Action Column

I.Confirmation of Minutes of Previous Meeting and Matters Arising

The minutes of the meeting held on 15 April 1996 (issued vide LegCo Paper No. CB(2) 1303/95-96 on 16 May 1996) were confirmed without amendment.

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

Provisional sitting dates of the Legislative Council for 1996/97

(LegCo Paper Nos. CB(2) 990/95-96 and CB(2) 1319/95-96)

2. In response to members' request at the last meeting, the Director of Administration had prepared a paper (attached to letter dated 15 May 1996 from the Secretary for Constitutional Affairs to the Clerk and issued to members vide LegCo Paper No. CB(2) 1319/95-96) setting out the position of the Administration on the provisional sitting dates of the LegCo for 1996/97. Legal Adviser asked and Mr Ian Wingfield confirmed that in his view it was not unlawful although it might be inappropriate for the Governor to appoint a post 1 July 1997 date for the 1996/97 LegCo session from the constitutional point of view. Legal Adviser remained of the view that the Governor did not have lawful power to so act. Mr Nicholas NG stressed that it was the usual practice for the Governor to take account of the last sitting date determined by the LegCo President when appointing the end date of a LegCo session and the latter was usually fixed shortly before the last sitting date of that session. There was no reason to depart from this practice in appointing the end date of the 1996/97 session.

3. Ms Emily LAU asked and Mr Richard Hoare confirmed that LegCo Panels and Committees could hold meetings even after the end date of the LegCo session for 1996/97 under LegCo Standing Orders. Dr YEUNG Sum then enquired about the Administration’s stance if the LegCo Panels and Committees were to hold meetings after that date. Mr Hoare said that it was the normal practice for the Administration’s representatives to attend such meetings on invitation. In response to Dr YEUNG’s further enquiry about the legality of such meetings after 30 June 1996, Legal Adviser (LA) explained that the legal personality of the present LegCo, as constituted under the Letters Patent and Royal Instructions, would change at the stroke of midnight after 30 June 1997. The LegCo on 1 July 1997 would be the legislature constituted by virtue of the Basic Law. There would be no legal status residing in any Committee or Panel of the present LegCo or of its Members, unless conferred by new and effective legal provisions. He added that such a lapse of strict legal status was an entirely different matter from the constitutional presumption for a full four-year term of the LegCo Members and the constitutional duty of the present Government.

4. The Chairman asked and LA confirmed that the functions and activities of the LegCo would cease to have legal basis after 30 June 1997 consequent upon the lapse of sovereignty provided for in the Hong Kong Act 1985. He therefore disagreed with the Administration’s legal advice that there was no legal constraint upon the Governor to fix an end date of 1996/97 LegCo session beyond 30 June 1997. He pointed out that the act of fixing the end date for a LegCo session was in fact an exercise of sovereignty and the Hong Kong Act 1985 clearly provided that the Queen would no longer have jurisdiction over Hong Kong after 30 June 1997.

5. Mr Ronald Arculli remarked that if the Government accepted the LA’s view that the present LegCo would end on 1 July 1997, there would be no question of “derailment"of the present LegCo. Ms Emily LAU then sought views from LA and Mr Wingfield as to whether another piece of legislation would be needed for the continuation of the present LegCo beyond 1 July 1997 or whether the Basic Law had already provided for such continuation. Mr Wingfield responded that the Basic Law was subject to the interpretation of the National People’s Congress of the People’s Republic of China and he did not think that enactment of any legislation by the present LegCo could affect the position. LA also agreed with Mr Wingfield’s views. He pointed out that no domestic legislature nor the act of the outgoing sovereign power could affect the position. Ms LAU remarked that preparation work had to be done if legislation was needed for the present legislature to be in office on 1 July 1997. Mr Nicholas NG said that this was a matter for the Chinese side and that the Preparatory Committee, which was responsible for preparing the establishment of the Special Administrative Region (SAR), was an obvious forum for such issue to be raised if there was concern about the continuation of the legislature.

II.Date of Next Meeting and Items for Discussion

6. Since the next regular meeting, scheduled for 17 June 1996, fell on a public holiday, the Chairman had suggested (LegCo Paper No. CB(2) 1300/95-96 referred) and members agreed to re-schedule it for Monday, 24 June 1996.

7. Members noted the Consultancy Report on Computerised Voting and Counting System from the Secretary for Constitutional Affairs, tabled vide LegCo Paper No. CB(2) 1331/95-96. Members agreed it would be an item for discussion at the next meeting.

III.Matters relating to LegCo Members' Tenure of Office

(Ref. : LegCo Paper No. PL 971/95-96, LegCo Paper No. CB(2) 1007/95-96 and LegCo Paper No. CB(2) 1284/95-96)

8. Dr YEUNG Sum asked whether Government had a duty to preserve a full four-year term for LegCo Members. Mr Nicholas NG replied that although incumbent LegCo Members did not have a legal entitlement to indemnification against early termination of their tenure in 1997, it was a separate issue as to whether incumbent LegCo Members should or should not be allowed to serve their four-year term. The Government’s stance had always been clear and consistent. Regrettably, the British and the Chinese Governments had failed to reach a consensus on the subject after seventeen rounds of negotiation. However, he assured members that the British and Hong Kong Governments would continue with their effort to press for the continuation of the present LegCo after 1997, although the ultimate decision rested with China.

9. Mr Wingfield said that he agreed with the LA that there was no legal entitlement to a four-year term and therefore any right to a four-year term was based upon political rather than legal considerations. He then referred to the LA’s comments on the Administration’s reply and made the following observations:

(a) constitutional convention were of an evolutionary nature dependent for their enforcement on political pressure and not on supervision by the courts. A convention may lose its force due to a major change in circumstances which could justify departure from past conventional practice. By analysing the constitutional and legislative context a new practice could be adopted. The change of sovereignty and its underlying constitutional instruments constituted a major change in circumstances which could displace the convention of a four-year term.

(b) Article 69 of the Basic Law would facilitate the arrangement at 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 SAR"for a four-year term of LegCo’s Members' Tenure of office. However, it did not impose an obligation for a four-year term.

(c) The LA had conceded that the failure to reach an agreement between the outgoing and incoming sovereign powers, as to the conformity of the last LegCo before 1997 with the relevant provisions of the Basic Law regarding the composition of the first LegCo SAR, could displace the presumption of a four-year term; and that was the situation now faced.

(d) Compensation normally arose when a person’s term of office was terminated under a collateral contract of employment, since the contract usually provided for compensation if it was terminated prematurely. In view of the fact that LegCo Members did not have a contract of employment, any presumption of an entitlement to a four-year term did not logically lead to an entitlement to compensation.

10. Miss Margaret NG sought clarification whether it was the view of the Government’s legal adviser that legal entitlement to tenure of office and a collateral contract of employment were two separate issues and the question of compensation could not arise without the latter. Mr Wingfield responded that if there was no legal entitlement for a four-year term of office, the question of compensation could hardly arise. Compensation for loss of office would usually arise as a result of collateral contract of employment.

11. Miss Margaret NG referred to the legal basis given by the Secretary for Constitutional Affairs, at the Panel meeting on 15 January 1996, for through-train of LegCo membership, which were: (a) Members had been elected to a term of four years according to the Hong Kong laws and (b) the Basic Law provided for continuity of the relevant Hong Kong laws except for those in contravention with the Basic Law. She queried whether the Secretary for Constitutional Affairs was justified to maintain the Administration’s position, in the light of changing sovereignty. Mr Nicholas NG said that it was difficult for him to make a response unless more information about what he was being quoted was made available. Nevertheless, he stressed that the Administration’s stance regarding the LegCo Members' Tenure of office remained unchanged.

12. Miss Margaret NG further asked whether the Adminstration still maintained its position about LegCo membership. Mr NG reiterated that the Administration’s position on LegCo Members' Tenure of office was clear and consistent and had been made known on numerous occasions. The current LegCo had been elected through open and fair arrangements which were fully consistent with the Joint Declaration and the Basic Law. The normal term for LegCo Members was four years and there was no reason why they should not be allowed to serve their usual term beyond 1997. However, it was for the Chinese side to explain to the community if it were to change the present arrangement.

13. Mr CHEUNG Man-kwong referred to para. 3 of the letter dated 12 April 1996 from the Secretary for Constitutional Affairs and remarked that the British and Hong Kong Governments were hypocritical. He criticised the two Governments for making no effort to fight for the continuity of the current LegCo even though they claimed to believe that it should be allowed to serve its full four-year term. Ms Emily LAU and Miss CHAN Yuen-han also shared his sentiment. Ms LAU asked the Administration to explain what had been done to fight for a four-year term for the LegCo Members. Mr Nicholas NG pointed out that the British Government had been actively pressing for a four-year term for LegCo Members in the Joint Liaison Group and in talks between the British and Chinese Governments.

14. In response to Miss CHAN Yuen han’s enquiry about the Government’s responsibility for compensation, LA remarked that the issue should be examined in term of constitutional duty which fell on the executive in the light that the legislature could not negotiate with any other party. He emphasised that although there might not be a legal case to take the Government to court, members of the legislature could reasonably hold the Government accountable on the basis of what its proper constitutional duty should be.

15. Dr YEUNG Sum queried whether there was any contradiction between the Government insisting that LegCo Members should be allowed to serve their four-year term on one hand and yet stating that they could not be presumed to have an entitlement to a continuous tenure beyond 30 June 1997 (in the light that the Royal Instructions and Letters Patent would lapse after that date) on the other hand. Mr Nicholas NG maintained that these were two separate issues without contradictions.

16. Mr LEE Wing-tat referred to para. 6 of the LA’s paper dated 10 May 1996 and queried whether there was a legal stipulation in the Electoral Provisions Ordinance (Cap. 367) that LegCo Members should hold office for four years. Mr Nicholas NG pointed out that a normal term of four years was inferred from various electoral legislation in the context of the Royal Instructions and the Letters Patent. No provision in the relevant electoral legislation had specifically provided for a four-year term for LegCo Members' Tenure of office. The electoral legislation only stipulated that an ordinary election should be held in a specified year and in each succeeding fourth year after an ordinary election was held. The Governor had powers to vary the term of office under the Royal Instructions and Letter Patents. In this connection, Mr SZETO Wah queried why incumbent LegCo Members could not hold office for the full four-year term in view of the Governor’s undertaking at Governor’s Question Time not to dissolve the LegCo. Mr NG reiterated that it was the Government’s wish for the current LegCo Members to continue to serve up to its usual full-term of four years although the ultimate decision rested with China.

17. In response to Mr LEE Wing-tat’s enquiry, LA explained that the reference to four-year term in the Royal Instructions could be interpreted as the provision of maximum term. However, there was no doubt that four-years was the established term for the LegCo even if the Electoral Ordinance was interpreted in the existing context, together with the Basic Law which was promulgated in 1990. It was ultimately a matter of perception. He stressed that his paper highlighted the relevant constitutional principles set in the context of the domestic legal provisions.

18. Mr Ronald Arculli asked whether the Government knew that the present LegCo would not be able to straddle 1997 under the existing constitutional framework, if there was no agreement with the Chinese Government. If that was the case, he queried why LegCo Members and the community of Hong Kong had not been told accordingly. Mr Nicholas NG responded that the Governor, the then Secretary for Constitutional Affairs and himself had clearly stated the Government’s stance at previous LegCo Sittings or LegCo Panel’s meetings in the past. It had always been the Government’s wish for the present LegCo to straddle 1997 although it would ultimately depend on the Chinese Government whether the incumbent LegCo Members could have a “through train"

Adm

19. In view of the fact that no agreement could be reached between British and Chinese Governments after 17 rounds of negotiations, Mr CHAN Kam-lam was of the view that the Government should not maintain that the term of the incumbent LegCo Members should be four years, and it should have clearly and publicly stated that the incumbent LegCo Members could only serve up to 30 June 1997, so as to avoid any misconception.

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

(LegCo Paper No. AS 183/95-96)

20. Miss Margaret NG reiterated that the matter was brought up to explore the governmental responsibility to ensure a full four-year term of office for the LegCo Members' Tenure of office and to ascertain the legal basis given by the Secretary for Constitutional Affairs to maintain that the term of the incumbent LegCo Members was four years. Indemnification was discussed with a view to protecting the interests of Members'assistants if the present LegCo were disbanded in 1997. She also emphasised that she personally was not interested in compensation. Her sentiment was shared by some other members at the meeting.

21. In response to Ms Emily LAU’s enquiry, Mr Hoare referred to paragraphs 18 - 21 of the Commission’s Report (issued vide LegCo Paper No. AS 183/95-96) and confirmed that Members would be entitled to a winding up allowance if the present LegCo were disbanded. The Commission agreed to review the sufficiency of the current upper limit of the winding up allowance, i.e. $180,000, upon receipt of further information from the LegCo Sub-Committee on Review of Allowances for Members of the LegCo (LegCo Sub-Committee). The Chairman asked and Mr Hoare confirmed that the Commission’s Report and the financial implications of the Commission’s proposals had been endorsed by the Executive Council and the Finance Committee respectively.

22. Ms Emily LAU referred to para. 24 of the Commission’s Report and sought clarification on the position regarding underwriting all the financial liabilities incurred by LegCo Members in the event of LegCo dissolution after 30 June 1997, particularly when the upper limit of winding up allowance was exceeded. Mr Hoare said that this proposal went beyond the recommendations so far made by the Commission and endorsed by the Government. He informed the meeting that the Commission was open to views put forward by the LegCo Sub-Committee and endorsed by the House Committee.

23. Dr YEUNG Sum enquired about the basis for calculating the amount of compensation for Members' staff. He asked whether Members' staff were to be compensated for loss of salary income due to Members' Term of office being curtailed on 1 July 1997. Mr Hoare responded that winding up allowance for Members'commitments in the event of dissolution of LegCo was a separate issue, totally unrelated to the issue regarding the LegCo Members' Tenure of office. Dr YEUNG further asked whether the compensation made was in the form of severance payment or was for the early termination of an employment contract. In this regard, Mr Hoare said that the existing policy was clear that the nature of the winding up allowance was to cover the event of dissolution and other eventualities. However, views from the LegCo Sub-Committee through the House Committee were welcome.

(Messrs Richard Hoare, Ian Wingfield and Paul TANG left the meeting.)

V.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

24. The Chairman invited members to speak about the areas of concern for the Administration to address. Mr LEE Wing-tat informed the meeting that the issue was initially brought up by Hon Andrew WONG, as the then Chairman of the LegCo Panel on Constitutional Affairs in the 1994/95 LegCo session, arising from a few complaints about the poor attendance rate of DB members. In response to Mr SZETO Wah’s enquiry, Mr Nicholas NG explained that provisions of the relevant legislation had provided for disqualification of members of the three-tiers representative government on the ground of poor attendance. He undertook to check how this kind of provisions was actually enforced. In this connection, the Chairman suggested and Mr LEE agreed to identify more areas of concern for the issue to be taken further.

Adm

Adm
Hon LEE
Wing-tat

VI.Any other business

Progress of work of the Joint Liaison Group (JLG)

25. Mr Nicholas NG informed members that the next JLG plenary meeting would be held in June 1996 and any progress might be reported at the next meeting.

26. Ms Emily LAU asked whether the Government would bring up the issue of mutual legal assistance between Hong Kong and China for discussion at the next JLG plenary meeting. Mr Nicholas NG responded that the issue was one of the major concerns of the Government. The Government had striven to engage the Chinese side in the past years to discuss the arrangements for mutual legal assistance after 1997. However, no concrete progress had been made. Since the matter was of great importance to the business and legal sectors, these sectors as well as LegCo Members were encouraged to voice their concerns and make known their views to the Chinese side.

27. As regards adaptation of laws, Ms Emily LAU referred to media reporting about the Chinese side’s plan to amend twenty-six pieces of local legislation which were considered to contravene the Basic Law, and which included the six amendment ordinances which had been recommended for amendment or repeal by the former Preliminary Working Committee’s Legal Sub-group. Mr Nicholas NG said that the Chinese side had provided a briefing at an informal meeting about such proposal. Clarifications had also been sought on a few points, but no further development had occurred.

28. Mr SZETO Wah referred to the provision of the Basic Law which provided for continuity of the laws previously in force in Hong Kong except for any that contravened the Basic Law, and enquired about the Administration’s stance if the Chinese side sought to amend those laws which did not contravene the Basic Law. Mr Nicholas NG said that the Government had only been informed of the scope of the legislation which might need amendment or repeal. No details were available.

29. Ms Emily LAU sought confirmation whether the Administration’s stance against amending or repealing of these six amendment ordinances would be made known to the Chinese side when the matter was being discussed. Mr Nicholas NG responded that the Administration’s stance on the matter was clear. Mr LEE Wing-tat remarked that the Administration should not provide assistance to the Provisional Legislature in any preparatory work relating to amending or repealing these laws, whether directly or indirectly.

Issues related to the formation of the first SAR Government and cooperation with the Preparatory Committee

(LegCo Paper No. CB(2) 1202/95-96)

30. Mr Nicholas NG drew members'attention to the two speaking notes which the Chief Secretary had used on matters related to the Preparatory Committee which had been issued vide LegCo Paper No. CB(2) 1202/95-96. The Government’s preliminary response on the list of requests for co-operation from the Preparatory Committee had been clearly set out and the Chief Secretary had also addressed the issue at the LegCo sitting on 1 May 1996. Mr NG advised that the Secretary for Economic Services was scheduled to give a briefing to the Economic Sub-Group to explain the financial arrangements and construction of the second runway of the New Airport. Members noted that a similar briefing would also be arranged for LegCo.

31. As regards the Preparatory Committee’s request in relation to administrative regulations, Mr Nicholas NG advised that a copy of the Civil Service Regulations and Financial and Accounting Regulations had been made available to the Chinese side. Information on the current structure of the Government Secretariat had also been provided. Mr NG reiterated that the Administration would meet with the Preparatory Committee’s requests positively and constructively, as far as practicable.

32. Ms Emily LAU asked and Mr Nicholas NG reiterated that dealings with the Preparatory Committee would be based on the principles of openness and transparency. With reference to the Administration’s responses to other requests on the list, Mr NG said that apart from those just mentioned, no action had been taken in respect of other requests, since the Administration had to seek clarification with the Preparatory Committee.

33. As regards provision of air time on Radio Television Hong Kong (RTHK) for the Preparatory Committee, Mr LEE Wing-tat asked whether the Administration had formulated its stance. Mr Nicholas NG stressed that no response could be made until the Administration had clarified with the Preparatory Committee about what they actually would want. However, he reaffirmed that upholding the editorial independence of RTHK would be the principled position of the Administration.

34. Mr CHEUNG Man-kwong referred to the Royal Instructions which provided for the holding of an election for a new LegCo within three months after dissolution of the LegCo. He queried whether the election to be held before 1 July 1997 for the provisional legislature and whether the provisional legislature itself would be unlawful and whether the Government would take action against them. Mr Nicholas NG said that it would be difficult for him to answer a hypothetical question. However, he drew members'attention to paragraphs 1 to 5 of the speaking note on the provisional legislature (attached to the letter dated 2 May 1996 from the Secretary for Constitutional Affairs to the Chairman) which had clearly set out the Administration’s stance towards the provisional legislature. He reminded that it had been reaffirmed, during the recent meeting between Vice Premier QIAN Qichen and the British Foreign Secretary at the Hague, that there would not be co-existence of two legislatures. Mr CHEUNG maintained that it remained an important issue whether the Administration would enforce relevant provisions of the Letters Patent and Royal Instructions if the Selection Committee started preparing for the provisional legislature before 1 July 1997.

35. Ms Emily LAU then followed up on Mr CHENG Man-kwong’s question by seeking LA’s view as to whether it would create constitutional and legal problems. LA responded that if the new legislature purported to sit and to act as a legislature in Hong Kong before 1 July 1997, it would clearly be unlawful. He drew members'attention to a provision of the Supreme Court Ordinance which made it unlawful to usurp a public office, which included the LegCo, the municipal councils and others. He pointed out that preserving the role of the duly constituted legislature was an essential element of the constitutional balance and it was for the Government to prevent, if necessary, by court action, the usurpation of legitimate constitutional offices. In response to Ms LAU’s further enquiry, LA advised that the formation of the provisional legislature in Hong Kong before 1 July 1997 could constitute a usurpation of public office if it purported to pass laws. However, LA stressed that the final judgement would be for the court to make. Ms LAU then asked whether it would be an usurpation of public office if the provisional legislature only passed laws which would not take effect until 1 July 1997. LA responded that if the court was persuaded that the action that had been publicised by the provisional legislature was of a nature which would be likely to cause the community to believe that the laws had some form of legislative effect, the court might recognise that damage had been done to the public interest and would seek to prevent such action in order to uphold the lawful constitutional position in Hong Kong.

36. The Chairman asked whether such anomaly could only be avoided by amending the Royal Instructions, the Letters Patent and the relevant legislation. LA said that existing legislation in Hong Kong reflected the fact that there was only one legislature. Any legislative amendment to account for a provisional legislature before 1 July 1997 would be a major constitutional change. The Chairman further asked and LA confirmed that a provisional legislature operating in Hong Kong before 1 July 1997 in the manner he had described could be regarded as breaching the provisions of the Royal Instructions and Letters Patent.

37. In response to Ms Emily LAU’s enquiry, LA pointed out that if the provisional legislature sat outside Hong Kong but made laws and preparations relating to Hong Kong, this might still constitute a usurpation of public office, depending on the factual circumstances, but since the action was outside Hong Kong it was doubtful if legal action could be taken in Hong Kong to prevent it.

38. Mr CHAN Kam-lam asked whether preparation work for the SAR Government would be in breach of the Royal Instructions. LA pointed out that there was no reference to the Preparatory Committee or the SAR government in the Royal Instructions or the Letters Patent. However, there was authority under the Royal Instructions and the Letters Patent for the establishment of only one LegCo.

39. Mr CHAN Kam-lam held the view that there must be preparation work for the transition of sovereignty. Since the provisional legislature would be one part of the future SAR government, it was not appropriate to discuss its legality. LA cautioned that there were legal provisions in Hong Kong to prevent usurpation of proper office of the LegCo. He therefore advised that there could well be circumstances in which the action by the provisional legislature could be viewed by a court as being so similar to the lawful action of the existing LegCo that it amounted to usurping the authority of the existing LegCo, if it acted in Hong Kong before 1 July 1997. He clarified that this did not mean that every action by the provisional legislature would be an usurpation of public office. The overall effect in the circumstances of Hong Kong at the time being examined by the court was to be considered. It was the duty of the existing sovereign power to ensure that the proper constitutional processes were observed, which could be achieved by way of court injunction. Ms Emily LAU asked whether LA’s interpretation of the relevant legal provisions regarding usurpation of public office applied to the Chief Executive (Designate) and his team. LA cautioned that his interpretation only focused on the provisional legislature. At the suggestion of Ms Emily LAU, LA agreed to provide his aforesaid views (at paragraphs 34 - 39) in writing for further discussion at the next meeting.

LA

40. Mr LEE Wing-tat further referred to the provision of the Basic Law which provided for the selection of the Chief Executive by local election and asked the Administration (a) whether it would contravene the Basic Law if the provisional legislature was not selected by an election locally held; and (b) whether the Government would apply for a court injunction to prevent an election held locally for the provisional legislature. Mr Nicholas NG said he was not prepared to respond to questions that were hypothetical.

41. There being no other business, the meeting ended at 1:05 p.m..

LegCo Secretariat

19 June 1996