Bills Committee on Legislative Council (Amendment) Bill 1999 (Minutes) 24 Feb 99

Legislative Council

LC Paper No. CB(2)1726/98-99
(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 1st meeting held on Wednesday, 24 February 1999 at 8:30 am in Conference Room A 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 Margaret NG
Hon CHEUNG Man-kwong
Hon Bernard CHAN
Hon CHAN Wing-chan
Dr Hon LEONG Che-hung, JP
Hon LEUNG Yiu-chung
Hon Andrew WONG Wang-fat, JP
Hon WONG Yung-kan
Hon Jasper TSANG Yok-sing, JP
Hon LAU Kong-wah
Hon Mrs Miriam LAU Kin-yee, 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 NG Leung-sing
Prof Hon NG Ching-fai
Hon Mrs Selina CHOW, JP
Hon MA Fung-kwok
Hon Christine LOH
Hon Gary CHENG Kai-nam
Hon SIN Chung-kai
Hon Howard YOUNG, JP
Hon YEUNG Yiu-chung
Hon LAU Wong-fat, GBS, JP
Hon CHOY So-yuk

Member Attending:

Hon LAU Chin-shek

Public Officers Attending:

Mr Clement MAK: Acting Secretary for Constitutional Affairs
Mr Robin IP: Deputy Secretary for Constitutional Affairs
Mr Bassanio SO: Principal Assistant Secretary for Constitutional Affairs
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. Election of Chairman

Mr Ronald ARCULLI was elected as the presiding member.

2. Mr Ronald ARCULLI was nominated by Mr CHAN Wing-chan and the nomination was seconded by Mr LEE Kai-ming and Mr LEUNG Yiu-chung. There being no other nominations, Mr Ronald ARCULLI was elected as Chairman of the Bills Committee. Mr Ronald ARCULLI then took over the chair.

II. Membership

3. The Chairman advised that Mr CHAN Kam-lam and Dr YEUNG Sum had requested to join the Bills Committee. As they had missed the deadline to signify membership to the Bills Committee for reasons other than those stipulated in House Rule 23, the Chairman suggested and members agreed that the matter be referred to the House Committee for consideration.

(Post-meeting note - The House Committee agreed at its meeting on 26 February 1999 that the request of Mr CHAN Kam-lam and Dr YEUNG Sum to join the Bills Committee be acceded to.)

III. Meeting with the Administration

4. At the invitation of the Chairman, the Acting Secretary for Constitutional Affairs (SCA(Ag)) briefed members on the Legislative Council (Amendment) Bill 1999 (the Bill) which was introduced into the LegCo on 3 February 1999. He advised that the major provisions in the Bill sought to amend the Legislative Council Ordinance (LCO) with a view to providing a proper legal basis for the second term LegCo election to be held in 2000, and where necessary, make consequential amendments to other related legislation. The major amendments were -

In accordance with the provisions laid down in Annex II of the Basic Law, the 60 seats of the LegCo be composed of 30 Members to be returned by functional constituencies (FC), 6 by Election Committee (EC) and 24 by geographical constituencies (GC) through direct elections;
The Urban Council (UC) FC and the Regional Council (RC) FC be replaced by the proposed District Councils (DC) FC and the Catering FC;
The introduction of advance polling;
Relevant provisions concerning termination of election proceedings be amended with a view to minimising the risk of disruption to the electoral process; and
The existing provisions on disqualification from LegCo candidature be extended to include the Privacy Commissioner, the chairperson of the Equal Opportunities Commission and all their staff.

5. SCA(Ag) advised that in order to allow adequate time for practical electoral arrangements to be implemented, it was necessary to have the Bill passed by 14 July 1999, i.e. at the last Council meeting in the current LegCo session. After passage of the Bill, relevant subsidiary legislation relating to the election had to be made. The timetable for various arrangements leading to the second term LegCo election in September 2000 was as follows -

The Electoral Affairs Commission (EAC) would make provisional recommendations on demarcation of constituency boundaries for public consultation in September 1999;
The EAC would finalise the recommendations for submission to the Chief Executive (CE) in about October 1999;
The Chief Executive in Council would make subsidiary legislation and publish it in the Gazette in November 1999, and negative vetting by the LegCo was expected to be completed by December 1999;
2000 voter registration campaign would commence from January 2000, after the completion of steps (a) to (c), and would last until March 2000;
The deadlines for the EAC to publish the 2000 Provisional Register and the Final Register were 15 April 2000 and 25 May 2000 respectively, as proposed in the Bill;
Nomination and canvassing for the EC subsector elections would start in June 2000 with a view to conducting polling in July 2000; and
Nomination and canvassing for the 2000 LegCo election would start in August 2000 with a view to conducting the general polling by mid-September 2000.

Replacement of the UC FC and RC FC

Legislative time table

6. Mr CHEUNG Man-kwong questioned the logic for discussing the replacement of the UC FC and RC FC by the proposed DC and Catering FCs before there was a decision on the Government's proposal to abolish the Municipal Councils (MCs). Mr LEE Wing-tat said that it was the conspiracy of the Administration to introduce this Bill ahead of the "Provision of Municipal Services" Bill so that Members would be presented with a fait accompli on the matter. While this Bill might be passed by the LegCo in mid July as proposed by the Administration, he had reservations about completing scrutiny of the "Provision of Municipal Services" Bill by the same deadline because of the complexity of the Bill and the fact that Members of different political parties had divergent views on the matter. A logical approach was to decide on the future of the MCs before giving consideration to the replacement of the RC and UC FCs. He suggested that this Bill should be deferred for scrutiny until after the passage of the "Provision of Municipal Services" Bill.

7. Mr Andrew WONG Wang-fat said that the present situation was the result of the Administration's refusal to provide an omnibus bill to deal with all related issues arising from the review of the district organisations, such as the transfer of the authority and functions of the MCs, the replacement of the UC and RC FCs, as well as the enhancement of power and role of the District Councils.

8. Ms Emily LAU said that at a previous meeting of the Panel on Constitutional Affairs, she had requested the Administration to consider introducing a bill to specifically deal with the abolition of the MCs so that Members' stance on the issue could be ascertained. She expressed regret that the Administration had eventually replied in the negative.

9. In response, SCA(Ag) clarified that it was no question of any "conspiracy" on the part of the Administration to abolish the MCs, and stressed that there had been extensive consultation on the review of the district organisations before the decision on the dissolution of the MCs was reached. On timing, he assured members that there would be an overlapping period during which both this Bill and the "Provision of Municipal Services" Bill could be scrutinised by Members. On the point raised by Ms LAU in paragraph 8 above, SCA(Ag) said that the Administration's view was that it was not appropriate to introduce a bill which only focused on a single issue without addressing all other related and necessary arrangements.

10. Dr LEONG Che-hung said that the Administration had not considered Members' views in dealing with the matter. On the amount of legislative work to be handled by the LegCo, he advised that subsequent to the legislative timetable provided to the LegCo in November 1998, the Administration had recently advised that about 20 more bills would be introduced into the LegCo within the current legislative session. While it was the prerogative of the Administration to decide on the priority of the bills to be introduced into the LegCo, he said that the Administration should explain the reasons for the sequence of introducing the two Bills in question. On the Administration's proposed timetable for dealing with the two Bills and the SCA(Ag)'s earlier advice that Members had the opportunity to scrutinise both Bills during an overlapping period, he pointed out that the Bills would be scrutinised by two separate bills committees with different membership. In addition, he alerted the Administration that when more than 15 bills committees were formed, a queuing system would automatically be activated. There was a possibility that the bills committee to be formed to study the "Provision of Municipal Services" Bill would be placed on a waiting list for some time before it could be activated. At present, one bills committee was already on the waiting list. Dr LEONG said that the Administration would always be a winner because the LegCo would have to be accountable to the public in the event that there was slippage in scrutinising the two Bills.

11. On the points made by Dr LEONG, Mr TAM Yiu-chung suggested that the House Committee Chairman could discuss with the Chief Secretary for Administration the possibility for according priority for scrutiny of the "Provision of Municipal Services" Bill. Mr TAM also requested the Administration to provide a timetable indicating the key steps leading to the 2000 LegCo election. On legislative work and practical arrangements for the 2000 LegCo election, Mr LEE Wing-tat suggested that the Administration should consider proceeding with its work in parallel, and requested the Administration to indicate its work plan in the timetable to be provided to members. The Administration agreed.

Adm

12. SCA(Ag) said that the power to pass and enact bills was vested with the LegCo. The Administration was aware of the LegCo's mechanism of scrutiny of bills and had no intention to impose the proposed timetable on Members. The Administration merely explained the need for passage of the Bill by mid July and wanted to have the support of the Bills Committee to complete scrutiny of the Bill early.

13. Mr LEE Wing-tat said that the arrangement to have two bills to deal with the future of the MCs and the replacement of the UC and RC FCs respectively could result in one of the following scenarios taking place -

retention of the MCs and its two FCs; or
abolition of the MCs and its two FCs; or
retention of the MCs and abolition of its two FCs; or
abolition of the MCs and retention of its two FCs.

Mr LEE requested and the Administration agreed to explain how it would deal with the possible situations whereby the provisions for the replacement of the UC and RC FCs contained in this Bill were passed by the LegCo while the "Provision of Municipal Services" Bill was not, or vice versa (i.e. scenarios (c) and (d) above).

Legal consideration

14. Miss Margaret NG pointed out that it would be illogical for members to consider the provisions relating to the replacement of the UC and RC FCs by the two new FCs because passing these provisions would be in conflict with the relevant existing laws. She suggested that the Bills Committee needed not consider the relevant provisions contained in the Bill until the "Provision of Municipal Services" Bill was passed by the LegCo.

15. In response, SCA(Ag) reiterated that if the Bill could not be passed by mid July, it would be deferred for passage until the next LegCo session beginning in October. This meant that the subsequent steps to be taken after passage of the Bill would be delayed. As regards the "Provision of Municipal Services" Bill, he advised that the Administration would introduce it into the LegCo in April 1999.

16. Mr Andrew WONG Wang-fat opined that there should not be any conflict with the existing laws for the Bills Committee to consider the provisions which replaced the UC and RC FCs. Mr TAM Yiu-chung shared his view.

17. The Chairman requested the Administration and the Legal Adviser (LA) to provide advice on Miss NG's viewpoint. The Administration agreed.

Adm
LA

Proposed Catering FC

18. Mr CHAN Wing-chan referred to the proposed new section 20ZA under clause 13 of the Bill and asked whether qualified holders of food business licences under the Public Health and Municipal Services Ordinance (Cap.132) and bodies named in Schedule 1E would need to be registered as electors. The Deputy Secretary for Constitutional Affairs (DS for CA) said that section 48 of the existing LCO provided that a person was only entitled to vote at an election if he was registered as an elector. This provision applied to the proposed Catering FC. However, those who had already registered for the Catering subsector in the 1998 LegCo election and who were eligible to be registered as electors for the proposed Catering FC would be automatically included in the first provisional register for the Catering FC. In response to Mr CHAN's request, DS for CA agreed to provide information on the detailed arrangement to register in the Catering FC.

Adm

Human rights implications

19. Ms Emily LAU referred to paragraph 28 of the LegCo Brief which stated that the Bill was consistent with the human rights provisions of the Basic Law. She said that in response to a query on whether the District Councils Bill was consistent with the human rights provisions of the Basic Law, the Administration had given the view that Article 25 of the International Covenant on Civil and Political Rights which provided inter alia for elections to be held by universal and equal suffrage was applicable to legislative organs, not the District Councils which were not organs of that nature. Against this background, Ms LAU was of the view that the Administration's statement in relation to this Bill, as stated in paragraph 28 of the LegCo Brief, was no longer correct and should be amended. DS for CA agreed to provide a written reply after the meeting.

Adm

Public consultation

20. In respect of proposed amendments to the delineation of the FC electorates, members asked whether the corporate bodies proposed for addition or deletion had been consulted.

21. In response, DS for CA explained that the majority of the additions were newly registered bodies and bodies which had recently acquired certain franchises or licenses. The majority of the bodies whose names were to be removed had either ceased operation or dissolved. He agreed to provide information showing the proposed changes to the delineation of the electorates for the FCs; the reasons for additions or deletions; and whether the bodies to be deleted had been consulted on the arrangement and their responses, if any.

Adm

22. Mr LEE Wing-tat proposed that the Bills Committee should consult the public on the Bill. Members agreed.

(Post-meeting note - An advertisement inviting views on the Bill was placed in Ming Pao Daily News and South China Morning Post respectively on 26 February 1999. The deadline for submission was 19 March 1999.)

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

23. Miss Margaret NG asked whether Members could move CSAs on matter such as the voting system and reform of the 30 FC seats etc. DS for CA said that in deciding electoral arrangements for the second term LegCo, the Administration had reviewed the arrangements for the 1998 LegCo elections and recommended changes to amend the LCO where necessary. As regards the issues mentioned by the member, the Administration had recommended that no changes should be made. Miss NG was of the view that any provisions of the LCO not proposed for amendment in the Bill could also be discussed and amended by way of CSAs. Mr CHEUNG Man-kwong echoed the view and said that it would appear that apart from some fundamental principles laid down in the Basic Law (such as the number of seats to be returned by the EC, FC and GC), amendments could be moved on other issues such as the voting system. Mr LEE Wing-tat said that amendments could also be moved to propose changes to expand the electorates of the 30 FCs.

24. In response to the Chairman, LA said that CSAs to a bill had to be within the scope and were relevant to the subject matter of the bill. In relation to this Bill, taking into account indicators such as the long title of the Bill which was couched in wide terms, and the Administration's advice that the Bill was the result of a review of the LCO for the purpose of designing the electoral system for the second term LegCo, it could be argued that the issues referred to by members, albeit not specifically covered in the provisions of the Bill, could be considered within the scope of and relevant to the Bill and subject to amendments provided they met the charging effect test. Nevertheless, it was ultimately a matter for the President of the LegCo to rule on any CSAs proposed by Members under the Rules of Procedure.

25. SCA(Ag) said that the question of Members moving CSAs to bills was fully discussed in the LegCo's Committee on Rules of Procedure. He undertook to provide to the Bills Committee for reference the Administration's view on the matter as presented to the Committee on Rules of Procedure.

Adm

Disqualification of public officers from LegCo candidature (clause 23(b)(iii))

26. Mr LAU Kong-wah asked about the criteria for determining the list of public officers to be disqualified from LegCo candidature. DS for CA explained that the Bill proposed to extend existing provisions on disqualification from LegCo candidature to cover the Privacy Commissioner and the chairperson of the Equal Opportunities Commission, as well as their staff because of their functions and duties and the need for them to be, and seen to be acting free of conflict of interests. DS for CA said that concern had also been raised by the Bills Committee on the District Councils Bill on the proposal to exclude the chairperson of the Equal Opportunities Commission and the Commission's staff from candidature of District Councils election. The Administration had explained that they were excluded because these persons were vested with extensive statutory powers under the Sex Discrimination Ordinance, the Disability Discrimination Ordinance and the Family Status Discrimination Ordinance. These included powers to make proposals to the Government to amend these Ordinances, to issue codes of practice which would apply generally to all people in Hong Kong, to conduct investigations on alleged offences, and to bring court proceedings against discriminatory acts under these Ordinances.

The Chief Executive's power to postpone, adjourn or cancel advance polling (clause 27)

27. Mr LAU Kong-wah asked about the rationale behind the proposal to empower the CE to postpone, adjourn or cancel the advance polling in case of riot, open violence or any occurrence of public danger. DS for CA explained that the proposal largely mirrored the existing arrangement where the CE might postpone or adjourn the holding of a general election in similar situations, as stipulated in section 44 of the existing LCO.

LegCo Members returned by the UC and RC FCs (clause 45(1) and (2))

28. Ms Emily LAU queried whether the Administration's proposal to allow the two incumbent Members returned by the UC and RC FCs in the 1998 LegCo election to serve out their term of service in the first term of LegCo, following the abolition of the MCs, would be a breach of the spirit of the representative system of government. As the LegCo was part of the representative system of government and its Members should represent and be accountable to certain sectors of the community, Ms LAU considered the proposed arrangement inappropriate as these two LegCo Members would no longer represent anyone.

29. SCA(Ag) said that this special arrangement was called for as the term of office of the members of the two municipal councils would expire by 31 December 1999. The Administration had, after conducting an extensive public consultation, proposed not to retain the two municipal councils after end of 1999. Since the term of the two incumbent UC and RC FC members would only expire by 30 June 2000, the Administration, having considered various factors, was of the view that it would be a reasonable arrangement to allow them to serve out their term of office. He said that the two incumbent Members could continue to exercise their constitutional rights and fulfill their responsibilities which included, among other things, the monitoring of the government's performance in delivery of municipal services.

30. Mr Andrew WONG Wang-fat expressed the view that the two incumbent Members concerned were lawfully returned by the UC and RC elections for a term of two years. There should be no question of the proposed transitional arrangement breaching the spirit of the representative system of government.

(Post-meeting note - The Administration's response to concerns raised by the Bills Committee at this meeting was circulated to members vide LC Paper No. CB(2)1386/98-99(01) on 3 March 1999.)

IV. Date of next meetings

31. Members agreed that the next two meetings be held on the following dates -

Thursday, 4 March 1999 (4:30 pm - 6:30 pm)

Friday, 5 March 1999 (8:30 am - 10:30 am).

32. Members also agreed that the following meetings be scheduled for the purpose of receiving public views -

Friday, 26 March 1999 (4:30 pm - 6:30 pm)

Tuesday, 30 March 1999 (4:30 pm - 6:30 pm)

33. There being no other business, the meeting ended at 10:30 am.

Legislative Council Secretariat
19 April 1999