Provisional Legislative Council

PLC Paper No. CB(2) 329

Ref : CB2/BC/3/97

Paper for House Committee meeting
on 19 September 1997

Report of the Bills Committee on
Legislative Council Bill

Purpose

This paper reports on the deliberations of the Bills Committee on the Legislative Council Bill.

The Bill

2.The Bill was introduced into the Council on 20 August 1997. It seeks to give effect to the provisions of the Basic Law that relate to the Legislative Council (LegCo) of the Hong Kong Special Administrative Region (HKSAR) and in particular to provide for the constitution, convening and dissolution of that Council as well as for the election of its Members.

The Bills Committee

3.At the House Committee meeting held on 22 August 1997, members agreed to form a Bills Committee to study the Bill. The Bills Committee first met on 28 August 1997 at which Hon Ambrose LAU and Hon Ronald ARCULLI were elected Chairman and Deputy Chairman respectively. The membership list of the Bills Committee is in Appendix I.

4.The Bills Committee has held 12 meetings, 10 of which were with the Administration. It has also placed advertisements in two local newspapers to invite public views on the Bill and subsequently received submissions from a total of 69 organizations/individuals, the names of which are in Appendix II. 18 deputations/individual also appeared before the Bills Committee to make oral representation.

Deliberations of the Bills Committee

5.The Bills Committee has carefully considered the provisions made in the Bill and views received. It has also discussed in detail the various amendments proposed by individual members of the Committee. The main deliberations of the Bills Committee are set out in the following paragraphs.

The Preparatory Committee ' s Decision on the Specific Method for the Formation of the First Legislative Council of the Special Administrative Region of the People ' s Republic of China (Specific Method)

6.The Bills Committee has discussed whether the decision of the Preparatory Committee (PC) on the Specific Method is legally binding or advisory in nature. The Administration ' s view is that the Decision adopted by the PC on 23 May 1997 on the Specific Method was made under and in accordance with the authority of the Basic Law (BL) and the National Peoples Congress (NPC). It has the force of law and is binding on the Executive Authorities as well as the Legislature. The Legal Adviser agrees to the Administrations view.

7.Some members share the Administration ' s position that the PCs decision is binding on the SAR Government and the Council in making arrangements, including enacting legislation, for the first LegCo elections of the HKSAR. They also agree that any amendments to the Bill, whether to be moved by the Administration or Members, should conform with the PCs decision.

8.A few members hold different views. One member opines that Members should be able to move any amendments to the Bill except those not allowed under the Rules of Procedure of the Provisional LegCo (PLC). If a legislative proposal passed by PLC is challenged on the ground that it does not conform with the PC ' s decision, it will be for the courts to rule. He questions that if the PCs decision is legally binding, it would be tantamount to having another tier of law in between national laws and domestic laws. Another member is of the view that Members should be permitted to move amendments relating to areas on which the Specific Method is silent.

First meeting of first term of office of LegCo

9.In response to the Bills Committee, the Administration agrees to include a new clause (new clause 9A) in the Bill to provide a suitable framework to facilitate the first term LegCo to elect its own President and to commence its business. To ensure the efficient conduct of the first meeting, some members have suggested that the proposed new clause be further revised to the effect that the relevant provisions in the Rules of Procedure of the Provisional Legislative Council be applied to the business including the election of the President at the first meeting of the first LegCo term, unless such provisions are amended by Members of the first term LegCo. The Administration explains that under Article 75 of the BL, the rules of procedure of the LegCo shall be made by the Council on its own, provided that they do not contravene the BL. It is therefore for Members of the first term LegCo to decide on their own rules and procedures including those for the election of the President.

Elections and terms of LegCo

10.It was an established practice under the former electoral system for the Governor to dissolve LegCo before nomination for an upcoming general election commenced. The Bills Committee has discussed a members proposal that it is a fairer arrangement to hold all general elections after dissolution so as not to give undue advantage to incumbent Members. The member points out that the Bill provides for a general election to be held in two scenarios : (a) within three months after LegCo is dissolved by the Chief Executive in accordance with Article 50 of the BL during its term of office; and (b) after prorogation of the Council and prior to the automatic dissolution upon the end of the fixed term. The member finds the arrangement of having some general elections held after and some prior to dissolution inconsistent. (A Member has indicated that he will give notice to move CSAs in this respect.)

11.The Administration advises that the Bill has been drafted to take into account: (a) Article 69 of the BL (i.e. the fixed term of LegCo shall be two years and subsequent terms four years); (b) the commencement of the first term shall be on 1 July 1998; and (c) the specific circumstances under which the Chief Executive can dissolve LegCo under Article 50 of the BL. Although the BL does not strictly require elections to be held within the term, the arrangement is necessary for practical reasons. Clause 6(3) introduces the concept of prorogation which allows elections to take place before dissolution i.e. the operation of the Council will be terminated even though Council ' s term of office has not ended and its Members will continue to hold office.

12. On a suggestion that the term of LegCo should follow the previous cycle so that its commencement date can tie in with the Policy Address in October, the Administration advises that clause 4(3) gives the Chief Executive flexibility to fix the commencement date of the second and subsequent terms of office of LegCo.

When Member ceases to hold office

13.Members note that clause 13 provides that a Members office becomes vacant if the Member resigns, dies or is declared to be no longer qualified to hold office by the President of LegCo under any one of the seven circumstances prescribed in Article 79 of BL (BL 79), while clause 37 stipulates the circumstances under which a person is disqualified from being nominated as a candidate and from being elected as a Member.

14.Members have enquired whether the circumstances prescribed in clause 13 are exhaustive and whether the provisions of BL 79 should be incorporated or elaborated in the Bill as the previous electoral legislation set out a number of other circumstances under which a Member ceased to hold office e.g. holding of any judicial office. The Administration advises that the circumstances prescribed in BL 79 are exhaustive on the ground that domestic legislation should be governed by the constitutional law i.e. the BL. It is inappropriate to elaborate BL 79 in clause 13 as BL 79 was drafted in Chinese and re-writing it in domestic legislation might not accurately reflect the intended meaning of the Article.

15.Some members are of the view that BL 79 confers power upon the President of LegCo to declare the disqualification of a Member under certain circumstances. It does not preclude LegCo from prescribing additional circumstances under which a Member ceases to hold office if considered necessary. A member also suggests that clauses 13 and 37 should be combined so that the two sets of circumstances will be applicable to disqualification of Members. The Administration however maintains the view that the circumstances under which a Member will cease to hold office and the circumstances under which a person will be disqualified from being nominated as a candidate and from being elected as a Member should be dealt with under separate clauses in the Bill. (A Member has indicated that he will give notice to move CSAs in this respect.)

Disqualification of candidates (clause 37)

16.The Bills Committee has noted a members proposals that: (a) disqualification of candidates should only be confined to escaped convicts from Hong Kong prisons; (b) prospective disqualification should be reduced from five years to four years (to tie in with a LegCo term) and be confined to corrupt offences committed in Hong Kong; and (c) disqualification on bankruptcy grounds should be confined to undischarged bankrupts. The Administration does not support the proposals on the ground that the provisions in the Bill are already less stringent than those contained in the previous electoral legislation. (A Member has indicated that he will give notice to move CSAs in this respect.)

17.In response to the Bills Committee, the Administration agrees to move a CSA to clause 37(1)(g) to the effect that in addition to representatives (including honorary consuls) of foreign countries, salaried functionaries of foreign countries should also, as before, be disqualified from candidature or being elected in a LegCo election.

Disqualification of electors (clause 29)

18.The Bills Committee has noted a member ' s proposals that: (a) the provision relating to the disqualification, as electors, of prisoners for whatever term of imprisonment should be deleted and confined to escaped convicts from Hong Kong prisons; (b) prison inmates should have votes and (c) there should be no prospective disqualification. The Administration does not support the proposals on the ground that the provisions in the Bill are already less stringent than those contained in the previous electoral legislation. (A Member has indicated that he will give notice to move CSAs in this respect.)

Number of votes an elector may cast

19.Two members have suggested that the one person, one vote principle should be adopted so that all electors, with the exception of ex-officio EC members or electors of the smallest FCs, may choose to vote in only one constituency. The proposal is neither contrary to the BL nor the decision of the PC. The Administration does not support the proposal.

Voting system of geographical constituencies (GCs)

20.A member proposes that the ' Single seat, single vote system should be adopted for the GC election. Some members point out that the proposal is inconsistent with the recommendation of PC which only gives the HKSAR a choice between either the Multi-seat, single vote ' system or the proportional representation system (Article 4 of the Specific Method). The Administration does not support the proposal.

20% Nationality Rule

21.A few members do not agree that permanent residents of SAR who are not of Chinese nationality or who have the right of abode in foreign countries may stand for election only in 12 specified functional constituencies (FCs) as set out in clause 35(3) of the Bill. They consider the arrangement unfair and also query why the Administration has not selected the other options set out in the Specific Method.

22.The Administration has explained that the proposed arrangement will ensure that the election will not return more than 12 Members who are not of Chinese nationality or who have right of abode in foreign countries. The 12 FCs have been selected on the basis that they have a greater chance of returning such candidates. The other options are not selected mainly because they introduce an element of uncertainty to the election outcome as a candidate who secures the necessary vote to win may not be elected because of the 20% Nationality Rule.

23.Dr Hon LEONG Che-hung has given notice to move CSAs to the effect that the 12 FCs will be determined by drawing lots. Two other Members have indicated that they will move separate CSAs as follows -

1. to distribute the quota of the 12 seats among the geographical constituencies (GC), functional constituencies (FC) and Election Committee (EC) in the ratio of 6:4:2, as recommended in paragraph (1) of Article 8 of the Specific Method; and

2. to distribute the quota of the 12 seats among the GC, FC and EC in the ratio of 6:5:1.

24.The Bills Committee also raises the question of a LegCo Member changing his/her nationality or right of abode after being elected. In response, the Administration agrees to move amendments to the effect that a LegCo Members seat becomes vacant when he/she alters his/her nationality or the fact of whether or not he/she has a right of abode in a country other than the Peoples Republic of China as declared under clause 38(1)(b)(ii). While there are members who agree that a Member should be disqualified if his/her acquiring a right of abode in a foreign country or changing his/her nationality results in the breach of the 20% Nationality Rule, the Bills Committee objects to the Administration ' s proposal to also disqualify a Member who alters his/her foreign nationality to Chinese nationality.

25.After re-consideration, the Administration agrees that a Members seat becomes vacant if he/she alters his/her nationality or the fact as to whether he/she has a right of abode in a country other than the Peoples Republic of China. The only exception is an elected Member of the 12 specified FCs who has declared that he/she has a foreign nationality or right of abode in a foreign country and has subsequently acquired or restored Chinese nationality or has given up or ceased to have that right of abode. The Administration will move a CSA to clause 13 in this respect.

Functional constituencies (FCs)

Reform of FCs

26.A Member has indicated that he will give notice to move a CSA to reform the FCs by grouping the 30 seats into five constituencies of six seats each. The voting system will be the list system of proportional representation. He opines that only with this reform can functional elections be regarded as open and fair. Some members point out that the proposal is inconsistent with the decision of the PC.

Electorate of FCs

27. Some members query the basis and criteria used in delineating the electorate for the nine new FCs. The Administration has explained that the same concept and criteria used in delineating the electorate for the 21 old FCs have been adopted for the nine new FCs. The FCs will be composed of major organisations representative of the relevant sectors. The electorate of the FCs concerned should generally include the corporate members of these major organisations. However, if an organisation is predominantly (i.e. more than 50%) made up of individual members, only the organisation itself will be given the vote. Given the wide variations in the composition and characteristics of each FC, it is inevitable that the proposed delineation for each FC cannot be of a uniform pattern.

28.Taking into account the views received by the Bills Committee, members have asked the Administration to reconsider the electorate delineation of certain FCs to allow for wider representation and participation. The Administration has agreed to expand the electorate of the following FCs and will move CSAs accordingly -

1. Sports, Performing Arts, Culture and Publication FC;

2. Textiles and Garment FC; and

3. Information Technology FC.

29.The Administration has no objection to the Bills Committee moving CSAs to expand the electorate of the following FCs -

4. Tourism FC - by including the two constituents under the Hotel Subsector of EC; and

5. Information Technology FC - by including Fellows, Members and Graduate Members of Information Technology Division of the Hong Kong Institution of Engineers entitled to vote at general meetings of the Division.

30.However, the Administration has disagreed to the following proposals -

1. Transport FC

   Some deputations are concerned about the under-representation of green minibus operators as compared to red minibus operators, and that of sea transport as compared to land transport. Other deputations have specifically requested that those associations which comprise predominantly corporate members or transport companies with business registration should be given votes. The Administration has explained that if each corporate member were to be given one vote, the disproportionately large electorate size of some associations might dominate the electoral process and upset the balance of representation. The existing electorate delineation, albeit not a perfect one, appears to be the best alternative. ( Two Members have indicated that they will give notice to move separate CSAs in this respect.)

2. Social Welfare FC

   Some members have proposed that certain registered and well established district/local organisations such as kaifong associations should be included as electors. The Administration objects to including the district/local organisations and points out that any related organisations can apply to be a corporate member of the Hong Kong Council of Social Service in order to be eligible as an elector for the FC. (A Member has indicated that he will give notice to move CSAs in this respect).

3. Textile and Garment FC

   The Administration does not agree to include (a) the Hong Kong Institution of Textile & Apparel and (b) companies with Textile Traders Registration (TTR) as electors for the FC. The Administration explains that on (a), members of the Institution do not meet the criteria for professional constituencies. As for (b), the TTR system should not be used as a basis for delineation of electorate for the FC and companies with TTR are not necessarily related to the FC e.g. shipping companies.

4. Wholesale and Retail FC

   The Hong Kong Video Industry Association Ltd and Hong Kong Theatres Association Ltd are proposed to be transferred from this FC to the Sports, Performing Arts, Culture and Publications FC as the two organisations are more related to the latter FC. The Administration considers the existing electorate delineation appropriate. (Hon MA Fung-Kwok has given notice to move a CSA in this respect.)

5. Proposed Higher Education FC

   It is proposed that Higher Education, one of the 15 groups recommended for consideration as the nine new FCs, should be included as one of the 28 FCs. The Administration does not support the proposal on the ground that the sector is well represented in the Education FC and the Second Sector of the EC. (Prof Hon NG Ching-fai has given notice to move a CSA in this respect.)

31.Under the Bill, members of the Hong Kong General Chamber of Textiles Limited ( the Chamber) has been included as electors for the Textiles and Garment FC. As the Chamber does not meet the 12-month rule under clause 23(5), the Administration has decided to include only the Chamber, but not its members, in the electorate. This is in recognition of the fact that the membership of the Chamber comprises senior members in the industry. The Administration will move CSAs in this respect.

Authorized representative of corporate elector

32.Clause 24 stipulates that an authorized representative of a corporate elector for a FC should have a substantial connection with the latter. The circumstances in which a person has a substantial connection include, but are not limited to being a member, partner, officer or employee of a corporate elector of the constituency or a corporate member of such a corporate elector. A member is of the view that the interpretation of "substantial connection" under clause 3(2) is too loose and proposes that persons appointed as authorized representatives must be employers, directors of the board or senior management officers. Members note that the definition of the term "officer" under clause 3 includes a director or executive, or any other person concerned in the management, of the body. The Administration considers the existing provisions adequate and does not recommend any change.

Election Committee (EC)

Composition

33.An 800-member EC will be responsible for electing ten LegCo Members. The EC will comprise four equal size sectors, each with 200 members. Schedule 2 of the Bill sets out the delineation of the sectors and the allocation of seats to the various subsectors.

34.Some members are of the view that as the composition of the EC as prescribed in the BL aims to reflect different interests in the community, the distribution of the 200 members in each sector should have regard to the number of groups and individuals the subsectors represent, instead of simply dividing up the 200 votes by the number of subsectors. Their views are summarized as below -

1. The Social Welfare as well as Sports, Performing Arts, Culture and Publication Subsectors should be included in the Second Sector instead of the Third Sector which is meant for ' grassroots organizations;

2. The Labour Subsector in the Third Sector is under-represented as the quota of 200 votes is equally divided by the five subsectors; and

3. The Heung Yee Kuk and the Provisional New Territories District Boards in the Fourth Sector are over-represented as they have a total of 42 votes, compared to 21 votes of the Provisional Urban District Boards.

35.The Administration has explained that the services provided by social workers and those engaged in sports, performing arts and culture are social services in nature. The Administration does not accept that the Labour Subsector has a claim to more than 40 seats because the allocation of seats to the subsectors in the first three sectors is generally done on an equal basis. Having regard to the unique role of the Heung Yee Kuk, the Administration considers the proposed allocation of seats reasonable.

36.A few Members have indicated that they will give notice to move the following CSAs -

1. to move the Sports, Performing Arts and Culture Subsector to the Second Sector;

2. to redistribute the 200 votes among the four Subsectors in the Third Sector to be: 100 for Labour, 40 for Social Welfare and 30 each for Agriculture and Fisheries and Religious;

3. to redistribute the 42 votes among the 18 Provisional District Boards; and

4. to combine the 42 votes of the 18 Provisional District Boards.

Voting system

37.The Block Vote system will be used for the EC election, i.e. each EC member may cast up to 10 votes, and the election result will be determined on a first past the post basis.

38.Some members have queried the Administrations decision to adopt the Block Vote system on the ground that its electoral process could be dominated by a particular group. They suggest other alternative voting systems, namely, the Single Transferable Vote system which was used in the 1995 LegCo EC election, and a modified Block Vote system which requires each EC member to cast all 10 votes. A member is of the view that the proportional representative system should be adopted for the EC election as in the Geographical constituency (GC) election. The member points out that under the Block Vote system, a particular group which manages to obtain 401 votes will win all 10 seats.

39. The Administration has explained that different voting methods suit different circumstances and that one voting system is not necessarily better or fairer than the others. The Block Vote system is selected because it is simpler and easier to understand. Compared to 1995, the EC for the 1998 LegCo elections will have a much larger electorate size - 800 electors come from four equal-sized sectors mostly chosen by election. The risk of domination of the electoral process by any particular group would be greatly reduced. For the same reasons, the Administration does not consider the suggestion of requiring each EC member to cast all 10 votes in the election is necessarily an improvement to the original proposal. Some members disagree with the Administration ' s explanation and point out that the principle of ensuring a fair and open election is far more important than the selection of a voting system which is simple to administer.

40.A few Members have indicated that they will give notice to move separate CSAs as follows -

1. to require electors to cast all 10 votes;

2. to adopt the Single Transferable Vote system; and

3. to adopt the List system of proportional representation.

Qualifications and disqualifications of ex-officio EC members

41.Under the Bill, PLC Members and Hong Kong deputies to the NPC sit on the EC on an ex-officio basis. Unlike other EC members, they are not required to be registered as electors for geographical constituencies under clause 51(2). Members have reservations about the arrangement on the ground that there should not be two types of electors.

42.The Administration agrees that the ex-officio EC members should, like all other EC members, be required to be registered as GC electors first before they can exercise their right to vote in the LegCo EC election. The Administration will move a CSA to give effect to this proposed change.

Voting right of ex -officio EC members

43.The Bill proposes that apart from a vote in the GC election, an ex-officio EC member who is also an elector of a FC must cast the other vote in the EC election and not in the FC election.

44.Members have reservations about the arrangement. The Administration agrees to introduce a CSA to the effect that ex-officio EC members who are also electors of FC should be allowed a choice to vote between the EC and the FC to which they belong. Under the proposed arrangement, a PLC Member or Hong Kong deputy to the NPC may decline to be registered as a EC member so as to retain his/her vote in the FC to which he/she belongs. If he/she so chooses, then in accordance with the principle that no LegCo elector should have more than two votes in the LegCo election, he/she will not be put on the register of EC members and thus cease to have a right to vote in the EC. To protect the electorate size (800) of the EC, any unused quota of EC seats for PLC Members and the Hong Kong deputies to NPC will be transferred to the Chinese Peoples Political Consultative Conference Subsector. In case there still exists any unused quota, the seats concerned will be transferred to the Provisional District Boards.

Other issues

45.In response to the Bills Committee, the Administration has agreed to move a number of CSAs, many of which are technical in nature. The more significant ones are set out below.

Legal FC

46.The Administration will move a CSA to include, as electors in the Legal FC, the Legal Adviser of the LegCo Secretariat and his assistants who are in the full time employment of the Legislative Council Commission and are barristers or solicitors as defined in the Legal Practitioners Ordinance (Cap. 159).

Definition of "election"

47.Clause 59(2) states that an election to return a Member may be questioned only by an election petition, and clause 59 (3) states that election ' includes the nomination proceedings and all other steps taken to enable the election to be held. Some members consider that election should include voter registration because the process is part of an election. The Administration is of the view that the term ' election does not include voter registration and that a court case has confirmed this view. To make clear the legislative intent, it will move a CSA to state that election ' includes nomination proceedings and the decisions of the Returning Officer or any Assistant Returning Officer.

Committee stage amendments (CSAs)

48.The draft CSAs proposed by the Administration, the Bills Committee and individual Members (received by the Secretariat as at the time of issuing this report) are attached in the appendices as follows :

Advice Sought

49.Members are invited to note that the Administration has given notice to resume Second Reading debate on the Bill on 27 September 1997.

Provisional Legislative Council Secretariat
18 September 1997

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Appendix I

Bills Committee on Legislative Council Bill

Membership List

Total : 33 Members