Legislative Council
LC Paper No. CB(2)2653/98-99
(These minutes have been
seen by the Administration)
Ref : CB2/BC/11/98
Bills Committee on District Councils Bill
Minutes of Meeting
held on Monday, 11 January 1999 at 4:30 pm
in the Chamber of the Legislative Council Building
Members Present :
Hon Ambrose LAU Hon-chuen, JP (Chairman)
Hon James TIEN Pei-chun, JP
Hon David CHU Yu-lin
Hon Cyd HO Sau-lan
Dr Hon Raymond HO Chung-tai, JP
Hon LEE Wing-tat
Hon Eric LI Ka-cheung, JP
Hon Lee Kai-ming, JP
Hon Fred LI Wah-ming
Hon Mrs Selina CHOW LIANG Shuk-yee, JP
Hon Ronald ARCULLI, JP
Hon MA Fung-kwok
Hon CHEUNG Man-kwong
Hon Ambrose CHEUNG Wing-sum, JP
Hon Christine LOH
Hon CHAN Wing-chan
Hon CHAN Kam-lam
Dr Hon LEONG Che-hung, JP
Hon SIN Chung-kai
Hon Andrew WONG Wang-fat, JP
Hon WONG Yung-kan
Hon Jasper TSANG Yok-sing, JP
Hon Howard YOUNG, JP
Hon Emily LAU Wai-hing, JP
Dr Hon TANG Siu-tong, JP
Hon Andrew CHENG Kar-foo
Hon SZETO Wah
Hon TAM Yiu-chung, JP
Members Absent :
Hon YEUNG Yiu-chung
Hon LAU Wong-fat, GBS, JP
Public Officers Attending :
Mr Robin IP
Deputy Secretary for Constitutional Affairs 2
Mrs Maureen CHAN
Deputy Secretary for Constitutional Affairs 3
Mr Augustine CHENG
Deputy Director of Home Affairs
Mr Paul WONG
Principal Assistant Secretary for Constitutional Affairs
Mr James O' NEIL
Principal Government Counsel (Elections)
Mrs N DISSANAYAKE
Senior Assistant Law Draftsman
Mr Vidy CHEUNG
Senior Assistant Law Draftsman
Clerk in Attendance :
Mrs Constance LI
Chief Assistant Secretary (2) 2
Staff in Attendance :
Mr Arthur CHEUNG
Assistant Legal Adviser 5
Miss Flora TAI
Senior Assistant Secretary (2) 2
I. Late membership
The Chairman informed members that late membership of Hon Eric
LI and Hon Emily LAU had been approved on 6 January 1999 under House Rule
23 on ground of their absence from Hong Kong when membership of the Bills
Committee was called. The Bills Committee had 30 members at present
and the quorum was 10 members including the Chairman.
II. Meeting with the Administration
[LC Paper Nos. CB(2)1027/98-99 and CB(2)1033/98-99]
2. Members noted that the Administration had provided the following
papers as requested by members at the last meeting -
- comparison of the District Councils Bill with the Provisional
District Boards Ordinance and the District Boards Ordinance [Paper No.
CB(2)1027/98-99(01)];
- comparison of the District Councils Bill with the Legislative
Council Ordinance [Paper No. CB(2)1027/98-99(02)]; and
- response to concerns raised by members at the meeting held
on 4 January 1999 [Paper No. CB(2)1033/98-99(01)].
The Chinese version of these papers were tabled at the meeting and subsequently
issued to absent members vide LC Paper No. CB(2)1053/98-99.
3. At the invitation of the Chairman, Deputy Chairman for Constitutional
Affairs (2) (DS(CA)2) briefed members on the Administration's response
and the gist of discussion is summarized below.
Quorum requirement for District Council meetings
4. Mr LEE Wing-tat asked whether there would be a procedure for a District
Council (DC) member to draw the attention of the DC Chairman to the fact
that a quorum was not present during the meeting. In response, Deputy
Director of Home Affairs (DD(HA)) explained that all DC meetings must meet
the quorum requirement and the DC Secretariat would note the attendance
of members although voting was not normally required at DC meetings.
5. In response to Ms Emily LAU, DD(HA) informed members that a District
Council would specify the quorum of its committees in its Standing Orders,
and that the present quorum requirement for DB committees was "not less
than half" of its membership.
6. Mr TSANG Yok-sing commented that as the present quorum requirement
for DBs had operated well, strong justifications would be required to support
any departure from the existing practice.
| 7. Mr Andrew WONG expressed concern that if a high quorum requirement
was set for DC meetings, a simple majority of DC members could terminate
the proceedings by withdrawing from the meeting. This would adversely
affect the normal operation of DCs. DS(CA)2 responded that the Administration
had made reference to the quorum requirement for the Legislative Council
(LegCo) and most of the statutory boards and committees before recommending
the quorum requirement for the DC. Mr WONG considered that it would
be wrong to increase the existing quorum requirements for DBs as proposed
in the Bill, and that a lower quorum requirement should be set for DC meetings
than its committees. DS(CA)2 said that he would consider Mr WONG's
suggestion and provide a response later. | Adm |
|---|
Term of office of District Councils
8. Ms Emily LAU asked about the arrangement for the operation of the
previous District Boards during the period preceding the next ordinary
election. She noted that the operation of the Provisional Legislative
Council was terminated some months before the election for the first Legislative
Council (LegCo). DD(HA) responded that no similar arrangement had
been made for the Provisional District Boards (PDBs) at the moment, and
all PDBs were supposed to continue operation till the end of their term.
Ms Emily LAU expressed concern that if PDBs would continue operation during
the election period, incumbent members of PDBs could use their status to
canvass for their election and would therefore have undue advantage over
other candidates. While she did not support adopting the prorogation
arrangement of the LegCo for PDBs or the future DCs, she considered that
the tenure of PDB members should be terminated well before the ordinary
election. She pointed out that prorogation was required in the case
of LegCo because the term of office of LegCo Members was stipulated in
the Basic Law and could not be varied.
9. Deputy Secretary for Constitutional Affairs (3) (DS(CA)3) responded
that while she appreciated members' concern, it would cause practical difficulties
to members of PDBs/DCs if their term of office was to be terminated pre-maturely
before the next ordinary election, as these members could no longer be
eligible for the allowance and members' offices would have to cease operation
as well. However, if the prorogation arrangement was applied to PDBs/DCs,
only the PDBs or DCs would cease operation but the tenure of members would
not be affected and members would continue to draw allowance until the
end of their term. Although the arrangement could not preclude all
possibilities that PDB/DC members might still use their status to canvass
for election, it would be a fairer and reasonable arrangement.
10. Principal Government Counsel (PGC) explained that 'prorogue' was
an expression usually applied to parliaments and sovereign legislatures,
the effect of which was to suspend the operation of a legislature in order
to allow the conduct of an election. Such an expression would not
normally apply to local assemblies or advisory councils for which the expression
of 'suspension of operation' could be used. Mr Andrew WONG remarked
that it was only a matter of terminology, and he was in support of suspension
of operation of the PDBs/DCs before the next ordinary election was to be
held, if the term of office of DC members was for a fixed period.
Under this arrangement, members of PDBs/DCs could still draw allowances
and continue operation of their own offices. He quoted the practice
of other parliaments and the Provisional Legislative Council in Hong Kong
to support his view. Mr Andrew WONG and Mr TSANG Yok-sing were of
the view that any changes to the established system which had operated
well would require very strong justifications.
| 11. Ms Emily LAU disagreed with Mr TSANG Yok-sing that incumbent
members of PDBs/DCs would unlikely use their status to gain election advantage.
In this connection, she requested the Administration to provide information
on the number of DB members who succeeded in retaining their DB membership
in the 1994 election. The Administration noted the request. | Adm |
|---|
12. In view of the different views expressed by members, DS(CA)3 said
that the Administration would only consider suspending the operation of
PDBs or the future DCs before holding the ordinary election if members
agreed to the approach. She would welcome members' views on the suggestion.
| 13. Mr LEE Wing-tat was of the view that, during election period,
incumbent members of PDBs/DCs should not be invited to participate in government-funded
activities ad hold meetings in their capacity as PDB/DC members.
In response to Mr LEE, DD(HA) said that while there had not been formal
complaints in this connection, he had received similar views from other
members. Ms Emily LAU agreed with Mr LEE that the Administration
should consider either amending the legislation or providing administrative
guidelines to prohibit incumbent members of PDBs/DCs from holding meetings
and handle business or attend government-funded activities for a prescribed
period before the ordinary election. DS(CA)2 undertook to consider
members' suggestions and provide a response. | Adm |
|---|
14. Regarding Mr SIN Chung-kai's earlier suggestion of adjusting the
term of office of DC members to coincide with the beginning and ending
of a financial year, members noted form the Administration's written response
that such adjustment would not be necessary. In response to Mr SIN's
enquiry, DD(HA) informed members that the first three terms of DBs ended
on 31 March, while the subsequent terms ended on 30 September 1994, 30
June 1997 and 31 December 1999. He said that there were pros and
cons for adjusting the term of office to coincide with the financial year
or other activities. With regard to Mr SIN's concern, the Administration
did not consider that ending the term of a DC on a date other than 31 March
would cause operational difficulties to the DCs or their secretariats.
Mr SIN asked whether the Administration had actually consulted the 18 PDBs
before coming to the conclusion. DD(HA) responded that due to the
time constraint, the Administration was unable to conduct formal consultation
with all PDBs, but had obtained the views of the District Officers and
some PDB chairmen. Mr SIN maintained the view that as this would
affect the long term operation of DCs and their secretariats, it would
be worthwhile for the Administration to conduct formal consultation with
all PDBs.
| 15. Mr Andrew WONG disagreed with Mr SIN that the term of DCs needed
to synchronize with the financial year, since the annual estimates were
already finalized in the previous year and was binding on the subsequent
term of the DC. With prudent financial planning of the DCs, there
should not be worries about exhaustion of funds for organization of DC
activities even if the term of the DCs was to commence in the middle of
a financial year. He suggested that the term of the DC should end
on 31 August or 30 September to enable DC elections to take place in summer,
and he urged the Administration to rationalize the commencement and ending
dates of the future DCs. The Administration noted these comments. | Adm |
|---|
Directions by the Chief Executive to a District Council
| 16. Members noted that the omission of "in the public interest"
in Clause 83 was inadvertent and the Administration would re-instate the
phrase by way of a Committee stage amendment (CSA). Mr CHEUNG Man
kwong asked the Administration to advise whether there were any precedents
of invoking section 24 of the Provisional District Boards Ordinance (Cap.
366), and to provide information on the circumstances under which the provision
was invoked. DD(HA) undertook to provide the information. | Adm |
|---|
Powers of the Chief Executive and Chief Executive in Council
Referring to the comparison table on the provision in the Bill with
the Provisional District Boards Ordinance and the District Board Ordinance
[List A in Paper No. CB(2)1027/98-99(01)], Mr Andrew CHENG queried why
the Bill had sought to expand the powers of the Chief Executive and the
Chief Executive in Council, as some of these powers were not provided for
in the existing and previous legislation. He was particularly concerned
about the provisions in clause 6 and clause 79. With regard to the
absence of corresponding provisions on the constituencies in the Provisional
District Boards Ordinance and the former District Boards Ordinance, PGC
explained that these constituencies were declared by the then Governor
in Council under section 3(1)(c) of the Electoral Provisions Ordinance
having regard to the recommendations of the Boundary and Election Commission
(BEC). Clause 6 of the District Councils Bill sought to bring a previous
subsidiary legislation to the principal ordinance. DS(CA)2 added
that clause 6(2) also required the Chief Executive in Council to have regard
to the recommendations made by the Electoral Affairs Commission (EAC) in
making the declaration of constituencies.
Adm
| 17. Mr Andrew CHENG pointed out that clause 79(1) empowered the
Chief Executive in Council to make regulations for the better carrying
out of the purposes of the Ordinance (the District Councils Bill), and
such purposes as set out in the preamble of the Bill included the functions
of the DCs. He was worried that the Chief Executive in Council could
then vary the functions of a DC without prior consultation or approval
of the LegCo. DS(CA)2 clarified that clause 79 referred to such examples
as the number and qualifications of subscribers, election deposits and
forfeiture of election deposit. There was a similar provision (section
82(1)) in the Legislative Council Ordinance, Cap. 542. The Chairman
remarked that the Schedules would be subsidiary legislation which could
not exceed or contravene the provisions in the principal ordinance.
In response to the Chairman, Assistant Legal Adviser 5 (ALA5) confirmed
that clause 79(1) was to enable the Chief Executive in Council to set out
in detail by way of regulations how the provisions in the principal ordinance
should be carried out. The spirit and scope of such regulations should
not be inconsistent or go beyond any of the provisions in the principal
legislation. As regards section 82(1) in the Legislative Council
Ordinance, ALA5 pointed out that that Ordinance did not seek to provide
for the functions of LegCo as these were already prescribed in the Basic
Law. Mr Andrew CHENG maintained the view that the drafting of clause
79(1) would confer too much powers on the Chief Executive in Council and
the circumstances for exercising these powers should be clearly stipulated
in the law. | Adm |
|---|
18. Referring to the comparison table prepared by the Administration,
Miss HO Sau-lan noted that subsequent amendments to the number of elected
and appointed members under clause 5 were to be made by the Chief Executive
in Council by order published in the Gazette, while the former District
Boards Ordinance required the Governor to have regard to the recommendations
made by the BEC. She asked whether the Chief Executive would be subject
to any checks and balances when exercising his powers. DS(CA)2 pointed
out that EAC was only responsible for matters relating to the 390 elected
seats but not the appointed membership. Nevertheless, any amendments
to Schedule 3 under clause 5 on the number of elected and appointed members
would be subsidiary legislation subject to negative vetting of the LegCo.
Miss HO maintained the view that the Bill had conferred too much powers
on the Chief Executive and the Chief Executive in Council. For example,
the Chief Executive had the sole power to appoint members to the DCs despite
the fact that the public was not even aware of the appointment criteria.
In this connection, Mr Andrew WONG asked the Administration to consider
specifying the appointment criteria in the Bill or by way of subsidiary
legislation or administrative guidelines. He further suggested that
the Administration could consider specifying the categories of people who
should not be appointed to DCs. DS(CA)3 said that SCA had explained
at the last meeting that it would not be appropriate for the Administration
to specify the criteria, in order to retain some flexibility in the selection
of appointees.
| 19. Mr CHEUNG Man-kwong expressed dissatisfaction that clause 8
had not required the Chief Executive in Council to have regard to the recommendations
of EAC when making amendments to Schedules 1, 2 and 3 concerning the declaration
of districts. He said that this should warrant more careful consideration
by the Administration because delineation of district boundaries and constituencies
were highly sensitive issues which would have bearing on the election results.
He considered that as the Chief Executive was not politically neutral,
it would be desirable to restrict his powers especially in the delineation
of district boundaries and constituencies. He strongly proposed that
amendments on delineation of district boundaries and constituencies should
be based on the recommendation of an independent body such as EAC, and
that such amendments should be endorsed or 'rubber-stamped' by the Chief
Executive in Council and the legislature. PGC advised that EAC did
not make recommendations on the number of members for each DC as the number
was based on the population ratio. He reiterated that any amendment
to the Schedules must still have regard to the provisions in the principal
ordinance, and that such amendments would be subsidiary legislation subject
to negative vetting by the LegCo. At the request of members, DS(CA)2
undertook to provide a written response. | Adm |
|---|
| 20. Ms Emily LAU sought clarification from the Administration on
the legislative procedures for the Chief Executive or the Chief Executive
in Council to exercise those powers conferred by the Bill. DS(CA)2
advised that the powers conferred on the Chief Executive were administrative
powers while those conferred on the Chief Executive in Council would be
subsidiary legislation subject to the negative vetting of the LegCo.
PGC further advised that section 34 of Cap. 1 set out the procedures for
negative vetting and LegCo Members would be allowed 28 days to move amendments
to the subsidiary legislation. As requested by Ms Emily LAU, DS(CA)2
agreed to provide a written response as to whether the Administration would
consider restraining the powers of the Chief Executive in Council through
legislative provisions. | Adm |
|---|
| 21. Mr CHEUNG Man-kwong referred to clause 83 and asked the Administration
whether there were precedents for the Chief Executive or the former Governor
to give directions to a PDB or DB. DS(CA)2 said he did not have such
information and he would check before reporting to members. | Adm |
|---|
22. Mr CHEUNG asked why the former District Boards Ordinance and the
Provisional District Boards Ordinance did not have similar provisions as
clause 80 in the Bill. He considered that the DCs should have the
power to stipulate in their Standing Orders the procedures for electing
the DC Chairman and Vice Chairman. DS(CA)2 responded that as the
procedures had been provided for as a Schedule in the Bill, any amendment
to the Schedule would require an order published in the Gazette by the
Chief Executive in Council.
Term of office of an appointed member
| 23. Mr Howard YOUNG asked about the purpose of clause 11(3) and
the circumstances that a member would be appointed for a shorter term of
office. DS(CA)3 responded that the clause had no specific purpose
except to provide for flexibility in the appointment of members to DCs.
She pointed out that similar flexibility clauses also existed in other
ordinances such as the Surveyors Registration Ordinance (Cap. 417), the
Pharmacy and Poisons Ordinance (Cap. 138), the Open University of Hong
Kong Ordinance (Cap. 1145) and other legislation for universities.
Ms Emily LAU expressed doubt on the propriety of drawing an analogy between
the District Councils Bill and these ordinances. Mr SZETO Wah, Mr
Howard YOUNG and Miss HO Sau-lan also queried the need for such a flexibility
clause and asked about the criteria for the Chief Executive to exercise
such discretion. In response to members, DS(CA)3 undertook to provide
a written response on the purpose and application of clause 11(3). | Adm |
|---|
Functions of a District Council
24. Referring to clause 59(a) which sought to add 'matters relating
to food and environmental hygiene services' to the functions of a DC, Mr
Ambrose CHEUNG asked the Administration whether they had assumed LegCo
agreement to the abolition of the two provisional municipal councils (PMCs).
In this respect, he asked why the Administration had not included recreation
and cultural activities which were also existing functions of the PMCs.
DS(CA)3 responded that the Administration had not assumed LegCo agreement
to the abolition of the PMCs and would further explain this matter to Members
in another forum. She added that the Bill did not seek to introduce
significant changes to the principal functions of the DBs/DCs which would
still be advisory in nature, and the addition was only to reflect the majority
view obtained during the public consultation exercise on the review of
the district organizations in 1998. She added that the Administration
had consulted and obtained support of the 18 PDBs on the proposed addition.
As regards Mr CHEUNG's proposed inclusion of organization of recreation
and cultural activities under clause 59(a), DS(CA)3 said that the drafting
of clause 59(b) was wide enough to enable districts to carry out such activities
where funded were made available for such purposes. The Administration
would also provide more resources to DCs to enhance their future role and
functions.
| 25. Mr Ambrose CHEUNG commented that the Administration's position
on the functions of DCs was rather ambiguous. If the functions of
DCs were to remain largely the same as before, it would not be necessary
to add 'food and environmental hygiene services' under clause 59(a).
He was of the view that this should not be included if recreation and cultural
activities were also not mentioned in this clause. DS(CA)3 undertook
to consider this suggestion. | Adm |
|---|
26. Ms Emily LAU said that she supported the proposal to enhance the
functions of a DC and would like to know how this would be implemented.
In this connection, she asked whether the Administration would consider
including in clause 59 other matters affecting the 'well-being of people
in the District', such as medical and health, education and housing services.
Mr LI Wah-ming and Mr Andrew WONG were of the view that 'matters affecting
the well-being of the people in the District' in clause 59(a)(i) was sufficiently
wide and they disagreed with Ms LAU's suggestion.
| 27. DS(CA)3 noted members' comments and undertook to provide a written
response at the next meeting. | Adm |
|---|
Clerk 28. As members had raised several concerns during the meeting,
Ms Emily LAU suggested and the Chairman agreed to ask the Clerk to compile
a complete list for response by the Administration.
III. Committee stage amendments proposed by the Administration
29. DS(CA)3 informed members that the Administration had proposed some
technical amendments to the Bill and the draft Committee stage amendments
(CSAs) had been tabled at the meeting [Paper No. CB(2)1053/98-99(01)].
He requested members to consider these amendments and give their views
at the next meeting.
IV. Submissions received on the Bill
30. The Chairman informed members that advertisements had been placed
on Ming Pao and South China Morning Post on 5 January 1999 inviting public
submissions on the Bill. A total of 62 submissions had been received
as at 3:30 pm. on 11 January 1999. A list of these submissions had
been tabled for members' information. The Bills Committee would meet
deputations at its next meeting.
V. Date of next meeting
31. The Chairman invited views from members on the date of the next
meeting to meet deputations. As several members indicated that they
would have to attend hearings and meetings of the Select Committee on the
New Airport in the coming fortnight, the Chairman asked the Clerk to ascertain
the availability of members and confirm the date of next meeting by circular.
(Post-meeting note : The next meeting was scheduled for Tuesday,
19 January 1999 at 2:30 pm.)
32. There being no other business, the meeting ended at 6:45 pm.
Legislative Council Secretariat
2 August 1999
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