce LIU asked and LA reiterated that even if the body purported to pass legislation which was not to take effect until or after 1 July 1997, it still had to be very careful in its procedures to avoid breaching the fundamental principle of certainty of the source of legislation, which was provided for through constitutional documents. Mr LIU then asked and LA pointed out that it might be possible to avoid breaching the constitutional documents if a body only discussed and reached consensus in certain areas and did not purport to put forward any legislative proposals.

11.Mr SZETO Wah asked whether preparatory work in Hong Kong for the establishment of the proposed provisional legislature could be prevented by way of injunction in the light that it was in breach of the constitutional documents. LA cautioned that his analysis had been based on the functions and activities of the body which might be set up. In his view, preparatory work for formation of such a body would be unlikely to provide sufficient evidence to found an injunction action. It was difficult in this area to draw parallels with acts preparatory to the commission of offences, as Mr SZETO Wah had suggested, because for the latter the guidance of statutory and case law authority dealt with principles of criminal laws.

12.Mr IP Kwok-him held a different view and said that the proposed provisional legislature was a body to be set up under China's political structure. If the principle as laid down in the paper applied, he queried whether it was lawful for the present LegCo to discuss post-1 July 1997 issues. LA responded that an action taken by the LegCo which purported to rely on a legal authority which would not be valid after 30 June 1997 could be considered ultra vires. But the action of the present LegCo in passing new legislation which could continue after 30 June 1997 was entirely within its powers, and the Court of Final Appeal Ordinance was an example.

II. Date of Next Meeting and Items for Discussion

13. The next regular meeting would be held on Monday, 15 July 1996 to discuss the following regular items :
    - progress of work of the Joint Liaison Group; and

    - issues related to the formation of the first Hong Kong Special Administration Region (SAR) Government and co-operation with the Preparatory Committee.
14. At the request of the Administration, the Chairman suggested and theeeting agreed that item 4 of the agenda should be discussed in advance of item 3 to enable Mr Nicholas NG to leave at about 5:30 p.m. for another meeting.

III. Any other business

Progress of work of the Joint Liaison Group (JLG)


(LegCo Paper No. CB(2) 1653/95-96)

15. The Constitutional Affairs Branch's paper entitled 鎽LG XXXVI : Achievements" had been issued to members vide LegCo Paper No. CB(2) 1653/95-96. Mr Nicholas NG also informed the meeting of the following :
  1. The British and Chinese Governments had agreed to hold more expert talks and to speed up discussion at the JLG with a view to completing as much business on its agenda as possible before 1獱uly 1997;

  2. There might be agreement on a number of complicated and long-standing issues such as the right of abode; and

  3. Two more plenary meetings would be held by the end of 1996 and several expert talks within the next one to two months.
16. Ms Emily LAU expressed grave concern on the slow progress of the JLG. At her suggestion, members asked and Mr Nicholas NG agreed to provide a full list of issues on the JLG's agenda, setting out (a) those on which decisions were made (with dates of decision); (b) those pending or under discussion (with expected date for reaching consensus); and (c) those not expected to be resolved before 1 July 1997. Members also requested that the list should be updated each month subsequently for their information even though there were no changes. In this connection, Mr NG explained that issues which appeared to be difficult to resolve before 1 July 1997 would not be shelved, because although priority would be accorded to those issues which needed to be resolved before 1 July 1997, such as localization of laws, the Administration would continue to pursue other outstanding issues.Adm


17. Mr CHEUNG Man-kwong expressed concern about the governance of the conduct of Chinese army in Hong Kong, which would fall within the jurisdiction of martial court only according to existing rules. He asked whether the Administration would raise the issue for informal expert talks on the legal framework and insist that their conduct outside their camps should be handled by local courts, as that of the British army, in order to uphold Hong Kong's judicial power. Although the issue was under the purview of the Security Branch, Mr Nicholas NG explained that the concern of the Hong Kong Government and the community had been raised with the Chinese side which in response agreed to hold informal expert talks on the matter. He assured members that views of the community would be relayed to the Chinese side in full.

18. Mr SZETO Wah asked whether some outstanding issues after 1獱uly 1997 would be matters between the Central Government and the Hong Kong SAR Government only. Mr Nicholas NG advised that according to the Basic Law and Joint Declaration, the Hong Kong SAR Government enjoyed a high degree of autonomy except for national defence and foreign affairs. However, endorsement of the Central People's Government was required on a number of issues. He could not tell which issues under the purview of the JLG would remain after 1 July 1997.

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

19.Mr Nicholas NG informed members that the Economic Sub-group of the Preparatory Committee had requested the Administration to send a representative to brief the meeting on the Western Corridor Project. He stressed that the Administration had made known to the Chinese side clearly its willingness to give such a briefing. Regrettably, the responsible official was unable to attend the scheduled meeting. The Administration had undertaken to send its representative to attend the next meeting of the Economic Sub-group if so requested. He strongly pointed out that any allegation that the Administration was not willing to provide information on the Western Corridor Project was factually incorrect.

IV. Computerized Voting and Counting System of the Registration and Electoral Office

(LegCo Paper No. CB(2) 1331/95-96)

20.The Consultancy Report on Computerized Voting and Counting System had been issued to members on 20 May 1996. Mr NG Sek-hon said that the study covered the viability and scope of and options for computerized voting and counting system in Hong Kong. It was commissioned by the Registration and Electoral Office (REO), in response to the suggestion made by the Boundary and Election Commission in 1994. The report was being examined by the Administration in conjunction with the Boundary and Election Commission and no decision had yet been taken on the recommendation of the report.

21.Ms Venner CHEUNG then briefed members on the details of the report. Members noted that an optical scan system was recommended, there were analysis of strengths and weaknesses of three options identified (including an interactive voice response system and a direct recording electronic devices), and the analysis of the possible recurring and non-recurring costs.

22. Mr CHEUNG Man-kwong referred to the experience of the 1995 LegCo Elections and said that it was very time-consuming to transport ballot papers from individual polling stations to the central counting station for the count. He then referred to the voting and counting system in Taiwan where counting was conducted at individual polling station and results transmitted to a central station electronically. He said it was a very efficient and quick system and might be a good model for Hong Kong. Ms Emily LAU and Dr YEUNG Sum agreed that it could be a good model. Mr NG Sek-on said that the model could be considered.

23.Mr Bruce LIU asked whether the optional scan system could be used for a proportional representation voting system. Ms CHEUNG said that the optical scan system was viable for a system similar to that adopted for election of the Election Committee Constituency in 1995.

24.Mr LEE Wing-tat supported the adoption of an optical scan system. He also urged the Administration to consider the virtual polling station concept since the convenience it offered would encourage more people to vote. Ms CHEUNG said that questions such as verification of voter's eligibility, preventing of multi-voting etc. would have to be considered, and the capital cost involved would be very huge. The consultant was therefore unable to recommend this at the present stage. Mr NG Sek-on supplemented that the concept might be considered again if its viability increased due to technological development.

25.In reply to Ms Emily LAU, Ms CHEUNG said that the total cost for consultancy study was $2.67 million. In the case of the recommended option, there would be savings of about $3.6 - $3.7 million in costs of counting staff. However, there would be quite substantial extra capital, operational and maintenance cost for the system. The estimated time for vote counting for the recommended option would be 5 hours, compared with 13 hours used in the 1995 LegCo Elections. Ms CHEUNG added that further studies including detailed system design and pilot tests would have to be conducted before the Administration would be in a better position to make a decision on the matter.

26.Mr IP Kwok-him referred to the experience of the election for the Election Committee Constituency held in 1995 which had taken about four to five hours to complete the count. He queried whether the recommended option would save time as estimated in the light that the count was complicated and the validity of each ballot paper needed to be determined. Ms蟖HEUNG explained that this would be considered when further studies were conducted. Mr IP further asked whether the proposed new system would be put on the agenda of the JLG. Mr NG Sek-on responded that given the long lead time to complete the proposed system, it would not be able to be implemented before 1 July 1997.

27.Members noted that the Administration would discuss with the Boundary and Election Commission on the report and there was no timetable for the further studies or the implementation of the recommended option yet. Mr NG Sek-on undertook to revert to members if there was concrete progress on the matter.Adm


28. There being no other business, the meeting ended at 6:30 p.m..

LegCo Secretariat
6 July 1996

*. other commitments

Last Updated on 13 Aug, 1998