Bills Committee on Legislative Council (Amendment) Bill 1999 (Minutes) 22 Apr 99

Legislative Council

LC Paper No. CB(2)2684/98-99
(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 10th meeting
held on Thursday, 22 April 1999 at 8:30 am
in the Chamber of the Legislative Council Building Members Present:

Hon Ronald ARCULLI, JP (Chairman)
Hon Cyd HO Sau-lan
Dr Hon Raymond HO Chung-tai, JP
Hon LEE Wing-tat
Hon LEE Kai-ming, JP
Hon NG Leung-sing
Prof Hon NG Ching-fai
Hon Margaret NG
Hon Mrs Selina CHOW, JP
Hon MA Fung-kwok
Hon CHAN Wing-chan
Hon CHAN Kam-lam
Hon Andrew WONG Wang-fat, JP
Hon WONG Yung-kan
Hon Howard YOUNG, JP
Hon LAU Kong-wah
Hon LAU Wong-fat, GBS, JP
Hon Ambrose LAU Hon-chuen, JP
Hon Emily LAU Wai-hing, JP
Dr Hon TANG Siu-tong, JP
Hon TAM Yiu-chung, JP

Members Absent :

Hon CHEUNG Man-kwong
Hon Christine LOH
Hon Bernard CHAN
Dr Hon LEONG Che-hung, JP
Hon LEUNG Yiu-chung
Hon Gary CHENG Kai-nam
Hon SIN Chung-kai
Hon YEUNG Sum
Hon YEUNG Yiu-chung
Hon Mrs Miriam LAU Kin-yee, JP
Hon CHOY So-yuk

Members Attending :

Hon Ambrose CHEUNG Wing-sum, JP

Public Officers Attending :

Mr Robin IP: Deputy Secretary for Constitutional Affairs
Miss Shirley YUNG: Principal Assistant Secretary for Constitutional Affairs (4)
Mr Bassanio SO: Principal Assistant Secretary for Constitutional Affairs (5)
Mr James O'NEIL: Deputy Solicitor General
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 Eleanor CHOW: Senior Assistant Secretary (2) 7

I. Confirmation of minutes of meeting on 24 February 1999

The minutes of meeting on 24 February 1999 were confirmed.

II. Amendments proposed by members
(LC Papers Nos. CB(2)1759/98-99(01) and1763/98-99(01))

2. The Chairman said that Prof NG Ching-fai had sought his agreement for a motion to replace the proposed Catering functional constituency (FC) with an FC for higher education to be moved and put to vote at the meeting. He referred members to Prof NG's letter which was issued to members on 21 April 1999 vide LC Paper No. CB(2)1759/98-99(01). He suggested to designate a future meeting to consider amendments to the Bill proposed by individual Members, including the one now proposed by Mr NG. He sought members' views on his suggestion.

3. Ms Emily LAU held the view that proposed amendments, if any, should be dealt with when the relevant clauses were discussed so that Members who wished to propose an amendment would have an idea as to whether the Bills Committee supported his amendment. She also urged Members to advise the Bills Committee in advance of any amendment proposals. Miss Margaret NG agreed with Ms LAU and said that the wording of Committee Stage amendments should be provided to the Bills Committee for consideration. Mr Howard YOUNG considered that the Bills Committee should be alerted of any amendments to be proposed when the relevant clauses were discussed, while detailed discussion could be held at a designated meeting. Miss Margaret NG, Prof NG Ching-fai and Mr Tam Yiu-chung supported the Chairman's proposals. The Chairman concluded that the Bills Committee would set a date for discussing amendment proposals in due course and the notice of the meeting would be issued to all LegCo Members.

III. Clause by clause examination of the Bill

Clause 14 (section 22(1)) - Establishment of Election Committee (EC)

Election Committee provided for in Annexes I and II of the Basic Law

4. Members noted that the function of the EC provided for in Annex II of the Basic Law was to elect six Members for the second term LegCo. Paragraph 2 of Annex II stated that except in the case of the first term LegCo, the EC mentioned therein referred to the one provided for in Annex I of the Basic Law. The function of the EC provided for in Annex I was to elect the Chief Executive (CE). The EC's term of office was five years. It consisted of 800 members from the following sectors -

Sectors	No. of members
a) Industrial, commercial and financial	200
b) The professions	200
c) Labour, social services, religious and other sectors	200
d) Members of the LegCo, representatives of district-based organisations, Hong Kong deputies to the National People's Congress (NPC), and representatives of Hong Kong Members of the National Committee of the Chinese People's Political Consultative Conference (CPPCC)	200

5. Mr LEE Wing-tat sought clarification from the Administration as to whether the EC to return six Members for the second term LegCo referred to in paragraph 2 of Annex II was the same as the EC electing the CE. Since the term of office of the EC was five years, it would mean that the EC would also be responsible for returning Members for the third term LegCo.

6. Deputy Secretary for Constitutional Affairs (DS for CA) replied that the Bill sought to provide that an EC would be established for the purpose of returning six Members in the 2000 LegCo election. The EC as proposed in the Bill was formed in accordance with the provisions of the Basic Law. The Administration would introduce a separate bill on the CE election later. On the last question raised by Mr LEE, DS for CA explained that the arrangement of EC election was transitional, since no LegCo Members would be returned by the EC in the third term LegCo. Mr LEE Kai-ming supplemented that the term of office of the EC under Annex I was meant to tie in with that of the CE. The EC could be put into action in case a by-election of CE was required during the term.

7. Commenting on the Administration's reply, Legal Adviser (LA) said that if the EC proposed in the Bill was different from the one to be proposed in the bill for the CE election, it might contravene the Basic Law. Mr Andrew WONG expressed concern about the membership of the EC to return six Members for the second term LegCo during the five-year term from 2000 to 2005. He pointed out that if members of the EC were to remain unchanged for five years, ex-members, instead of incumbent members, of LegCo and the Hong Kong deputies to the NPC would be responsible for electing the CE in 2002.

8. Mr LEE Wing-tat said that it seemed clear from the plain meaning of the words in paragraph 2 of Annex II that the composition of the EC for the second term LegCo was governed by the EC prescribed in Annex I of the Basic Law. He asked the Administration and the LA to advise on the relationship between the EC prescribed in Annex I and the one referred to in Annex II of the Basic Law and whether the provisions relating to the composition of the EC in the Bill, if passed, would contravene the Basic Law or would pre-empt a decision on the composition of the EC prescribed in Annex I. He pointed out that from a practical point of view, the functions of the EC would affect a person's decision on whether or not to run the candidature for being an elector on it. He stressed that the issue should be resolved before the Bill was passed.

Adm
LA

Fourth Sector for EC

9. DS for CA said that Schedule 2 to the Legislative Council Ordinance (LCO) set out the delineation of the four EC sectors and the allocation of seats to the various subsectors. The composition of the Fourth Sector of the EC was proposed as follows -

Subsector	No. of members
a) Hong Kong deputies to the NPC	36
b) LegCo Members	60
c) Hong Kong members of the National Committee of the CPPCC	41
d) Heung Yee Kuk	21
e) Hong Kong and Kowloon District Councils	21
f) New Territories District Councils	21

10. Members noted that the first two subsectors were ex-officio EC members. DS for CA said that in 1997, the Administration originally proposed in the Legislative Council Bill that apart from a vote in the geographical constituency (GC), an ex-officio EC member who was also an elector of an FC must cast the other vote in the EC election and not the FC election. In response to members of the Bills Committee on that Bill, the Administration agreed to introduce a CSA to the effect that ex-officio EC members who were also electors of FC should be allowed a choice to vote between the EC and the FC to which they belonged. Under the existing arrangement, a LegCo Member or Hong Kong deputy to the NPC might decline to be registered as an EC member so as to retain his vote in the FC to which he belonged. If he so chose, then in accordance with the principle that no elector should have more than two votes in a LegCo election, he would not be put on the register of EC members and thus ceased to have a right to vote in the EC.

11. Prof NG Ching-fai asked that in the event that some ex-officio EC members chose to cast his vote in an FC election instead of EC election, how the excess seats would be dealt with. Mr LEE Kai-ming pointed out that excess seats might also arise from overlapping of membership in the LegCo and the NPC subsectors. Principal Assistant Secretary for Constitutional Affairs (4) (PAS for CA(4)) responded that section 1(10) and (11) in Part 1 of Schedule 2 to the LCO provided that any unused quota of EC seats for LegCo Members and the Hong Kong deputies to the NPC would be transferred to the Hong Kong members of the National Committee of the CPPCC. In case there still existed any unused quota, the seats concerned would be transferred to the Provisional District Boards (to be amended as District Councils) subsectors.

12. Mr Andrew WONG briefed members on the background on the allocation of unused quota. He said that as the number of members of the National Committee of the CPPCC and the District Councils exceeded the number of EC seats allocated to them, they had the capacity to absorb seats that were not taken up by ex-officio EC members. However, he held the view that it was not necessary to fill all the 800 seats in the EC.

13. Mr Howard YOUNG said that if a large number of LegCo Members opted to vote in an FC election instead of an EC election, whether there were sufficient members of the National Committee of the CPPCC and District Councils to take up the unused quota. PAS for CA(4) replied in the affirmative as there were over 400 District Council members.

14. Miss Cyd HO asked about the rationale for allocating unused quota first to the National Committee of the CPPCC and then the District Councils. Ms Emily LAU proposed that unused quota, if any, should be open to competition by all the sectors in the EC to ensure fairness. DS for CA explained that the procedure for allocation of excess seats was the same as that adopted in the 1998 LegCo election. As the arrangement had worked well in the last election, the Administration did not see any justification for making any change to the 2000 LegCo election.

15. In response to Ms Emily LAU, PAS for CA(4) said that section 1(9) stipulated that a LegCo Member or a Hong Kong deputy to the NPC might, by giving written notice to the Electoral Registration Officer (ERO) in accordance with regulations in force under the Electoral Affairs Commission Ordinance (EACO), decline registration as an ex-officio member of the EC. The deadline of the notice would be specified in the subsidiary legislation made under the EACO. If such a person had not given notice to ERO, he would be registered as a member of the EC. In further response to Ms LAU, PAS for CA (4) confirmed that voting by EC members was not compulsory, as in the case of registered electors of GCs and FCs. In the 1998 LegCo election, 790 out of the 800 EC members had cast their votes.

LegCo Members as ex-officio members of the EC

16. Given that the first term LegCo would end on 30 June 2000, Miss Margaret NG pointed out that there would not be any incumbent Members who would be qualified as LegCo Members specified under the Fourth Sector of the EC if the EC subsector elections for the second term LegCo was to be held after 30 June 2000.

17. PAS for CA(4) replied that section 1(7)(c)(ii) of Schedule 2 to the LCO stated that Members of the Provisional Legislative Council (PLC) holding office on the "relevant date" were eligible to become ex-officio members of the EC. Clause 43(b) of the Bill sought to amend the provision by replacing "PLC" with "Legislative Council". Clause 43(d) changed the "relevant date" from "1 April 1998" to "30 June 2000". Hence Members of the LegCo holding office on 30 June 2000 were eligible to become ex-officio members of the EC.

18. Mr NG Leung-sing supported the view of the Administration. He said that since the law would provide that a LegCo Member holding office on 30 June 2000 was eligible to become a member of EC, he would continue to be so even though he ceased to be a LegCo Member after 30 June 2000. Ms Emily LAU said that she did not understand the logic behind Mr NG's argument. Mr Andrew WONG shared her view. He pointed out that the essence of the system was for LegCo Members to be ex-officio members of the EC. If a person ceased to be a LegCo Member, he should cease to be qualified as an EC member. It did not make sense to allow ex-Members of the LegCo to be members of EC, especially when the term of office for the EC was five years. He held the view that only incumbent LegCo Members could become members of EC and when there were no incumbent LegCo Members, the persons holding office as LegCo Members during the previous term should be deemed to be ex-officio members of the EC. At the request of members, the Administration undertook to respond to members' views in writing.

Adm

EC subsector elections

19. In response to Mr LEE Wing-tat, DS for CA said that Part 3 of Schedule 2 to the LCO set out the procedure for subsector elections of the EC including procedures for the nomination of candidates, eligibility criteria of voters, voting system, etc. The election procedure as well as the Corrupt and Illegal Practices Ordinance (CIPO) were applicable to the subsector elections.

20. Referring to the five Tables in Part 1 of Schedule 2, Ms Emily LAU asked how the number of seats allocated to the subsectors of EC were determined, e.g. whether the seats were evenly distributed among the subsectors concerned or apportioned according to the size of the relevant subsectors. The Administration replied that the 800 seats of EC were divided equally among the four sectors. Tables 1 to 5 set out the number of EC seats for each of the subsectors.

21. In response to Mr LEE Wing-tat, PAS for CA(4) explained that the subsectors listed in Table 5 did not have an equivalent FC. Since the Bill proposed to create a new Catering FC, the catering subsector of the EC (item 7) was deleted from Table 5. In response to members, the Administration undertook to provide information on the number of registered voters, the number of validly nominated candidates and the turnout rate in the EC subsector elections held in 1998.

Adm

Religious subsector

22. Mr LEE Kai-ming asked whether the number of members of the EC to be returned by the religious subsector would be reduced, if both the Catholic Diocese of Hong Kong and the Hong Kong Christian Council decided not to take part in the 2000 EC election as reported in the press. DS for CA replied that the Administration was discussing the matter with the two bodies. At this stage, the Administration had no intention to reduce the number of members to be returned by the religious subsector.

23. In response to Ms Emily LAU, DS for CA explained that in recognition of its unique nature, representatives of the religious subsector would be selected and nominated by six designated religious bodies. Section 3(1) in Part 2 of Schedule 2 provided that each designated body might nominate a number of persons selected by it as members representing the religious subsector. Each designated body could use a method that it considered appropriate to select its nominees. Given that the 40 seats could not be divided evenly among the six bodies, the bodies concerned would resolve among themselves the number of seats to be assigned to each body. In accordance with section 2(2) in Part 2 of Schedule 2, the CE in Council might, by order published in the Gazette, distribute the number of members allocated to the religious subsector among the designated bodies.

24. Mr LEE Wing-tat asked whether the election procedure for the religious subsector was in breach of the Basic Law, given that paragraph 3 of Annex I to the Basic Law stated that corporate bodies in various sectors should elect instead of nominate members to the EC. DS for CA replied that the procedure was in order because paragraph 2 of Annex II to the Basic Law provided that the method for electing members of the LegCo by the EC should be specified by an electoral law introduced by the Government of the Hong Kong Special Administrative Region.

IV. Date of next meeting

25. The next meeting would be held on 27 April 1999 at 10:45 am.

26. The meeting ended at 10:30 am.

Legislative Council Secretariat
12 August 1999

Legislative Council

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

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