Bills Committee on Legislative Council (Amendment) Bill 1999 (Minutes) 4 Mar 99

Legislative Council

LC Paper No. CB(2)2104/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/BC/16/98

Legislative Council Bills Committee on Legislative Council (Amendment) Bill 1999

Minutes of the 2nd meeting
held on Thursday, 4 March 1999 at 4:30 pm
in the Chamber of the Legislative Council Building Members Present:

Hon Ronald ARCULLI, JP (Chairman)
Hon LEE Wing-tat
Hon LEE Kai-ming, JP
Hon NG Leung-sing
Hon Margaret NG
Hon Mrs Selina CHOW, JP
Hon CHEUNG Man-kwong
Hon Bernard CHAN
Hon CHAN Wing-chan
Hon LEUNG Yiu-chung
Hon Gary CHENG Kai-nam
Hon Howard YOUNG, JP
Hon LAU Kong-wah
Hon Mrs Miriam LAU Kin-yee, JP
Hon Emily LAU Wai-hing, JP
Hon CHOY So-yuk

Members Absent :

Hon Cyd HO Sau-lan
Dr Hon Raymond HO Chung-tai, JP
Prof Hon NG Ching-fai
Hon MA Fung-kwok
Hon Christine LOH
Dr Hon LEONG Che-hung, JP
Hon SIN Chung-kai
Hon Andrew WONG Wang-fat, JP
Hon WONG Yung-kan
Hon YEUNG Yiu-chung
Hon LAU Wong-fat, GBS, JP
Hon Ambrose LAU Hon-chuen, JP
Dr Hon TANG Siu-tong, JP
Hon TAM Yiu-chung, JP

Public Officers Attending :

Mr Robin IP: Deputy Secretary for Constitutional Affairs
Mr Bassanio SO: Principal Assistant Secretary for Constitutional Affairs (5)
Miss Shirley YUNG: Principal Assistant Secretary for Constitutional Affairs (4)
Mr James O'NEIL: Principal Government Counsel (Elections)
Ms Phyllis KO: Acting Deputy Principal Government Counsel (Elections)

Clerk in Attendance :

Mrs Percy MA: Chief Assistant Secretary (2) 3

Staff in Attendance :

Mr Jimmy MA, JP: Legal Adviser
Mr Stephen LAM: Assistant Legal Adviser 4
Ms Mariana LEUNG: Senior Assistant Secretary (2) 7

I. Matters arising from last meeting on 24 February 1999
(LC Paper No CB(2)1386/98-99(01)

The meeting proceeded to discuss the Administration's response to points raised at the previous meeting on 24 February 1999 (LC Paper No. CB(2)1386/98-99(01)).

Item (a) - The timetable for actions leading to the 2000 Legislative Council (LegCo) Election

2. Mr LEE Wing-tat said that there was only eight months between enactment of the Legislative Council Bill in October 1997 and the 1998 LegCo election held in May 1998. If the LegCo (Amendment) Bill 1999 (the Bill) was passed by July 1999 as proposed by the Administration, there was about 14 months between enactment of the Bill and the 2000 LegCo election to be held in September 2000. Compared to the 1998 LegCo election, there was ample time for electoral arrangements for the 2000 LegCo election. He questioned whether it was necessary for the Administration to press the Bills Committee to complete scrutiny of the Bill by July 1999. Mr LEE was of the view that adequate time should be allowed for scrutiny of the Bill unless the legislative timetable did not permit.

3. Deputy Secretary for Constitutional Affairs (DS for CA) explained that the various arrangements for the first term LegCo election had been made under a very tight timetable, e.g. the voter registration exercise was launched at the end of 1997 and had to be completed by mid-January 1998. There had been comments that there had not been adequate time for public consultation on demarcation of constituency boundaries, nomination of candidates and electioneering activities etc. It was hoped that there would be improvement in these aspects in the coming 2000 LegCo election. He reiterated that about three to four months' time would be lost if the Bill was not passed by the LegCo at the last Council meeting in the current session because the Council would only resume in early October.

4. In response to the Chairman on details of the subsidiary legislation specified in items 6 to 8 of the proposed timetable (Annex I to the Administration's paper), DS for CA advised that except for item 7 which dealt with electoral procedures such as registration of electors, form of ballot papers and duties of polling staff etc, item 6 (on election expenses limits, election deposit, subscriber requirements etc) and item 8 (on election petition) would not be too complicated. He clarified that the Administration already had a set of subsidiary legislation for the 1998 LegCo election, which could be modified to suit the 2000 LegCo election.

Items (b) and (c) - Replacement of the Urban Council (UC) Functional Constituency (FC) and Regional Council (RC) FC

5. Mr LEUNG Yiu-chung asked the Legal Adviser (LA) to provide his views on the Administration's response that there was no conflict with existing laws in requesting the LegCo to consider provisions to replace the UC and RC FCs in the Bill. LA said that the Administration's response on items (b) and (c) was acceptable from a legal point of view.

6. Mr LEE Wing-tat opined that the Administration's response on item (c) was based on the assumption that both the provisions to replace the UC and RC FCs in the Bill and the "Provision of Municipal Services" Bill would be passed. It had failed to address his concern over the possible situations whereby relevant provisions in the former Bill was passed while the latter Bill was not, or vice versa. In this respect, he pointed out when the future structure for delivery of food safety and environmental hygiene services was discussed at the joint meetings of the Panels on Health Services, Environmental Affairs and Constitutional Affairs, members had not reached any consensus regarding the future of the Municipal Councils (MCs) and related arrangements.

7. Referring to the Administration's response that after the terms of office of the members of the Provisional Municipal Councils (PMCs) expired by the end of 1999, there would be no such persons as members of the PMCs who fitted the description of electors under the Legislative Council Ordinance to be electors of the relevant FCs, Miss Margaret NG said that such a view, while logically in order, would only reinforce her concern that if the proposed new District Council (DC) and Catering FCs were approved by the LegCo, the argument against the abolition of the MCs would be even less forceful. She was therefore of the view that the Bills Committee should reserve its position on the replacement of the UC and RC FCs at this stage, as any decision made would have a bearing on the future of the MCs. The Chairman said that even Members who supported the retention of the MCs might have different views on whether the two FC seats should be allocated to the MCs. The retention of MC was therefore a separate issue from the allocation of the two FC seats.

8. In response, DS for CA said that the "Provision of Municipal Services" Bill giving effect to the transfer of the authority and functions of the MCs would be introduced into the LegCo in April. The Administration would then explain to Members details of the provisions of the Bill.

Item (d) - Delineation of the electorates for the Catering FC

9. In response to Mr CHAN Wing-chan on the Administration's response on item (d), DS for CA explained that at present there were some 1,750 registered voters in the existing catering subsector voter register. The delineation of the electorates for the proposed Catering FC followed broadly that for the existing catering subsector. Those catering establishments which were registered in the existing catering subsector voter register would become electors for the proposed Catering FC, subject to their retaining eligibility. Those which had not been registered in the catering subsector would need to apply for registration as electors for the proposed Catering FC.

10. In response to Mr CHAN Wing-chan's question of whether additional bodies could be added to Schedule 1E of the proposed Catering FC, DS for CA said that the composition of the FC had been specified in the Bill.

Item (e) - Human rights implications

11. Referring to the Administration's response on item (e), Ms Emily LAU asked how much weight the Administration had accorded to the views and remarks of the United Nations Human Rights Committee (UNHRC), the highest authority for interpretation and enforcement of the International Covenant on Civil and Political Rights (ICCPR), that the electoral system of Hong Kong was not consistent with provisions of Article 25 of ICCPR which stipulated that elections should be held by universal and equal suffrage.

12. DS for CA responded that the formulation of Hong Kong's electoral system was in accordance with Article 68 and Annex II to the Basic Law. Article 39 of the Basic Law provided, inter alia, that the ICCPR as applied to Hong Kong should remain in force. The Administration explained to the UNHRC in 1996 and 1999 that the electoral system of Hong Kong was appropriate and justifiable in the present circumstances, and was not inconsistent with any provisions of the ICCPR as applied to Hong Kong. Principal Government Counsel (Elections) (PGC/E) supplemented that the Administration was mindful of the views of the UNHRC that Hong Kong's electoral system should comply with Article 25 of the ICCPR, but had explained to the UNHRC the Administration's reservation that it respectfully disagreed with their argument. He advised that the former colonial government had responded to the UNHRC that FCs constituted of various professional sectors were in existence since the first LegCo election in 1985 and had been part of Hong Kong's political system. PGC/E stressed that Hong Kong's electoral system was in its transitional stage and as specified in Article 68 of the Basic Law, the ultimate aim was the election of all the members of the Legislative Council by universal suffrage.

13. Ms Emily LAU asked whether it was meaningful for the Hong Kong Special Administrative Region Government (HKSARG) to appear before the UNHRC if it had blatantly disagreed with the latter's views. Miss Margaret NG asked whether the UNHRC had made any response to the HKSARG's views. PGC/E advised that the HKSARG had reiterated its position to the UNHRC in January 1999. He was not aware of any response from the latter since then.

14. Mr LEUNG Yiu-chung disagreed with the Administration's advice that the proposed electoral system was consistent with Article 25 of the ICCPR. He quoted the example of some FCs which did not allow for "one person one vote". PGC/E responded that the issue had to be considered against the constitutional background applicable to the HKSAR in that the electoral system had to comply with the provisions of Annex II to the Basic Law. He reiterated that the system formulated and contained in this Bill was consistent with the Basic Law and the ICCPR as applied to Hong Kong.

15. Mr LEUNG Yiu-chung further asked whether reversion to the "nine new FCs" implemented by the former Governor Chris Patten in 1995 would contravene the Basic Law. The Chairman pointed out that while the FC system underwent drastic changes in the 1995 LegCo election, formation of the first SAR LegCo had to follow the "Specific Method for the Formation of the First Legislative Council of the Special Administrative Region of the People's Republic of China" (adopted by the Preparatory Committee of the HKSAR under the National People's Congress on 23 March 1997 (Specific Method)). Ms Emily LAU opined that the current FC system was a retrogression in democracy as compared to the "nine new FCs" of the 1995-1997 term because of the substantial decrease in the number of electors.

16. Miss Margaret NG said that it was her understanding that the constraint cited by the Chairman in Paragraph 15 above was only applicable to the election of the first term LegCo. In respect of the second term LegCo, there was scope under the Basic Law for the Bills Committee to consider amendments to the Bill on matters such as the composition of FCs and the voting system. She further asked whether the Administration had taken into account Hong Kong people's aspiration for democracy in considering the electoral system for the 2000 LegCo election.

17. DS for CA stressed that the Bill aimed at amending the existing Legislative Council Ordinance which was enacted in 1997 for the 1998 LegCo election. The legislative proposals contained in the Bill were in line with Article 68 and Annex II to the Basic Law, and had taken into account the arrangements for the 1998 LegCo election. The main provisions of the Bill sought to introduce amendments where necessary, such as changes in the number of seats to be returned by GCs and EC respectively, as specified in the Basic Law.

18. On the pace of democratisation, DS for CA said that the blueprint for democratic development had been laid down in the Basic Law and the ultimate objective was to have all members of the LegCo returned by universal suffrage. He pointed out that the electorate for the GCs was about 2.83 million. The number of seats to be directly elected would increase from 20 to 24 in the second term and 30 in the third term. PAS for CA(4) supplemented that the proposed delineation of FC electorates was broadly the same as that for the 1998 LegCo election.

Item (f) - Proposed amendments to the delineation of the FC electorates

19. On item (f), Mr CHEUNG Man-kwong sought clarification regarding the Administration's comments that it "believed" the Hong Kong Native Products and Raw Material Merchants Association Limited had already ceased operation, and that it "understood" that the Companies Registry had struck off the name of The Pharmaceutical Trade Federation Ltd. Both bodies were proposed to be deleted from the Wholesale and Retail FC. PAS for CA(4) explained that although members of the two bodies were listed as eligible electors of the Wholesale and Retail FC, none of them had been registered as electors for the FC. These bodies had not responded to letters from the Registration and Electoral Office.

20. In response to Mr LEE Wing-tat, DS for CA explained that the majority of bodies whose names were to be removed had either ceased operation or dissolved. In other cases where the bodies concerned were still in existence, they could no longer satisfy the criteria for inclusion in the electorates for the relevant FCs, for example, in the case of the China Motor Bus Co, Ltd., its franchise had already expired.

21. Referring to the Cross Harbour Tunnel Co. Ltd. (the Company) which was proposed for deletion from the list of electors of the Transport FC, Mrs Miriam LAU Kin-yee said that as the franchise held by the Company for operating the Hung Hom Cross Harbour Tunnel would only expire by the end of August 1999, it might not be fair and appropriate to delete its name from the existing list before then, especially when there could be a chance of the Company being awarded the management contract again. Mr CHEUNG Man-kwong supported Mrs LAU's view and opined that a body should only be deleted when it was no longer eligible to be an elector.

22. DS for CA explained that the Transport Department had already started the tendering procedure for the management contract for the tunnel and the result was expected to be announced in May or June 1999. The Administration would consider whether it was necessary to move any further amendments after the management contract was awarded. Mr Howard YOUNG said that technically speaking, the Company could be retained in the list because if it no longer satisfied the criteria to be an elector of the relevant FC, it would not be eligible to vote. The Administration agreed to reconsider the matter.

Adm

Order of listing the electorates of FCs

23. LA raised the point that the order of listing the electorates of the FCs did not follow any particular order, i.e. neither by alphabetical order nor by the number of strokes in the Chinese character. He said that a similar concern was raised by the Bills Committee on the Legislative Council Bill in 1997 but no improvement was made in the present Bill.

24. PAS for CA(4) explained that the order of listing the FC electorates followed that of the existing Legislative Council Ordinance, with new additions placed at the end of the list. Miss Margaret NG was of the view that it was important that any lists prepared should be user-friendly. The Administration agreed to consider the matter and revert to members.

Adm

Item (g) - Ambit of the Bills Committee in moving Committee Stage Amendments (CSAs)

25. On item (g) of the Administration's paper, Ms Emily LAU asked the Administration whether Members could move amendments to the effect that all 60 LegCo seats would be returned by direct election. She said that one alternative to expedite the pace of democratic development was to amend the Basic Law. Miss Margaret NG, while sharing the view that amending the Basic Law could be a possible way, said that the Bills Committee could not put forward any proposal which was not in line with the Basic Law. She therefore reiterated the desirability of making use of the flexibility currently allowed for in the Basic Law in considering any amendments to the Bill. Mr LEE Wing-tat said that Members moving amendments on matters such as the reform of the 30 FC seats and the system of voting and counting of votes would not be in breach with the Basic Law, as the Specific Method only applied to the first term LegCo. The Chairman reiterated that it was ultimately a matter for the President of the LegCo to rule on any CSAs proposed by Members under the Rules of Procedure.

26. DS for CA reiterated that the Bill aimed at providing the legal basis for the second term LegCo election. In putting forward the proposed amendments in the Bill, the Administration had adhered to the provisions in Annex II to the Basic Law.

27. Referring to paragraph 5 of the Administration's paper prepared for the Committee on Rules of Procedure concerning the Administration's view that CSAs moved by LegCo Members would need to comply with Article 74 of the Basic Law (Annex III to LC Paper No. CB(2)1386/98-99(01)), Miss Margaret NG said that the existing Rules of Procedure did not stipulate such requirements. In the case of Members moving CSAs which in the opinion of the Administration would be in breach of Article 74 of the Basic Law, she asked whether the matter would be brought to the Court for a decision. DS for CA said that the Administration's views had been set out in the paper attached to the Administration's responses. The Chairman said that there was indeed a difference of view between the Administration and the LegCo on the matter which had been discussed by the Committee on Rules of Procedure. It was his understanding that the Administration simply reiterated its stance on the matter by way of providing to the Bills Committee the paper previously submitted to the Committee on Rules of Procedure.

II. Other issues

No canvassing day and subsidy of election expenses

28. On the understanding that the proposals in the Bill were made as a result of a review of the 1998 LegCo election, Mr LEE Wing-tat asked why some of the proposals previously made by Members had not been included in the Bill, such as "No canvassing day" on election day and subsidy of election expenses incurred by candidates who had secured votes up to a prescribed threshold. The Chairman and Ms Emily LAU supplemented that many political parties were in support of the "No canvassing day" proposal.

29. DS for CA said that the Administration had considered these proposals and had explained why they were not recommended for implementation on many occasions. On the "No canvassing day" proposal, he said that the Electoral Affairs Commission (EAC) had issued guidelines governing electioneering activities on polling day. Experience in the 1998 LegCo election showed that canvassing activities were carried out in an orderly manner on polling day and had not posed any problems. Regarding the proposal to subsidise campaign expenses incurred by candidates who had secured votes up to a prescribed threshold, DS for CA explained that the Government had provided substantial subsidies in kind to candidates at elections, such as two rounds of free postage, free production and distribution of leaflets to introduce candidates and organisation of forums to be broadcast during Government airtime on radio and TV. The Administration did not consider it appropriate to use additional public funds to further subsidize the candidates in their campaigning activities.

30. Mr LEE said that Members of the Democratic Party supported the proposal of "No canvassing day". He pointed out that canvassing activities on polling day might be necessary in the past for the sake of encouraging more electors to vote. However, given the high turnout rate in the 1998 LegCo election and the fact that a majority of the electors did not find the candidates' electioneering on the election day useful in helping them to decide on their votes, he questioned whether it was meaningful to continue with the practice. On Government's subsidy of election expenses, he opined that this was one of the means to ensure clean elections. As regards the Administration's concern about the use of public money, he said that the public could be consulted on the proposal.

31. In further response to Mr LEE's requests, DS for CA agreed to provide information on overseas countries which had implemented these two proposals in legislative elections. He also agreed to provide a list of other proposals made by relevant parties after the 1998 LegCo election which had not been accepted for implementation for the 2000 LegCo election.

Adm

Free postage of election materials

32. Ms Emily LAU suggested that the Administration should review the need of candidates for two rounds of free postage of election materials. She opined that one round might be adequate as the large volume of election mail was not environmental-friendly. Miss Margaret NG, however, was of the view that the present limited resources provided by the Government to support democratic development should not be further reduced. The Chairman suggested that other alternatives in place of one round of free postage such as TV advertisements could be considered.

33. DS for CA said that while it was stated in law that a candidate was allowed to post free of postage up to two letters to each elector in the constituency, it was for individual candidates to decide to what extent they needed this service. In response to Ms Emily LAU's request, DS for CA agreed to provide information on the number of candidates of the 1998 LegCo election who had used only one round of the free mailing service.

Adm

Counting arrangements

34. Ms Emily LAU said that the time taken to complete the count for the 1998 LegCo election was too long, and asked whether improvements would be made. DS for CA said that the declaration of results of each constituency were made intermittently, until 5 pm on 25 May 1998 when the last election result was announced. The time taken was not considered unduly long. In further response to Ms LAU, PAS for CA(4) said that the Administration did, as in the past after every round of election, review the situation and had considered the possibility of counting votes at a central station, regional-stations or individual polling stations. She explained that the matter raised would be dealt with by way of subsidiary legislation to be made by the EAC and undertook to reflect members' view to the EAC for consideration. The Chairman suggested that the relevant extracts of the EAC Report on the 1998 LegCo election be circulated to members for consideration.

Adm
Clerk

Composition of the Election Committee

35. Mr LEUNG Yiu-chung asked whether the composition of the Election Committee which would return six Members to the second term LegCo was the same as that of the Election Committee for the selection of the Chief Executive as stipulated in Annex I to the Basic Law. DS for CA said that the Bill under discussion sought to provide the arrangements for the 2000 LegCo election. A separate bill would be drawn up in respect of the arrangements for the election of the Chief Executive.

36. There being no other business, the meeting ended at 6:15 pm.

Legislative Council Secretariat
25 May 1999