Committee Stage
CHAIRMAN (in Cantonese): Committee stage. Council is now in Committee.
DISTRICT COUNCILS BILL
CHAIRMAN (in Cantonese): I now propose the question to you and that is: That the following clauses stand part of the District Councils Bill.
CLERK (in Cantonese): Clauses 1, 3, 4, 7, 22, 23, 25, 28 to 31, 34, 35, 36, 40 to 58, 60 to 66, 71 to 76, 78, 80, 84 and 85.
MR LEE WING-TAT (in Cantonese): We do agree on these clauses but we would like to express our views about them. Are we allowed to express our views on this question at this stage?
CHAIRMAN (in Cantonese): Yes. Do you wish to speak, Mr LEE Wing-tat?
MR LEE WING-TAT (in Cantonese): Madam Chairman, there are a few points I would like to make about clauses 1, 3, 4, 7, 22, 23, 25, 28 to 31, 34, 35, 36, 40 to 58, 60 to 66, 71 to 76, 78, 80, 84 and 85. Although we have no objection to them, I wish to make our position clear.
First on clause 29. Clause 29 deals with the disqualification of an elector from voting in an election. Since Mr CHEUNG Man-kwong of the Democratic Party will speak on our views about the eligibility of candidates later on, so I will not repeat here. The stance or philosophy of the Democratic Party is that insofar as electors' civil rights are concerned, we think that there should be as little restriction as possible. We feel that certain restrictions in the present provisions, although some of which have been revised, are unnecessary.
For example, clause 29(b) states, "[the elector] has, in Hong Kong, or any other place, been sentenced to death or imprisonment (by whatever name called)", that is, no matter the imprisonment is called an imprisonment, under surveillance or reform through labour, if he has not "served the sentence or undergone any other punishment as a competent authority may have substituted for the sentence", he will be disqualified from voting in an election. Actually, in the debate of the part on the candidates, we have already pointed out that there are, obviously, differences between the legal system and sentencing of Hong Kong and that of other countries or places. Take for a very simple example: some electors or Hong Kong residents may have committed a crime in other places but return to Hong Kong before they have served out the full term of imprisonment or reform through labour; once this is exposed, they will be disqualified from voting.
Indeed, we have pointed out that there is at present the penalty of reform through labour in mainland China and people holding different political views are also punishable by imprisonment or other penalties there. Although mainland China will soon repeal the Counter-revolution Law and replace it with the Endangering the Safety of the State Law, actually many totalitarian countries including our motherland have a very vague definition for endangering the state. Therefore, we in the Democratic Party feel that once provision is made for the disqualification of electors, it will very easily result in the deprivation of the elector eligibility of a small number of people who have committed this kind of offences in other countries.
In addition, when examining the Bill, we also mentioned that sentencing can also vary greatly in different countries which practise different criminal codes. In some countries or places, chewing gum can be an offence; in some, consuming liquor is an offence; while in some others, it is also an offence in law for women not to veil their faces. Therefore, we have always advocated that clause 29(b) should not be incorporated as a condition for determination of a person's eligibility as an elector.
Of course, some colleagues would ask why we do not amend it this time. The reason is we know that if our amendment to the part concerning candidature is not passed, there will be little chance that the amendment to this part will be passed. Therefore, we have not amended this part. However, we have to make our stand known, and that is, we do not agree to it.
In regard to clause 60, I think that Mr Andrew WONG should have something to say about it because he has taken part in the examination of the Bill. However, "If one cannot succeed, one has to die for a righteous cause." Since he has not died yet, he can still participate in the debate tonight. Mr Andrew WONG has spent a very long time explaining to colleagues of the Bills Committee why he considers the chairman should not be elected from among members of the District Councils but by another means, that is, to be elected by qualified electors in the district, each having one vote.
I know that this is related to public expenditure and will hence not be accepted, but we feel that this concept can be debated. In particular, since the present system has included a fixed number of appointed members, we feel that if the chairman is elected through the one-elector-one-vote system, he will have greater power and authority.
I agree with Miss Christine LOH who has said on some occasions that the chairman of a District Council is similar to the leader of a small place, something like the head of a town or a county, or the mayor of a small city. Actually, in Hong Kong each district board oversees a very big area; for example, the Eastern District Board oversees a district with a population of 400 000 to 500 000 or even well over 500 000; the Sha Tin District Board oversees a population of 500 000 to 600 000 while the Kwai Tsing District and Kwun Tong District Councils each oversees a population of 400 000 to 500 000. I feel that in the perspective of constitutional development, it should be entirely in order to establish a speaker in each council who is more like a leader in nature. As I have just said, Mr Andrew WONG's failure in amending this is due to the charging effect. But I still feel that the Government can consider his proposal because in the development of the district boards over the years, the chairman of each board has played the role of a referee of a ball game, where his work is to preside at the meetings, arrange for the agendas, set the meeting dates and the rules to be followed by members when they speak at the meetings.
We have never considered the states of District Councils from another constitutional perspective, that is, whether the chairman of a District Council should be the political leader of that particular district. This is consistent with my concept. As I have said in the debate on the resumption of the Second Reading, District Councils should gradually develop into District Councils that have more solid political power, instead of being purely consultative in nature. If this is the case, I feel that the chairman's role should be more than a referee who only sets the time, presides at the meetings and arranges the agenda; rather, he should be a leader who works with his colleagues to monitor the Government's administration in the district. Should the Government grant District Councils additional powers, the chairman should lead his colleagues in exercising them, which are the powers to administer the district as I mentioned before.
I sometimes wonder why the Home Affairs Department would rather have people it has appointed run the community town halls than entrust the elected district board members with this duty. These matters are totally unrelated to the Government's policies and will not threaten or rock its authority, but the Government still does not entrust them to the district boards. Why is it that the district boards are not entrusted with even such trivial administrative matters as determining who is to play badminton there and to whom the venues will be rented? Why can they not be entrusted with even these? If they have these powers, they can function more effectively. At present, in many districts, for Category D works items — everyone knows that there are works of different scales and Category D works may involve those costing $10 million or less — such as road maintenance works costing a few hundred thousand dollars, if the district boards have a say in them, they can have the power to make decisions. I think that for works of a relatively small scale, the Government can consider my suggestion. I am not suggesting to let the district boards decide whether to carry out colossal projects like the construction of Route 3 or the West Rail but some very localized works in the districts. I believe that the Home Affairs Department and the Secretary have an idea what I am talking about. In my opinion, take the north and south bound traffic of Nathan Road in Sham Shui Po as an example: Why can the district board not be left to discuss with the departments concerned in order to have the works done better? I feel that once the District Councils are vested with such powers, the chairman should be required to enjoy a stronger mandate as that would allow him and other members to do a better job.
Of course, the Government does not accept our suggestions for the time being. It does not agree that other than giving advice, the District Councils should be empowered to overlook matters that do not involve the central administration and to decide the priority of works. However, in my view, in regard to the development of the District Councils, if we cannot divide the powers or transfer the powers to the councils in a reasonable and step-by-step manner, the colleagues of the District Councils — the 300-odd members as the Secretary said, and there will be more this year — will still be paying their lip services only. They, other than those fishing for fame and compliments, will not be content with a slightly higher allowance granted by the Government or the chance to attend more ceremonies, or organize more cocktail receptions. Many members do not like to do these things. They would rather be given more statutory powers. Although we have not moved any amendment to clause 60 tonight and Mr Andrew WONG's amendment has been ruled out, I still hope to put down on record that the Democratic Party feels that the District Councils should be developed into councils with political powers and the role of the council chairman will develop from that of a referee to one with more leadership power.
CHAIRMAN (in Cantonese): Mr LEE Wing-tat, part of your speech was related to clause 59. Hence, when you speak on clause 59 later on, please try not to repeat those points. Does any other Member wish to speak?
MR ANDREW WONG (in Cantonese): Madam Chairman, I believe I need to say a few words. The provisions in clauses 29, 21 and 24 have been my hobby-horse for many years at the previous Legislative Council. I am not very satisfied with amendments to be proposed by the Democratic Party because I think they are not comprehensive enough; but despite the fact that I am not satisfied, the Democratic Party is now "backing down" by withdrawing its original amendment to clause 29. I originally proposed that in addition to subclause (b) of clause 29, subclauses (c) and (d) can all be deleted, because in principle, the concept of depriving Hong Kong citizens of their civil rights should not be allowed in Hong Kong, and even if such concepts do exist, I think they should only be applicable to candidates who are seeking public office, and those who are disqualified from holding office should not be deprived of their voting rights. I would like to go one step further at suggesting that even prisoners should be allowed to vote, but such an arrangement may have a charging effect, and it is always a very complex issue. I wonder why the Democratic Party is withdrawing its proposed amendment to clause 29, but Members of the Democratic Party can tell us their reasons for doing so when it is their turn to speak later on. Moreover, the Democratic Party has also withdrawn some of its amendments to clause 24, and perhaps they have done so to avoid trouble and as a gesture of goodwill! However, I hope that other Members will support me in principle, and consider my views. In fact, I have said the same thing in 1994 and 1997.
As regards clause 60, I actually did not want to speak at the resumption of the Second Reading debate, for I was afraid that it would touch upon the President's ruling. However, since the Secretary for Constitutional Affairs mentioned at the Second Reading debate that the Administration had different views with regard to the Rules of Procedure and wished to put those views on record, I would also like to state my views. The President's ruling is that according to the reasons given by the Administration and her understanding, my proposed amendments will have a charging effect. However, insofar as I understand it, clause 60 does not have a charging effect and clause 59, in particular, definitely does not have a charging effect, but I am not talking about clause 59 now. Even if I would like to have the chairman of the District Council returned by direct elections, I would say that since this Bill is about the organization and election of District Council, then all the expenses involved must have been approved of by the Administration, so Members of this Council should have the right to make different suggestions on the constitution and election of the District Councils. Moreover, the Administration should have already made a commitment on public moneys. This is my understanding.
But I would like to say that ......
CHAIRMAN (in Cantonese): Sorry, may I clarify that whether you are challenging my ruling?
MR ANDREW WONG (in Cantonese): No, I am not trying to challenge your ruling, but since all my suggestions have been passed to the President and the Administration, they may not be known to the public, so I would only like to put my views on record. I just want to say that since the District Council does not have any actual powers, it is all the more important that the chairman is returned by direct election, so that he can enjoy a higher status in the district, and be on an equal footing with the District Officer who has actual administrative powers. I believe that this arrangement may be more effective than appointing the chairman of the District Council as a member of the District Management Committee (DMC), for in the case the chairman of the District Council is not a member of the DMC, then there will be a more acute need for the Administration to hold discussions with the chairman of the District Council before implementing any policies.
I believe that in the future, gradual changes will be made to this effect, or even before such changes are made, if the Government has, by means of enacting other legislation, authorization from the Chief Executive or funding to the District Council, allowed the District Council to make its own decisions then the chairman of the District Council can be returned by direct election and played a more effective role as a leader. I have raised this point because other Members may not have the opportunity to do so in future since this has a charging effect. I hope that the Administration can consider my suggestion, and make improvements in this direction in the future, because there will be more sense in doing so. As Mr LEE Wing-tat has said, the role of the chairman of the district authority — the prospective district authority — is different from that of a speaker at the parliament or legislature in that the chairman of the District Council is not only a referee, but also a leader. I hope that the Administration could listen to good counsel in the future.
MISS MARGARET NG (in Cantonese): Madam Chairman, I am very disappointed that I was not a member of the Bills Committee which was responsible for scrutinizing this Bill. With regard to clause 29 which deals with the provisions on disqualifying an elector from voting at an election, I wonder whether the Administration has considered at the drafting stage whether this clause is in contravention to Article 39 of the Basic Law?
According to Members who have worked in the Bills Committee, it was said that clause 29 and the legal advice given in respect of this clause were only briefly discussed. However, will a person be disqualified from voting at an election if the circumstances described in subclause (b) and in particular subclause (c) of clause 29 occur? Will this still be consistent with Article 39 of the Basic Law which provides that Hong Kong residents shall enjoy civil rights, especially the right to participate in politics?
Madam Chairman, I hope the Administration will clarify on this later on.
CHAIRMAN (in Cantonese): Secretary for Constitutional Affairs, do you wish to reply?
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, I am not quite sure whether this is the appropriate time for me to respond; however, since we have not proposed to amend clause 29, I will not have any chance to speak later on. I do not know if this Council is sticking to the Agenda to deliberate the business ......
CHAIRMAN (in Cantonese): You may indicate that you do not wish to speak, but we will not discuss clause 29 again later on. It is only because some Members have spoken on the clause that I asked you if you would like to reply.
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, I should like to give a brief response. We have of course raised the respective provisions for discussion and sought legal advice on the subject during the scrutiny of the Bill. Perhaps Honourable Members may have noticed that the provisions concerned are identical to those of the Electoral Provisions Ordinance in this connection. As such, the provisions did not breach the International Covenant on Civil and Political Rights (ICCPR) in the past, and hence it will not be in contravention to the ICCPR referred to in Article 39 of the Basic Law. We have also re-examined that jointly with our lawyers. So this is the brief reply that I wish to make.
MR JAMES TO (in Cantonese): Madam Chairman, I would like to ask the Administration to reconsider this issue for I reckon that clause 29 will certainly give rise to litigations. Why did I say that? The Secretary has just repeated his arguments from those backing the provisions from another ordinance. I am aware that the Administration has copied the provisions and, is therefore, not in a position to make any changes lightly. But let us look at the Court of Final Appeal's recent ruling on the issue of child migrants, and we can see that it has adopted a rather broad interpretation of Article 39 of the Basic Law, and a more positive approach in dealing with the rights of Hong Kong residents. Although government lawyers might find that the provisions of clause 29 not in contravention of Article 39 of the Basic Law while they scrutinized the Bill, I believe that the Administration may have to reconsider its position on rights or the deprivation of them, now that the Court of Final Appeal has made a ruling, for I believe the ruling should have given us some inspiration. I hope to put this point on record and I also hope that the Administration will review the issue on the acquisition and loss of those rights.
In the past colonial days, there was a period of time during which ICCPR was not applicable to Hong Kong, for we were not yet one of the signatories. In fact, we had to wait until 1991 before we can enjoy such rights even after the ICCPR was made applicable to Hong Kong, and in the interim, there was a year during which the application of those rights was being frozen. That is why the number of case laws which we have accumulated before the reunification is insufficient to allow any open-minded legal adviser to offer authoritative views on this matter. However, I believe that the recent ruling of the Court of Final Appeal, especially the unanimous verdict reached by several prominent judges, can serve as an important guideline.
CHAIRMAN (in Cantonese): Does any other Member wish to speak? No?
Secretary for Constitutional Affairs, do you wish to reply?
(The Secretary for Constitutional Affairs indicated he did not wish to reply)
CHAIRMAN (in Cantonese): Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, since the Rules of Procedure stipulate that any schedule shall be considered after the clauses and any proposed new clauses of a bill have been disposed of, may I seek your consent to move under Rule 91 of the Rules of Procedure that Rule 58(5) of the Rules of Procedure be suspended in order that Schedules 3, 4 and 6 may be considered respectively together with relevant clauses as they are interdependent.
CHAIRMAN (in Cantonese): Secretary for Constitutional Affairs, as only the President may give consent for a motion to be moved, without notice, to suspend the Rules of Procedure, I order that Council do now resume.
Council then resumed.
PRESIDENT (in Cantonese): Secretary for Constitutional Affairs, you have my consent.
SECRETARY FOR CONSTITUTIONAL AFFAIRS(in Cantonese): Madam President, I move that Rule 58(5) of the Rules of Procedure be suspended to enable the Committee of the whole Council to consider Schedules 3, 4 and 6 respectively together with relevant clauses as they are interdependent.
PRESIDENT (in Cantonese): I now propose the question to you and that is: That Rule 58(5) of the Rules of Procedure be suspended to enable the Committee of the whole Council to consider Schedules 3, 4 and 6 respectively together with relevant clauses as they are interdependent.
PRESIDENT (in Cantonese): I now put the question to you as stated. Will those in favour please raise their hands?
(Members raised their hands)
PRESIDENT (in Cantonese): Those against please raise their hands.
(No hands raised)
PRESIDENT (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.
Council went into Committee.
Committee Stage
CHAIRMAN (in Cantonese): Council is now in Committee.
CHAIRMAN (in Cantonese): We will now deal with the parts of the Bill relating to "appointed members".
CLERK (in Cantonese): Clause 2, heading of Part II before clause 3, clauses 5, 8, 9, 10, sub-heading of Part IV before clause 11, clauses 11 to 16, 70, 81 and 82 and Schedules 3 and 4.
Mr LEE Wing-tat (in Cantonese): Madam Chairman, I move the deletion of the definition of "appointed member" from clause 2, subclause(2) from clause 5, paragraph (b) from clause 9, sub-heading of Part IV before clause 11 and clauses 11 to 16, and the amendments to the definition of "member" in clause 2, heading of Part II before clause 3, heading of clause 5, subclause(2) of clause 8, heading of clause 9, clause 10, subclauses(2) and (3) of clause 70, clauses 81 and 82 and Schedules 3 and 4, as set out in the paper circularized to Members.
After I have read out so many numbers, I believe Honourable colleagues are all aware that we are now dealing with but one issue, that is, the issue of appointed seats.
Madam Chairman, it has been proposed in the District Councils Bill that there shall be a total of 519 seats on the District Councils in the coming term; of these seats, about three quarters, or 390, will be filled by elected members, while another 102, or roughly one fifth, will be filled by members appointed by the Chief Executive. This proposal is an utter retrogression in democratic development. The Democratic Party expresses the strongest regret and objection!
The system of representative government in Hong Kong was first developed in the '80s when district boards were established to enable residents of a district to elect their representatives to participate in the administration and management of the local community. As the development continued gradually, we began to have elected district boards, two elected Municipal Councils, and eventually an elected legislature. That way, not only the accountability of the councils could be enhanced, public opinion could also be much better reflected and represented.
The slow pace of democratic development in Hong Kong, in particular that of the district boards, has all along been criticized and reproved by the people. In this connection, while about 30% of their members in 1982 were returned through election, it took the district boards more than a dozen years of gradual and orderly development to abolish the appointed seats in 1994. In that year, more than 90% of the district board members were elected through a one-person-one-vote system.
The District Council members to be returned by the election this year will hold office for a term of four years; as such, the 20th anniversary of the district level representative government will fall within this term. Nevertheless, in utter negligence of public opinion, the Chief Executive has tried to restore the defunct system of appointed seats. The coming term of the District Councils will see the restoration of the appointment system and a total of 102 appointed seats; as such, the democratic development of the District Councils will be pushed back to the days before the year 1994. The people of Hong Kong cannot but get very much disappointed!
Indeed, the measure has violated the spirit and principles of a universal and fair election on the one hand, and blocked the channel through which members of the public could participate in the management of district affairs on the other. Moreover, the provisions concerned have also breached Article 21 of the Hong Kong Bill of Rights Ordinance.
The Government has referred to the International Covenant on Civil and Political Rights (ICCPR) and said that the letter of Article 25 of the ICCPR is that organizations that exercise real and statutory powers must be returned through election, but since districts councils do not belong to such kind of bodies, the Article is hence not applicable. The Democratic Party has much reservation about this piece of legal advice. Firstly, according to the summary of views regarding Article 25 adopted by the Human Rights Commission of the United Nations on 12 July 1996, the civil rights confirmed under Article 25 should include the right of an citizen to take part in the conduct of public affairs directly or through elected representatives; to vote and to be elected; as well as to have access, on general terms of equality, to public service. As regards the right to take part in the conduct of public affairs through freely elected representatives, the relevant elections should be subject to the provisions of Article 25 to the effect that they shall be elections by universal and equal suffrage. Secondly, according to the proposals put forward in the Bill, subject to the availability of funds, the District Councils shall undertake work related to environmental improvement and the promotion of recreational and cultural activities. As such, the District Councils indeed have practical administrative functions to perform and be held responsible for such. Hence, the Government should not use the unavailability of funds as an argument to support its claim that the District Councils do not performed any functions backed by administrative authority. This is the same as the case of this Council. Although its legislative power is subject to the provision under the Basic Law, this Council still has in its possession the power to make laws. For this reason, the Democratic Party holds that while Article 25 should be applicable to the District Councils in Hong Kong, the proposal to appoint persons to become members of District Councils is in breach of Article 25 of the ICCPR and Article 39 of the Basic Law.
Madam Chairman, as we all know, the appointment system is not only heading in the opposite direction of but also running counter to the trend of global democratic development. In order to collect information regarding the composition of the local councils in different countries, as well as to understand the functions and memberships of the councils, the Democratic Party has written to various consulates general in Hong Kong asking for information. Just now the Honourable Fred LI has read out the reply letters and I do not wish to repeat any one of them here.
Democratic development is one major trend in the international community. Recently, the local councils in Iran have also been elected under a one-person-one vote system. Please note that the voters include also women, which means all men and women will have one vote each, albeit the ladies may have to put on their veils when they cast their votes. Hong Kong really should not backtrack on its policies by revoking the existing practices and restoring the defunct appointment system.
Let me cite New Zealand as an example. Under a total of 74 district organizations (encompassing 15 city councils, 58 District Councils, and the Chatham Islands Council) in the country, there are 155 community councils the function of which is to help the District Councils to consult the community with respect to local matters. Members of the community councils are all returned by direct election. As a matter of fact, our secretariat (Secretary Michael SUEN should know that our secretariat is very small in scale) － by that I refer to the secretariat of the Democratic Party, not the Legislative Council Secretariat － has but a few researchers, yet with much less man hours than that spent by the Government, we have managed to collect information of those countries which we regard as the least advanced. These countries have already implemented the one-person-one-vote system form of democratic election, and it is particularly encouraging that the one-person-one-vote system has also been adopted by Iran. We people of Hong Kong really need to ask ourselves whether both the men and women in Hong Kong are not comparable to our counterparts in Iran. I just could not see why we are unable to do the same.
As the elections in New York and Taiwan have already been referred to by Honourable Members, I am not going to repeat their examples here.
Madam Chairman, the real purpose of creating appointed seats is to reduce the voice of the public. Over the past two to three months, the Government has given different reasons to justify its proposal to create appointed seats, at one time it was the need to balance the composition of the District Councils; at the other it was the need to allow those who are interested in joining the District Councils but are unwilling to run in the election or are afraid that they have no chance of winning the election an opportunity to participate in the work of the District Councils. In regard to the former reason, apparently the Government of the Special Administrative Region is trying to "balance" the views of the District Councils and reduce the voices of elected members by planting in members who will support the views of the Government, with a view to rendering the District Councils an "organization of public opinion" which will agree with the Government in most cases. As regards the latter reason, it is indeed an unpalatable reason. Nothing can be more absurb than appointing persons who are unwilling to run in elections or who consider themselves unable to win the election to become members of an organization which "should hold fast to the public opinion".
According to the information provided by the Government on the categories of occupations of district board Members, 26% of the incumbent Provisional District Board Members are professionals in fields such as education, law, accounting, engineering, medical care, information technology and so on; and almost 75% of them are returned through election. Just now I was very glad to hear the views raised by Dr the Honourable LEONG Che-hung. Dr LEONG is a medical practitioner who enjoys a good standing in the medical profession. I do not wish to use such "apple-polishing" phrases as "premier" to describe him, but it would be an insult to him if I say that he does not have any standing at all. Dr LEONG is a good man; he has recommended three doctors to run for offices in an election. Although they did not have much experience, the three doctors were all very diligent; nevertheless, in the end only two succeeded and, one lost the election.
If the examples were quoted by us, the Government will definitely refuse to believe them on the ground that they are raised by the Democratic Party. Fortunately they were all quoted by Dr LEONG. Nevertheless, I will not repeat any of them here.
Madam Chairman, another point I should like to speak on is related to the question of whether the appointed seats are in breach of the Basic Law. In this connection, Article 39 of the Basic Law has set out clearly that the provisions of the ICCPR as applied to Hong Kong shall remain in force. Just now I have referred to the provisions under Article 25 of the ICCPR as follows: "Every citizen shall have the right and opportunity to take part in the conduct of public affairs directly or through freely chosen representatives; to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage; as well as to have access, on general terms of equality, to public service in his country". However, I am not going to repeat the remarks I have made in relation to the issue of whether this election is by universal and equal suffrage, or whether the electors really have the chance to choose their representatives at genuine periodic elections. Nevertheless, since there are certain representatives who do not have the right to be or not to be elected at genuine periodic elections, I consider the proposal in breach of the provisions under Article 39 of the Basic Law.
Madam Chairman, just now many Honourable Members have spoken with very strong feelings. Secretary Michael SUEN said we should not expand this issue which involves only the District Councils; we should not have expanded just a very minor point indefinitely. On the face of it, the argument put forward by the Secretary should be established; indeed, people would hardly be convinced that the democratic development of Hong Kong is backpedalling if the issue involves only the creation or otherwise of appointed seats. However, if we discuss the issue from the perspective of the present historical timeframe, our concern is well-founded.
Firstly, after the reunification, some structures of public opinion, such as the two Municipal Councils, will be abolished; as for others, some would find their powers to be restricted. This may perhaps be the first time for this Council to legislate to reduce the rights of the people, especially their democratic rights. As such, in pointing out the problems, we are discussing not only the problems facing us today but also a phenomenon that took place after the reunification.
I have looked up the political platforms of the Democratic Alliance for the Betterment of Hong Kong (DAB) and the Liberal Party, both of which are in support of full direct elections in 2008. However, I am not sure if I could recall correctly the views of the Liberal Party. I do remeber that Mr Allen LEE has indeed said that, but since the Liberal Party has changed its chairman, I am not sure if the party's views have also been changed or not. I really have no idea, as the stance of the Liberal Party regarding the motion on "Vote of no confidence in the Secretary for Justice" has shifted. I do not want to dwell on this incident, but if the political platform of the party will change with its new chairman, does that mean the Liberal Party will still stick to its political platform that full direct elections should be introduced in 2008? I really do not know.
When running for office of this Council in the direct election held last year, DAB Chairman Jasper TSANG － he is not in this Chamber right now － mentioned that after he had won the election, DAB might consider slightly advancing the review of the pace of democratic development as set out under the Basic Law. (The Honourable LAU Kong-wah is nodding, so I have not quoted incorrectly). However, so far the issue has yet to be raised for discussion.
The most terrifying case should be the alternate concept of democracy that emerged at the turn of the year, since it considers the functional constituency election one form of democratic election. Should that be the case, things will become even worse, for we are now caught in a thick fog. What kinds of elections are we talking about now? Does the election we are discussing now refer to the "genuine periodic elections with a free choice" as referred to by Article 25 of the ICCPR; or is it the weird form of election before us now?
Madam Chairman, I hope that Secretary Michael SUEN could understand our situation. Fianally, may I quote, "Democracy delayed is democracy denied". Thank you, Madam Chairman.
Proposed amendment
Clause 2 (see Annex IV)
Heading of Part II before clause 3 (see Annex IV)
Clause 5 (see Annex IV)
Clause 8 (see Annex IV)
Clause 9 (see Annex IV)
Clause 10 (see Annex IV)
Sub-heading of Part IV before clause 11 (see Annex IV)
Clause 11 (see Annex IV)
Clause 12 (see Annex IV)
Clause 13 (see Annex IV)
Clause 14 (see Annex IV)
Clause 15 (see Annex IV)
Clause 16 (see Annex IV)
Clause 70 (see Annex IV)
Clause 81 (see Annex IV)
Clause 82 (see Annex IV)
Schedule 3 (see Annex IV)
Schedule 4 (see Annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak? Please raise your hand to so indicate.
DR YEUNG SUM (in Cantonese): Thank you, Madam Chairman. Secretary Michael SUEN just said that when he consulted some community organizations, a small number of respondents indicated that they would like to retain the appointed seats in the District Councils.
I would like to tell Mr SUEN about the findings of a public opinion poll. According to the opinion poll conducted by the "Top Express", a publication of the Social Sciences Research Centre of the University of Hong Kong from 28 to 29 July 1998, almost 80% ( 78% to be exact) of the respondents indicated in the 1 000-odd questionnaires received by the Centre that they were in support of fully directly elected District Councils. The poll findings clearly showed that the majority of the members of the public were against the restoration of appointed seats, and I would like to know whether Mr SUEN will consider this part of the public opinion?
Mr SUEN mentioned just now that there were people who would like to participate in politics but would not wish to run for office. If these people like to make contribution, then they should stand for direct election. I failed to understand why the Government will be willing to be accused of "taking a major retrogressive step in democracy" so as to cater for the wishes of these people? Why should the Government be taking special care of these people?
Dr LEONG Che-hung has said that the professionals will not be in a disadvantageous position if they stand for election. By taking a look at Members of this Council who are now in this Chamber, we can see that most of them have a professional background. So, if the professionals are willing to stand for election, there is no reason why they will not be elected. Why does Mr SUEN have to be so considerate and protective of these people, and to be accused for the above crime because of this?
Mr SUEN has just talked about public opinions, and I would like to ask him to seriously consider the findings of the opinion poll conducted by the University of Hong Kong. Let me repeat, it is the findings of the opinion poll conducted from 28 to 29 July 1998. Will Mr SUEN please ask his secretary to check on it?
Thank you, Madam Chairman.
MR SIN CHUNG-KAI (in Cantonese): Madam Chairman, I would like to take this opportunity to ask the Secretary a question. When the district board election was first introduced in 1982, only one third of its members were directly elected. In 1985, the number of directly elected district board members remained at one third and eventually increased to two thirds since 1988. Between the nine years from 1985 to 1994, the number of directly elected district board members gradually increased until all of them were returned by universal suffrage, but now in 1999, the number of appointed and ex officio members in the District Councils will be changed again to one quarter of the total number of District Council members.
There is no doubt that this Bill will be carried today, but will the Government tell us what it will do in the next District Council election, that is, in the 2003 election? According to this curve, will the proportion of appointed seats in the District Councils be increased to 50% by 2003? Will all members of the District Councils be directly elected in 2003? Or will the District Councils be altogether abolished in 2003? I hope the Secretary will tell us about his long-term plan.
The Basic Law provides that the pace of democratization in Hong Kong may be accelerated after the year 2007, but now the Government has introduced this District Councils Bill which will slow down the pace of democratization. Although this Bill cannot provide for the next election, the Government should at least tell us about its thinking at the moment. It should also tell us whether it will take a further step backward in terms of democratic development in the next District Council election?
I would only like to ask this simple question, and I hope the Secretary can tell all colleagues of the Legislative Council whether the appointment system will be retained in the District Councils Ordinance in 2003.
MISS EMILY LAU (in Cantonese): I fully endorse the question of Mr SIN Chung-kai, and in fact, this question was also raised at the Bills Committee. Madam Chairman, insofar as I can recall, the Government has told us that it does not have a timetable, and it means that the functional constituency and other forms of election which are now under discussion are just transitional arrangements, and will be dealt with in accordance with the provisions of Article 68 of the Basic Law. However, as regards the issue of the District Councils, the Secretary has refused to lay down a timetable. Therefore, I do not think (I hope the Secretary can clarify later on) that the appointment system and ex officio system are just temporary arrangements. They are actually permanent arrangements "cast and set". It is only natural that Mr SIN Chung-kai should be concerned about this issue for there may be more and more appointed seats in the future. At present, appointed seats make up about 20% to 25% of the seats in the District Councils, and it may be further increased to 30% to 40%. I think the Secretary should clarify this.
On the other hand, Madam Chairman, I would also like to ask the Secretary to clarify another point. During the resumption of the Second Reading debate, a lot of Members have expressed concern over the Chief Executive election in 2002, when the Chief Executive will be returned by a small coterie of an 800-strong Election Committee. Since some appointed members of the District Councils may be elected to the 800-strong Election Committee, Members of this Council are worried that there will be "under the table" arrangements in the District Council election. But the Secretary has not answered this part of the question.
We have noted, in response to the comments that candidates defeated in the election should not be appointed, the Secretary said the actions of the Chief Executive will be self-explanatory. However, the fact that the Secretary has not addressed our concern over the possibility that appointed members of the District Councils may be elected to the Election Committee has made us very worried. Madam Chairman, I think the Secretary should respond to our question. He can confirm that our suspicion is correct and say that members who are now appointed to the District Councils will definitely be elected to the 800-strong Election Committee. He should, at least, be open and aboveboard about this, so that we will know exactly what we are in for.
Furthermore, Madam Chairman, I would also like to explain why I have risen to speak. This is because I would also like to seek an explanation from the Secretary. He was very happy in telling us that he always consults us about everything, and he has sought our views before submitting this Bill. It is true that he has consulted us, including members of the Bills Committee, relevant Panels as well as the Frontier, since some of our members were present at that time. However, when Mr CHENG Tsuk-man from the Frontier asked the Secretary whether the proposal on the appointment system can be amended, he was told that this cannot be changed. If that is the case, then what is the purpose of the whole consultation exercise? Madam Chairman, if the Secretary should say that no amendments can be made in respect of the core issue, then I would say that he should not have conducted the exercise in the first place. Though the Secretary said he has consulted us and all matters can be discussed, he also said that no changes can be made to the core issue. I would like to ask the Secretary to verify this, and I also want the public to see through his trick.
Thank you, Madam Chairman.
MR LEUNG YIU-CHUNG (in Cantonese): Madam Chairman, I want to respond to two points raised by the Secretary during the Second Reading debate. First, he said he had consulted many organizations, including the district boards, and had listened to the views expressed by some district board members who considered that the appointment system should be retained. This is the first point I hope he can respond to. Second, the Secretary remarked that if Mr LEE Wing-tat's amendment was passed this time, that is, to abolish the appointment system, the impact would be very great. Will the Secretary tell us what the impact is?
First of all, I want to respond to the Secretary's point that when he consulted the Provisional District Boards, some members had expressed that they hoped to retain the appointed seats. I would like to tell the Secretary that some people will definitely say something like that. This is because there are temporary appointed members in the Provisional District Boards, how can we expect them to "dismantle their own stage"? Do we expect them to say that the appointment system should be discontinued? This is virtually impossible. They will definitely support this system. At the same time, this reflects a fact. Madam Chairman, the fact is the merit of the appointment system. What is the merit then? If the Government wants to seek "public opinion", it can simply approach these people to seek their "public opinion". This example is crystal clear. To seek public opinion to support itself, the Government is now trying to find some people to "support" what it has done by saying that it did consult the district boards. In future, the appointment system will also have the same effect and that is to "defend" the Government by piling up the so-called "public opinion" for the Government and to speak the Government's mind. What is the point of holding such a kind of consultation? We can predict the result even without holding the consultation at all. What is the point of wasting time to consult us? There is no need to waste taxpayers' money in future. It is better for the Government not to carry out any consultation at all. Therefore, I want to point out clearly that, just as Miss Emily LAU said just now, the so-called consultation mentioned by the Secretary was simply meant to demonstrate that the Government is having an open mind and making improvement. In fact, the Government should and must move this Bill to consult Members and the Council. There is absolutely no need for the Government to boost the merits in doing so. The Government would have performed terribly should it fail to do so. The Secretary seemed to be very pleased with himself when he delivered such a long speech just now. If I were him, I would have felt terribly ashamed. Why? In a so-called open society, consultation should be taken as something which is essential and necessary. Now that the Secretary is boasting what he has done, what does that mean? Does he consider that he should be very proud of himself for the Government has now made a bold step? But in the context of democratic progression, I think the Secretary should feel ashamed and embarrassed for what he has done.
Second, another important point is that the Secretary said during the Second Reading debate that the abolition of the appointment system would produce a great impact. I really want to know how great is it? What is the impact? Insofar as the last term of the district boards is concerned, all members were returned by direct election. During those years, what wrongs have the district boards done? Could the Secretary give us a reply? What problem has arisen with respect to the operation of the district boards? What great impact has been made during those years? Could the Secretary give us an explanation?
Regarding the two challenges made by Mr Fred LI earlier, I think the Secretary will basically not give him a reply. The Secretary also said that he would not answer the question raised by Miss Emily LAU just now. Such being the case, I believe the Secretary will also decline to answer the question raised by me earlier. Why? This is because he will answer only if he so wishes. He will not answer if he does not like to do so, or if he cannot do so. As a matter of fact, I think it is unnecessary to ask government officials to answer the questions raised in the debates held in this Council. This is because more often than not, officials will not answer the questions raised by Members. How many times has the Secretary answered the questions raised by us in a direct manner? If so, I hope the Secretary can answer my questions later. Thank you, Madam Chairman.
MR FRED LI (in Cantonese): Thank you, the Honourable LEUNG Yiu-chung. This is because I intended to remind the Secretary to answer my questions the moment I stood up. At the beginning, I thought he was going to answer my questions as he said he had diviated from his script. But at the end, he still failed to respond to my questions. I do not know whether or not he is losing his memory. I only want to say given the fact that the Secretary wishes to promote the appointment system and solicit Members' support, he should have answered the reasonable questions raised by me. Fine. The Secretary is going to promote the appointment system conceived by him and he naturally hopes Members can support it, but what people are going to be appointed? Who is going to make the decision? Who is going to make recommendation? This is one of the questions I want to raise. I think this question is reasonable enough. I am not even arguing with him whether this has anything to do with democracy. It is as simple as that. While the Secretary wishes to promote the appointment system, he has failed to answer or say something about this reasonable question.
Just now, Miss Emily LAU has also mentioned the issue about appointed seats. My immediate response is that I wonder if the appointment system is cast in granite that it is not possible to get through it no matter what we do. We can only keep it in a black box. Are we still required to support it even though we cannot see it or feel it?
I want to mention one of the challenges I raised earlier in case the Secretary will make another response. I will not even raise the question I asked earlier in connection with other countries in the world. I would only like to ask what is the whole mechanism really like?
MR AMBROSE CHEUNG (in Cantonese): Madam Chairman, I want to ask the Secretary a question too. When I delivered my speech earlier, I had tried not to talk about democracy as many Members had already done so. However, the response given by the Secretary just now has given us great confidence. According to the Secretary, democracy will come sooner or later. The Secretary has also cited a specific example and that is the Legislative Council. The Basic Law has already put in place (if I have not misinterpreted it) a mechanism that enables the Legislative Council to be fully returned by direct elections eventually. A specific timetable has also been put in place too. Let us wait until 2007 to see what we should do to deal with this. The Secretary stressed that such mechanism did exist.
I also agree with the Secretary that democracy will come sooner or later. Let me go back to the district boards. The district boards were first set up in 1981. Democracy finally arrived in 1994 when there were full direct elections. But now the Government is backpedalling by restoring the appointed seats. I want to ask the Secretary, insofar as District Councils are concerned, what will the mechanism of the councils be like according to the position held by the Government and its plan? What is the timetable specifically? When will the District Councils have full direct elections? Under what circumstances and in what manner and according to what mechanism and timetable will democracy "come sooner or later"? We earnestly hope that the Government can clarify these points.
Secondly, the Secretary said if appointed were are really abolished, it would impact greatly on the composition of the District Councils. I remember the Secretary mentioning "a great impact on the composition of the District Councils". Just now, Mr LEUNG Yiu-chung also mentioned that there was absolutely no impact insofar as the composition of the district boards in 1994 was concerned. Everything has been running very smooth too. Therefore, unless the Government can cite plenty of examples to illustrate the problems arising in relation to the structure, mechanism, operation or representativeness of the district boards established subsequent to the direct elections held in 1994, I am afraid I do not quite understand the viewpoint of the Secretary. Actually, in the final analysis, I believe the Secretary (the Secretary is representing the Government) has basically cast a vote of in confidence in the civic awareness of the public and challenge the public in terms of such awareness. I think the Government should clarify this point.
CHAIRMAN (in Cantonese): Members, I should like to remind you that under Article 36(1) of the Rules of Procedure, Members should address their observations to me while they speak. Although I may not be the target audience of your speech, this is, after all, laid down in the Rules of Procedure endorsed by all of you. We must observe this.
MR MARTIN LEE (in Cantonese): Madam Chairman, I was all along looking at you while I was speaking. In fact, when the Government of the Hong Kong Special Administrative Region (SAR) was first set up, apart from the Provisional Legislative Council, the Provisional Urban Council, the Provisional Regional Council and the Provisional District Boards, which were subsequently set up were all provisional in nature. We could not help it as no election was held. This is completely understandable. Of course, we were not quite happy about that. "Alighting from the train" is not something we should be pleased with. But sooner or later, these bodies will come to an end as they are all provisional in nature. I am right, for the two Municipal Councils are coming to an end. I still have some fantasy about the Provisional District Boards as I often heard people, particularly government officials (but do not look at them), mention gradual and orderly progress. Talking about gradual and orderly progress, 90% of the district board seats were returned by direct elections even when Hong Kong was still under British rule and of course, there were some ex officio seats. Fine. Later, some appointed seats were added to the Provisional District Boards. At that time, I still thought that those were only temporary appointments. There would be no more appointed members when the district boards were formally set up. And of course, ex officio seats should not be allowed to exist too. This is what gradual and orderly progress should mean.
After the reunification, we will of course be glad to see improvement. But the situation does not turn out like this. District boards will continue to have appointed members. This is why I really feel that the word "provisional" is deceptive. We have in fact been cheated for a long time, not just temporarily. The word "provisional" is really deceptive. Apart from this, I find another deception. But this time, the target is foreigners, not Chinese. Members should be aware that the short title of the Bill remains unchanged for it is still called "區議會" in Chinese. But surprisingly, it is changed into "District Councils" in English. I did try to figure out why there was such a change. It is all because foreigners will have no idea where the "Councils" have gone for "Urban Council" and "Regional Council" will no longer exist. If the "District Councils" exist, people will think that everything is fine. The Government is obviously making this change to deceive foreigners.
Just now, Secretary Michael SUEN mentioned Article 68 of the Basic Law. Just like what I said, he is confident that democracy will definitely come to the SAR. In fact, Article 68 of the Basic Law was written when the second draft was prepared in February 1989. In January 1989, members of the Drafting Committee arrived at Hong Kong and met with people from various sectors. They felt that the people of Hong Kong were pretty sure that they wanted democracy. This is why Article 68 was made, aiming ultimately at electing all members of the legislature by universal suffrage. But unfortunately, with the subsequent occurrence of the "June 4" incident, policies have become increasingly strict. Members should be aware of the incidents that took place afterwards. I heard Mr SUEN say this Council would certainly be completely returned by direct elections. But then coming to his next sentence, I felt that it was completely hopeless. What he said is when all sides were ready. But it will be extremely difficult for all sides to get ready. The Democratic Party will never have the chance to rise again no matter it is ready or not. But some political parties do think otherwise. Madam Chairman, some political parties still prefer functional constituency elections. I believe the Liberal Party still fancies such a mode of elections. Many other political parties love functional constituency elections too. We have to observe when we can move forward according to the provision of the Basic Law. According to the Basic Law, it should be 2007. Now we have to wait until 2008. But we have to secure two thirds of Members' consent before we can move forward. Moreover, to move forward does not necessarily mean full direct elections. Maybe we need two thirds of Members' support and the Chief Executive's consent to add one more seat. There is one more point that Members might have forgotten for they have failed to notice that momentarily. The matter is basically not so simple. At first, I thought if we could reach a consensus by 2007 or 2008 with two thirds of Members agreeing to full direct elections, we could at least have a chance to vote even if the Chief Executive did not give his consent (we cannot do anything even if he does not give consent). This is not going to happen in reality. This is because we will not be allowed to introduce bills. Article 74 of the Basic Law has specifically stipulated "bills which do not relate to public expenditure or political structure or the operation of the government". But it is now obvious that political structure will be involved. As a result, Members will not be allowed to introduce bills individually. Even if public opinions are mostly in support of full direct elections and two thirds of Members give their consent in 2008, everything will come to an end if the Government refuses to introduce the relevant bill. Even when it comes to 2008 or even 2012, there will not be any direct election if the Government refuses to introduce the bill.
This is why I am left with no other alternatives. I can only ask the Secretary one question. Interruptions are allowed under Rule 39 of the Rules of Procedure. In other words, if the Secretary wishes to answer my question, he can, at any time, stand up and interrupt me. I can sit down at any time to give way. He can, at any time, make an undertaking that he will not deceive us. I hope the Secretary can tell us when the Government will introduce full direct elections. This is because without the Government's introduction of the relevant bill, there will be no direct elections. So the Government must tell us. I am looking at the Secretary now. Madam Chairman, excuse me for not looking at you for a moment. I hope the Secretary will interrupt me and ask me to sit down. But it is pointless even I have done so.
CHAIRMAN (in Cantonese): Mr LEE, let me interrupt you as the Secretary has no intention to do so. Would you please, by all means, speak to the question about the appointment of District Council members.
MR MARTIN LEE (in Cantonese): I am sorry for I had not have a chance to speak earlier. When the Secretary delivered his speech just now, I had wanted to stand up again to respond to him but I finally deciding not to do so. Therefore, this is the first time I have a chance to do so. I hope the Chairman can give me some more time though it is almost near the end.
I only want to raise one more question. Are there any examples in other countries, that is, countries with election systems, re-introducing the appointment system again after abolishing it? I hope the Secretary can answer this question when he is free or when he finds it convenient. Madam Chairman, as a matter of fact, I am only interested in one of the provisions, and, that is, proposed section 16, concerning when appointed member's office becomes vacant. I am rather interested in this point. This is because given that we cannot block any appointment, so we might simply leave the office vacant. As regards how a member's office can become vacant, scenario (a) is someone has passed away, but touch wood, I do not want to see this happen; scenario (b) is an appointed member resigns in accordance with section 15. I believe this is more appropriate. I do not want someone to die. Even if someone passes away, the Government can still make another appointment. Therefore ......
CHAIRMAN (in Cantonese): We are not talking about this section.
MR MARTIN LEE (in Cantonese): But this section has no amendment.
CHAIRMAN (in Cantonese): Yes, the Secretary is going to move an amendment.
MR MARTIN LEE (in Cantonese): Does section 15 have an amendment?
CHAIRMAN (in Cantonese): You were talking about section 16. But section 15 does have an amendment too. It is proposed by Mr Ronald ARCULLI.
MR MARTIN LEE (in Cantonese): If it does have an amendment. Then I can speak later. Thank you, Madam Chairman.
MR LEE CHEUK-YAN (in Cantonese): Madam Chairman, just now Mr Martin LEE said at the beginning of his speech that he did fancy that the Provisional District Boards were only "provisional" in nature. But actually, we do not need to fancy in future. This is because Hong Kong has set up today a new political organization called the "Hong Kong Democratic Retrogression Alliance". Madam Chairman, as you do not need to vote later, you will not be allowed to join this organization. Just now, Secretary Michael SUEN, said democracy would come sooner or later. Democracy should come very soon but the "Hong Kong Democratic Retrogression Alliance", that is "HKDRA" in short, has greatly slowed down the pace of democracy. I am very disappointed that there is such a "Hong Kong Democratic Regression Alliance" in Hong Kong.
Thank you, Madam Chairman.
CHAIRMAN (in Cantonese): Does any Member wish to speak? Mr LEE Wing-tat, do you have a point of order?
MR LEE WING-TAT (in Cantonese): Madam Chairman, just now you informed Mr Martin LEE that he should discuss issues in respect of section 16 later. If I have not read it wrongly, my amendment should have involved section 16 too. Therefore, Mr LEE should be entitled to speak in connection with the "vacant" issues pertaining to section 16. As for whether or not it is arising out of death, it is yet another issue. Mr LEE should have the right to speak in respect of sections 11 to 16. Let me read out my amendment again: section 5(2), section 9(b), the subhead of Part IV preceding section 11 and sections 11 to 16. I will stop here as there are too many figures. It is for this reason that Members should be allowed to discuss sections 11 to 16. In other words, it is in line with the Rules of Procedure for Mr Martin LEE to speak on section 16. I hope the Chairman can make a ruling on this. Thank you.
CHAIRMAN (in Cantonese): Right. Thank you for raising this point. Mr Martin LEE, please accept my apologies. Please continue.
MR MARTIN LEE (in Cantonese): Madam Chairman, in fact I earnestly hope that those members, even after being appointed, can resign from office pursuant to section 15. I hope they can act according to their own conscience and stand for election next time. So instead of hoping for their death, I hope they can resign from office according to their own conscience.
Madam Chairman, this is what I want to say. Thank you.
DR YEUNG SUM (in Cantonese): Madam Chairman, just now Secretary Michael SUEN, said that appointed seats will only make up a very small proportion and the number is negligible. I believe the Democratic Party's concern is the fundamental principle rather than the number of seats. The Bill will definitely be passed today. But the international press might report that, after the reunification, a system which is even worse that the one existed during the colonial era has suddenly born to the District Councils under the co-ordination of various sides. I believe this is a day of disgrace for Hong Kong. Thank you, Madam Chairman.
CHAIRMAN (in Cantonese): Secretary for Constitutional Affairs, do you wish to speak?
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, quite a number of Honourable Members have asked a great many questions just now. Since this is not the question time, I am afraid I really cannot respond to each and every one of their questions right here. Should Honourable Members require a reply from me, they could make use of the question time every Wednesday during which 20 questions seeking oral or written replies will be raised for us to answer; however, I would ......
MISS EMILY LAU (in Cantonese): Elucidation, Madam President. It really surprised me that the Secretary said he was not going to answer our questions. Should he answer our questions? It is another matter even if we find his answers unsatisfactory. We are now at the Committee stage. He must answer the questions raised by us. Madam Chairman, do you think the Secretary has gone a bit too far for saying something like that?
CHAIRMAN (in Cantonese): Miss LAU, I suggest you raise a point of order.
MISS EMILY LAU (in Cantonese): All right. A point of order, Madam Chairman.
CHAIRMAN (in Cantonese): The Secretary can choose not to respond to the questions raised by Members for clarification here. According to the Council's rules and practice, the President is not allowed to interfere with the responses made by officials during debates. Secretary, please continue.
MR MARTIN LEE (in Cantonese): Point of order, Madam Chairman. As we are now discussing this Bill and the amendments proposed to this Bill, the Secretary should have no excuses to suggest us to raise our questions next time and not to reply now. What is the difference between what the Secretary has done and some people saying that "wait until it is time to sweep the graves"? (Laughter) By that time, the Bill will have already been passed. The Secretary is not respecting this Council at all by doing something like that.
CHAIRMAN (in Cantonese): I see your point. Please sit down. (Laughter) But this is our practice. If Members think that our Rules of Procedure should make this area more specific, they can propose an amendment to the Rules of Procedure. But according to the existing Rules of Procedure, I have no authority to direct government officials as to how they should respond during debates. Secretary, please continue.
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, I am so disappointed because just now before I could finish with my reply or they could make out what I am going to say, Honourable Members already suspected me of being unwilling to answer their questions. Could I have the chance to finish my words first? Just now I was not saying that I would not answer certain questions, I was only trying to say that I could not answer each and every question because we were not having a question time. Nevertheless, I will certainly answer those questions which ask about issues related to the Bill. If Honourable Members raised the questions of whether support should be lent to our proposals, I would certainly give my reply; however, I will not respond to questions which are not directly related to or even deviated from the Bill. In this connection, I have already made preparations for all those questions which I consider I must respond to.
First of all, I should like to express our views on the content of the Bill. The amendment moved by Mr LEE Wing-tat to delete Division 1 of Part IV is related to appointed members. In this connection, he proposed to delete from the Bill a total of more than a dozen clauses as well as amending two Schedules. In speaking on the resumption of Second Reading of the Bill earlier the day, I pointed out clearly that the Government is resolutely opposed to the amendment to delete the appointed seats. Since I have already given a clear account of the grounds for opposition, I am not going to repeat any of them here. As regards the relevant questions raised by some Honourable Members just now, I will try my best to answer each one of them.
An Honourable Member has raised the issue of whether the Bill is in line with the Basic Law. I hope Honourable Members could understand that before their submission to this Council for consideration, all our bills will first have to be scrutinized carefully by the Basic Law Unit of the Department of Justice to make sure that they are consistent with the provisions of the Basic Law. Therefore, Honourable Members really do not have to worry that we might have missed out this procedure. Similar questions were raised by Honourable Members just now and I have also answered them generally. We believe the Bill is consistent with the Basic Law.
As regards the question concerning how long the appointment system will be maintained, I have given my reply in both the Panel on Constitutional Affairs and the Bills Committee. It is certainly true that the Bill we have submitted to this Council has not stipulated the arrangement for the future; however, I am sure Honourable Members are aware that unless the law is amended, the existing arrangements in this respect should be applicable in the future as well. Nevertheless, since the laws of Hong Kong can be amended, should such need arise or the community agrees to such a need, or if we have noticed such a need, then we may perhaps take the initiative to introduce an amendment; likewise, if Honourable Members consider there is a need for amendment, they could also inform us of their view. I do not know how things will develop in the future; however, the fact that we do not have any detailed timetable for this does not mean the laws are cast into stone and cannot be amended, as suggested by an Honourable Member just now. Things would not turn out that way; we could introduce amendments in the future should such a need arise. Nevertheless, I must make it clear that we do not have any timetable for amendment at the moment.
A Member mentioned just now that the creation of appointed seats may impact on the election of the second Chief Executive. In this connection, we have said on different occasions that in making arrangement for the election of the second Chief Executive, we will legislate for the method of electing the second Chief Executive. As such, we will take into consideration the concerns expressed by Honourable Members today when we formulate the rules and regulations for the election of the second Chief Executive, with a view to resolving all those worries concerned.
In regard to the question of whether or not we are backpedalling on policies as raised by Honourable Members, I should like to quote some figures for Members' information. The figures I am going to give are the number of elected district board members since 1982. In 1982-85, there were a total of 132 elected district board members; in 1985-88, the number of elected district board members rose to 237; the figure then grew further to 264 and 274 in 1988-91 and 1991-94 respectively; by the 1994-97 term, the total number of elected district board members amounted to 346. According to the proposal put forward in the Bill, the figure would reach 390 in 2000-04. So, we could see that district board members have all along been returned by elections, and that the number of people taking part in public service has always been on the increase. Perhaps Honourable Members could interpret the implication of such increases from different perspectives. Should any member of the community wish to run for office in district level elections to take part in public service, he or she could find plenty of opportunities, and the number of opportunities will always be on the increase. If we see them this way, the figures really have something to tell.
Just now Mr Fred LI threw down the gauntlet to me with two challenges. As a matter of fact, I could recall that the first of his so-called challenges has been made to me before at the Panel on Constitutional Affairs, and that after my explanation, he still considered I had not answerd him or my explanation was not satifactory enough. However, there was nothing I could do, since I had already given him my reply. If he was not satisfied then, he would still find my reply unsatisfactory if I give him the reply again today. As regards his second challenge, he has said that although they are not large in number, they still managed to find out from different sources the number of countries which practise the elected representation system, the number of elected members and elected councils there and so on. Actually, Honourable Members could also recall that I have referred to a lot of such figures before. As far as I can recall, that was not the crux of the oral question then, since the question was about whether there was any other country like Hong Kong, which had replaced elected members with appointed members. My reply then was that it was not easy to look for information like that. Just now Mr Martin LEE even asked me to quote examples of countries which have reverted their systems over and over again. I am afraid I could not find such a country either. However, it would be equally hard for me to look for such countries which implement solely the elected representation system. Indeed, Honourable Members would find it by no means easy as well; anyway, we have found two ......
MISS EMILY LAU (in Cantonese): Madam Chairman, I want to remind the Secretary to pay attention to Rule 36(1) of the Rules of Procedure, that is, to remind him to address his speech to you, not him. (Laughter)
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): I am sorry, Madam Chairman. It is very difficult to find such information but we have managed to find two countries. I said at that time that we would continue with our search. He asked us to present the relevant information and we have already done so. Members should have known that the information we obtained is similar to what they have got. This is why I would not answer in detail here again. As for other questions, I think they do not bear such a significant link with the main topics raised today. Therefore, I would be most grateful if the Chairman can allow me not to answer them one by one again as I have really forgotten some of the questions raised.
Finally, Madam Chairman, I hope to remind Members to support the Government's position by voting against the amendments later. Thank you, Madam Chairman.
MR MARTIN LEE (in Cantonese): A point of elucidation, Madam Chairman. I wonder if the Chairman can give the Secretary a chance to clarify one thing. This is because when answering the two questions raised by Mr Fred LI just now, the Secretary said he had answered the first question raised by Mr LI in private. There was nothing Mr LI could do even if he was not satisfied with the answer, so he said. But in that case, we would not be able to hear the reply given by the Secretary. Therefore, we hope that he could explain again.
CHAIRMAN (in Cantonese): It would be better to listen to all the speeches delivered by various Members first.
MR CHEUNG MAN-KWONG (in Cantonese): Madam Chairman, do I still have a chance to respond to the Secretary now?
CHAIRMAN (in Cantonese): Yes, you do.
MR CHEUNG MAN-KWONG (in Cantonese): Thank you, Madam Chairman. Now the Secretary has put forward a viewpoint. He said the rise in the number of elected members reflected that the District Councils had made an improvement. But I would like to draw the attention of the Secretary and Members to the fact that while there is an increase in the number of elected members, the ratio of elected members has dropped. In the past, apart from ex officio seats, the remaining seats were all elected. But now elected seats only account for four fifths of the seats. The Secretary has not mentioned the number of appointed members. The public will be misled by his remarks. From the previous zero seat, appointed seats have now changed to 102 seats, with the ratio of appointed members changing from the original 0% to one fifth. If the Secretary thinks that this is a real improvement, he should tell both sides of the story in unequivocal terms to let the public, this Council and Members to make the judgement. It is unfair that the Secretary has only stated half of the glass which is filled with red wine, without mentioning the other half which is empty. I do not know whether or not the Secretary, as a public officer, was trying intentionally to conceal part of the information. However, it is certain that the Secretary was trying to mislead the public if he said something like that as the public will thus think that the passage of District Council seats later today is a sign of improvement instead of retrogression. Thank you, Madam Chairman.
CHAIRMAN (in Cantonese): Two Members have raised their hands. I will let Mr SIN Chung-kai speak first.
MR SIN CHUNG-KAI (in Cantonese): Madam Chairman, I would like to seek an educidation from the Secretary. The Secretary mentioned earlier that the Government would only amend its proposal when there was a consensus in the community. But Dr YEUNG Sum has stated that more than 70% of the people are in support of universal suffrage earlier on. I think it is impossible to ask for a 100% support. It is simply impossible for us to expect, at one stage, all people will agree to universal suffrage or object to the appointment system. There will definitely be divergent views at any stage. What mechanism has the Government adopted? Is the sole consensus we have at the moment is to wait until Mr TUNG Chee-hwa indicates that he objects to such a view or until Mr TUNG Chee-hwa has reached a consensus with the public? Does the crux of the problem lie here?
CHAIRMAN (in Cantonese): Individual Members are allowed to make a number of speeches at the Committee stage. Therefore, Mr LEUNG Yiu-chung can speak again.
MR LEUNG YIU-CHUNG (in Cantonese): Madam Chairman, actually, I wished to ask the question just raised by Mr SIN Chung-kai too. I think it is very important that, even if we know it is highly probable that the amendments to be proposed by Mr LEE Wing-tat later will be negatived, I still want to know with what criteria will the Government determine the quest or demand of the community? Even if the Secretary is unable to tell us the relevant timetable, he can still tell us what mechanism will be adopted so that we will know what to do. If opinion polls will be adopted, then we will conduct opinion polls. If various bodies are to be consulted, we will then discuss with them. It is important to let us know clearly how we should do it. But the Secretary has not told us anything. This is the first point.
Secondly, Mr Ambrose CHEUNG and I have asked the same question earlier. Perhaps the Secretary has forgotten it. The question is: We desperately want to know how much damage have the last district boards returned by direct elections before the reunification done to the community. What have been done to the detriment of Hong Kong society? Can the Secretary tell us whether the district boards of 1994-97 have made contributions or inflicted damage to Hong Kong society? Were the district boards running smoothly or poorly? Can the Secretary tell us? The district boards of that term were very important. Why? This is because members of that term were all returned by direct elections and there was not a single appointed member. This is closely related to the debate we are now conducting. If the Secretary wants us to support the Government's amendments and object to Mr LEE Wing-tat's amendments, he has to tell us that elected members have all performed very badly and they were all in a mess. In that case, we will not support Mr LEE Wing-tat's amendments.
Thank you, Madam Chairman.
MR FRED LI (in Cantonese): Madam Chairman, the Secretary has made me break my own record in this Council as I am going to raise my question for the third time. I hope the Secretary hear what I say. My question is very reasonable and relevant to the topic under debate. It should not be treated as a written or oral question that can only be raised on Wednesday.
The Secretary is going to persuade Members of this Council to support the appointment system. My question is: What is an appointment system? What is its mechanism? This is the third time I raise this question ─ Madam Chairman, excuse me for not addressing to you ─ I am getting a bit agitated as I have raised this question three times but the Secretary has still failed to answer me. To raise the same question three times is a record for me in this Council throughout all these years. I hope the Secretary can respond to this reasonable and open question.
MISS EMILY LAU (in Cantonese): Madam Chairman, I wish to remind Mr LEUNG Yiu-chung that the district boards of the last term were not fully returned by full direct elections as some ex officio seats still remained. They were really having unlimited power. Even Mr Chris PATTEN was unable to drive them away. This is why not all district board members of that term were directly elected.
CHAIRMAN (in Cantonese): Members who wish to speak or seek elucidation please do it now as I am not prepared to ask the Secretary to respond again. Secretary, do you want to respond?
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, I think if I do not respond, Honourable Members would say I am being arrogant or not respectful to the views they have raised. With regard to the criteria we employ, just now Dr YEUNG Sum has particularly quoted the number of interviewees in support of universial suffrage a poll conducted on a particular day; however, if he could recall, the Consultation Report on the Review of District Organisations published by us in October last year has also listed out the information revealed in the consultation reports presented by other organizations in this respect, and such information has to a certain extent reflected that there are views in support of the appointment system. All in all, there are supporters for the appointment system.
As regards the question raised by Mr Fred LI, I must admit that I do not have a good memory, but this time I am afraid Mr Fred LI has a much poorer memory than mine. Actually, I have already answered his question, and I did not answer him in private but at a meeting held in public. My response at that time was that the Government did have such an internal mechanism. In this connection, the District Officers deployed in the various districts under the Home Affairs Department all have extensive contacts with the community in their respective districts, and through different channels they have become aware of persons who are committed to serving their own districts. Many of these people have offered their money and efforts to serve the community without attracting public attention. Yet we do have records in this connection. So, we do have within the Government a mechanism to enable us to learn of the people who are committed to serving the community. As for others, they will advise us of their wish to serve the community through the various political parties or organizations, or by taking the initiative to inform us in writing. Of course, as Honourable Members know, the Government has an extensive advisory framework encompassing more than 300 advisory bodies, which provide us the opportunity to know a good number of persons who have performed well in the advisory bodies; and since they have proven their worth, their role may as well be elevated to another level. Nevertheless, the decision to appoint any persons as members would rest with the Chief Executive.
The system has in fact been in use all along, the only difference is that in the past it was the Governor who approved and made the appointments. So, there is indeed no difference between this system and the old. This is by no means a new system but one which has been in use and proven effective; besides, there have been some people who managed to enter a higher level through this system. As I look around in this Chamber, I could also name one or two Honourable Members who had been appointed to the then district boards as members through this system, and later on ran for office in the Urban Council and district boards elections or went through different channels before running for Legislative Council Membership and winning a seat in this Chamber.
MR LEE WING-TAT (in Cantonese): Madam Chairman, I do not quite understand what Mr SUEN said in his reply. I am going to revert the order of the few points I wish to mention. Otherwise, I will forget what the Secretary said just now.
The Secretary has, at the end, replied the question asked by Mr Fred LI. However, he has not answered the one raised by Mr LEUNG Yiu-chung. I do not know whether he will reply or not, but I will give him one more chance to reply. What Mr LEUNG Yiu-chung asked is: Will a District Council without appointed members perform very badly? For the 1994-97 term, apart from a very small number of ex officio members, 90% of the members were directly elected, how did the district boards behave during this term? Was that really unsatisfactory? It was fortunate that no chicken-slaughtering incident took place during the period from 1994 to 1997. This is why we cannot blame the district boards of that term. It also seems that the Government is of the view that the performance of the district boards in that term was quite good. This is because I have read some information on the Home Affairs Bureau. The Director also attended a lot of spring receptions held by the district boards and she praised every district board. Therefore, I hope the Secretary can answer this question if it is possible. I think this is a very important issue. Unless the district boards in that term have behaved very badly, the Government should not alter its composition and retrogress.
Concerning the question raised by Mr Fred LI just now, I have noted the views of the Secretary very carefully. What is the mechanism he mentioned like? Firstly, there exists inside the Government a huge framework with extensive contacts with various districts. The District Officers can, through these contacts, identify people who are committed to serving the community as well as those who are willing to make contributions in terms of both money and efforts. While some of these people wrote to Mr SUEN or District Officer through their relevant political parties, some wrote to them in their own capacity. The Secretary is of the view that the Government has put in place hundreds of these advisory bodies and some people have already participated in such work. In fact, the Government can also test who are capable through such work. This system has proved to be effective as well.
I repeated the views of the Secretary on the issue in such a detailed manner because I wanted to illustrate the simple answer embedded in it. What should the shortlisted candidates do in order to meet with the criteria set by the Secretary in relation to their endeavour to serve the community as well as their capability? There is only one answer and, that is, it all depends on the criteria determined by government officials. However, the criteria are hard to quantify.
First, the commitment to serve the community. I believe there are a lot of such people. Madam Chairman, being a Member of this Council who have once served on the district boards, I believe my experience is quite substantial. I have also served as a district board chairman before. If we are to count members of area committees in a community, we may have two or three hundred such members in just one administrative region. We can also find more than a hundred or two hundred chairmen of mutual aid committees in a district. The number may even exceed a thousand if we add them up with members of mutual aid committees. Apart from these, there are cultural and recreational organizations, cultural organizations, sports organizations and so on. In administrative regions such as the Kwai Tsing or Kwun Tong, the number may reach two to three thousand. If the Secretary is to identity people committed to serving the community, how is he going to find out those who are capable in view of such a large number of people? Of course, there is one more point we need to consider and that is "to make contributions in terms of both money and efforts". Many people can "make contributions in terms of efforts", but not everyone can "make contributions in money terms". At least, I am unable to do it. Therefore, to "make contributions in money terms " is one factor that can be considered. Of course, it is not going to be as corruptive as what happened during the Yuan, Ming and Ching dynasties where money could buy the office of a county or a town. Nevertheless, I also agree that it is also important for one to be able to "make contributions in terms of money". This is because many activities held by district boards require spensorship and advance payments.
Moreover, the Secretary also mentioned that those peopleare capable, that is, they have shown that they are capable in the course of providing service. In that case, what does "capable" really mean? Of course, there are a lot of prerequisites for that: A person who can advise the Government in the Councils; or he can undertake some work in the Councils; he can always express opposing views that the Government may not like in the Councils. But I believe it is impossible for the last category of people to be appointed. In other words, if a person always expresses views against the Government or disagrees with the Government in the district boards or committees, he will have a very slim chance of being appointed. According to the experience I gain after serving the district boards for so many years, I cannot say that there is no chance for those who frequently criticize the Government to be appointed as district board members but the number is indeed very small. This phenomenon does not exist in district boards only. Even the remaining 300-odd advisory bodies have the same phenomenon too. If a person always criticizes the Government and holds strong dissenting views, he will have a very slim chance of being appointed as a district board member. Of course, someone might say: "LEE Wing-tat, you are a member of the Housing Authority too". In fact, I might belong to the minority. Members should be aware that the views held by members of these frameworks are very close to those held by the Government.
In conclusion, my response to the Secretary is that he has only mentioned one criterion and that is "I will make the decision. If I think that you are enthusiastic in providing community services and that you are capable, you can then become an appointed district board member. If you do not fall into the category of persons defined by me, you will not be allowed to take up the post". A colleague of mine mentioned a point just now and that is: Why did the first district boards appointed after the reunification, that is, the district boards set up in 1997, always come under public denunciation? The answer is that the great majority of members identified in accordance with the criteria laid down by the Secretary held views which were very similar to those held by the Government. Mr Fred LI once mentioned the point that many members from the Democratic Alliance for the Betterment of Hong Kong (DAB) and the Hong Kong Progressive Alliance (HKPA) had been included in the appointment list prepared after July 1997. According to the analysis or definition of the Secretary, these people were supposed to be capable and have an outstanding performance in serving the community. Does it mean that there is no such people in other political parties? I do not think so. In fact, what the list reflects is the extent of their support for the Government. One can have a clear picture by looking at the number of members appointed from the HKPA and the DAB to the two Municipal Councils as well as to the district boards. Is it not really necessary to say something with which the public can be expected to be convinced? I do not believe in these views. Neither will the Democratic Party accept them. I do not believe that members from the Democratic Party are not enthusiastic in serving the community or in performing their duties or that they are not capable of taking up these posts. I do not agree to such explanations. I also find the explanation given by the Secretary hardly convincing.
The next issue I want to talk about concerns "pace". Madam Chairman, Article 98 of the Basic Law states that: "The powers and functions of the district organizations and the method for their formation shall be prescribed by law". I do not know what was in the minds of members of the Drafting Committee at that time. But when I first read this Article, I hope that the Drafting Committee had considered this issue from a broad angle. This is because according to the drafting of this Article, the Basic Law has actually not laid down a timetable and specified what the Hong Kong Special Administrative Region Government should do with respect to this issue. In other words, the Government is allowed to implement full direct elections in 1997. It can also do so in the second term. To me, an organization of less power should be able to act in a more open manner. Many government officials or people holding a relatively cautious attitude towards the political system might say: "Now the pace is too fast. Both the Chief Executive and the Legislative Council are directly elected. Will it then challenge the institutions?" Organizations with less power should be able to move faster in terms of their pace of introducing democratic elections. I was too naive at that time. If we look at Article 98 from this angle, we will need to move even more backward according to the explanation given by the Secretary.
According to the Basic Law, the Legislative Council should at least increase its number of directly elected seats by each term, that is, from the existing 20 seats to 24 seats in 2000 and 30 seats in 2004. I do not know what will happen in 2008. Of course, I hope there will be improvement. But at least in these two terms, the number of directly elected seats will increase gradually. The reply given by the Secretary today is that he is unable to give us a timetable, not even a direction. As a result of the reply given by the Secretary, the speed and pace of development in relation to the composition of the Legislative Council is going to move backward. That baffles me. The Basic Law has made it very clear as far as the seats of the Legislative Council are concerned. Although I am a bit dissatisfied with it, we can, after all, regard it as "moving at a snail's pace". But the district boards are just "marking time". There can be no change even in the next term, why? Just as Mr Martin LEE said earlier, if we are to amend this provision in the next term, neither Members nor I can propose an amendment. Only the Government can do so as this is releated to the political system. If the number of directly elected seats remains unchanged and even if we manage to secure 24 directly elected seats, we will still be taken as being defeated even if a question is passed by one group (now the Legislative Council is divided into two groups for the purpose of voting). According to the provisions of the Basic Law, the voting result of the functional constituency must be included as well. Just like the motion related to Miss Elsie LEUNG, the Secretary for Justice, which is going to be moved later, if the Liberal Party changes its position, the motion will similarly be negatived. From this, we can see that if the Secretary continues with his conservative style and continues to increase the number of appointed seats, what can we do?
Just now, the Secretary mentioned some principles such as "consensus". If it is possible, I would like to ask the Secretary to tell me again what he really meant by "consensus". I believe the word "consensus" in the Secretary's dictionary does not mean "unanimous view ". In a pluralistic society, it is impossible for us to to reach an unanimous view. Therefore, does the so-called "consensus" referred to by the Secretary mean that more than 50% or 51% of the people concerned agree with the implementation of full direct elections of the District Councils in the next term? I hope the Secretary will not use specious wordings to explain what "consensus" means. Does it refer to the consensus of public opinion gathered by opinion polls? I do not want to see the Government give us an answer like this: "to reach a "consensus", we have to examine the views expressed by people of various strata. We have to take into account consideration of all sides and allow the public to, through consultation, air their views before a decision is made". This is always the most diplomatic and bureaucratic way of giving a reply. The cards are always kept close to one's chest. If the Government likes it, it can say that there is a consensus. If not, it can say that we have no consensus because of divergent views.
Madam Chairman, I earnestly hope that the Secretary can answer this question once again: What does it mean by "consensus"? If the community really reaches a consensus before 2004 to turn the election element of the District Councils into universal suffrage, will the Government take the initiative to amend the relevant law? I hope the answer given by the Secretary will not be too vague. Although the chance of my amendment being passed is very slim or is almost closed to zero, I will still muster up all my courage, try my best to convince Members, continue to work hard as well as "putting on a smiling face" in the hope that the Secretary can answer this question. (Laughter) As the Government is not willing to implement full direct elections in this term, then according to the "consensus", will they be implemented in the next term or if ever?
Thank you, Madam Chairman.
CHAIRMAN (in Cantonese): Members, when Mr LEE Wing-tat was giving his reply, two Members raised their hands to indicate their wishes to speak. In accordance with the Rules of Procedure, I will allow them to speak.
MR ANDREW WONG (in Cantonese): Madam Chairman, I feel that the Secretary was giving his concluding remarks just now. I also want to say a few words but I do not want to do so by raising a point of order.
I fully support Mr LEE Wing-tat's amendments for I support removing the appointed seats. But I still consider the Committee stage debate we conducted earlier a debate, not a question session where Members can raise questions for the Secretary to answer as this is not in line with the question proposed. The question should be: Mr LEE Wing-tat, representing the pros, shall move his amendments to seek Members' support; while those who present the cons shall put forward their arguments against him. At the Committee stage, I can speak more than once as some viewpoints have not yet been made clear. However, Members cannot repeatedly ask the Secretary to answer this or that question. If this is allowed to go on, the Committee stage this evening will never come to an end.
I hope the Chairman can make a ruling without me asking for a ruling. This is because I think the procedure should proceed like this.
CHAIRMAN (in Cantonese): I do not think the existing Rules of Procedure allows me to prohibit Members from expressing their views, raising their questions or asking the Government to consider anything. And in accordance with the Rules of Procedure, I do not have the authority to direct the Government as to how it should give a reply too. I think Members are all very well aware of this. Nevertheless, if Members do not want me to adjourn the Council at nine o'clock tomorrow morning, then we will have to make a long story short.
MR AMBROSE CHEUNG (in Cantonese): Madam Chairman, in this debate, if the Secretary raises some questions or views that I do not understand, I hope I can have a chance to seek elucidation.
Just now, the Secretary mentioned the sense of value in relation to appointment and direct elections as well as the appointment criteria. However, the criteria he mentioned were very vague. I want to cite a more specific example with respect to the circumstances cited by the Secretary just now and that is some Members in this Council were previously appointed. Later, they stood for direct election and joined this Council by way of functional constituency election. If some functional constituencies are deleted, they may alternatively consider making different attempts by standing for the Election Committee next time around. Just now, the Secretary has also mentioned that the appointment system is a well-established system. It has already been in place in the past and now we are only continuing with this system. I believe the relevant criteria are very much the same too. The Secretary stated that the Government did try to appoint candidates who have lost in election to be members. But just now he said he hoped the Chief Executive, in appointing new members in future, can identify through action with the criterion that defeated candidates will not be appointed as members. Will the Secretary inform this Council whether there is any precedent whereby a member has never been defeated in elections from being appointed to directly elected and then to functional constituency election and, at the same time, has no intention to stand for election and will the Chief Executive re-appoint these directly-elected members who have never been defeated as District Council members? According to the criteria set by the Secretary, he will also have to be willing to make contributions in terms of both money and efforts ......
MR ANDREW WONG (in Cantonese): Madam Chairman, a point of order. Did you make a ruling just now? I said I would not raise a point of order but you indicated that you did not think, under the Rules of Procedure, you had any power ......
CHAIRMAN (in Cantonese): Mr CHEUNG, please sit down. You can continue with your speech after Mr WONG has finished making his point.
MR ANDREW WONG (in Cantonese): Madam Chairman, insofar as I understand it, we are now dealing with an amendment moved by Mr LEE Wing-tat and we are now in the middle of a Committee stage debate. Members are allowed to put forward their arguments in a more flexible manner for the second or third time but they must observe a principle and that is: "Speak to the question". In other words, they must speak with respect to the question, not raising questions only. Of course, Members are allowed to raise questions to reinforce their speeches. But the other party can also choose not to reply, though he might be able to persuade some Members to support him and vote against the question if he gives a reply. It is this point I want to clarify. I think it is meaningless if Members do not speak with respect to the thrust of the debate. If this is allowed to continue, the debate will turn into a question time. I hope the Chairman can make a ruling.
CHAIRMAN (in Cantonese): Mr WONG, I think what I said just now is my ruling. This has been stated clearly in Rule 38(1) of the Rules of Procedure. In fact, I did ask the Committee on Rules of Procedure to examine this provision. But insofar as I understand it, the Committee has, to date, no intention of proposing an amendment after examining it. Therefore, I can only chair the meeting in accordance with Rules of Procedure. Mr Ambrose CHEUNG, please continue.
MR AMBROSE CHEUNG (in Cantonese): Madam Chairman, I wonder if the Secretary can clarify, in relation to the appointment criteria, whether there is any precedent whereby elected members were appointed by the Government as members after deciding not to stand for election. Can the Secretary tell us if there is such a precedent? If not, is it the Government's criterion that elected members will not be appointed? If so, why? Why does the Government not choose elected members to be appointed members?
CHAIRMAN (in Cantonese): Members, although I have made a ruling, I still want to make it clear that this is actually a debate and we hope that the debate can bear fruit. But if Members keep on raising different questions, we will have to go on debating endlessly.
MR JAMES TO (in Cantonese): Madam Chairman, you can rest assured that I will speak in accordance with the Rules of Procedure. Madam Chairman, I only want to debate the appointment mechanism.
Actually, I can confirm that when the Government last appointed those members who were not elected in 1994, two District Officers told me that, after reading the members' lists of their respective districts, they found that there was a member who had not made any contributions in terms of money or efforts. Moreover, he was not familiar with the district. Even people from the district had no idea who he was. As a result, the District Officers worked very hard trying to find out why the Chief Executive suddenly decided to appoint this person to that district. This is because the District Officers would experience difficulty in getting along with him if they had no idea of his background. Subsequently, the District Officers went here and there to make enquiries and even traced the investigation back to the central administration. It was eventually found out that the Chief Executive's Office had received a note from a certain political party saying that that particular candidate was from the second echelon and that it wanted the Government to nurture him. So the two District Officers suddenly came to realize what was going on. Of course, they had to get along with the member in future. If according to the Government, the appointment will be made according to a certain procedure, this suggests that an objective mechanism might exist. But the problem is if the member in question is not known to those who are familiar to the district and the District Officer, who might even need to make extensive investigation into his identity, the Government will then be running against the long-standing principle and its established appointment system.
Madam Chairman, I have no intention to ask the Government to improve this appointment system. But after gaining the experience the last time, we find this system has actually "gone bankrupt" completely. Even government officials find that there is a grave problem. The answer is in fact very simple. This is simply a political gift, a gift or reward handed out by the Chief Executive to his supporters or supporting bodies. To say it in a more vulgar manner, it is actually political corruption and acceptance of bribery. Of course, such an act will not contravene the provision related to the acceptance of bribery under the Prevention of Bribery Ordinance. It is rather a political deal. If this is really the case, how can we expect people to believe that appointed members will make contribution? Anything we say will be totally futile.
MR ANDREW CHENG (in Cantonese): Madam Chairman, I would also like to respond to the Secretary in connection with the appointment system. I will not question the Secretary anymore.
I have gone through the relevant documents and the views given by numerous organizations. I have also read some past newspaper cuttings and compared them with the so-called benchmarks, such as making contributions in terms of money and efforts, enthusiasm for doing charity work and commitment to serve the community, as mentioned by the Secretary just now. I am extremely surprised. Why? I learnt from some documents that the Government had always stressed that there was a need to retain appointed and ex officio seats. Several benchmarks had also been laid down: First, certainly those which can assist in promoting regional activities and balancing the interests of the District Councils. But what criteria will the Government use for balancing the interests of the District Councils? Let me quote what the Secretary said from a report contained in Hong Kong Economic Times dated 21 December 1998: "This is because each community has its uniqueness. The Government will consider making appointments if it is found that there is a lack of certain representative voices. But, at the present stage, we find it very difficult to carefully lay down standards for those details". While the Government considers it necessary to balance the District Councils by restoring the appointed seats, it fails to point out how it can strike the balance and what the ratio of interests really means. Just now, the Secretary mentioned contributions made in terms of money and efforts and the enthusiasm for doing charity work. This shows that although the Government has not specifically or clearly pointed out it will appoint people from what professions or sectors, there is at least a criterion. As far as we know, the Government will look at the result of the direct elections. If the result is not in line with the ratio of interests envisaged by the Government, that is, so-called not balanced, it will, by way of appointment, balance the seats returned by direct elections which will represent the public interests in the District Councils.
Schedule 3 to the Bill has specified the number of elected members, appointed members and ex officio members now added by the Government by way of amendment. We actually asked the Government to do it. Madam Chairman, I want to ask the Government on what criterion it has based its determination of the number of appointed members. I think this is a groundless criterion. Let me cite an example to illustrate my point. The Yau Tsim Mong District Council will have 16 elected members and four appointed members. Similarly, the Islands District Council will have four appointed members, but it will have only seven elected members and, surprisingly, an additional eight ex officio members as the district has a rural committee. Someone might say this is because there is a difference between the composition of interests of a regional District Council and the composition of rural interests of the Tai Po District Council. Let me compare the Islands District Council with the Tai Po District Council in terms of composition of interests. The Tai Po District Council will have 19 elected members, a number far exceeding that of the Islands District Council. However, it will have only five appointed members and two ex officio members. What kind of ratio is that? I really do not understand what benchmark the Government has based for its so-called balancing the interests of the District Councils. In short, it is obvious that those who have contributed the greatest amount of money and those who speak in line with the wishes of the Government will be appointed. If the Government is unable to lay down a clear any convincing criterion for appointment, the so-called goal of balancing as mentioned by the Government will only serve the purpose of safeguarding political interests. This is because throughout the entire appointment, all the so-called standards of appointing people will change according to the political goals of government officials and the Chief Executive.
Thank you, Madam Chairman.
CHAIRMAN (in Cantonese): Does any other Member wish to speak? I hope Members can be more co-operative. I will now ask the Secretary whether he would like to respond or not. He has the right to decide whether or not to respond. But please do not go on asking questions as we still have to deal with a lot of agenda items. As a matter of fact, many questions raised just now should have already been discussed in the Bills Committee. Secretary, do you want to respond?
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, we have discussed this issue over and over for many times and most of the views raised have also been considered at the meetings of both the Panel on Constitutional Affairs and the Bills Committee; indeed, this is the fourth time I speak in relation to this issue. After hearing the speeches made by Honourable Members, I wish to made it clear that my explanation was aimed at enabling Honourable Members to understand the position of the Government regarding the Bill. As to the questions raised by Members just now, I have already stated very clearly that I did not see any need to supplement my answers in this connection; besides, I believe the ideas I need to present have already been fully expressed.
Thank you, Madam Chairman.
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendments moved by Mr LEE Wing-tat be passed.
Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr LEE Wing-tat rose to claim a division.
CHAIRMAN (in Cantonese): Mr LEE Wing-tat has claimed a division. The division bell will ring for three minutes.
CHAIRMAN (in Cantonese): Will Members please proceed to vote.
CHAIRMAN (in Cantonese): Before I declare that voting shall stop, Members may wish to check their votes? If there are no queries, voting shall now stop and the result will now be displayed.
Functional Constituencies:
Mr Michael HO, Dr David LI, Miss Margaret NG, Mr CHEUNG Man-kwong, Mr Ambrose CHEUNG, Mr Bernard CHAN, Dr LEONG Che-hung, Mr SIN Chung-kai and Mr LAW Chi-kwong voted the for motion.
Mr Kenneth TING, Mr James TIEN, Mr Edward HO, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Dr LUI Ming-wah, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Mr CHAN Wing-chan, Mrs Sophie LEUNG, Dr Philip WONG, Mr WONG Yung-kan, Mr Howard YOUNG, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Timothy FOK, Mr FUNG Chi-kin and Dr TANG Siu-tong voted against the motion.
Geographical Constituencies and Election Committee:
Miss Cyd HO, Mr Albert HO, Mr LEE Wing-tat, Mr LEE Cheuk-yan, Mr Martin LEE, Mr Fred LI, Mr James TO, Miss Christine LOH, Mr LEUNG Yiu-chung, Mr Andrew WONG, Dr YEUNG Sum, Mr LAU Chin-shek, Miss Emily LAU, Mr Andrew CHENG and Mr SZETO Wah voted for the motion.
Miss CHAN Yuen-han, Mr Gary CHENG, Mr Jasper TSANG, Mr LAU Kong-wah, Mr TAM Yiu-chung, Mr David CHU, Mr HO Sai-chu, Mr NG Leung-sing, Prof NG Ching-fai, Mr MA Fung-kwok, Mr CHAN Kam-lam, Mr YEUNG Yiu-chung, Mr Ambrose LAU and Miss CHOY So-yuk voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that among the Members returned by functional constituencies, 30 were present, nine were in favour of the motion and 21 against it; while among the Members returned by geographical constituencies through direct elections and by the Election Committee, 30 were present, 15 were in favour of the motion and 14 against it. Since the question was not agreed by a majority of each of the two groups of Members present, she therefore declared that the motion was negatived.
DR LEONG CHE-HUNG (in Cantonese): With your leave, Madam Chairman, I move under Rule 49(4) of the Rules of the Procedure that if a Member claims a division in respect of other amendments to the District Councils Bill, the committee of the whole Council shall proceed to each of such divisions forthwith after the division bell has rung for one minute.
CHAIRMAN (in Cantonese): I now propose the question to you and that is: That if a Member claims a division in respect of other amendments to the District Councils Bill, the committee of the whole Council shall proceed to each of such divisions forthwith after the division bell has rung for one minute. Does any Member wish to speak?
(No Member indicated a wish to speak)
CHAIRMAN (in Cantonese): I now put the question to you as stated. Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(No hands raised)
CHAIRMAN (in Cantonese): I think the question is agreed by a majority of each of the two groups of Members present, I therefore declare that the motion is passed. Whenever a Member claims a division in respect of amendments to the District Councils Bill, the Committee of the whole Council shall proceed to each of such divisions forthwith after the division bell has rung for one minute.
CHAIRMAN (in Cantonese): As the amendments moved by Mr LEE Wing-tat have been negatived, I now put the question to you and that is : That heading of Part II before clause 3, sub-heading of Part IV before clause 11, clauses 5, 12, 13 and 15 stand part of the Bill.
CHAIRMAN (in Cantonese): Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr LEE Wing-tat rose to claim a division.
CHAIRMAN (in Cantonese): Mr LEE Wing-tat has claimed a division. The division bell will ring for one minute.
MR LEE WING-TAT (in Cantonese): Madam Chairman, are we going to vote by way of raising hands? This is because I saw a colleague press a wrong button. I remember Mr Andrew WONG once mentioned in a debate related to the Rules of Procedure that the voting inclination of Members indicated by raising hands should be consistent with the voting result indicated by pressing the buttons. Does this apply to the new Rules too?
CHAIRMAN (in Cantonese): Let me think it over.
CHAIRMAN (in Cantonese): Mr LEE Wing-tat, I have discussed with the Clerk just now. As far as I can recall, there is no such provision in the Rules of Procedure. The Clerk also agreed that there was really no such provision. Therefore, if there is a claim for division after Members have raised their hands to vote, the voting result obtained by pressing the buttons shall be taken as the final result.
CHAIRMAN (in Cantonese): Will Members please proceed to vote.
CHAIRMAN (in Cantonese): Members may wish to check their votes. Are there any queries? If not, the result will now be displayed.
Mr Kenneth TING, Mr James TIEN, Mr David CHU, Mr HO Sai-chu, Mr Edward HO, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Dr LUI Ming-wah, Mr NG Leung-sing, Prof NG Ching-fai, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr MA Fung-kwok, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Miss CHAN Yuen-han, Mr CHAN Wing-chan, Mr CHAN Kam-lam, Mrs Sophie LEUNG, Mr Gary CHENG, Dr Philip WONG, Mr WONG Yung-kan, Mr Jasper TSANG, Mr Howard YOUNG, Mr YEUNG Yiu-chung, Mr LAU Kong-wah, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Ambrose LAU, Miss CHOY So-yuk, Mr Timothy FOK, Mr TAM Yiu-chung, Mr FUNG Chi-kin and Dr TANG Siu-tong voted for the motion.
Miss Cyd HO, Mr Albert HO, Mr Michael HO, Mr LEE Wing-tat, Mr LEE Cheuk-yan, Mr Martin LEE, Dr David LI, Mr Fred LI, Miss Margaret NG, Mr James TO, Mr CHEUNG Man-kwong, Mr Ambrose CHEUNG, Miss Christine LOH, Dr LEONG Che-hung, Mr LEUNG Yiu-chung, Mr SIN Chung-kai, Mr Andrew WONG, Dr YEUNG Sum, Mr LAU Chin-shek, Miss Emily LAU, Mr Andrew CHENG, Mr SZETO Wah and Mr LAW Chi-kwong voted against the motion.
Mr Bernard CHAN abstained.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that there were 60 Members present, 35 were in favour of the motion, 23 against it and one abstained. Since the question was agreed by a majority of the Members present, she therefore declared that the motion was carried.
CHAIRMAN (in Cantonese): We will now deal with the parts of the Bill relating to "ex officio member".
CLERK (in Cantonese): Sub-heading before clause 17, clauses 17 to 20 and 26.
MR LEE WING-TAT (in Cantonese): Madam Chairman, I move the deletion of the definition of "ex officio member" and "rural committee" from clause 2, clause 9(c), clause 10, sub-heading before clause 17, clauses 17, 18, 19 and clause 20(3), and the amendments to the definition of "member" in clause 2, heading and paragraph of clause 9, clause 26(b), clause 70(3), clauses 81 and 82 and Schedule 4, as set out in the paper circularized to Members. All these numbers in fact point to one issue, which is ex officio seats.
In the District Councils Bill it is proposed that in the new term of the District Councils there shall be 519 seats, of which over 5%, that is, 27 seats shall be ex officio seats to be taken up automatically by rural committee chairmen in the New Territories. According to the existing arrangements, all rural committees are returned by election from amongst their members. Rural committee members comprise village representatives from their respective villages and some others who are special members and Justices of the Peace (JPs). (Individual villages have amended their regulations to allow village representatives who have held office for two terms to become special members and sit on Rural Committees as life members.) The Democratic Party holds the view that by retaining ex officio membership the Government of the Special Administrative Region (SAR) is encouraging coterie elections, slowing down the pace of democratization, and at the same time granting certain people privileges and preferential treatment. We strongly oppose this!
1. Ex officio seats are coterie elections
Although most rural committee chairmen are elected from among village representatives, some are JPs or special members of rural committees, such as the Tai Po Rural Committee chairman, the Pat Heung Rural Committee chairman and the Kam Tin Rural Committee chairman. So the credibility and representativeness of some of these chairmen are questionable. In addition, the number of members in the existing 27 rural committees ranges from nine to over 30. Most comprise of 15 to 17. District Council members elected from among these members is a good example of a coterie election. Their credibility is definitely questionable. Ex officio seats are like appointed seats: they both constitute a hurdle to the democratization process of one-person-one-vote. The system is unfair to those who may become District Council members through direct elections.
2. Ex officio seats give some people two votes each which is inconsistent with the principle of fair election
As proposed by the Bill, rural committee chairmen from rural areas in the New Territories will become ex officio members of the District Councils to which they belong. So, members of the rural committee may take part in the election of rural committee chairmen and that of ex officio members of the districts to which they belong. These rural areas are small constituencies of District Councils. In other words these people in fact have two votes in voting for their representatives in the District Councils. The general public, like those people living in urban areas of the New Territories, Kowloon and Hong Kong, however, have only one vote each in voting for their representatives. This is inconsistent with the principle of the right to fair election.
3. "Elections" for ex officio seats are looser compared to direct elections
Although elections in the executive committees of rural committees are controlled by the Corrupt and Illegal Practices Ordinance, their voters are not subject to no special qualification restrictions. Anyone who is a member of the Full Council of a Rural Committee is entitled to vote. In comparison, voter qualifications for District Councils are far stricter. They have to be permanent residents and registered in the final register. They must not be convicted in or outside Hong Kong or sentenced to death or prison terms which are yet to be served. They must not be guilty of an offence under the Corrupt and Illegal Practices Ordinance or the Prevention of Bribery Ordinance within three years immediately prior to the election. They must not be found to be of unsound mind or incapable of managing himself or herself. A person who does not satisfy any of the conditions stated above will not be qualified if he belongs to the urban area. In other words, a person who has been convicted for corrupt and illegal practices three years immediately before an election cannot vote in the direct elections in a District Council. But if the person is a member of a rural committee, then he may vote in the election for ex officio District Council members. Thus restrictions on the voter qualification for District Council elections vary and this is unfair.
4. Village representatives elections are not regulated by law
Although most of the present rural committees comprise of village representatives, elections of village representatives do not necessarily satisfy the principles of one-person-one-vote or equal voting rights for both sexes. Nor are they regulated by law. The Heung Yee Kuk promulgated a set of "Election Regulations for Village Representatives" in August in 1994, as guidelines for villages in their election of village representatives. They included requirements for the elections to be conducted in a one-person-one-vote manner and in a way that manifests equal voting rights for both sexes, and the term of office should be four years.
After the promulgation of the Guidelines, the Government only encourages villages to follow them, but allow villages to amend the Guidelines as necessary. It does not enforce strictly the criteria contained in the Guidelines. Some villages may be reluctant to comply and try their best to resist one way or the other. They may convene a full council of the villagers and pass resolutions against granting voting rights to women. Or they may choose not to submit names of women voters to the Home Affairs Department on re-registering for elections of village representatives. Some just delay re-elections of village representatives. Since the implementation of the Guidelines four years ago, the Government is still unable to realize the system of one-person-one-vote and equal voting rights for both sexes in all villages in elections of village representatives.
Furthermore, the existing laws regulating corrupt and illegal practices is not applicable to elections of village representatives. So, any irregularities or unfair acts in elections of village representatives do not constitute offences in law. Irregular electoral activities have thus been encouraged. The ward office of the Democratic Party in New Territories West received a complaint early this year against the cancellation of voting rights for 94 villagers at Shap Pat Heung, Yuen Long. It was found that those who were disqualified were all supporters of a candidate who was to challenge the incumbent village representative. Indeed, if a village representative is empowered to verify or cancel the qualifications of voters in an election of a village representative, irregularities may occur easily. In fact the Legislative Council is scrutinizing the Corrupt and Illegal Practices Ordinance. I have queried repeatedly the system of having a candidate or an incumbent representative or district board member to decide who can qualify as a voter. I cannot find anywhere in the world a system as absurd as this. The candidate or incumbent district board member, who is also the village representative, has almost supreme (if not absolute) power to decide who can be a voter in an election for a village representative. This leads to numerous complaints and disputes.
Let me give another example. The office of the Democratic Party at New Territories East received a complaint against threats made against some villagers in this year's election for a village representative at Ho Sheung Heung, Sheung Shui. They were threatened not to go to vote at the election. The matter has been referred to the District Officer in North District and the police. The village representative who made the complaint requested a re-election in order to be fair. So we can see how easily it is for discrepancies to occur in an election without any statutory control. Even worse is that there is no suitable law to prevent or sanction such wrongful acts. There is in fact another case being dealt with by the court: The Po Toi O case at Sai Kung. As it is being dealt with by the court I am not in a position to comment on it here. So there is a case of complaint being pursued through legal proceedings, involving which villagers can or cannot participate in the election of a village representative.
The Democratic Party wants to stress that when elected a village representative will be confirmed by the Secretary for Home Affairs and receive an appointment certificate. A village representative is a member of the rural committee and may be elected to be chairman thereof and become an ex officio member of a District Council. A village representative may also be elected to the Legislative Council through the Heung Yee Kuk functional constituency. As such a village representative is a public office entrusted with important public responsibilities. How can the election be subject to accusations of being a private election without any statutory control?
Therefore, the Democratic Party thinks that the SAR Government should abolish the system since village representatives are presently elected in an unfair manner and without any statutory control, and they may become District Council members by way of coterie elections.
Madam Chairman, my last point is about clause 20(3), which provides that a person who holds office as chairman of a rural committee is not eligible to be nominated as a candidate at an election of the District Councils. Under this provision, the right of a person who is elected as chairman of a rural committee but who wants to serve both the rural committee and people of a wider area in the District Council through an election of greater acceptability is limited.
In fact, the system of ex officio seats inevitably strips some individuals of the right to be elected in District Council elections; hence the system should be abolished.
Madam Chairman, indeed there is a already system of direct election in the rural areas. Villagers may elect their representatives through a one-person-one-vote election and the representatives may take part in the affairs of District Councils. It is not necessary to open another channel for some special persons and create unfairness. I understand that in many districts, such as the North, Yuen Long, Tuen Mun, Tai Po, Sai Kung, and Islands Districts, most directly elected district board members there are members of rural committees or village representatives. I hope Secretary Michael SUEN may confirm this. In other words, indigenous residents with the status of rural committee members may also be elected through the geographical constituencies to which they belong. Therefore there is no special justification to provide extra channels for them.
Thank you, Madam Chairman.
Proposed amendments
Subheading before clause 17 (see Annex IV)
Clause 17 (see Annex IV)
Clause 18 (see Annex IV)
Clause 19 (see Annex IV)
Clause 20 (see Annex IV)
Clause 26 (see Annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak? Please raise your hand to so indicate.
MR WONG YUNG-KAN (in Cantonese): Madam Chairman, the Democratic Alliance for the Betterment of Hong Kong (DAB) opposes Mr LEE Wing-tat's motion to delete seats of ex officio members in the District Councils. One must understand that since the establishment of the district boards, there have been ex officio seats which are taken up by rural committee chairmen. If these ex officio seats were deleted without sufficient consultation, it would not be a reasonable act.
The DAB has come to the view that retaining the 27 ex officio seats fits the reality of Hong Kong. Due to historical reasons, there are still 27 rural committees in the New Territories, representing the views and interests of residents in various parts of the New Territories. Some may say that the New Territories is continually developing and the difference between the city and rural areas is less and less conspicuous; therefore, it is not necessary to retain ex officio seats. However, the New Territories is undeniably a place covering vast stretches of land. The customs and concerns of New Territories residents are never the same as urban people. In addition, there are still some remote villages which are sparsely populated. Even if seats in the District Councils are returned by universal suffrage, villagers' interests may not be fully catered to. The DAB thinks it is beneficial to Hong Kong to keep the ex officio seats at this stage if we are to give due consideration to the overall situation.
As to criticisms against the mode of election for rural committee chairmen for its lack of democratic substance, we would recall, however, that Mr LEE Wing-tat also mentioned that chairmen of rural committees were elected by village representatives through a one-person-one-vote system, and village representatives are in turn elected by qualified voters from each village. I think their representativeness is not to be doubted. In the election of the chairman of the Cheung Chau Rural Committee which was completed not long ago, for example, chairman was elected by village representatives through a one-person-one-vote system. These elected village representatives in turn elected the chairman by a one-person-one-vote system. It would be turning the matter upside-down if the credibility of rural committee chairmen was denied by saying that the election of village representatives is unfair.
With these remarks, Madam Chairman, the DAB opposes Mr LEE's amendments.
CHAIRMAN (in Cantonese): Mr LEE, do you seek a clarification?
MR LEE WING-TAT (in Cantonese): Yes. Can I seek a clarification about the speech of the Honourable WONG Yung-kan? It seems the first utterance of Mr WONG means he supported LEE Wing-tat's amendments. That was why the Secretary immediately asked Mr IP sitting next to him whether Mr WONG supported Mr LEE. But then Mr WONG said he was against the amendments. I want to ask Mr WONG whether he personally supported the amendment but the DAB was against it? I heard that many people were surprised at Mr WONG's speech. Is Mr WONG going to vote for my amendments? Thank you, Madam Chairman.
MR WONG YUNG-KAN (in Cantonese): I personally oppose Mr LEE Wing-tat's amendments.
MR CHEUNG MAN-KWONG (in Cantonese): Just now Mr WONG Yung-kan argued, using his own reasoning, why "ex officio" seats are reasonable. But I want to use some numbers to point out how ex officio seats twist and change the structure of a popularly elected district board.
Mr WONG said the election of the Cheung Chau Rural Committee chairman was conducted on a one-person-one-vote basis, and he was right. That was the latest development of the "one-person-one-vote" and "votes for both sexes" system promoted by the Legislative Council for rural committees.
But let us look at the structure of the Islands District Board, to which Cheung Chau belongs. By population, there should only be seven elected members for the Islands District Board. The number of ex officio members, that is, ex officio members elected from the rural committees is eight. Because counted together there are 15 seats for both elected and ex officio members, the number of appointed seats which amounts to one fifth of the seats was enlarged. There were four appointed seats. So we had an absurd situation. A district board, which is supposed to be popularly elected, the Islands District Board, had only seven popularly elected members after a strenuous election, but eight ex officio members from rural committees. What is the point of holding the election if the number of ex officio members exceeds that of elected members? Not only that, if appointed members are counted, there are altogether 12, that is to say four members were appointed by the Government or the Chief Executive and eight ex officio members. These 12 members exceeds the seven elected ones. Is this fair? Whose interests is this going to cater to? Why are the interests of some people so important as to be necessary to be necessary any to be protected by some other means than election? I am saying in the district board, 12 seats were from ex officio and appointed sources but only seven from elected sources. What kind of system is that? What era would we say this is? I am not speaking about tradition. I do not know how different it is between men and women in the New Territories and those in urban areas. Why do residents in the New Territories have such enormous rights? Just because they are living in the New Territories or in the villages then they can have eight ex officio seats, which is more than that granted to all other Hong Kong people living in the Islands District? I find it hard to understand. Do not try to think there are a large number of ex officio seats only for the Islands District. We have six in Yuen Long, four in the North District, and one or two in each of the smaller ones. I find this very strange indeed.
In addition, there is a bizarre cross-district nature in the rural committee. In the Tsuen Wan District Board, for example, for some of the ex officio seats, the relevant villages belong to the Kwai Ching district. That means someone from the Kwai Ching Rural Committee can become an ex officio member in the Tsuen Wan District. I do not see how a person who is a voter at the Kwai Ching District Board can take part in a rural committee election in the Tsuen Wan District. That person was going across districts. What kind of system is that? How could this person go across districts? How could he hold himself out as a candidate in the Kwai Ching District and then do the same in the Tsuen Wan District? I am not sure if this is allowed in law, but the Government said there is no problem in that. The point is we can highlight the two characteristics to reflect the absurd nature of ex officio seats. They distorted the will of the people in the otherwise normal district board elections. The system will continue into the 21st century. Some say a lack of consultation has caused this situation, but we have been opposing the system for many years, so it cannot really be attributed to a lack of consultation. Do we need a consultation that goes well into the 22nd century? The system has to be changed. It will be changed for the better. People living in every corner of Hong Kong, Kowloon or the New Territories should be equal insofar as election in every district is concerned. But we are not equal now. Every part of Hong Kong, Kowloon or the New Territories is delineated into special districts within certain boundaries. Each such district may have ex officio seats. In some, the number of ex officio seats may exceed the number of popularly elected seats. I fail to understand why. The only explanation is that the system is unfair. Thank you, Madam Chairman.
DR YEUNG SUM (in Cantonese): Madam Chairman, in fact before 1997 I discussed with some colleagues in this Chamber about elections in villages and the election of village representatives. A Member who had rural constituency background said to me: "Every village has its own rules." He meant to explain to us indeed the election of village representatives is not the same for each village. In some villages, both men and women may vote, in some one person has one vote, and in some only men but not women can vote, in some only indigenous residents can vote, and in some other people who have been living there since birth cannot vote because they are not indigenous residents. In addition, Madam Chairman, the election of village representatives is not regulated by the Corrupt and Illegal Practices Ordinance. As a result, there was exchange of votes, corruption and rigging, which are out of bounds of the law. Such coterie elections, not regulated by law, have attracted the attention of the Heung Yee Kuk. So, it issued some guidelines in 1994 but unfortunately ─ the Honourable LAU Wong-fat may have something to say about this ─ they have no legal effect. Some may follow the guidelines while some may not. Hence, it can be seen that they have indeed noted the problem. As the elections are fraught with problems, we should abolish the ex officio seats as soon as possible. Thank you, Madam Chairman.
MISS EMILY LAU (in Cantonese): Madam Chairman, I rise to speak in support of Mr LEE Wing-tat's proposal to delete the ex officio seats. Madam Chairman, at a meeting of the Convention on the Elimination of All Forms of Discrimination Against Women at the United Nations in February, focus was particularly placed on the election of village representatives because participants felt the elections might not be fair to women. At the moment, among the numerous villages there are about 900 village representatives. Only 10 among them are women. I believe the United Nations was less than happy with this situation. Mr David LAN, Secretary for Home Affairs, was present at the meeting. I trust he had told other colleagues about the case. Other colleagues also pointed out there was insufficient legal basis for the elections of village representatives. Many of our laws cannot regulate such elections. Although officials of the Home Affairs Department attended the elections, they did not follow up on them through legal channels. So, I have the feeling that the elections were confusing and unfair. Despite this, products of the confusing and non-legally based election are linked to our multi-tiered system of government. We are particularly concerned and we find this inappropriate.
In addition, as I said in the Second Reading debate, I could not see with every imagination why indigenous residents have the privilege of having seats reserved for them. The 27 ex officio seats are filled by rural committee chairmen. Why do they have the privilege? Are they being discriminated against or hyped so that they have to be compensated in this way? We fail to see why. On the contrary, we can see privileges enjoyed by them such as small houses. Therefore I hope the Secretary for Home Affairs can explain (as he did not do so in detail in the Second Reading debate) why these people are so special as to be granted one privilege after another. These people also enjoy the benefit of having extra seats, which overrides the rights of district representatives elected through a one-person-one-vote system from other Hong Kong people.
Lastly, I want to respond to Mr WONG Yung-kan's idea of the New Territories covering vast stretches of land. Madam Chairman, I believe it is acceptable for some discrepancy if after taking into consideration of the vast area covered by the New Territories, as district board elections require that one board member should represent around 17 000 people. That is to say even if a certain district has a large area but the district board member represents only a small number of people, this is acceptable. But if more seats are granted just because a certain district is big, I find it difficult to understand. I hope the Secretary for Home Affairs can answer my questions. Thank you, Madam Chairman.
MR ANDREW WONG (in Cantonese): Madam Chairman, I rise to speak against the Honourable LEE Wing-tat's amendment, that is his point on the deletion of ex officio seats. I am not an indigenous resident in the New Territories. But I have been living there for quite a number of years. When Tsuen Wan took the lead in implementing a district consultative committee, I was already taking part in district administration in Sha Tin. I think there should be a bridge during the course of development of new towns in the New Territories. The bridge serves as a link between not only the Government and villagers but also between villagers and those who newly arrive. So, I think there is a need for rural committees and village representatives to exist.
In 1985, when I took part in the Legislative Council election, it was an indirect election. Of course there are those who say it was a coterie election but I think indirect elections are still more desirable than elections in terms of functional constituencies because these seats represent certain regions. The indirect elections may become direct ones later on. My campaign slogan was "eliminate difference between urban and rural people". I hoped to foster a harmonious relationship between newly arrived residents and indigenous residents. There may be some who are envious of the privileges of indigenous residents, which may not be fair treatments but these privileges are separate issues to be dealt with later. At least the privileges were a reality. Often indigenous residents felt people coming from the urban areas called themselves "urban people" and the newly arrived also called themselves "urban people". "Urban people" came to take their land. Such prejudices greatly hindered the development of the New Territories, and they affected the harmony of the entire community.
After listening to the comments of Members, I think these problems can be solved. Let us look at the problem mentioned by Dr YEUNG Sum. The Government has been trying to solve the problem by making amendments in the law to solve the problem through legislation. Even if amendment has not been made, there should not be any problem. Some people are sticking too closely to the question of boundary in district administration when they look at this question. The Heung Yee Kuk holds different views. Since the Tsuen Wan District includes Kwai Chung, it comes as no surprise that Kwai Chung village representatives being elected to the Tsuen Wan Rural Committee. Similarly, it is not strange to see Kwai Chung village representatives being elected to the Tsuen Wan Rural Committee. There is no reason why each district should have its own ex officio seats. Obviously, very often the Tsuen Wan Rural Committee chairmen became an ex officio member of the Tsuen Wan District Board.
Turning to other issues, some district administrative regions are under the Heung Yee Kuk, the 27 rural committees in a certain district administrative region would appear to account for a high proportion. Earlier I cited two examples, one of which was Yuen Long. Maybe from tradition, Yuen Long has more rural committees, but I have not looked into the details of its history and I do not live there. For some districts, however, even if one has not lived there one would still understand it. By that I mean the Islands.
By its sheer name, one would understand there will be a number of rural committees. We have Cheung Chau, Lamma Island North, Lamma Island South, Mui Wo Village, Peng Chau, Lantau South, Tai O Village and Tung Chung Village. Since we have a number of district boards on Hong Kong Island, why can we not understand that there should be a number of rural committees elsewhere?
Some Members may say, under these circumstances, these areas have more than their fair share of seats or even do not deserve that many seats. What can we do when there are eight appointed seats but seven directly elected seats? Maybe the Honourable Miss Emily LAU was right when she said districts with smaller population should have fewer seats but that is against the existing laws because the population size for different districts should not vary for more than a certain percentage. I have forgotten it but it should be either 10% or 15%. Therefore, I think there should be some laws to delineate the boundaries of constituencies. However, District Councils for those district administration regions of scarce population ─ I need to point out that they are districts with dual seats ─ may have 17 000 residents just as other districts do, but they may elect two District Council members. If that is the case, there would be 14 instead of seven popularly-elected members for the Islands. So, every scarcely-populated District Council would have an adequate number of members to serve the people and the need for appointed seats would diminish.
Madam Chairman, I have spelt out clearly my views hoping to tell Members and the public, through you, that I am against appointed seats, but I support the continued existence of ex officio seats.
Regarding the question of equality, Legislative Council Members have played an active part in promoting equal rights for both men and women in the election of village representatives. The Heung Yee Kuk has also taken the matter seriously but only managed to reach the stage of issuing guidelines. It allows villages to decide for themselves about what to do. I think the matter can be discussed between the Secretary for Home Affairs and the Kuk. I hope the Honourable LAU Wong-fat, as chairman of the Kuk, can draft a set of standards for elections in the villages. I am not sure if it is possible for outsiders who have moved into the New Territories can vote and be elected among organizations formed of indigenous residents. That is another issue. At least this can safeguard equality between men and women.
The issue of privilege is another issue. If it is considered inequitable, it can be dealt with in time. I have learned, from those indigenous residents living in the New Territories whom I know personally and the grievances they have expressed, that they thought the many rights they enjoyed had been removed by the British Hong Kong Government after 1898, without compensation. That was what they thought. At the time, there were many district boards in the New Territories. If chairmen of rural committees, which are formed of indigenous residents, could not act as district board members, it would be difficult for the Government, even if the Democratic Party had assumed powers of administration, to explain the matter to villagers. I am not speaking on behalf of Secretary Michael SUEN or Mr LAU, but I hope everyone understands that is what I think. The matter cannot be dealt with overnight. It has to be studied from various angles, and with efforts from everyone, it would be solved.
Thank you, Madam Chairman.
MISS MARGARET NG (in Cantonese): Madam Chairman, on this issue I am afraid I hold a view different from my friend, Mr LEE Wing-tat, from the Democratic Party.
I agree with many of the points raised by Mr LEE. I very much agree the election of village representatives are not satisfactory. Unfortunately, I must face a reality. After the promulgation of the Sino-British Joint Declaration, I saw no reason or logic for keeping the indigenous resident status for the New Territories people. However, the status was kept in the Sino-British Joint Declaration, and so were their rights in the Basic Law. So, in the same district there are two kinds of realities, that is, there must be a representative from the rural committee to serve consultation purposes.
Hence I think they have a reason to be appointed as ex officio members. I hope as time goes by and progress is made, rural committees can see the demand for reform on them. If they do not moderinize there would be more and more dissatisfaction. As the Basic Law has provisions to protect their rights and the district boards are consultative structures, I must with regret take a different stance from Mr LEE. I would have to vote against his amendments. Thank you, Madam Chairman.
DR YEUNG SUM (in Cantonese): Madam Chairman, the Honourable Miss Margaret NG said it was better for indigenous residents of the New Territories to retain ex officio seats for consultation purposes since the Sino-British Joint Declaration and the Basic Law have provided for their status. However, I do not think that they should necessarily have ex officio seats even though they have the status.
As we all know, the constituencies for district boards elections are small. If village representatives stand for election they would have a high probability of being elected. I believe Mr Andrew WONG and Mr LAU Wong-fat will agree that is the case, given the community relations village representatives have.
Therefore, I think even if the Sino-British Joint Declaration has provided for the status or has stipulations to honour their rights, it does not necessarily follow that they should be given ex officio seats. Such seats are a legacy of the colonial government. Must we follow? For example, Mr WONG pointed out the difference between urban and rural areas. But I have no discrimination. I treat them as equals. I admit they have the status constitutionally as stated in the Sino-British Joint Declaration but that does not mean they should enjoy the benefit of ex officio seats. Why do they not stand for elections? Election would make their position even clearer, would they not? If we understand the nature of elections for district boards, we will know they stand a good chance of being elected.
Thank you, Madam Chairman.
DR TANG SIU-TONG (in Cantonese): Madam Chairman, as an indigenous villager, I will be blamed if I do not speak on the subject, I would like to thank Mr WONG Yung-kan, Mr Andrew WONG and Miss Margaret NG for their speeches just now. As for the reason why there is an ex officio seat on each district board for the rural committees, this is actually not a privilege. Looking back on our history, we can see that over the centuries, our ancestors' sustained effort had contributed to the continuous development of the community. Over the past few years, our villagers have joined hands with new comers from the outside to develop our community. I think it is only reasonable to let them have their views expressed in the district boards by their representatives.
Concerning gender equality, the Heung Yee Kuk started to implement equality between the sexes a few years ago, allowing both men and women to take part in the election of village representatives. Although it is a guideline rather than a piece of legislation, it is subject to the monitoring of the respective District Offices. If a certain village does not follow the guideline in electing its village representative, the elected village representative may not be confirmed by the District Office. Hence, the Heung Yee Kuk has been doing the job in this aspect. Under the current circumstances, as mentioned by Mr LEE Wing-tat, litigation is bound to arise from any election. For instance, disputes over the confirmation of a village representative are common. Even in a district board election, I had attended a trial in court. Though some of these disputes are inevitable, I still hope that they can be minimized and resolved. In the recent village elections, both men and women in all villages are given votes.
As regards the Islands District, I hope Members would consider the geographical situation of the islands. The Islands District covers a large area, as mentioned by Mr WONG Yung-kan, and consists of a large number of islands. There may be only a dozen households on each island. If a constituency should comprise 17 000 population, there may be only six or seven district board members to represent all the islanders. How can this small number of people take look after the needs of these dozen households living in the remote islands? In fact, they cannot. Village representatives oin the Islands District have their value of existence. There are indeed many rural committees in the Islands District. On top of that, there are seven or eight ex officio members and a same number of elected members. But we should not be envious of them for it is their geographical uniqueness which necessitates such an arrangement. Otherwise, the interests of those living in the remote villages on the islands cannot be fully represented.
Concerning the rights of women, although the Heung Yee Kuk comprises many district board members and village representatives, only a minority of them are women. As a matter of fact, we can also take a look at the Members of the Democratic Party in this Chamber to see how many of them are women. Hence, on the same issue, it is not that we do not want the participation of women or look down upon them. Rather, in an election or during a democratic process, men have gained the upper hand for the time being. Perhaps women will gain the upper hand in the future. In Hong Kong, women have already gained the upper hand since many important government posts are taken up by women and many government officials sitting in this Chamber are also women. We should give them time and allowance for gradual change.
So, in this aspect, I hope Members can support rural committee chairmen to become ex officio members.
Thank you, Madam Chairman.
MISS EMILY LAU (in Cantonese): Madam Chairman, I rise to speak in response to what Dr the Honourable TANG Siu-tong said about elections of village representatives. He said the results had to be confirmed by the Secretary for Home Affairs. At the particular meeting of the Bills Committee, we discussed the matter and I believe Dr TANG was present then. We asked the government officials present how their officer confirm the results as the election lack legal basis and clear rules. The officials did not seem to have provided any answer because they did not have any basis so to say. The Government's stance was rather ambiguous. The officials said the elections were in fact elections of the villagers; they only played the role of giving assistance. But eventually they need to confirm the status of the successful candidates. However, if they need to do that they have to know whether the process is legal and reasonable. Actually they do not have any guideline to follow.
Therefore, Dr TANG's comments were misleading. If you did not hear clearly you would have thought since the Government has to confirm that everything would be done according to procedures because verification work has to be completed before confirmation. But in fact that is never done, as far as I know. I do not know how the Government did its confirmation. At the meeting I got no satisfactory answer. Maybe Dr TANG got a reply from the Government. It is because the candidates were elected in a dubious manner and then were asked to join the multi-tiered government, we feel this is absolutely unacceptable.
Thank you, Madam Chairman.
MR MARTIN LEE (in Cantonese): Madam Chairman, I would like to talk about the Basic Law. Article 40 says the lawful traditional rights and interests of the indigenous inhabitants of the "New Territories" shall be protected by the Hong Kong Special Administrative Region (SAR). But if we also look at Article 39, it says the provisions of the International Covenant on Civil and Political Rights (ICCPR) and other conventions shall be implemented through the laws of the SAR. We all know the Hong Kong Bill of Rights Ordinance has been passed. This is where the problem lies. Is the tradition of indigenous inhabitants of the New Territories, that is, one which precludes women from voting, a lawful tradition? This is a problem. If this is not a lawful tradition, I do not think we should continue to invoke Article 40 to perpetuate the outdated and unlawful election method. Madam Chairman, we should not allow ─ and the Government has a duty to prevent ─ polarization between indigenous inhavitants in the New Territories and those from the city. This is unhealthy, especially city people also move to live in the New Territories. So the two categories of people are in fact no different. They should integrate and live harmoniously. They would be happier this way. If there was segregation, no group would maintain an edge over another. In terms of numbers, the so-called city people, who move into the New Territories would amount to a larger number. So, I always say this is not a good idea and is not good for either side. Unlawful traditional interests which go against the tide should not be protected. Hence, I oppose the ex officio seats ─ not a very palatable term in Chinese ─ what is ex officio anyway? Ex officio carries the notion of taken for granted. If they are popularly elected, they can be taken for granted; but if they are not then they should not be. So, I am in favour of the amendment.
MR ANDREW WONG (in Cantonese): Madam Chairman, I would like to give a brief reply to what Dr YEUNG Sum has said. He mentioned the name of Mr LAU Wong-fat and that of mine. Dr YEUNG said it is easier for indigenous residents to be elected. I think it depends on the number of indigenous voters and the district and what is in the vicinity of a district. If a public housing estate is nearby, I can say the indigenous candidate can never get elected. It would be a lie to say that an indigenous candidate can get elected in this situation, unless the village in the constituency is very large, with as many as 17 000 villager voters living there. A candidate would be elected if the constituency is delineated for him. He would then win the election. I can see Mr LEE Wing-tat shaking his head. Madam Chairman, I feel he may mean some indigenous residents are rich and they may use their influence to lobby for many votes. City people can also lobby for votes so that is not an issue. What I wanted to say is indigenous residents who live in the New Territories feel the pace of development too quick for them. Their place has been urbanized, with people from outside moving in. Over the years, they have held a lot of grievances because they feel the British Hong Kong Government took their land. That is how they feel. Now, the Sino-British Joint Declaration ─ I do not want to talk about the Basic Law or the Sino-British Joint Declaration, or the provisions about gender equality in them ─ I only want to speak about title to land. What was rented in 1898 should be returned to their owners. The land is freehold land, which can be owned forever. But it is not returned. It is transferred from the British Hong Kong Government which forcibly took their land, to the Chinese Government, the Government of the motherland. All they can get is some privileges, for a term of 50 years, that is up to 2047. The so-called "privilege" means that they can continue to pay the rent at the old rate. But they are not allowed to develop the land. They are still subject to the same old restrictions. I feel that is what the reality is: There is such a group of people, who belong to the villages. Some of them might have moved, but their roots are there. Some villages are remote, for example, Fu Yung Pit, Kwun Yum Shan, just to name a few. I am now living at Hing Keng Shek, which is also a remote place. There are very few indigenous residents at Hing Keng Shek but many villas have been built there, which is another issue. We must understand that it is appropriate to retain the practice of allowing the relevant rural committee chairmen to become ex officio members. These ex officio seats are certainly not to be abolished. Hence I will not support Mr LEE's amendment.
MR ANDREW CHENG (in Cantonese): Madam Chairman, I would like to rebuff some of the arguments put forward by Mr Andrew WONG and Miss Margaret NG. In particular, I would like to rebuff the point made by Mr WONG. He said rural committees act as a bridge between the Government and the indigenous residents and so their chairmen should become ex officio members of the District Councils, which is certainly reasonable. It is exactly because of this point that I must stress this: We have the rural committees already. Hence there is a channel for representation. We are not saying indigenous residents should not be allowed to fight for their interests. We are not trying to close their channel for representation. They have the rural committees, which are the required channel. Mr WONG said if there is a large housing estate near the village of a candidate, it is quite certain he will not succeed in the election. That view is self-contradictory. I want to refute two of the points made. Firstly, if that is the case then the candidate must be rather reluctant to visit the housing estate to lobby or do some work for the district. Maybe he is mindful only of the interests of that particular village. However, he must understand that it is a District Council and a District Council should be concerned about the affairs of the entire district. Any indigenous resident who wants to represent the people and serve them should not label himself as a village representative or a representative of a certain district. Why can it be asserted that he will lose?
In addition, I want to talk about elections for rural committees within a district. If a villager wants to play the role of a co-ordinator in village affairs in the district and would therefore want to stand for election in a rural committee, the villager would have a privilege. That privilege, as can be seen from the District Councils Bill, is that a rural committee member has two votes, a point which we have kept coming back to. If this privilege is maintained, it would mean indigenous residents would be given two votes; they would vote in the election of rural committees to enable the chairmen thereof obtain an ex officio seat and they would vote again in their own constituency of district administration for a District Council member. I think the Government must explain to us convincingly the distribution of interest. Is the Government telling us these villagers are an underprivileged group so they need our special care. But that is not true. Let us look at the issue of the right to building small houses, or the communication or co-operation between rural committees and the Government. We cannot see how they can be an underprivileged group, so much so that they should be guaranteed such privilege in the Administration or representative government. So, I hope both Mr WONG and Miss NG can understand that in the existing representative government there are five Legislative Council seats after the election year in New Territories East and New Territories West. I trust every Legislative Council Member may have had the experience of dealing with disputes or affairs among indigenous residents. Can we not act as a bridge for the communication between indigenous residents and the Government, and fight for their interests? Is it not a good reflection of all this? I hope after today's debate, there will be no further mention of historical issues, or views about indigenous residents being shortchanged or even persecuted by the British Hong Kong Government, whereby there arises the need to strive for ex officio seats for them. I hope we will make no mistaken judgement. I am not saying indigenous residents should not be allowed to fight for their interests but in the District Councils Bill, they should not be given extra benefit. Thank you, Madam Chairman.
MR ALBERT HO (in Cantonese): Madam Chairman, I would like to add several points briefly. First I want to stress we need not necessarily rely on ex officio seats to foster communication between the Government and indigenous residents living in the villages and those so-called city people. Nor need we create some privilege for that purpose, thereby undermining the fair system of election. That is the first point I would like to make.
Secondly, as a popularly elected member in the New Territories, I feel that there are many services we can provide for indigenous residents as far as we are willing to act as a bridge for communication. My ward office has received complaints from many indigenous residents regarding village affairs. According to them, in the past even if they lodged complaints with the rural committees in the areas to which they belonged, their complaints might not be dealt with at all. So, it all depends on the mentality of the members who serve the people, a mentality of serving them with all their heart without differentiating between city people and villagers. This is the second point I would like to make.
The third point is something that has always been bothering me. If we are overly worried about the feeling of alienation and persecution among indigenous residents so that we feel we need to assist them in reinforcing and protecting their privilege, I think this would be counter-productive as this would create more communication difficulties and aggravate alienation.
I think indigenous residents should treat themselves as if they were any other ordinary people. They should integrate into our system on an equity basis. Indeed they are enjoying a lot of rights, which if lawful, such as the entitlement to land, should be continued. I can tell Members that the Government has resumed a large amount of land for the construction of the West Rail. Indigenous residents in the New Territories have obtained a handsome sum of deserved compensation, in accordance with the law. There have been a number of complaints of course and we should help them deal with these complaints as far as we can. Some concepts are however not appropriate. For example, some indigenous residents tend to think that the title to land they hold are permanent, "freehold" in Mr WONG's words, and not limited in time. Such concepts are wrong and outdated. We are not living in the Ching dynasty. We all know that we have reunified with our motherland, and are subject to the provisions of the Basic Law. Such entitlements shall end by the year 2047. Thus is the new concept we should have. In conclusion, I do not think we should perpetuate some privileges by some unfair systems, just for the sake of maintaining communication. This is unrealistic. Thank you, Madam Chairman.
MR ANDREW WONG (in Cantonese): I was very much shocked as the Mr Albert HO, as a lawyer, was talking about expropriation, that is, the resumption of land without compensation. This is where the grievances I was referring to lie. Indigenous residents felt their land was freehold ......
MR ALBERT HO (in Cantonese): Excuse me, Madam Chairman, I said it was necessary to compensate owners for land resumed from them.
CHAIRMAN (in Cantonese): Mr HO, I know, but you should have asked Mr WONG whether he was willing to stop his speech and let you speak. Mr WONG, please continue.
MR ANDREW WONG (in Cantonese): If Mr HO thinks I have misunderstood him, he should explain afterwards. Madam Chairman, please make a ruling on that. Was I correct? I feel that the issue lies not in indigenous residents craving for seats in the District Council. If an indigenous resident so wants, all he needs to do is take good care of the affairs in his village and stand for election as a village representative. If there is a large housing estate adjacent to his village and he very much desires to be a District Council member he could do either one of these two things. He could vie for a village representative, and join the rural committee to be elected to be its chairman. He would then become an ex officio District Council member. This however is an extremely difficult route. Alternatively, and this is an easier route, he may start serving the people in the adjacent housing estate but then he may be too carried away by the service for the housing estate and become gradually oblivious to the big issues in his own village. He would become someone who is minded about the business of the housing estate and that of other housing estates in "estate issues". Thus as an ex officio member of the District Council, a rural committee chairman, may represent the village as he knows well the affairs of the village. I also knows well the affairs of the village. As far as I am willing to, I can play that role as someone who represents the village. As Mr HO said, whoever among us can do that as far as we are willing to; but if that is the case we do not need anyone for any particular category of people or any boundary for constituencies. We need not draw boundaries for constituencies in Hong Kong. The 20 seats can all be returned from direct elections, and then what members need to do is complete their tasks.
Not so. At times we need a division of labour. I think our system has been working for a number of years. It was not abolished even in 1994. Now the Government is saying the appointed seats should be restored. That we have to rise against without doubt. But is the abolition of ex officio seats making things more complicated than they should be? I really do not understand what is going on here. I mean, we are good friends, Mr LEE. As things stand, I am of the view that even though Mr LEE may think his motion is correct and wants to insist on it, he should not be too extreme in some of the things he said.
MISS MARGARET NG (in Cantonese): Madam Chairman, I know it is a bit late but I am sorry I must say a few words.
I am not particularly sympathetic with indigenous residents in the New Territories people although I am an indigenous resident woman myself. I do not look just at the past but, put simply, the Basic Law comes from the Constitution. Article 40 of the Basic Law says: "The lawful traditional rights and interests of the indigenous inhabitants of the "New Territories" shall be protected by the Hong Kong Special Administrative Region." I am not saying because they have lawful traditional rights and interests they are automatically allowed ex officio seats, but I think our biggest problem is we have never had a good discussion in this Chamber about what lawful traditional rights and interests are and how wide their range is. Are all rights and interests mentioned before lawful rights and interests to be protected by Article 40? If we can define what these lawful rights and interests are, we can then say what exceeds them are not lawful or accepted as such. Thus we can say what is protected and what is not.
After listening to the comments by several of our friends from the Democratic Party, I am only more convinced that there is a need for rural committees to have their own representatives. Many of the speakers negated that they should enjoy the so-called special rights and interests or privileges. That indigenous residents are given certain "privilege" is one of the views, but indigenous consider those are their due rights and interests. Therefore, I think if their rights and interests are left purely to the protection by other District Council members, they may not think there is any protection at all. Hence, I think the ways mentioned in this Bill are the best. In fact I think they are outrageous. But I feel that in the light of Article 40 of the Basic Law, the Government has some ground to implement the clause. That means if we are honestly enforcing the Basic Law, like it or not, we must admit that the Government has the ground to do so. I would rather hope to see a clear definition given in future to what lawful traditional rights and interests are, and how they can be protected. Once a clear definition is drawn, we may then clearly say with good reasons what has exceeded the defined area and is therefore not acceptable. Madam Chairman, I want to thank everyone for allowing me this portion of time.
MR LEUNG YIU-CHUNG (in Cantonese): Madam Chairman, I have found it difficult for look in detail into the lawful traditional rights and interests of the indigenous inhabitants as referred to in Article 40 of the Basic Law. It is difficult for me to comment on it too. However, I understand how the New Territories work. There are rural committees and the Heung Yee Kuk. What are these entities? Long before the district boards came into existence, both entities had been safeguarding the so-called lawful rights and interests of the indigenous inhabitants, and had been holding discussions on community matters, and representing their views to the Government.
In the past, the Government would turn first to the Kuk or even the rural committees on matters concerning the indigenous residents of the New Territories. So, both entities have been playing a very important role. So, if indigenous residents want to find a channel to express their views about their affairs, they already have one. After the emergence of district boards, the entities also joined in the discussion of community affairs. At the early stage, ex officio members were added. Can this arrangement safeguard the interests of indigenous residents? I am not sure. The fact was, as has been pointed out, the district boards themselves have no authority. They were only consultative bodies. Indeed, insofar as authority is concerned, they are even weaker than the rural committees or the Kuk (especially the Kuk). And as far as consultation is concerned, they play a less important role than the Kuk in certain ways. Therefore I must ask: Is it really necessary for the lawful traditional rights and interests of indigenous residents to be protected through ex officio seats in the district boards? This is a great puzzle. I think whether the ex officio seats are a privilege bears little import, but is that a necessary arrangement? Since there are already other channels, is it necessary for the district boards to help? I have a number of unanswered questions.
I think we are talking about a democratic system, although some colleagues said we need to honour provisions in the Basic Law. Without a clear definition, that is, with some grey areas in front of us, I think I would want to look at the issue from a wider perspective. Why can we not employ special means to deal with the issue, which has more often than not given people the impression that they are special? We should scrap them. We should not allow them to continue to exist. By scrapping them I mean we should strike them off, remove them. Our District Councils will then be more democratic. I do not want to indulge in finding the proper name for the so-called "privilege", for that matter. By any name, I think we are talking about elections today and we must look at the issue from the point of fairness. For me, it can hardly be "fair" at all if someone can sneak into parliament without going through an electoral process. I would like everyone to think more in terms of the role played by the Kuk than the traditional rights and interests. Thank you, Madam Chairman.
CHAIRMAN (in Cantonese): Does any other Member wish to speak? I hope Members can speak at this stage. If no one wants to speak, I would now invite the Secretary for Constitutional Affairs to speak.
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, when I spoke earlier in the resumption of Second Reading debate, I pointed out that the ex officio seats on the District Councils in the New Territories are set up to ensure the representation of the views of indigenous villagers. To the District Councils in the New Territories, the arrangement of ex officio seats is a practice which has been in use and proven effective for a long time; besides, members of the Provisional District Board in the New Territories at large are in support of the proposal.
Just now Honourable Members have expressed their respective views regarding the points I raised. Actually, I still have here a great many supplementary materials, but to save time, I am not going to present them. Perhaps I should concentrate on a few points which Honourable Members have either skipped or not sufficiently covered.
Firstly, in reviewing the district organizations, we have consulted the public regarding this issue and received from them many views. In this connection, the Consultation Report on the Review of District Organisations has incorporated the following paragraph: "Likewise, some people have also pointed out that in order to safeguard the interests of the indigenous villagers, it should be reasonable to maintain the arrangement by which the chairmen of the 27 rural committees could become ex officio members of the district boards in the New Territories." After the consultation exercise, quite a number of views have been found in support of this point.
Just now Miss Emily LAU referred to the election of village representatives and expressed her concern over the fairness of the elections; besides, she also considered the confirmation process not prudent enough and hence questioned us if this would be a reasonable arrangement. I should like to remind Honourable Members here that the arrangement is a long-standing practice. When we introduced the Political Reform Package in 1994 and deleted the appointed seats, the ex officio seats still remained unaffected. At that time, we were also aware of the unsatisfactory aspects of the elections of village representatives, hence, as mentioned by some Honourable Members just now, the Government and the Heung Yee Kuk were urged to formulate some feasible methods in respect of the elections of village representatives. The model election rules were later produced under this circumstances.
Insofar as I understand it, the rules have to a large extent been followed. Certainly, the results might not be satisfactory when the rules were implemented for the first time. However, we would hold fast to the principle of "striving for better improvement" and rectify the imperfections. I am sure we should be able to gradually improve the mechanism upon this basis. In addition, our colleagues from the Home Affairs Department will also inspect the process of the elections held in the villages in the light of the relevant laws and rules, to see if the rules have been complied to or not. If any elections are conducted not in compliance with the rules or have obviously breached the rules, the status of the village representatives elected will not be confirmed by us. Should it come to our knowledge that there has been conduct unacceptable to us, such as having obviously breached the Prevention of Bribery Ordinance and so on, apart from reporting the case to the police, we will also refuse to confirm the qualification of the village representative so elected.
On the other hand, certain Honourable Members have mentioned that the boundary of the Tsuen Wan Rural Committee is inconsistent with that of the Tsuen Wan District Council. I do not think this should come as any surprise, since the boundary of the Tsuen Wan Rural Committee was determined in the past, the criteria used would inevitably be different from that we have used to demarcate the boundaries of District Councils. Besides, the old boundary has come into existence before ours. The so-called boundary conflict we now have is in fact a very minor one, since only three of the villages under the Tsuen Wan Rural Committee have fallen within the boundary of the Kwai Ching District Council. We have noticed this situation and will move a textural amendment later on to confirm that the three villages should be included as part of the Tsuen Wan District, and that they could not be represented in two districts simultaneously. As such, we have basically resolved the problem already.
MR LEE WING-TAT (in Cantonese): Madam Chairman, I have been listening attentively to what Andrew WONG said because I respect his opinions most of the time, with the exception of those times when he has taken some wine.
I think colleagues may have the misconception that indigenous residents will not do well when they stand for elections. If I remember it correctly, I think the district board member at Tai Yuen Estate, Tai Po, is an indigenous resident. He is a trainer, but not Mr Brian KAN Ping-chee. He is another person.
As I said in my speech earlier on, I do not have statistics on hand tonight but there are a number of district board members popularly elected (that is, elected by the ordinary voters, not from elections in the villages) in the North District, Yuen Long District, Tai Po District, Islands District, and Sai Kung District who are also members of the rural committees. So, what Mr WONG said was wrong.
Secondly, I would like to cite another example. In the elections of the New Territories West constituency, Mr LAM Wai-keung, being someone from the Heung Yee Kuk, was one of those who stood for election. He lost by a narrow margin. Were it not for the rain and the floods in the villages, he would have won the election. I do not mean to belittle the Democratic Party, but Mr LAM stood a real chance of being elected. Indeed, I tend to think Mr KAN Kwok-tung from the Heung Yee Kuk has a greater chance of succeeding as the first Kuk member than the Democratic Party in direct elections. So, I do not understand why Mr WONG had such a conservative view.
I think that the creation of functional constituencies has done harm to the business sector and the Liberal Party, while that of ex officio seats to the Kuk. The reason is that in a protected election, those protected will be enticed to follow the easy path instead of trying the harder way. Mr Allen LEE is commendable. He came from the business sector but was willing to take part in a direct election. Although he lost by a small margin, I very much hope he could stand for election in the next term; but he said he would not.
If every political party thinks this way, and choose the functional constituency, which is the easier route, to stand in the elections, we would have a slower pace of democratization. Although the Secretary said democracy will dawn on Hong Kong eventually, he has been saying that for almost 20 years. I would have wanted democracy to arrive earlier but this is not possible. The later we start off with democracy the more we will be struggling with all these modes of election.
I hope Mr WONG can persuade Mr LAU Wong-fat, who is a rather good member. From the conversation between Mr LAU and I, I understand he puts in great efforts in encouraging villagers to take part in direct elections. I would urge Mr WONG to give him some encouragement, as it is quite normal to lose once or twice. I can recall Mr Albert HO has also lost twice in elections. No big deal, isn't it? Everyone may stand the chance of being defeated, but having been defeated for several times, one can turn defeats into victories. The courage to fight again after defeat is good enough to impress voters. Hence I cannot agree with Mr WONG who said that indigenous residents would be at a disadvantage when public housing estates and non-indigenous resident villages are put together. Of course we hope that those who succeed in the elections can strike a balance in their work so that the interests of indigenous residents as well as other people in the village are catered to. I do not think this is too difficult. I do not think it is too difficult for a representative of the public to represent the interests of different social strata, and interest groups (Hong Kong does not have too many races) in the community. I hope my point can motivate Mr WONG. I suggest he give more encouragement to Mr LAU. It would be better still if Mr LAU could mobilize villagers to participate in direct elections.
I understand that there is a set of guidelines for elections of village representatives. I have looked at them in detail, and Secretary Michael SUEN said the provisions in it have been enforced. What the Secretary did not say to us was the guidelines were just a sample. A village may choose not to follow them as each village may have its own rules.
We discussed the issue of election of village representatives at the Panel on Home Affairs chaired by the Honourable Miss CHOY So-yuk on several occasions this year. In fact, there has been a number of discussions on the Panel since I held office as a Legislative Council Member in 1991. However, to date, complete equality has yet to be achieved between men and women in the election of village representatives. A small number of the villages do not meet the target. These are very stubborn cases. They are so stubborn that even Mr LAU, during a conversation with me, complained to me saying he did not understand why the people involved were so stubborn as to reject a one-person-one-vote system for both men and women in the election. If such people were in future confirmed (the district officer may of course refuse to confirm) to be rural committee chairmen, they would be people elected from an unfair system.
Yesterday, during our discussion about the Corrupt and Illegal Practices Ordinance, we talked about the possible application of the relevant laws to village representative elections. At the panel meeting, I asked for many times whether it was against the law for candidates to buy meals for people during these elections. And how about dealing out "red packets" after the elections? If corrupt practices happened during village representative elections, is the Ordinance enforceable against such activities? Deputy Secretary IP vaguely referred to other ordinances such as Offences against the Person Ordinance and Theft Ordinance, which are indirectly related in terms of supervision. The legal advisers of the Secretary was smart enough to have sorted out four ordinances, which were said to be related, but were in fact not directly related. The legal advisers found these four ordinances only after searching through all law books. However, any act against these ordinances is always an offence, irrespective if there is an election or not. Take the of Offences against the Person Ordinance and Theft Ordinance as examples. If I said to Mr LEUNG Yiu-chung: "I am upset because you do not like me. If you indicate once more you do not like me, I will hit you!" That is an offence, but that does not relate to elections. It does not help at all by citing the ordinance. Even the Secretary is laughing now. In its effort to show the elections are supervised, the Government cited even ordinances which are in no way related to elections. This is ridiculous. Strictly speaking, village representative elections are subject to no regulation at all. Why must we accept that a village representative elected from a non-regulated election should enjoy a substantive right of indirectly electing a representative to the District Councils?
I hope Members will bear this in mind: Firstly, there may be a number of indigenous resident candidates who can win in direct elections. This is a fact I want to reiterate. Secondly, we do not want elections in which some candidates are given special favour to continue to exist. We do not want to have any elections which discriminate against women. Thank you, Madam Chairman.
CHAIRMAN (in Cantonese): Mr Andrew WONG, speaking for the fourth time.
MR ANDREW WONG (in Cantonese): Madam Chairman, I am not trying to give a speech. I just want to explain a little bit. My earlier comments might have been misinterpreted. I said if a village of indigenous residents is situated near a housing estate, it would be difficult for the residents to be elected. I said that in response to what Dr YEUNG Sum said before, which was about indigenous residents standing a chance to win elections. And then I said if an indigenous resident wanted to stand for elections, it would be difficult for him to do so by holding himself out as someone who represents indigenous residents or their interests. That was the gist of my speech, not the point about the ease with which indigenous resident candidates can win. Mr LEE Wing-tat misinterpreted (I hope he misinterpreted, not misled) my words to refer to the ease with which indigenous residents can win. He gave no data, nor did Dr YEUNG. I did not say whether it is easy or difficult for indigenous residents to win. I was referring to something else. Madam Chairman, I hope that through you I can stop Mr LEE's misinterpretation from misleading other Members.
MR MARTIN LEE (in Cantonese): Madam Chairman, whether there is available data or not is unimportant. What is important is what the Secretary just said, that is, democracy will come to Hong Kong sooner or later.
The example given by Mr LEE Wing-tat may not be good enough. I can give a better one, about a baby sparrow and a mother sparrow. When the baby sparrow is small the mother sparrow naturally needs to find some small worms to feed it. But after some time, the eagle (laughter), sorry the baby sparrow, should learn to fly. However, the mother sparrow says to it: "You do not have to learn to fly, sure you will have food from me." So, it continues to find worms to feed its baby. The baby becomes obese now. The baby is so obese that it falls to death when it attempts to fly!
That is a point we all understand. Since democracy will arrive sooner or later, we should learn to fly early. We should avoid "obesity". Thank you, Madam Chairman.
CHAIRMAN (in Cantonese): Before I put the question to you, does any other Member wish to speak?
(No Member responded)
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendments move by Mr LEE Wing-tat be passed. Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr LEE Wing-tat rose to claim a division.
CHAIRMEN (in Cantonese): Mr LEE Wing-tat has claimed a division. The division bell will ring for one minute.
CHAIRMEN (in Cantonese): Will Members please proceed to vote.
CHAIRMAN (in Cantonese): Before I declare that the voting shall stop, are there any queries? Voting shall now stop and the result will be displayed.
Functional Constituencies:
Mr Michael HO, Dr David LI, Mr CHEUNG Man-kwong, Mr Ambrose CHEUNG, Mr Bernard CHAN, Dr LEONG Che-hung, Mr SIN Chung-kai and Mr LAW Chi-kwong voted for the motion.
Mr Kenneth TING, Mr James TIEN, Mr Edward HO, Mr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Dr LUI Ming-wah, Miss Margaret NG, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Mr CHAN Wing-chan, Mrs Sophie LEUNG, Dr Philip WONG, Mr WONG Yung-kan, Mr Howard YOUNG, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Timothy FOK, Mr FUNG Chi-kin and Dr TANG Siu-tong voted against the motion.
Geographical Constituencies and Election Committee:
Miss Cyd HO, Mr Albert HO, Mr LEE Wing-tat, Mr LEE Cheuk-yan, Mr Martin LEE, Mr Fred LI, Mr James TO, Miss Christine LOH, Mr LEUNG Yiu-chung, Dr YEUNG Sum, Mr LAU Chin-shek, Miss Emily LAU, Mr Andrew CHENG and Mr SZETO Wah voted for the motion.
Miss CHAN Yuen-han, Mr Gary CHENG, Mr Andrew WONG, Mr Jasper TSANG, Mr LAU Kong-wah, Mr TAM Yiu-chung, Mr David CHU, Mr HO Sai-chu, Mr NG Leung-sing, Prof NG Ching-fai, Mr MA Fung-kwok, Mr CHAN Kam-lam, Mr YEUNG Yiu-chung, Mr Ambrose LAU and Miss CHOY So-yuk voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that among Members returned by functional constituencies, 30 were present, eight were in favour of the motion and 22 against it; while among the Members returned by geographical constituencies through direct elections and by the Election Committee, 30 were present, 14 were in favour of the motion and 15 against it. Since the question was not agreed by a majority of each of the two groups of Members present, she therefore declared that the motion was negatived.
CHAIRMEN (in Cantonese): As the amendments moved by Mr LEE Wing-tat have been negatived, I now put the question to you and that is: That clause 10, sub-heading before clause 17, clauses 18, 26, 81 and 82 stand part of the Bill.
Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr LEE Wing-tat rose to claim a division.
CHAIRMEN (in Cantonese): Mr LEE Wing-tat has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): Before I declare that the voting shall stop, are there any queries? Voting shall now stop and the result will be displayed.
Mr Kenneth TING, Mr James TIEN, Mr David CHU, Mr HO Sai-chu, Mr Edward HO, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Dr LUI Ming-wah, Mr NG Leung-sing, Prof NG Ching-fai, Miss Margaret NG, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr MA Fung-kwok, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Miss CHAN Yuen-han, Mr Bernard CHAN, Mr CHAN Wing-chan, Mr CHAN Kam-lam, Mrs Sophie LEUNG, Mr Gary CHENG, Mr Andrew WONG, Dr Philip WONG, Mr WONG Yung-kan, Mr Jasper TSANG, Mr Howard YOUNG, Mr YEUNG Yiu-chung, Mr LAU Kong-wah, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Ambrose LAU, Miss CHOY So-yuk, Mr Timothy FOK, Mr TAM Yiu-chung, Mr FUNG Chi-kin and Dr TANG Siu-tong voted for the motion.
Mr Albert HO, Mr Michael HO, Mr LEE Wing-tat, Mr Martin LEE, Dr David LI, Mr Fred LI, Mr James TO, Mr CHEUNG Man-kwong, Mr Ambrose CHEUNG, Miss Christine LOH, Dr LEONG Che-hung, Mr SIN Chung-kai, Dr YEUNG Sum, Mr Andrew CHENG, Mr SZETO Wah and Mr LAW Chi-kwong voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that there were 55 Members present, 38 were in favour of the motion and 16 against it. Since the question was agreed by a majority of the Members present, she therefore declared that the motion was carried.
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, I move that clauses 2 and 9 and Schedule 3 be amended as set out in the paper circularized to Members.
In regard to clause 9, I propose that the clause be renumbered, and that clauses 9(2), 9(3) and 9(4) be added, as set out in the paper circularized to Members. The amendments are proposed in response to the suggestions of the Bills Committee. They aim at stipulating clearly that if a rural committee falls within more than one district, the chairman of the rural committee will become an ex officio member of the relevant District Council as specified in Part II of Schedule 3. This is in fact what we have talked about just now. As regards the amendment to Schedule 3, its purpose is to add new Part II to set out clearly the number and names of rural committees that fall within each of the District Councils in the New Territories. This amendment is proposed in connection with an amendment moved to clause 9 and passed by this Council earlier on. According to that amendment, the chairman of the rural committee concerned is eligible to become an ex officio member of the District Council specified in Part II of Schedule 3. I hereby urge Honourable Members to support the amendments.
Proposed amendments
Clause 2 (see Annex IV)
Clause 9 (see Annex IV)
Schedule 3 (see Annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak? Please raise your hand to so indicate.
MR LEE WING-TAT (in Cantonese): Madam Chairman, since this involves the new arrangement for rural committee chairmen to become ex officio members, we in the Democratic Party oppose it. Thank you, Madam Chairman.
MR ANDREW WONG (in Cantonese): Madam Chairman, I object to the amendments. Even if the provision is deleted, there will still be ex officio members. Moreover, the number will remain the same, that is, no change at all. These amendments only aim at making the legislation more specific. I think this is where the significance of the amendments lie. I hope I could persuade Members to abstain from voting for at least it will look better. (Laughter)
CHAIRMAN (in Cantonese): Secretary for Constitutional Affairs, do you need to reply?
(The Secretary indicated that he did not wish to reply)
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendments moved by the Secretary for Constitutional Affairs be passed. Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr LEE Wing-tat rose to claim a division.
CHAIRMAN (in Cantonese): Mr LEE Wing-tat has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): Before I declare that the voting shall stop, are there any queries? Voting shall now stop and the result will be displayed.
Mr Kenneth TING, Mr James TIEN, Mr David CHU, Mr HO Sai-chu, Mr Edward HO, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Dr LUI Ming-wah, Mr NG Leung-sing, Prof NG Ching-fai, Miss Margaret NG, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr MA Fung-kwok, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Miss CHAN Yuen-han, Mr Bernard CHAN, Mr CHAN Wing-chan, Mr CHAN Kam-lam, Dr LEONG Che-hung, Mrs Sophie LEUNG, Mr Gary CHENG, Mr Andrew WONG, Dr Philip WONG, Mr WONG Yung-kan, Mr Jasper TSANG, Mr Howard YOUNG, Mr YEUNG Yiu-chung, Mr LAU Kong-wah, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Ambrose LAU, Miss CHOY So-yuk, Mr Timothy FOK, Mr TAM Yiu-chung, Mr FUNG Chi-kin and Dr TANG Siu-tong voted for the motion.
Mr Albert HO, Mr Michael HO, Mr LEE Wing-tat, Mr Martin LEE, Dr David LI, Mr Fred LI, Mr James TO, Mr CHEUNG Man-kwong, Mr Ambrose CHEUNG, Miss Christine LOH, Mr SIN Chung-kai, Dr YEUNG Sum, Mr Andrew CHENG, Mr SZETO Wah and Mr LAW Chi-kwong voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that there were 55 Members present, 39 were in favour of the motion and 15 against it. Since the question was agreed by a majority of the Members present, she therefore declared that the motion was carried.
CLERK (in Cantonese): Clause 9 as amended.
CHAIRMAN (in Cantonese) : Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr LEE Wing-tat rose to claim a division.
CHAIRMAN (in Cantonese): Mr LEE Wing-tat has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): Will Members please proceed to vote.
CHAIRMAN (in Cantonese): If there are no queries, voting shall now stop and the result will be displayed.
Mr Kenneth TING, Mr James TIEN, Mr David CHU, Mr HO Sai-chu, Mr Edward HO, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Dr LUI Ming-wah, Mr NG Leung-sing, Prof NG Ching-fai, Miss Margaret NG, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr MA Fung-kwok, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Miss CHAN Yuen-han, Mr Bernard CHAN, Mr CHAN Wing-chan, Mr CHAN Kam-lam, Dr LEONG Che-hung, Mrs Sophie LEUNG, Mr Gary CHENG, Mr Andrew WONG, Dr Philip WONG, Mr WONG Yung-kan, Mr Jasper TSANG, Mr Howard YOUNG, Mr YEUNG Yiu-chung, Mr LAU Kong-wah, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Ambrose LAU, Miss CHOY So-yuk, Mr Timothy FOK, Mr TAM Yiu-chung, Mr FUNG Chi-kin and Dr TANG Siu-tong voted for the motion.
Mr Albert HO, Mr Michael HO, Mr LEE Wing-tat, Mr Martin LEE, Dr David LI, Mr Fred LI, Mr James TO, Mr Ambrose CHEUNG, Miss Christine LOH, Dr YEUNG Sum, Mr Andrew CHENG, Mr SZETO Wah and Mr LAW Chi-kwong voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that there were 54 Members present, 39 were in favour of the motion and 13 against it. Since the question was agreed by a majority of the Members present, she therefore declared that the motion was carried.
Schedule 4
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, I move the amendment to Forms 1 and 2 of Schedule 4, the respective forms for acceptance of office as an appointed member and as an ex officio member, as set out in the paper circularized to Members. The purpose of the amendment is to add into the forms a declaration affirming that the member concerned is not disqualified for appointment or from holding office. I hereby urge Honourable Members to support the amendment.
Proposed amendment
Schedule 4 (see Annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak? Please raise your hand to so indicate.
MR LEE WING-TAT (in Cantonese): Madam Chairman, the Democratic Party opposes this amendment for two reasons. Firstly, the amendment is related to both appointed and ex officio members, which are unacceptable to us.
Secondly, despite our disapproval, we would still like to ask the Government the following question, and that is: Why does the Government consider it necessary for the relevant members to confirm that they have not been disqualified? Before any person is selected as an appointed member or an ex officio member, he or she should have undegone a vetting procedure by the Government; this is particularly so for the ex officio members, since they need to first go through elections for village representatives and rural committee chairmen. What I could not understand is that since the vetting procedure should have been completed in the electroal process while the background of the candidates for appointment should have been cleared by the Government beforehand, why should there be any need to add such a requirement in the forms concerned? We object to the amendment. Thank you, Madam Chairman.
CHAIRMAN (in Cantonese): Secretary for Constitutional Affairs, do you wish to reply?
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, actually we have already explained the case at the Bills Committee. Unlike directly elected members who are required to make such a declaration in their respective nomination forms, appointed members and ex officio members do not need to undergo that procedure; as such, the amendment is introduced to remedy the situation by enabling them to make the affirmation in their forms for acceptance of office.
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment moved by the Secretary for Constitutional Affairs be passed. Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr LEE Wing-tat rose to claim a division.
CHAIRMAN (in Cantonese): Mr LEE Wing-tat has claimed a division, the division bell will ring for one minute.
CHAIRMAN (in Cantonese): Will Members please proceed to vote?
CHAIRMAN (in Cantonese): Members may wish to check their votes. If there are no queries, voting shall now stop and result will be displayed.
Mr Kenneth TING, Mr James TIEN, Mr David CHU, Mr HO Sai-chu, Mr Edward HO, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Dr LUI Ming-wah, Mr NG Leung-sing, Prof NG Ching-fai, Miss Margaret NG, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr MA Fung-kwok, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Miss CHAN Yuen-han, Mr Bernard CHAN, Mr CHAN Wing-chan, Mr CHAN Kam-lam, Dr LEONG Che-hung, Mrs Sophie LEUNG, Mr Gary CHENG, Mr Andrew WONG, Dr Philip WONG, Mr WONG Yung-kan, Mr Jasper TSANG, Mr Howard YOUNG, Mr YEUNG Yiu-chung, Mr LAU Kong-wah, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Ambrose LAU, Miss CHOY So-yuk, Mr Timothy FOK, Mr TAM Yiu-chung, Mr FUNG Chi-kin and Dr TANG Siu-tong voted for the motion.
Mr Albert HO, Mr Michael HO, Mr LEE Wing-tat, Mr Martin LEE, Mr Fred LI, Mr James TO, Mr CHEUNG Man-kwong, Mr Ambrose CHEUNG, Miss Christine LOH, Mr SIN Chung-kai, Dr YEUNG Sum, Mr Andrew CHENG, Mr SZETO Wah and Mr LAW Chi-kwong voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that there were 54 Members present, 39 were in favour of the motion and 14 against it. Since the question was agreed by a majority of the Members present, she therefore declared that the motion was carried.
CLERK (in Cantonese): Schedule 4 as amended.
CHAIRMAN (in Cantonese): Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr LEE Wing-tat rose to claim a division.
CHAIRMAN (in Cantonese): Mr LEE Wing-tat has claimed a division, the division bell will ring for one minute.
CHAIRMAN (in Cantonese): Will Members please proceed to vote?
CHAIRMAN (in Cantonese): Before I declare that the voting shall stop, are there any queries? Voting shall now stop and the result will be displayed.
Mr Kenneth TING, Mr James TIEN, Mr David CHU, Mr HO Sai-chu, Mr Edward HO, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Dr LUI Ming-wah, Mr NG Leung-sing, Prof NG Ching-fai, Miss Margaret NG, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr MA Fung-kwok, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Miss CHAN Yuen-han, Mr Bernard CHAN, Mr CHAN Wing-chan, Mr CHAN Kam-lam, Dr LEONG Che-hung, Mrs Sophie LEUNG, Mr Gary CHENG, Mr Andrew WONG, Dr Philip WONG, Mr WONG Yung-kan, Mr Jasper TSANG, Mr Howard YOUNG, Mr YEUNG Yiu-chung, Mr LAU Kong-wah, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Ambrose LAU, Miss CHOY So-yuk, Mr Timothy FOK, Mr TAM Yiu-chung, Mr FUNG Chi-kin and Dr TANG Siu-tong voted for the motion.
Mr Albert HO, Mr Michael HO, Mr LEE Wing-tat, Mr Martin LEE, Dr David LI, Mr Fred LI, Mr James TO, Mr CHEUNG Man-kwong, Mr Ambrose CHEUNG, Miss Christine LOH, Mr SIN Chung-kai, Dr YEUNG Sum, Mr Andrew CHENG, Mr SZETO Wah and Mr LAW Chi-kwong voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that there were 55 Members present, 39 were in favour of the motion and 15 against it. Since the question was agreed by a majority of the Members present, she therefore declared that the motion was carried.
Clauses 11 and 16
CHAIRMAN (in Cantonese): We will now deal with the parts of the Bill relating to "how long appointed members are to hold office".
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, I move that clauses 11(3) and 16(4), which confer on the Chief Executive the power to appoint persons to hold office for a shorter term, be amended. This amendment is proposed in response to the suggestions of the Bills Committee regarding the said clauses. I hereby urge Honourable Members to support the amendments.
Proposed amendments
Clause 11 (see Annex IV)
Clause 16 (see Annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
MR LEE WING-TAT (in Cantonese): Madam Chairman, although the Secretary has catered to the views of certain Honourable Members (not me because I am opposed to the appointment system) and deleted the clause on the power of the Chief Executive to appoint persons to hold office for a shorter term, still I would like to put on record my questions regarding the Government's original intention to incorporate the clause into the Bill.
Firstly, in making the appointments, why would the Government not arrange for the appointed members to hold office throughout the term? It is really surprising. In this connection, if the term of office of the seat lasts four years, then the appointment should be effective for four years; if the term lasts two years, then two years. Why should there be an initial proposal to confer on the Chief Executive the power to make appointments of a shorter term? One cannot but suspect this is a way to further control the persons who have accepted the appointment as appointed members. As it would imply that I will appoint you for a shorter term, and that I would revoke the appointment if you do not perform well within that period of time. This is indeed a horrifying measure.
In the Bills Committee, some Honourable Members questioned that should the Chief Executive be conferred such power, he would really be a beneficiary in political elections, in particular in political election by a small coterie. Today, many colleagues have pointed out that some of the 800 electors for the election of the second Chief Executive will be representatives from District Councils. In this connection, if the Chief Executive were able to influence the representatives from District Councils to the effect that he would ensure support for himself in the future Chief Executive election, then the whole thing would be a political deal.
This is similar to the issue of village representatives to which I referred to earlier. The candidate or the would-be winner of the election may appoint certain persons to be his electors, and this is a very odd case in election. What really beats me is that even though no substantial exchange of benefits is involved, people would still suspect that there is exchange of benefits. In my opinion, this is totally undesirable.
If I recall it correctly, the colonial government would very seldom appoint a person to hold office for a shorter term, such as appointing one to hold office as an appointed district board member for two years in a district board the term of which would last for four years. Although the Government has withdrawn this clause now, I still wish to know what was in their mind when they first formulated this proposal.
In any case, Madam Chairman, since the clause is related to appointed members, the Democratic Party will object to it. Thank you, Madam Chairman.
MR ANDREW WONG (in Cantonese): Madam Chairman, Mr LEE Wing-tat did not specify which Member's suggestion was the amendment made in response to, in fact it was mine. I do not dare to speculate on the intentions of the Chief Executive, that is, the intentions also of the Secretary for Constitutional Affairs, but at least if this provision has the possibility of being used by someone with an unscrupulous intent, then deleting it should be able to prevent any abuse of power.
The Democratic Party is being quite unamenable to persuasion, they are even objecting to something reasonable just because of some principles they hold. I do not quite understand what they are after.
MR LEE WING-TAT (in Cantonese): Madam Chairman, I will be very brief: The reason why the Democratic Party is doing this is because we do not want to do any window dressing for those appointed members, so we will oppose any amendment involving appointed members.
DR YEUNG SUM (in Cantonese): Madam Chairman, I do not quite understand why Mr Andrew WONG said he did not understand our measures. Our position is very firm indeed, and that is, we are opposed to the appointment system. We are not like some other people who sometimes say yes and sometimes say no.
Thank you, Madam Chairman.
MR SZETO WAH (in Cantonese): People who do not have any principles would of course fail to undertand those who have.
MISS MARGARET NG (in Cantonese): Madam Chairman, I accept Mr Andrew WONG's position not because I agree to it, nor is it because I am willing to compromise. In fact, I am totally against the appointment system. As the appointment system cannot be voted down, I will oppose to the passage of this Bill when it is to be read the Third time. But as opposing its passage may not be effective, the Bill still stands a great chance of being passed. Should the Bill be passed, this amendment should be able to ensure that the Bill would not be any worse than it could have been.
Thank you, Madam Chairman.
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendments moved by the Secretary for Constitutional Affairs be passed. Would those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr LEE Wing-tat rose to claim a division.
CHAIRMAN (in Cantonese): Mr LEE Wing-tat has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): Before I declare voting shall stop, are there any queries? Voting shall now stop and the result will be displayed.
Mr Kenneth TING, Mr James TIEN, Mr David CHU, Mr HO Sai-chu, Mr Edward HO, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Dr LUI Ming-wah, Mr NG Leung-sing, Prof NG Ching-fai, Miss Margaret NG, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr MA Fung-kwok, Mr HUI Cheung-ching, Mr CHAN Kowk-keung, Miss CHAN Yuen-han, Mr Bernard CHAN, Mr CHAN Wing-chan, Mr CHAN Kam-lam, Dr LEONG Che-hung, Mrs Sophie LEUNG, Mr Gary CHENG, Mr Andrew WONG, Dr Philip WONG, Mr WONG Yung-kan, Mr Jasper TSANG, Mr Howard YOUNG, Mr YEUNG Yiu-chung, Mr LAU Kong-wah, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Ambrose LAU, Miss CHOY So-yuk, Mr Timothy FOK, Mr TAM Yiu-chung, Mr FUNG Chi-kin and Dr TANG Siu-tong voted for the motion.
Mr Albert HO, Mr Michael HO, Mr LEE Wing-tat, Mr Martin LEE, Dr David LI, Mr Fred LI, Mr James TO, Mr CHEUNG Man-kwong, Mr Ambrose CHEUNG, Miss Christine LOH, Mr SIN Chung-kai, Dr YEUNG Sum, Mr Andrew CHENG, Mr SZETO Wah and Mr LAW Chi-kwong voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that there were 55 Members present, 39 were in favour of the motion and 15 against it. Since the question was agreed by a majority of the Members present, she therefore declared that the motion was carried.
MR LEE WING-TAT (in Cantonese): Madam Chairman, although it is not yet time for the discussion of these provisions, I have received some slips on these and so I would like to ask a question on procedures. Mr LAU Chin-shek and Miss Cyd HO have given me some slips saying that they will withdraw the amendments that they originally wished to propose. May I ask a procedural question: Many of these views have been discussed in the Bills Committee and some of these motions are ones that we would like to propose as well, especially the amendment proposed by Mr LAU Chin-shek on whether the Chief Executive should be given the discretion to issue directives to district boards and so on. Many Members in the Bills Committee are aware of our position. Miss Cyd HO's amendment on whether the Audit Commission has the right to audit the accounts of the district boards is also an amendment which we wish to propose. But as it has been proposed by an Honourable colleague, so we have decided not to propose it.
However, Madam Chairman, may I ask this question: As these Honourable colleagues are making last minute withdrawals, under such circumstances, what are the practices of other parliaments and assemblies in this regard? For if an Honourable colleague has proposed an amendment but withdraws it at the last minute, other Members will have no right to put in another amendment in its place. Then many amendments may well be used to take up the quota permitted and only to be withdrawn later. And Madam Chairman, when you make a ruling, you can only tell who has proposed the amendment faster than others. And that is it. I can give you an example. If an Honourable colleague wishes to propose an amendment which seeks to delete the appointed seats, then he makes a last minute withdrawal but I am not allowed to make another amendment in its place, then there will not be any amendment which seeks to delete the appointed seats any more. Madam Chairman, I hope that you can consider my suggestion carefully. As you can allow Members to make last minute withdrawals, then can other Honourable colleagues be allowed to propose amendments at the last minute? Thank you, Madam Chairman.
CHAIRMAN (in Cantonese): Mr LEE Wing-tat, any Member who wishes to propose an amendment, be it an amendment or a motion, must give an advance notice and seek approval from the President before he can move it. But the initiative to propose motions rests with the Member concerned and he has the right to withdraw his motion at any time he wants and the President is not empowered to request that he must propose the motion. As for the possibility which you mentioned that there might be other Members who wished to propose the same motion, there are no such arrangements in the existing Rules of Procedure. If you wish to follow up this matter, you are advised to bring it up with the Committee on Rules of Procedure and put forward your case for consideration. But at the present moment, I cannot give you any further elucidation in this regard.
MR LEE WING-TAT (in Cantonese): Madam Chairman, I would like to know if there are remedies in the rules. We know of course that under the Rules of Procedure, we can adjourn this meeting without giving any notice in advance. And before the next meeting is resumed, I need only to give sufficient notice and this amendment will be added onto the Agenda. But my colleague would of course be unwilling to see me adjourn this meeting without any prior notice so that I can have seven days' time to propose my amendment. However, I think the parliamentary assembly needs to be fair, because such things would indeed happen when Members are permitted to withdraw their amendments without any prior notice. For example, if I am against the appointment system, and a certain colleague who proposes an amendment to debate the appointment system earlier than me but he withdraws his amendment at the last minute, then there is nothing I can do about it. I do not know if authorities like Erskine May have anything on that to remedy such a contingency. Madam Chairman, you are much more experienced than I am, so I wish to seek your advice on that. Thank you, Madam Chairman.
MR RONALD ARCULLI: Madam Chairman, may be my colleagues would look at Rule 57(2) of the Rules of Procedure, which reads:
"Notice of amendments proposed to be moved to a bill shall be given not less than seven clear days before the day on which the bill is to be considered in committee; and except with the leave of the Chairman, no amendment of which notice has not been so given may be moved to a bill."
My understanding of that particular rule of our procedure is that I suspect the Honourable LEE Wing-tat can actually apply to you, Madam Chairman, and provided you think fit, for leave to move the amendment without the seven days' notice. I do not know whether my understanding is correct.
CHAIRMAN (in Cantonese): I now adjourn the meeting for 10 minutes. I hope that Mr LEE and other Members will discuss the matter among themselves, especially the two Members who have said that they will withdraw their amendments. I will also consider the view advanced by Mr ARCULLI just now.
1.18 am
Meeting suspended.
1.48 am
Council then resumed.
CHAIRMAN (in Cantonese): Honourable Members ...... (A hubbub in the public gallery)
CHAIRMAN (in Cantonese): You cannot cause a hubbub here, if you do so I will direct the security guards to take you away! (Demonstrators continued to cause a hubbub in the public gallery) Would the security guards take him away. Security guards, take him away. (Demonstrators continued to cause a hubbub)
CHAIRMAN (in Cantonese): Please follow the security guards out of this Chamber!
CHAIRMAN (in Cantonese): Members, just now Mr ARCULLI referred to Rule 57(2) of the Rules of Procedure. The normal circumstances under which this Rule is invoked to waive a notice in advance are when a certain Member wishes to propose a motion, but before he has done so, another amendment has been passed and so he has to amend the wording of his amendment. That is to say, an amendment which has not been passed has to be amended in conformity with the wording of the amendment which has been passed. Such cases have happened in this Council quite a number of times.
As Mr LAU Chin-shek and Miss Cyd HO have withdrawn their amendments, but Mr LEE Wing-tat is in support of their amendments, so Mr LEE hopes that I can grant him leave to move the amendments formerly proposed by Mr LAU Chin-shek and Miss Cyd HO. Having considered the fact that the wording of the amendments proposed by the two Honourable Members is already set out on the Agenda, and that there has been sufficient time for Honourable Members to consider the contents of the two amendments, therefore, under such circumstances, I have granted Mr LEE Wing-tat special leave to move these two amendments.
Mr LEE Wing-tat has also raised a question, that is: If in the future a number of Members propose the same amendment and in the end only one Member is permitted to propose an amendment which he later withdraws at the last minute, then the other Members will not be able to support his amendment. As the Chairman, I do not wish to make a special ruling at every meeting. So I would suggest that when the same thing happens again, that is, when you wish to support an amendment already proposed by a certain Member, please give notice in advance before the specified deadline and propose an amendment similar to that which has already been proposed. Not only will the debate not be affected, but that even if the Member withdraws his amendment, other Members may also move amendments provided that they are in conformity with the Rules.
The meeting now continues. Mr LEE Wing-tat, when you move the amendment later, please do so according to the wording of the original amendment.
CLERK (in Cantonese): Clauses 11 and 16 as amended.
CHAIRMAN (in Cantonese): Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr LEE Wing-tat rose to claim a division.
CHAIRMAN (in Cantonese): Mr LEE Wing-tat has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): Before I decare that the voting shall stop, are there any queries? Voting shall now stop and the result will be displayed.
Mr Kenneth TING, Mr David CHU, Mr HO Sai-chu, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming. Dr LUI Ming-wah, Mr NG Leung-sing, Prof NG Ching-fai, Miss Margaret NG, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr MA Fung-kwok, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Miss CHAN Yuen-han, Mr Bernard CHAN, Mr CHAN Wing-chan, Mr CHAN Kam-lam, Dr LEONG Che-hung, Mrs Sophie LEUNG, Mr Gary CHENG, Mr Andrew WONG, Dr Philip WONG, Mr WONG Yung-kan, Mr Jasper TSANG, Mr Howard YOUNG, Mr YEUNG Yiu-chung, Mr LAU Kong-wah, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Ambrose LAU, Miss CHOY So-yuk, Mr Timothy FOK, Mr TAM Yiu-chung, Mr FUNG Chi-kin and Dr TANG Siu-tong voted for the motion.
Mr Albert HO, Mr Michael HO, Mr LEE Wing-tat, Mr Martin LEE, Dr David LI, Mr Fred LI, Mr James TO, Mr CHEUNG Man-kwong, Mr Ambrose CHEUNG, Miss Christine LOH, Mr SIN Chung-kai, Dr YEUNG Sum, Mr Andrew CHENG, Mr SZETO Wah and Mr LAW Chi-kwong voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that there were 53 Members present, 37 were in favour of the motion and 15 against it. Since the question was agreed by a majority of the Members present, she therefore declared that the motion was carried.
Clause 17
CHAIRMAN (in Cantonese): The Council will now proceed to deal with the part of the Bill relating to "ex officio members to accept office".
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, I move that clause 17 be renumbered and subclause (2) be added to the clause as set out in the paper circularized to Members.
Members of the Committee of the whole Council have earlier passed the amendment to clause 9, that is, the provision related to ex officio members. Now we need to amend clause 17 to clarify that a person who is a chairman of a rural committee cannot accept office as an ex officio member in more than one District Council concurrently. This is a reasonable arrangement. I hereby urge Honourable Members to support the amendment.
Proposed amendment
Clause 17 (see Annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
MR LEE WING-TAT (in Cantonese): I oppose this amendment.
CHAIRMAN (in Cantonese): Secretary for Constitutional Affairs, do you need to reply?
(The Secretary for Constitutional Affairs indicated that he did not wish to reply)
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment moved by the Secretary for Constitutional Affairs be passed. Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese):Those against please raise their hands.
(Members raised their hands)
Mr LEE Wing-tat rose to claim a division.
CHAIRMAN (in Cantonese): Mr LEE Wing-tat has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): Will Members may wish to check their votes. If there are no queries, I declare voting shall now stop and the result will be displayed.
Mr Kenneth TING, Mr David CHU, Mr HO Sai-chu, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Dr LUI Ming-wah, Mr NG Leung-sing, Prof NG Ching-fai, Miss Margaret NG, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr MA Fung-kwok, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Miss CHAN Yuen-han, Mr Bernard CHAN, Mr CHAN Wing-chan, Mr CHAN Kam-lam, Dr LEONG Che-hung, Mrs Sophie LEUNG, Mr Gary CHENG, Mr Andrew WONG, Dr Philip WONG, Mr WONG Yung-kan, Mr Jasper TSANG, Mr Howard YOUNG, Mr YEUNG Yiu-chung, Mr LAU Kong-wah, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Ambrose LAU, Miss CHOY So-yuk, Mr Timothy FOK, Mr TAM Yiu-chung, Mr FUNG Chi-kin and Dr TANG Siu-tong voted for the motion.
Mr Albert HO, Mr Michael HO, Mr LEE Wing-tat, Mr Martin LEE, Dr David LI, Mr Fred LI, Mr James TO, Mr CHEUNG Man-kwong, Miss Christine LOH, Mr SIN Chung-kai, Dr YEUNG Sum, Mr Andrew CHENG, Mr SZETO Wah and Mr LAW Chi-kwong voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that there were 52 Members present, 37 were in favour of the motion and 14 against it. Since the question was agreed by a majority of the Members present, she therefore declared that the motion was carried.
CLERK (in Cantonese): Clause 17 as amended.
CHAIRMAN (in Cantonese): Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr LEE Wing-tat rose to claim a division.
CHAIRMAN (in Cantonese): Mr LEE Wing-tat has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): Before I declare that the voting shall stop, are there any queries? Voting shall now stop and the result will be displayed.
Mr Kenneth TING, Mr David CHU, Mr HO Sai-chu, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Dr LUI Ming-wah, Mr NG Leung-sing, Prof NG Ching-fai, Miss Margaret NG, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr MA Fung-kwok, Mr HUI Cheung-ching, MR CHAN Kwok-keung, Miss CHAN Yuen-han, Mr Bernard CHAN, Mr CHAN Wing-chan, Mr CHAN Kam-lam, Dr LEONG Che-hung, Mrs Sophie LEUNG, Mr Gary CHENG, Mr Andrew WONG, Dr Philip WONG, Mr WONG Yung-kan, Mr Jasper TSANG, Mr Howard YOUNG, Mr YEUNG Yiu-chung, Mr LAU Kong-wah, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Ambrose LAU, Miss CHOY So-yuk, Mr Timothy FOK, Mr TAM Yiu-chung, Mr FUNG Chi-kin and Dr TANG Siu-tong voted for the motion.
Mr Albert HO, Mr Michael HO, Mr LEE Wing-tat, Mr Martin LEE, Dr David LI, Mr Fred LI, Mr James TO, Mr CHEUNG Man-kwong, Miss Christine LOH, Mr SIN Chung-kai, Dr YEUNG Sum, Mr Andrew CHENG, Mr SZETO Wah and Mr LAW Chi-kwong voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that there were 52 Members present, 37 were in favour of the motion and 14 against it. Since the question was agreed by a majority of the Members present, she therefore declared that the motion was carried.
Clause 70
CHAIRMAN (in Cantonese): We will now deal with the part of the Bill relating to "proceedings of a committee not affected by vacancy or defect in membership".
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): I move that the heading of clause 70 be amended and new subsection (2A) be added as set out in the paper circularized to Members. I urge Members to support this amendment.
Proposed amendment
Clause 70 (see Annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
MR LEE WING-TAT (in Cantonese): Madam Chairman, the Democratic Party will not object to this amendment as it deals with the proceedings and operation of District Councils.
CHAIRMAN (in Cantonese): Secretary for Constitutional Affairs, do you wish to reply?
(The Secretary for Constitutional Affairs indicated that he did not wish to reply)
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment moved by the Secretary for Constitutional Affairs be passed. Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(No hands raised)
CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.
CLERK (in Cantonese): Clause 70 as amended.
CHAIRMAN (in Cantonese): Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(No hands raised)
CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.
Clause 20
CHAIRMAN (in Cantonese): We will now deal with the part of the Bill relating to "eligibility for nomination as a candidate for election".
MR CHEUNG MAN-KWONG (in Cantonese): Madam Chairman, I move that clause 20 1(e) be amended as set out in the paper circularized to Members.
Madam Chairman, the District Councils Bill proposes to lay down the eligibility criteria for nomination as a candidate at an election of a District Council. A person has to fulfil the following criteria: he has reached 21 years of age; and is an elector; and is not disqualified from voting at an election; and is not disqualified from being nominated; and has ordinarily resided in Hong Kong for the three years immediately preceding the nomination; and has declared that he will uphold the Basic Law and pledge allegiance to the Special Administrative Region. With regard to the requirement of being an elector, it means that he must be a permanent resident of Hong Kong; and whose name is on the voter register; and has not been sentenced to death or imprisonment in Hong Kong or any other place without serving the sentence; and has not, within three years prior to the election, been convicted of a corrupt practice and an illegal practice, or some of the offences under the Corrupt and Illegal Practices Ordinance; and is not found to be of unsound mind and incapable of managing himself. There are already many restrictions here. In addition, to meet the requirement of not being disqualified from being nominated or elected, the person concerned must fulfil the following criteria: he has not been convicted of treason; within five years prior to the election, he has not been convicted of any offence in Hong Kong or any other place and sentenced to imprisonment for a term exceeding three months; he must be financially sound and is not bankrupt or in debt. The Bill also stipulates that a judicial officer or a prescribed public officer, such as a person employed by the Independent Commission Against Corruption, the Office of the Ombudsman or in a government department, may not stand for election. The Bill now adds that any person employed by the Equal Opportunities Commission or the Office of the Privacy Commissioner for Personal Data, or who is a representative or a salaried functionary of the government of a place outside Hong Kong, or a member of any legislature of any place outside Hong Kong, is disqualified, of course with the exception of a member of a people's congress or people's consultative body of the People's Republic of China, whether established at the national or local level.
There are already more than 10 restrictions on candidature listed above, so that any person who intends to run for the District Councils will have to examine his own eligibility first. While the Democratic Party approves some of these restrictions, it considers others to be overly strict and unfavourable to the development of democracy. Therefore, the Democratic Party has sought to amend clause 20(1)(e), so that a person who is eligible to be nominated as a candidate must have ordinarily resided in Hong Kong for "1 year" immediately preceding the nomination instead of "3 years". The Democratic Party considers that the criteria for candidature should be relaxed as far as possible to allow more people to stand for election and give the electors a wider choice, which is after all what elections are about. We believe that electors have their own values and there is no need to impose too many restrictions. That is why we propose the above amendment.
Madam Chairman, according to the functions of a District Council as set out in the present Bill, a District Council is mainly responsible for advising the Government on various matters in individual districts, and for undertaking environmental improvements and the promotion of cultural and recreational activities within the district where public funds are made available for the purpose. Given the realistic situation of Hong Kong, apart from individual rural districts and islands, each administrative district in Hong Kong covers quite a small area with a dense population. The Democratic Party considers that it is adequate for a candidate to have ordinarily resided in Hong Kong for one year to meet a basic requirement for nomination as a candidate at an election of a District Council ─ including the requirement of a basic knowledge of the respective district. Members should understand that there are already many restrictions even if this alteration is made. If the above restriction is relaxed, more eligible persons in the districts will be encouraged to stand for election and electors will have a wider choice. Some may think that the restriction on residency should be abolished once and for all and that permanent residents of Hong Kong who meet the relevant requirements of an absence of criminal record should be eligible. The Democratic Party will of course support such a proposal. However, at this stage, we propose to lower the relevant requirement to the minimum of one year first.
Proposed amendment
Clause 20 (see annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
(No Member indicated a wish to speak)
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, I believe Honourable Members will all agree that a member of a District Council needs to have good knowledge of the affairs of the district concerned if he or she is to effectively serve the residents of the district and to offer valuable advice and insights regarding the district affairs. As such, we have set out clearly in the Bill that to be qualified as a candidate at an election, a person must have ordinarily resided in Hong Kong for three years immediately predceding the nomination. Similar requirements were also prescribed for district board elections in the past, hence we consider it inappropriate to substantially lower the residence requirement to one year as proposed in the amendment. I hereby urge Honourable Members to vote against this amendment.
CHAIRMAN (in Cantonese): Mr CHEUNG Man-kwong, do you wish to reply?
MR CHEUNG MAN-KWONG (in Cantonese): Madam Chairman, just now, Dr YEUNG Sum had already said everything that needed to be said. It is good enough. I do not intend to reply again.
MR SIN CHUNG-KAI (in Cantonese): I would like to respond briefly to the comments made by the Secretary. The existing electoral law does not require a candidate to live and work in the relevant district. If I have resided in Hong Kong for three years, I can stand for election in a certain district if I manage to get nominated, even if I never go to that district and know nothing about it. The question is only whether I will be elected. Thus, the point is that even if a person lives in Hong Kong, it does not mean that he must be familiar with the relevant constituency or district. A person who knows the affairs of Hong Kong might not be familiar with the affairs of the relevant district. Therefore, the Secretary's logic cannot apply to what he said just now. Thus, I urge Members to support Mr CHEUNG Man-kwong's motion.
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment moved by Mr CHEUNG Man-kwong be passed.
Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr CHEUNG Man-kwong rose to claim a division.
CHAIRMAN (in Cantonese): Mr CHEUNG Man-kwong has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): Will Members please proceed to vote?
CHAIRMAN (in Cantonese): Before I declare that voting shall stop, Members may wish to check their votes. If there are no queries, voting shall now stop and the result will be displayed.
Functional Constituencies:
Mr Michael HO, Dr David LI, Miss Margaret NG, Mr CHEUNG Man-kwong, Mr SIN Chung-kai and Mr LAW Chi-kwong voted for the motion.
Mr Kenneth TING, Mr James TIEN, Mr Edward HO, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Dr LUI Ming-wah, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Mr Bernard CHAN, Mr CHAN Wing-chan, Dr LEONG Che-hung, Mrs Sophie LEUNG, Dr Philip WONG, Mr WONG Yung-kan, Mr Howard YOUNG, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Timothy FOK, Mr FUNG Chi-kin and Dr TANG Siu-tong voted against the motion.
Geographical Constituencies and Election Committee:
Mr Albert HO, Mr LEE Wing-tat, Mr Martin LEE, Mr Fred LI, Mr James TO, Miss Christine LOH, Dr YEUNG Sum, Mr Andrew CHENG and Mr SZETO Wah voted for the motion.
Miss CHAN Yuen-han, Mr Gary CHENG, Mr Andrew WONG, Mr Jasper TSANG, Mr LAU Kong-wah, Mr TAM Yiu-chung, Mr David CHU, Mr HO Sai-chu, Mr NG Leung-sing, Prof NG Ching-fai, Mr MA Fung-kwok, Mr CHAN Kam-lam, Mr YEUNG Yiu-chung, Mr Ambrose LAU and Miss CHOY So-yuk voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that among the Members returned by functional constituencies, 29 were present, six were in favour of the motion and 23 against it; while among the Members returned by geographical constituencies through direct elections and by the Election Committee, 25 were present, nine were in favour of the motion and 15 against it. Since the question was not agreed by a majority of each of the two groups of Members present, she therefore declared that the motion was negatived.
CHAIRMAN (in Cantonese): As the amendment moved by Mr CHEUNG Man-kwong has been negatived, I now put the question to you and that is: That clause 20 stand part of the Bill.
CHAIRMAN (in Cantonese): Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr CHEUNG Man-kwong rose to claim a division.
CHAIRMAN (in Cantonese): Mr CHEUNG Man-kwong has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): Will Members please proceed to vote. Before I declare that voting shall stop, are there any queries?
CHAIRMAN (in Cantonese): Mr Bernard CHAN, is there something wrong with your button?
MR BERNARD CHAN (in Cantonese): I pressed the wrong button.
CHAIRMAN (in Cantonese): You pressed the wrong button. You can rectify it now.
CHAIRMAN (in Cantonese): Mr Bernard CHAN, perhaps you could tell me your vote first, so that I can check the voting result later. If there is a mistake, we will rectify it immediately.
MR BERNARD CHAN (in Cantonese): I vote for the motion.
CHAIRMAN (in Cantonese): If there are no queries, voting shall now stop and the result will be displayed.
Mr Kenneth TING, Mr James TIEN, Mr David CHU, Mr HO Sai-chu, Mr Edward HO, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Dr LUI Ming-wah, Mr NG Leung-sing, Prof NG Ching-fai, Miss Margaret NG, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr MA Fung-kwok, Mr HUI Cheung-ching, Miss Christine LOH, Mr CHAN Kwok-keung, Miss CHAN Yuen-han, Mr Bernard CHAN, Mr CHAN Wing-chan, Mr CHAN Kam-lam, Dr LEONG Che-hung, Mrs Sophie LEUNG, Mr Gary CHENG, Mr Andrew WONG, Dr Philip WONG, Mr WONG Yung-kan, Mr Jasper TSANG, Mr Howard YOUNG, Mr YEUNG Yiu-chung, Mr LAU Kong-wah, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Ambrose LAU, Miss CHOY So-yuk, Mr Timothy FOK, Mr TAM Yiu-chung, Mr FUNG Chi-kin and Dr TANG Siu-tong voted for the motion.
Mr Albert HO, Mr Michael HO, Mr LEE Wing-tat, Mr Martin LEE, Dr David LI, Mr Fred LI, Mr James TO, Mr CHEUNG Man-kwong, Mr SIN Chung-kai, Dr YEUNG Sum, Mr Andrew CHENG, Mr SZETO Wah and Mr LAW Chi-kwong voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that there were 54 Members present, 40 were in favour of the motion and 13 against it. Since the question was agreed by a majority of the Members present, she therefore declared that the motion was carried.
CHAIRMAN (in Cantonese): Mr Bernard CHAN, the record shows that the result tallies with your vote.
CLERK (in Cantonese): Clause 21.
MR CHEUNG MAN-KWONG (in Cantonese): I move that clause 21 be amended, as set out in the paper circularized to Members.
Madam Chairman, the Democratic Party has moved this amendment to clause 21(1)(e)(i) mainly to ensure that no one can be disqualified from being nominated as a candidate and from being elected as an elected member as a result of having been sentenced to imprisonment for a term exceeding three months without the option of a fine in any other place outside Hong Kong.
In the Democratic Party's view, each place and each country have their own laws, embodying their own social, religious and political values. There are countless different laws in different places and countries, with different values and criteria for sentencing. Some totalitarian countries, including China, have laws that could convict innocent people of political offences and on charges related to the expression of their views. In China, WANG Dan was sentenced to 11 years' imprisonment for plotting to subvert the government because of some articles he published and his enrolment in some overseas courses. In Pakistan, anyone who smears the "Koran" deliberately could be sentenced to death.
I have a book entitled Odd Laws ─ Legal Lunacy from around the World, which lists the many weird laws in different parts of the world at different times ─ up to today. If Members would take a look at these laws, they might laugh, finding them incredible, ridiculous, severe and even incomprehensible. A Hong Kong resident may have the misfortune to be sentenced to three months' imprisonment for breaking the law in a place outside Hong Kong. Those offences might not be offences in Hong Kong. Why should we recognize them and make them part of our laws? The eligibility criteria for candidature in District Council elections in Hong Kong should only be based on Hong Kong laws. We cannot and should not disqualify a person from being nominated, from running in an election or from being elected as a member of a District Council on the basis of the laws of other countries in the world. What is more, some of the charges are ridiculous political charges, charges related to the expression of views or even unwarranted charges. We should oppose them from the standpoint of human rights, instead of condoning them or abetting them by incorporating them into the Hong Kong legal system as a rule governing the election of District Councils. The Democratic Party does not wish to see the laws of Hong Kong "shoulder all the burdens of the world" and take on charges in the laws of other places that we do not even know about. Besides, we believe in the electors' choice. That is why we have proposed this amendment.
Of course, the Democratic Party admits that offences committed in other places may also constitute offences in Hong Kong laws. But since each country has its own criteria for sentencing, no comparison can be made to establish a legal basis. As the public, especially the electors, have the right to know some important information about the candidates before the election, we propose that a candidate must make a declaration to the public of his offence if he has been sentenced to imprisonment for an offence in a place outside Hong Kong within five years prior to nomination, so that electors can decide whether or not to vote for him with this information. We will add this part to another clause later. We just want to make Members understand that our purpose is not to allow persons who have committed offences in a place outside Hong Kong to conceal this information from the public. It is simply that we do not want to see the introduction of the laws of other parts of the world into Hong Kong laws for no reason at all, especially those laws which are not necessarily compatible with our moral standards, political viewpoints and social values. It is unfair to disqualify someone from becoming a candidate due to criteria for punishment which we may not agree with. However, it is fair to provide information to electors before the election so that they can decide whether the candidate should win or lose.
Proposed amendment
Clause 21 (see Annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
MR JAMES TO (in Cantonese): Madam Chairman, I did not join the Bills Committee scrutinizing this Bill. However, I understand that Mr CHEUNG Man-kwong has already expressed his views in the Bills Committee. As far as I know, the Government is willing to discuss these issues. I wonder why these views should be unacceptable to the Government under the leadership of Secretary Michael SUEN.
Why did I say that? The reason is quite simple. I can quite easily cite an example to show that one cannot disqualify someone from running in an election for such reasons. I hope to make a last attempt to lobby other Members. My example is this: Let us assume that a war broke out between the United States and Iraq and an United States citizen employed by the Central Intelligence Agency was sent to Iraq to gather intelligence for his country. However, this United States agent who might not be very capable was arrested by the Iraqi security forces. Let us suppose that this agent was sentenced to 10 years' imprisonment after trial. Ten years later, he returned to the States and ran for a District Council after retirement. This man committed a crime in another country because of his work for his country. According to the laws of his country, he should be treated as a hero, since he was sentenced to 10 years' imprisonment for gathering intelligence for his own country. But ironically, after returning home, he was not allowed to run for the council.
I hope that this example could illustrate what Mr CHEUNG Man-kwong said just now. If we accept all the criteria for sentencing and all the charges in places outside Hong Kong, we can determine whether a certain offence was committed for one's country or whether it was purely a matter of personal conduct (such as vice crimes) by using the method proposed by Mr CHEUNG Man-kwong, which could solve the problem. If someone has committed crimes such as rape, robbery or possession of arms abroad, no matter where he goes, electors will not vote for him if they learn about it. This is better than accepting the criteria for sentencing or offences of some place without reservations ─ no matter how reasonable or unreasonable they are.
I love the book that Mr CHEUNG Man-kwong just mentioned. Since I studied law myself, I finished it at one go. If I read out passages from it, Members would surely be in stitches even though it is now after 2 am and everyone is tired to death. Actually, there are some "inconceivable" laws in many countries in the world. Of course, they may be understandable against the background of each particular country's history or development, or we may be able to understand that they have different customs from ours. The problem is that if we have studied all the laws there are, if a Member breaks them, people would say that there is no reason to break them since one should be aware that each place has its own laws. However, do not forget that we might break the law unconsciously or due to ignorance. Therefore, in my view, no matter how careful one is, no one can guarantee that he will not break any laws. Take travelling abroad as an example. We might not know that something is the national treasure of a particular country. We might be sentenced to a few months' imprisonment for touching something like a buddha figure, a crocodile, an elephant or a hippopotamus, or for scaring a hippopotamus or a panda. Then, we would be disqualified from running in an election. I believe that no one will accept such a requirement in such cases.
I just want to make a last-minute attempt. I do not know whether the Government could change its stand at this stage. However, if it could change its stand under reasonable circumstances, it would demonstrate its magnanimous, tolerant and rational side.
MR CHAN WING-CHAN (in Cantonese): Madam Chairman, I wish to make a clarification first before speaking on the amendment.
Just now, in the debate on the Second Reading of this Bill, Mr Albert HO quoted the Hong Kong Federation of Trade Unions (FTU) as saying that "we want the rice-ticket, not the ballot" during the development of representative, government. This is an incorrect quotation. I hope that Mr HO will withdraw it and refrain from quoting it again.
Madam Chairman, clause 21(1)(e)(i) is a provision about offences that will disqualify a person. The Bill provides that regardless of the offence, the person nominated as a candidate or elected as an elected member will be disqualified if he has been sentenced to imprisonment for a term exceeding three months without the option of a fine.
The relevant clause of the Bill stipulates that a candidate or an elected member will be disqualified, whether he has been convicted in "Hong Kong" or "any other place". The amendment proposed by Mr CHEUNG Man-kwong deletes the words "or any other place". This means that even if a candidate or a member commits or has committed an offence in a place outside Hong Kong, he will not be disqualified. Mr CHEUNG has proposed the amendment possibly because he is concerned that some countries have legal systems different from Hong Kong and different criteria for sentencing people to imprisonment. Therefore, the penal system of places outside Hong Kong should not be considered. However, we find this amendment unacceptable. While different countries no doubt have different legal systems and criteria for punishment, some crimes, such as murder, fraud and robbery, are considered crimes universally. Any person who has committed these crimes should receive due punishment. The amendment suggests that there is no need to incorporate offences committed outside Hong Kong into the laws of Hong Kong, since it is unfair to do so. Although the criteria for punishment in the laws of other countries and in Hong Kong laws might be different, an offence is an offence and a crime is a crime. We should bear in mind of asking about the taboos when we enter a foreign country and not to break the local laws. Those who intend to run in an election should especially avoid defying the law.
Let me cite a simple example. If a member has committed fraud in Hong Kong and been sentenced to imprisonment for a term exceeding three months, while another member has committed fraud in a place outside Hong Kong and received a similar sentence, the former will be disqualified but not the latter according to Mr CHEUNG Man-kwong's amendment. This is extremely unfair.
It is extremely inappropriate for Mr CHEUNG to simply delete the words "or any other place". Therefore, both the FTU and the Democratic Alliance for the Betterment of Hong Kong oppose this amendment.
MR SIN CHUNG-KAI (in Cantonese): Madam Chairman, in Madagascar, pregnant women are forbidden from wearing a hat and eating eel. In Minnesota, men's and women's underwear may not be hung on the same clothesline. In Kenya, if you see the natives running naked and start running naked with them happily, you are breaking the law, because the law in Kenya allows only Kenyans to run around naked, but not foreign tourists.
Hong Kong people travel abroad frequently. There are many things that defy imagination. However, we must look at this issue realistically. Take the case of Kenya that I mentioned just now, if you run around naked following their customs, you are breaking the law. What are we supposed to do? Can the Hong Kong Government explain this matter? We have to be realistic and examine whether the laws of other countries are reasonable before introducing them. Most important of all, we must trust the electors. The electors are the key to this. As long as they have learned about the facts and know what offences a candidate has committed, they can decide whether to vote for him or not.
I can cite other examples: In Malaysia, it is illegal to dance on a turtle; in Arizona, one may not bully a camel that blocks the road. There are many similar laws. How can we study them all? Sometimes, it is not only the national laws. A country may have many states. How can we study the state laws? Even if we ask the country's consul, he might not know them all. In view of this, can the Government consider revising its position at the last minute?
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, I think that Members fully understand that this has nothing to do with being broad-minded or narrow-minded, but a matter of principle. We have given this matter very careful consideration and also expressed our views on various occasions.
I think Members will agree that the public in general wishes to elect law-abiding persons of integrity as District Council members. We have therefore provided in the Bill that a person is disqualified from being nominated or elected in District Council elections if he has been sentenced to imprisonment for a term exceeding three months in Hong Kong or any other place. The amendment proposed by Mr CHEUNG Man-kwong to delete "any other place" in this provision will, if passed, allow a person who has committed a serious crime in places other than Hong Kong to be nominated in District Council elections. We are afraid this will put the integrity and credibility of District Council members into question. Moreover, it will also undermine electors' confidence in District Council members. I consider the examples cited by several Honourable Members just now too extreme and uncommon.
We have serious reservations about this amendment and do not consider it satisfactory for one more significant reason and that is: Mr CHEUNG Man-kwong’s amendment to clause 21(1)(e)(i) only applies to elected members. This amendment will, if passed, create two different sets of rules for elected members and their counterparts in other categories because the part which this amendment proposes to delete can not be applied to the other two categories of members. We therefore consider such an arrangement highly undesirable and urge Members to vote against this amendment.
MR JAMES TO (in Cantonese): Madam Chairman, if I had not heard what the Secretary said just now, I might have thought that there had been some misunderstanding. I wonder why the Secretary said that if Mr CHEUNG Man-kwong's amendment was passed, there would be a distinction between elected and non-elected members.
In my view, a responsible government, like a responsible Member, must be honourable. If Mr CHEUNG Man-kwong's amendment is technically flawed, the Government should have pointed it out long ago. Of course, one must look at it from both sides. The Government might ask why Mr CHEUNG Man-kwong did not realize this himself. In my view, this is why we have Bills Committees. A Bills Committee cannot make a decision rashly. The Government must also respond to amendments made to the provisions and comment on the technical or other aspects. Actually, no one has expressed such views on this amendment before. Under these circumstances, I do not think that this is an honourable act of the Government. It does not matter whether one wins or loses. The question is how the Legislative Council can rationally exchange views with the Government on the many bills and amendments in future? I suspect the Government will in future force the Bills Committee to make a decision before a certain date with this reason, without making any comments beforehand. The Government has much more manpower available than Members. It has many administrative officers, bureau secretaries, deputy secretaries, principal assistant secretaries, assistant secretaries and so on. Why could they not comment on a document of one page or half a page so that the Member could correct the technical problems? In my view, it is extremely disgraceful and dishonourable to raise this point now.
MR JASPER TSANG (in Cantonese): Madam Chairman, I fail to understand Mr CHEUNG Man-kwong's and the Democratic Party's logic. If they say we should trust electors and that we just need to disclose to them the information, why do they not delete the words "Hong Kong" as well, and let electors decide? Let us assume that someone committed an offence in Hong Kong and was sentenced to three months' imprisonment. If electors choose to vote for him after he has been released from jail, they must have their reason. Similarly, if electors elect an eight-year-old as a member, they must also have their reason. Why should we set an age limit and other limits? Why not just disclose the information? Even if he is not of sound mind or is bankrupt, as long as we let the electors know beforehand, there is no need to set eligibility restrictions. So in Mr CHEUNG Man-kwong's logic, the fewer restrictions we have, the better. Therefore, Madam Chairman, I think it would be more appropriate to consider amending this clause, when a Hong Kong resident has been sentenced to three months' imprisonment in Kenya for running around naked or in Minnesota for hanging underwear incorrectly.
DR YEUNG SUM (in Cantonese): Madam Chairman, the Democratic Party has no intention of concealing the criminal record of candidates. According to Mr CHEUNG Man-kwong's amendment, a candidate has to disclose an offence even if it was committed outside Hong Kong. Therefore, there is no question of withholding information from electors. Actually, if one committed a criminal offence in Hong Kong and was sentenced to imprisonment for a term exceeding a certain period, one cannot stand for election. Therefore, this is not a problem. The problem is the yardsticks of the laws of places outside Hong Kong. The examples cited by Mr SIN Chung-kai from the book "Odd Laws ─ Legal Lunacy from around the World" sounded ridiculous to us. Why? Because the laws of other places have yardsticks different from ours. That is the point. We are not saying that criminals can stand for election. Actually, the laws of Hong Kong clearly state that one may not stand for election if one has been in jail for a certain period of time. The point now is that if offences were committed in places outside Hong Kong because they have different yardsticks, can we not somehow relax the restrictions? That is the only point we are making. It is a different matter from letting past offenders stand for election.
MISS MARGARET NG (in Cantonese): Madam Chairman, I wish to respond to the arguments put forward by Mr Jasper TSANG just now. Clause 21 is a very rigid provision. If the circumstances stated in the clause are true, one will be disqualified. These is no alternative. Therefore, I wonder whether there are any legitimate reasons that it should not be so rigid. Offences committed in other places cover a very broad area. They may not necessarily be so extreme as the examples cited by several Members just now, but we may still disagree with them. For instance, we do not agree that one should be convicted for expressing one's views. This is one area where the laws of Hong Kong differ. Hong Kong laws are enacted in this place. Therefore, everyone should observe them and it is right to have a rigid provision. As for other places, since we do not agree with their laws in the first place, making a rigid provision is going too far. In my view, the amendment proposed by Mr CHEUNG Man-kwong is a compromise solution. It stipulates that everything must be disclosed. If the offence committed outside Hong Kong is similarly treated in Hong Kong, electors should not let the person be elected. I believe that this is right.
MR ANDREW WONG (in Cantonese): Madam Chairman, when the first question was proposed on this Bill and clause 29 was mentioned, I already said that clause 29 should be considered in conjunction with clauses 21, 24 and 33. This is what I have demanded all these years.
Just now, Miss Margaret NG has explained it very clearly. First, some acts that are not considered offences in Hong Kong are considered offences in some other places. Second, the criteria for sentencing may be different. Third, the punishment may be called by a name other than imprisonment in another place. However, the Bill clearly states that it will be deemed as imprisonment no matter by what name it is called. Therefore, I think that there are problems with the clause itself.
I had made a suggestion to the Democratic Party, since the Bills Committee seemed particularly interested in this at that time and I also considered that it should apply to appointed and ex officio members as well. I even wrote out the clause. However, the Democratic Party did not propose it in the end as a matter of principle, thus giving the Secretary for Constitutional Affairs a handle against them. They thought that if it were passed, the restrictions on appointed and ex officio members would be relaxed. Madam Chairman, I wonder if you could ask Miss Margaret NG if she thinks that this is correct?
In my view, Members should support these three amendments. I also hope that the Government will review the criteria for disqualifying an elector, a candidate or a member on the grounds that he has been sentenced, as I said in the debate on the first question proposed earlier.
MR LEE WING-TAT (in Cantonese): Madam President, actually, the contradiction that the Secretary has referred to does not exist. In amending a bill, each group or political party has its own point of view. Since we assumed that appointed and ex officio members would be abolished, we did not propose an amendment to the eligibility criteria for holding office as an appointed or ex officio member. We are not the only people who do this. In dealing with other bills, such as the Legislative Council Bill that we are scrutinizing, Secretary Michael SUEN and Mr IP do the same. Assuming that it will succeed in dissolving the Municipal Councils, the Government plans to abolish the two seats of the Municipal Councils and then add two new seats. Their logic is the same. In the last meeting of the Bills Committee, I asked Mr IP whether he had assumed that the whole legislation would be passed. He said that was his logic. He assumed that the Municipal Councils would be scrapped. Thereafter, two new seats would be added and consequential amendments made. What is the difference between them and us? Therefore, there is no point in criticizing the Democratic Party with this argument, since the Government is doing the same.
CHAIRMAN (in Cantonese): Does any other Member wish to speak? If not, I will ask Mr CHEUNG Man-kwong to reply.
MR CHEUNG MAN-KWONG (in Cantonese): Madam Chairman, several Members have already replied on my behalf. First, as Mr Andrew WONG said, we certainly have our principles. We are well aware that appointed and ex officio members have the same problem. However, we will vote against the provisions on appointed or ex officio members. There is no way that we should amend something that we are going to vote against. That would be very weird. Even if we did so, others would ask why we did it. Therefore, we have indeed given it some thought.
Second, Miss Margaret NG has put it very well. Since we recognize the laws of Hong Kong, a person who has been jailed for three months in Hong Kong would of course be disqualified from becoming a candidate. However, the point that I made was that we cannot incorporate all the different laws of the world and their different criteria for sentencing into the Hong Kong legal system, when we have no very clear idea about them. This is my point. Our view is that if the offence committed by someone is made known, electors would have a very good idea.
Actually, if it were Mr CHAN Wing-chan who refuted me on this point, I would not be prepared to reply. But since it was Mr Jasper TSANG who refuted me, I have to reply. I say this not because Mr TSANG is party leader, but because Mr TSANG supported me when we were discussing this point. He might have forgotten it now. On that day, he supported my demand that the Government should consider how to deal with this, and said clearly that every place had different criteria for sentencing. Mr TSANG also reminded the Government and us that if someone committed an offence and it was revealed, his political enemies and opponents would publicize it for him, even if he did not say anything. In that case, could he still stand for election? That was what he said. I was very thankful for his support.
Afterwards, I said to Mr Jasper TSANG in the Ante Chamber on one occasion, "Jasper, in the discussion on the law about District Councils, could we adhere to one principle? That is, let us consider the law on its merits and its quality." I remember saying this at a meeting: Today, each one of us belongs to a different political party and has a different political background. Therefore, if the Democratic Party wants to abolish appointed and ex officio members completely, it is our choice, just like if the Democratic Alliance for the Betterment of Hong Kong (DAB) totally supports having appointed and ex officio members, it is their choice. This is so-called "politics" and one cannot argue against it. However, we have to stick to one principle, that is, when we scrutinize bills, we have to put aside politics and consider the quality and logic of the law, because once a bill is passed, it will become a law of Hong Kong. We must ensure that it is a good law that can last so that Hong Kong people can be guided by it. Mr Jasper TSANG was sitting on the sofa next to the TV on the left of the Ante Chamber when he talked to me. He gave me a very good answer. He said, "yes!". He said "yes" to me. I was very glad. At last I was able to reach a consensus with another party on a point about the quality of laws ─ although the Democratic Party and the DAB stand on opposite sides. I am sure that Members present also long for such a consensus.
The Democratic Party has always stressed that "finance is finance, law is law and politics is politics". When we deliberated on matters related to finance, we adopted the same attitude. I also said at that time: In 10 or 20 years' time, the Democratic Party or the DAB might not exist anymore, but the law will still be there. The law will govern many people in Hong Kong. Therefore, it must be of good quality. Even if the Democratic Party does not exist anymore, these laws will still be there. If the laws are good, we can be proud of ourselves when we look back. This is the Democratic Party's view. Others may disagree with our politics, but I beg them to agree with our logic in terms of the law.
Therefore, Mr Jasper TSANG, I am a bit unhappy about your refutation. Perhaps you have forgotten it, but it is the truth. I may not remember the details very well, but that is the truth. Of course, I know that your party has made a decision and that my amendment will be negatived today. It does not matter. After the defeat, we will continue to uphold this principle after today. The night is tender and the road is long. There are still many tasks ahead of us. This is what we should do and this is what the Democratic Party wishes. I have taken this opportunity to tell Members about this.
MR SZETO WAH (in Cantonese): Since I am already very tired, I do not know whether I have heard Mr Jasper TSANG correctly. He said that why not wait until some Hong Kong resident is sentenced in Kenya for running naked or punished in Minnesota for hanging underwear incorrectly before amending this clause? I wonder if I have heard him correctly. My answer is: LAU Shan-ching was jailed in China for 10 years. Why not ask the Chinese Government to rehabilitate LAU Shan-ching first, before asking us not to make this amendment?
MR JASPER TSANG (in Cantonese): Madam Chairman, the conversation that Mr CHEUNG Man-kwong mentioned between him and me is absolutely true. I do not think that the quality of this Bill will be undermined if it is passed with the provision that a prison sentence exceeding three months in respect of an offence committed in a place outside Hong Kong will be counted.
I expressed my doubts because Mr CHEUNG Man-kwong said it could be left to the electors to decide, while this Bill lists some of the eligibility criteria for candidature which we think must be fulfilled. In my view, in proposing the amendment, Mr CHEUNG Man-kwong and his colleagues have pushed the matter to an extreme. Mr SZETO Wah did not hear me wrong, but those examples were not cited by me. They were cited by his colleagues in the Democratic Party. Are these really issues that we have to worry about?
We are talking about the quality of legislation. In scrutinizing this Bill, do we have to take into account the fact that Hong Kong people travel abroad frequently and that they may be imprisoned for running naked in some place, and consider whether we should disqualify him from standing for election because of this? Are these questions that we must consider in measuring the quality of the law? They propose to inform the electors first and let the electors decide. If electors can decide that a candidate should not be elected because of the offence committed by him, why should we make the provision that if a person has committed an offence in Hong Kong and has been sentenced to imprisonment for a term exceeding three months will be disqualified? On what grounds is this based? Why can we not let the electors decide in this case too? If, knowing beforehand that a candidate has committed an offence in Hong Kong and has been sentenced to three months' imprisonment, electors still vote for him, do they not have a very good reason to do so? When we talk about the quality of legislation, we also need to talk about logic. Just now, Mr CHEUNG Man-kwong mentioned the word "logic" several times. What I am questioning is the logic of Mr CHEUNG Man-kwong and his colleagues in supporting this amendment.
MR JAMES TO (in Cantonese): Madam Chairman, I wish to respond to Mr Jasper TSANG's arguments just now. Actually, it is very simple. If Mr Jasper TSANG, another Member or the Government proposes that a person who has committed an offence in Hong Kong, regardless of the length of sentence that he has received, is eligible to be a candidate and that the public should be left with the final decision, I think that we could support it on democratic principles. But the question now is that within a "spectrum", why should it be an offence with a prison term of three months, and not four and a half months? Actually, it is just a line.
If we are subject to the laws of Hong Kong, why do we need an arbitrary measure? We must remember that based on the laws of Hong Kong, we would know approximately what kinds of offence are linked to a three months' prison sentence and how serious they are. Then we can decide for ourselves. However, as Mr Andrew WONG said, even if it is the same line, it may be low for some places but high for others. We may not have those offences in Hong Kong or we may not be able to tell. If people ask me which package is better in terms of logic, I would say that I have no objection if it involves an offence committed in Hong Kong. But if it is an offence committed in a place outside Hong Kong, I would support a package where the electors can make a choice after being given the background information. This is better than arbitrarily incorporating all the laws or sentencing criteria in different parts of the world that we are not clear about. If we have to choose between these two packages, we are not saying that ours is the best. It is only a relatively good solution. No one would be omitted and it would be easier to obtain a rational and logical result. This is our argument. If we are asked to cite examples, we can tell Members that within a "spectrum", many laws can be very extreme. However, candidates may also be involved in quite mundane cases.
MR CHEUNG MAN-KWONG (in Cantonese): Madam Chairman, Mr Jasper TSANG confirmed that our conversation was true. I respect Mr TSANG very much. One of the reasons is because he is honest and does not hold back his views on many occasions. Of course, I know that they do not agree with the Democratic Party's amendment this time. Now I would like to talk about the Government.
I want to tell Members that the Government did not object to my views in the several meetings. Some officials even agreed to my views. At that time, they tried to seek a legal solution and talked with me once or twice. Basically, three solutions were proposed. The first solution is my present solution, that is, disclosing the information so that the people could decide. The second solution makes reference to international practices in extradition laws. Such extradition laws provide that extradition can only be carried out if the offence exists in the laws of both countries. If the offence committed constitutes an offence in Hong Kong, it can be listed as one of the offences that will disqualify a person from becoming a candidate. The third solution invokes the Organized and Serious Crimes Ordinance. A list was drawn up containing the crimes that we consider very serious which would disqualify those persons from running in an election. The Government did consider them. It did not oppose to my principles. Otherwise, why would it consider them? Later, I was told that due to various technical reasons, my proposal was technically hardly feasible. Therefore, it was struck out altogether. I was of course disappointed. But I appreciated the fact that they had tried. Therefore, if they want to refute me today, they can use technical reasons to do so. However, they should not use reasons of principles, since they did support or consider my principles, and I was grateful for that.
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment moved by Mr CHEUNG Man-kwong be passed.
Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr CHEUNG Man-kwong rose to claim a division.
CHAIRMAN (in Cantonese): Mr CHEUNG Man-kwong has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): Will Members please proceed to vote. Before I declare that the voting shall stop, Members may wish to check their votes. If there are no queries, voting shall now stop and the result will be displayed.
Functional Constituencies:
Mr Michael HO, Mr Eric LI, Dr David LI, Miss Margaret NG, Mr CHEUNG Man-kwong, Dr LEONG Che-hung, Mr SIN Chung-kai and Mr LAW Chi-kwong voted for the motion.
Mr Kenneth TING, Mr James TIEN, Mr Edward HO, Dr Raymond HO, Mr LEE Kai-ming, Dr LUI Ming-wah, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Mr Bernard CHAN, Mr CHAN Wing-chan, Mrs Sophie LEUNG, Dr Philip WONG, Mr WONG Yung-kan, Mr Howard YOUNG, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Timothy FOK, Mr FUNG Chi-kin and Dr TANG Siu-tong voted against the motion.
Geographical Constituencies and Election Committee:
Mr Albert HO, Mr LEE Wing-tat, Mr Martin LEE, Mr Fred LI, Mr James TO, Miss Christine LOH, Mr Andrew WONG, Dr YEUNG Sum, Mr Andrew CHENG and Mr SZETO Wah voted for the motion.
Miss CHAN Yuen-han, Mr Gary CHENG, Mr Jasper TSANG, Mr LAU Kong-wah, Mr TAM Yiu-chung, Mr David CHU, Mr HO Sai-chu, Mr NG Leung-sing, Mr CHAN Kam-lam, Mr YEUNG Yiu-chung, Mr Ambrose LAU and Miss CHOY So-yuk voted against the motion.
Prof NG Ching-fai and Mr MA Fung-kwok abstained.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that among the Members returned by functional constituencies, 29 were present, eight were in favour of the motion and 21 against it; while among the Members returned by geographical constituencies through direct elections and by the Election Committee, 25 were present, 10 were in favour of the motion, 12 against it and two abstained. Since the question was not agreed by a majority of each of the two groups of Members present, she therefore declared that the motion was negatived.
CHAIRMAN (in Cantonese): As the amendment moved by Mr CHEUNG Man-kwong has been negatived, I now put the question to you and that is: That clause 21 stand part of the Bill.
CHAIRMAN (in Cantonese): Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr CHEUNG Man-kwong rose to claim a division.
CHAIRMAN (in Cantonese): Mr CHEUNG Man-kwong has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): Will Members please check their votes? If there are no queries, voting shall now stop and the result will be displayed.
Mr Kenneth TING, Mr James TIEN, Mr David CHU, Mr HO Sai-chu, Mr Edward HO, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Dr LUI Ming-wah, Mr NG Leung-sing, Prof NG Ching-fai, Miss Margaret NG, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr MA Fung-kwok, Mr HUI Cheung-ching, Miss Christine LOH, Mr CHAN Kwok-keung, Miss CHAN Yuen-han, Mr Bernard CHAN, Mr CHAN Wing-chan, Mr CHAN Kam-lam, Dr LEONG Che-hung, Mrs Sophie LEUNG, Mr Gary CHENG, Mr Andrew WONG, Dr Philip WONG, Mr WONG Yung-kan, Mr Jasper TSANG, Mr Howard YOUNG, Mr YEUNG Yiu-chung, Mr LAU Kong-wah, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Ambrose LAU, Miss CHOY So-yuk, Mr Timothy FOK, Mr TAM Yiu-chung, Mr FUNG Chi-kin and Dr TANG Siu-tong voted for the motion.
Mr Albert HO, Mr Michael HO, Mr LEE Wing-tat, Mr Martin LEE, Dr David LI, Mr Fred LI, Mr James TO, Mr CHEUNG Man-kwong, Mr SIN Chung-kai, Dr YEUNG Sum, Mr Andrew CHENG, Mr SZETO Wah and Mr LAW Chi-kwong voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that there were 54 Members, 40 were in favour of the motion and 13 against it. Since the question was agreed by a majority of the Members present, she therefore declared that the motion was carried.
CLERK (in Cantonese): Clause 33.
MR CHEUNG MAN-KWONG (in Cantonese): Madam Chairman, the Democratic Party has sought to amend clause 33(1)(b) because we consider that when running for the District Council elections, candidates need not swear to uphold the Basic Law.
The Democratic Party must solemnly state that we recognize the Basic Law but in accordance with Article 97 of the Basic Law, District Councils are not organs of political power and their members are not principal officials, members of the Judiciary or Legislative Council Members as specified in Article 104 of the Basic Law, so they need not swear that they uphold the Basic Law before assuming office.
Moreover, Madam Chairman, the Democratic Party has proposed to abolish the provision requiring District Council members to swear to uphold the Basic Law mainly because of their limited functions. Actually, their work is mainly consultative in nature, unlike the legislative power of the Legislative Council, nor is it involved with the scrutiny of bills. So, there is no need to copy the provision concerning the Legislative Council elections and impose it on the District Council elections that have a different nature. The Democratic Party recommends continuing with the past practice and not imposing new provisions. In addition, since other consultative organizations are not subject to these restrictions, neither is there a specific provision on this in the Basic Law, we do not see the need to set another hurdle for the candidates in making yet another declaration to uphold the Basic Law.
Madam Chairman, this is one short speech of ours and I will make it brief today. Thank you.
Proposed amendment
Clause 33 (see Annex IV)
CHAIRMAN (in Cantonese): Does any other Member wish to speak?
MR MARTIN LEE (in Cantonese): Mr CHEUNG Man-kwong has missed out one point. I would like to add it in for him.
Madam Chairman, looking at Article 104 of the Basic Law, we will find that those who have to pledge allegiance to the Hong Kong Special Administrative Region (SAR) include the principal officials while other officials have no need to do so. By the same token, the incumbent Members of the Legislative Council and Executive Council, and also judges of the courts at all levels have to do so. But the Basic Law does not stipulate that district board members have to do so. If district board members have to do so now, do other officials have to do so too, by the same logical deduction?
However, if other officials have to do so, problems may arise as other than the principal officials who have to be Chinese nationals, other officials may be of other nationalities. Therefore, everyone needs to understand this logic. If all the other officials are required to pledge allegiance to the SAR, problems may arise.
MR GARY CHENG (in Cantonese): Madam Chairman, the Democratic Alliance for the Betterment of Hong Kong (DAB) does not agree to this amendment, especially after listening to Mr CHEUNG Man-kwong's speech. I would like to raise up two points.
First, is it such a difficult, demanding requirement to uphold the Basic Law? We do not think so. Once a friend from another political party said to me that it would be more relaxed without this requirement. I think that unless one intends to breach the Basic Law, otherwise he will not find it such a harsh requirement to uphold the Basic Law. I find this a very basic requirement. Therefore, Madam Chairman, I do not see any reason why this should not be stipulated in the law.
Mr CHEUNG Man-kwong has said just now that we should continue with our past practice. Upon the reunification, Provisional District Board members also did this. Is Mr Andrew CHENG here in this Chamber? Had he also pledged to uphold the Basic Law before assuming office as a Provisional District Board member. If he did, let us continue with this practice. Thank you, Madam Chairman.
MR SZETO WAH (in Cantonese): Is it a very relaxed requirement to uphold the Basic Law and is it very easy to meet this requirement? I do not look at the amendment from this angle.
The word "uphold" is not a legal term at all. The law only requires people to abide by it. How can it require people to uphold it? What is it so wrong to criticize it? For example, in the Court of Final Appeal incident, many people suggested amending a certain part of the Basic Law. Can this action be considered upholding the Basic Law?
Article 159 of the Basic Law stipulates that this Law can be amended. If we invoke this Article to request an amendment of the Basic Law, are we upholding the Basic Law then?
I feel that the law is for people to abide, and abiding by the law is a legal term which is in line with the spirit of the rule of law. We do not call on people to uphold everything. To uphold something is a demonstration of one's political stance rather than a way to show that he is law abiding.
MISS MARGARET NG (in Cantonese): Madam Chairman, this is the last time that I speak. As I have raised my hand this time, I might as well speak something.
Madam Chairman, I feel that the subject of the amendment is not about the upholding of the Basic Law because we all have no choice but to uphold the Basic Law. This is a term used in the law. I feel that the actual problem lies with the fact that one has to make such a pledge as soon as he is nominated. That is where the problem actually lies.
We still remember that this practice originated from the Legislative Council election and the main purpose of it was to make those who criticized the Basic Law could not even go through the step of nomination. Therefore, this is not a good practice in principle.
Therefore, I feel that it is more proper to delete such a requirement from clause 33. If one is to pledge allegiance to the Basic Law or to swear to uphold it, this should be required upon his assuming the office. Thank you, Madam Chairman. (A hubbub in the public gallery)
CHAIRMAN (in Cantonese): Keep quiet! Security guards, lead them away. (Security guards went to stop the protesters but the hubbub ontinued)
CHAIRMAN (in Cantonese): Please lead them away. (The protesters continued with their hubbub. Security guards attempted to take them away but to no avil)
CHAIRMAN (in Cantonese): Lead them away, Lead them away! (The protesters were taken away)
MR ALBERT HO (in Cantonese): Madam Chairman, I would like to briefly respond to some points raised by Mr Gary CHENG just now.
I feel that when we draw up statutory requirements, the point to consider is not whether the requirement is difficult to meet. If we lay down anything as a requirement as long as it is not difficult to do, then many things can be included in the law. For example, we can require Members to swear to uphold the Basic Law every time before a Legislative Council meeting starts. This is not hard to do, but the question is whether it is necessary to do so. Therefore, I feel that the criterion for consideration is not whether it is hard to do, but whether in principle it is appropriate to do so.
Some colleagues have already said that in principle, this is not an appropriate requirement at the level of the District Councils. If District Council members have to make such a pledge, should members of other statutory organizations also be required to do so? Why are the District Council members required to do so but not those of other statutory organizations? We think that since the Basic Law requires Members of the Legislative Council and the Executive Council to do so, we follow the requirement as there is a justification for this. As for other organizations, if the Basic Law does not require this from them, and it is not an appropriate practice in principle, we do not feel that there should be such a requirement. Whether or not it is hard to meet should not be a factor for consideration. Thank you, Madam Chairman.
MR ANDREW WONG (in Cantonese): I feel that Miss Margaret NG is right in the sense that the problem lies with whether a person needs to take an oath as soon as he hands in the nomination form in an election. In the Legislative Council election, we were required to take an oath as soon as we were nominated, including the pledge to uphold the Basic Law. When we assumed office afterwards, we take the oath again. Therefore, there is no need to have such a declaration in the nomination form of the Legislative Council at all.
However, under the present District Councils Bill, because the two types of members, namely, the appointed and ex officio members that are not welcomed by the Democratic Party, have on their form of acceptance of appointment a column stating that they do uphold the Basic Law, the District Councils thus will not have a swearing in ceremony for the members. Given that, I think such an arrangement is justified as nobody thinks that it is worth objecting.
If we object to this requirement not out of our objection to the Basic Law but only out of our feeling that it is not necessary to swear to uphold the Basic Law, then the entire Bill may need some major alteration and amendments. The Government may need to consider this point in future.
MR GARY CHENG (in Cantonese): I would like to respond to Mr SZETO Wah on the point he has just raised. It seems that it is quite another issue, totally different from the topic of our discussion, as Mr SZETO Wah has pinpointed on the interpretation of the word "uphold".
If we were discussing this issue, then both the District Councils and the Legislative Council would have the same problem. To the Members or colleagues who were already sworn in, this problem seemed to have been resolved; otherwise, they would not be here today. Am I not right?
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, the District Councils will be established in accordance with the relevant provisions set out in the Basic Law, the constitutional document of the Hong Kong Special Administrative Region; as such, it should be reasonable to require a candidate for the District Council election to declare that he or she will uphold the Basic Law.
As a matter of fact, members of the Provisional District Boards appointed by the Chief Executive after the reunification have all sworn to uphold the Basic Law.
I hereby urge Honourable Members to vote against this amendment.
MR MARTIN LEE (in Cantonese): Madam Chairman, the Secretary's point is not exactly correct. He has not heard what I said at all. In fact, the executive authorities were also established in accordance with the Basic Law. Does it mean then that all officials in the executive authorities had to pledge allegiance and swear to uphold the Basic Law? He has totally turned a deaf ear to people's speeches, Madam Chairman.
CHAIRMAN (in Cantonese): Before I invite Mr CHEUNG Man-kwong to reply, does any other Member wish to speak?
(No Member responded)
MR CHEUNG MAN-KWONG (in Cantonese): Madam Chairman, about this issue, I have nothing to add as we have fully expressed our viewpoints already. Thank you, Madam Chairman.
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment moved by Mr CHEUNG Man-kwong be passed. Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Canteosene): Those against please raise their hands.
(Members raised their hands)
Mr CHEUNG Man-kwong rose to claim a division.
CHAIRMAN (in Cantonese): Mr CHEUNG Man-kwong has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): Will Members please proceed to vote. Before I declare that the voting shall stop, Members may wish to check their votes. If there are no queries, voting shall now stop and the result will be displayed.
Functional Constituencies:
Mr Michael HO, Dr David LI, Miss Margaret NG, Mr CHEUNG Man-kwong, Mr SIN Chung-kai and Mr LAW Chi-kwong voted for the motion.
Mr Kenneth TING, Mr Edward HO, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Dr LUI Ming-wah, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Mr Bernard CHAN, Mr CHAN Wing-chan, Dr LEONG Che-hung, Mrs Sophie LEUNG, Dr Philip WONG, Mr WONG Yung-kan, Mr Howard YOUNG, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Timothy FOK, Mr FUNG Chi-kin and Dr TANG Siu-tong voted against the motion.
Geographical Constituencies and Election Committee:
Mr Albert HO, Mr LEE Wing-tat, Mr Martin LEE, Mr Fred LI, Mr James TO, Dr YEUNG Sum, Mr Andrew CHENG and Mr SZETO Wah voted for the motion.
Miss Christine LOH, Miss CHAN Yuen-han, Mr Gary CHENG, Mr Andrew WONG, Mr Jasper TSANG, Mr LAU Kong-wah, Mr TAM Yiu-chung, Mr David CHU, Mr HO Sai-chu, Mr NG Leung-sing, Prof NG Ching-fai, Mr MA Fung-kwok, Mr CHAN Kam-lam, Mr YEUNG Yiu-chung, Mr Ambrose LAU and Miss CHOY So-yuk voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that among the Members returned by functional constituencies, 28 were present, six were in favour of the motion and 22 against it; while among the Members returned by geographical constituencies through direct elections and by the Election Committee, 25 were present, eight were in favour of the motion and 16 against it. Since the question was not agreed by a majority of each of the two groups of Members present, she therefore declared that the motion was negatived.
MR CHEUNG MAN-KWONG (in Cantonese): Madam Chairman, I move the addition of subclause (1)(c) to clause 33, as set out in the paper circularized to Members. This amendment relates to the declaration made in the nomination form.
Madam Chairman, we have actually no need to move this amendment as our amendment to clause 21(1)(e)(i) has already been negatived earlier on and this amendment is deduced from that. Yet, the Democratic Party considers that this amendment will allow the public to find out whether the candidates have committed crimes before and will hence help the public in making their choices. Even though our amendment to clause 21 has been negatived, if we can pass the addition of subclause (1)(c) to clause 33, it will definitely help improve the quality of the Bill. I have also said earlier that leaving political views aside, the quality of the legislation is also one direction that we insist on in respect of the discussions of the Legislative Council. Therefore, we now move the addition of subclause (1)(c) to clause 33.
The Democratic Party considers that no matter whether the amendment that we moved earlier was passed or not, for people who have broken the law in other places, whose behaviour may also be considered a crime in the laws of the Hong Kong, but because of different criteria of sentencing of different places, we will not make a comparison of them and make it a legal basis. However, owing to our conviction that the public, especially the electors, have the right to know and to access such important information concerning the candidates before the election, we therefore propose that if a candidate has been convicted of any offence and imprisoned in respect of it in any place outside Hong Kong within five years preceding, he must disclose his crime to the public and let the electors decide whether to vote for him. Thank you, Madam Chairman.
Proposed amendment
Clause 33 (see Annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
MR ANDREW WONG (in Cantonese): Madam Chairman, I do not quite understand. Perhaps I have to consult the Bill again. If a person has committed a crime outside Hong Kong, under clause 21(1)(e)(i), he is already disqualified. Why then is he required to declare his crime again and let the electors decide whether to choose him? I do not quite follow it. Perhaps I really need to study it.
MR CHEUNG MAN-KWONG (in Cantonese): Madam Chairman, as regards this question, we have also studied whether to withdraw the amendment or to move it. We have considered that with such a provision, if a person attempts to cover up the his past, saying that he has never committed a crime but is later discovered that this is a lie, then this incident in itself can already lead to his disqualification, as withholding information is already against the law. Under such a circumstance, we still feel that there is nothing wrong to add this provision, though the situation described by Mr Andrew WONG would indeed arise as a result. Mr Andrew WONG has considered this matter very thoroughly and noticed this point. However, in view of the above reason, we still feel that this provision can be added. Of course, on this issue, if the person intends to cover up his past, he may not fill out this column. But if it is discovered, not filling out the column already constitutes an offence in itself. It is from this angle that we have looked at this issue.
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, as referred to by the Honourable Andrew WONG just now, the circumstances under which a person is disqualified from being nominated as a candidate at an election and from being elected as an elected member are set out clearly under clause 21 which is already passed by this Council, and one of such circumstances is that the person has been sentenced to imprisonment in Hong Kong or any other place for a term exceeding three months within the five years preceding the date of election.
In preparing the nomination form, candidates are required by the Electoral Affairs Commission to include in the form a declaration to the effect that they are not disqualified from nomination by virtue of any circumstances, including those set out under section 21. As such, the amendment moved by Mr CHEUNG Man-kwong should not have any effect in real terms. Besides, to specifically prescribe in the principal Ordinance the requirement that a candidate shall make a declaration in respect of one of the grounds for disqualification will also give rise to inconsistencies in provisions.
I hereby urge Honourable Members to vote against the amendment.
CHAIRMAN (in Cantonese): Mr CHEUNG Man-kwong, do you wish to reply?
MR CHEUNG MAN-KWONG (in Cantonese): Madam Chairman, there is another reason for our moving this amendment. In fact, our original intention was to have this amendment to add subclause (1)(c) to clause 33 voted together with the amendment to clause 21(1)(e)(i). But the Democratic Party has received the request of some Members who wished to have them voted on separately. Since we were also willing to do so, it was on this basis that we considered the merit of treating this amendment as an independent one. We have already explained the merit of that which I do not intend to repeat.
Madam Chairman, I so supplement. Thank you.
MR ANDREW WONG (in Cantonese): Madam Chairman, I would like to express my view. I do not find this a proper thing to do so as it is like laying a trap.
I feel that our electoral law or the law regarding the constitution of the District Councils or any other organizations must all specify who are eligible and who can be disqualified. If one is disqualified, naturally he cannot become a member as he is not eligible to do so at all.
If he is not given such an application form, even after he has filed his application, he will still be disqualified as he has breached the law for making a false declaration. I feel that it is neither appropriate nor right to design such a form for a person to fill out.
Originally I do support their amendment but it is the whole package that I support. In fact, if some of the proposed amendments have been negatived and the mover still insists on moving this amendment, I feel that I should object to it. Mr CHEUNG Man-kwong is the mover of the proposed amendment and is also the one to make a final reply, may I ask whether he will move the amendment to clause 24 later on as it is also related to this? I still hope to hear his response.
CHAIRMAN (in Cantonese): Please wait. One person at a time. Mr Andrew WONG, I let you speak first and Mr CHEUNG Man-kwong next.
MR ANDREW WONG (in Cantonese): Madam Chairman, I am already through with my speech. I would just like to hear Mr CHEUNG Man-kwong's response ......
CHAIRMAN (in Cantonese): Then please sit down and let Mr CHEUNG respond.
MR CHEUNG MAN-KWONG (in Cantonese): Madam Chairman, we will move the amendment to clause 24.
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment moved by Mr CHEUNG Man-kwong be passed. Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(No hands raised)
CHAIRMAN (in Cantonese): Does any Member wish to claim a division?
(No Member responded)
CHAIRMAN (in Cantonese): I think the question is not agreed by a majority respectively from each of the two groups of Members, that is, those returned by functional constituencies and those returned by geographical constituencies through direct elections and by the Election Committee, who are present. I declare the motion negatived.
CHAIRMAN (in Cantonese): As the amendment moved by Mr CHEUNG Man-kwong has been negatived, I now put the question to you and that is: That clause 33 stand part of the Bill.
CHAIRMAN (in Cantonese): Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr CHEUNG Man-kwong rose to claim a division.
CHAIRMAN (in Cantonese): Mr CHEUNG Man-kwong has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): Before I declare that the voting shall stop, are there any queries? Prof NG Ching-fai.
PROF NG CHING-FAI (in Cantonese): Madam Chairman, I have pressed the wrong button. I am in favour of the motion.
CHAIRMAN (in Cantonese): Voting shall now stop and the result will be displayed. (The result did not appear on the screen after a long while)
CHAIRMAN (in Cantonese): I think the computer is also tired. (Laughter)
Mr Kenneth TING, Mr David CHU, Mr HO Sai-chu, Mr Edward HO, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Dr LUI Ming-wah, Mr NG Leung-sing, Prof NG Ching-fai, Mr Ronald ARCULLI, Mr MA Fung-kwok, Mr HUI Cheung-ching, Miss Christine LOH, Mr CHAN Kwok-keung, Miss CHAN Yuen-han, Mr Bernard CHAN, Mr CHAN Wing-chan, Mr CHAN Kam-lam, Dr LEONG Che-hung, Mrs Sophie LEUNG, Mr Gary CHENG, Mr Andrew WONG, Dr Philip WONG, Mr WONG Yung-kan, Mr Jasper TSANG, Mr Howard YOUNG, Mr YEUNG Yiu-chung, Mr LAU Kong-wah, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Ambrose LAU, Miss CHOY So-yuk, Mr Timothy FOK, Mr TAM Yiu-chung, Mr FUNG Chi-kin and Dr TANG Siu-tong voted for the motion.
Mr Albert HO, Mr Michael HO, Mr LEE Wing-tat, Mr Martin LEE, Dr David LI, Mr Fred LI, Miss Margaret NG, Mr James TO, Mr CHEUNG Man-kwong, Mr SIN Chung-kai, Dr YEUNG Sum, Mr Andrew CHENG, Mr SZETO Wah and Mr LAW Chi-kwong voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that there were 52 Members, 37 were in favour of the motion and 14 against it. Since the question was agreed by a majority of the Members present, she therefore declared that the motion was carried.
Clause 14
CHAIRMAN (in Cantonese): We will now deal with the part of the Bill relating to the "disqualification of appointed members".
MR ANDREW WONG (in Cantonese): Madam Chairman, although I object to the appointment system, since the effort to abolish the appointment system has been defeated, I think that at least I should do something, such as to set a restriction to bar those who should not be appointed from appointment. I also hope that my next amendment for limiting the number of appointed members in each District Council to four will be passed.
This amendment seeks to add subclauses (1A) and (1B) to clause 14. Basically, subclause (1A) is to specify three categories of people who should not be appointed. The first is "those who have failed to be elected in the last and the current elections". Under this circumstance, since the last district board election was held in 1994, the provision specifies "within the 6 years before the date of appointment". But as the term of office for each election will be four years from now on, the number of years specified is changed to four. Those who stand in an election have already been engaged in politics, so the second category is "a member of any political body". The third category is "in the opinion of the Chief Executive being actively engaged in politics". For example, those in the public gallery just now who, even though not belonging to any political party or political body, may be considered as actively engaged in politics. Basically, subclause (1B) is to give a clear definition to the so-called "member of a political body" and "political body" as referred to as the second category in subclause (1A). According to the explanation of subclause 1B, a "political body" refers to a political party or an organization that purports to be a political party, or an organization the principal function or main object of which is to promote or prepare a candidate for an election. As subclauses (1A)and (1B), an addition to clause 14, have been modelled on the provisions of the Electoral Affairs Commission Ordinance, basically they do follow the form of existing laws. I hope that Members can agree that even under the system where there are appointed members, one should not be given the chance to make use of this provision to appoint members of political parties, people actively engaged in politics or those who have been defeated to the District Councils.
Proposed amendment
Clause 14 (see Annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
MR LAU KONG-WAH (in Cantonese): Madam Chairman, we can hardly support Mr Andrew WONG's amendment for we must adhere to the principle of openness and equality. Nor should we discriminate against different people, particularly with regard to their qualifications for appointment. On the other hand, it is very difficult to define who is, as he says, "actively engaged in politics". Mr WONG has just mentioned that people like those who chanted slogans in the public gallery earlier also belong to this category. He seems to have already defined who are considered "actively engaged in politics" but how does the Chief Executive know? There are so many people engaged in politics throughout the territory, how are they to be identified? What if they cannot be identified?
Or take for example trade unionists, leaders of trade unions, they are also engaged in politics at times. Then should all members of trade unions be barred from appointment? Should members of mutual aid committees and owners incorporations of buildings also be considered as actively engaged in election campaigns? Should those social workers who have led demonstrations on the streets be considered as having engaged in politics as well? Are they actively engaged in politics?
All such situations are hard to define. I think that it is an even riskier approach to leave them to the Chief Executive to make a judgment on these "in his opinion", as it will give rise to conflicts.
Therefore, personally I do not think that we should prohibit those so-called activists in politics from appointment. Not only do I not object to it, I even think that those who are actively engaged in politics rather than those who are indifferent to politics should be appointed. I feel that only those who are actively engaged in public services merit appointment.
Finally, I feel that there are only several criteria for appointment. First, those who have connections in the district; second, those who have contributions to the community; and third, who are willing to dedicate time and energy to the community. Thank you, Madam Chairman.
MR LEE WING-TAT (in Cantonese): Madam Chairman, as this amendment involves the eligibility of appointed members and the criteria for appointment, the Democratic Party opposes.
MR MARTIN LEE (in Cantonese): Madam Chairman, I have all along objected to the appointment system but now I would like to join the discussion and say a few words. If Mr WONG's amendment is passed, the appointed members can only be members for a term because by the next term, he will already have become actively engaged in politics, unless he does nothing at all during the first term. Therefore, if Mr WONG changes his amendment to "disqualify all those who are actively or inactively engaged in or not engaged in politics or other activities for appointment", then I will support it and vote in favour of it.
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, I should like to give a brief reply. As I have mentioned in my speech just now, since the the Chief Executive has been authorized to appoint members to the District Councils, he should be provided with the statutory power to select the right candidates for appointment. For this reason, I urge Honourable Members to vote against this amendment.
MR ANDREW WONG (in Cantonese): I also know that "politics" is hard to define. The definition of "political body" seems to have been confined to the definition stipulated in the Electoral Affairs Commission Ordinance. Actually, "political body" basically refers to an organization that participates in an election. Therefore, Mr Martin LEE needs not worry. As long as an appointed member does not stand for election, join a political party or help other candidates in an election, he will have a chance to be appointed for a second term if he does his job well as an expert. Basically, the problem can be solved quite easily. If the Government wants to appoint experts as members to enhance the quality of District Councils, only certain people will be eligible, while those who are members of a political party will not be eligible.
Of course, Mr LAU Kong-wah has his own views. He thinks that it is difficult to define. At first, I thought that this was not just the stand of the Democratic Alliance for the Betterment of Hong Kong, but was probably also a reason given by the Constitutional Affairs Bureau. They say that it is hard to define, especially since the Chief Executive will have to make the decision. It is hard for the Chief Executive to decide which people are actively engaged. Thus, he should rather actively appoint some people who are actively engaged in politics as members. I do not quite understand this point. If one looks for candidates who are actively engaged in politics, it seems that Members were right in their criticism just now. Does it mean that one should appoint candidates who are actively engaged in politics and who support the Chief Executive as members of a District Council? My feeling is that we keep speculating on what the Chief Executive might think in this matter. In my view, the Chief Executive has not thought about this problem at all. But the whole debate has given the impression that he has thought about this problem. This would lead to undesirable results. If Members think that my proposal is not good, they should have discussed how to improve it when I made the proposal (I also made this proposal in the Bills Committee). This proposal is not the first version that I proposed. My first version was not like this. But the later version is better, since it copies a provision from an existing law. Since the Electoral Affairs Commission is apolitical, reference is made to the practice of that Commission to ensure that apolitical people are appointed to the District Councils so that they could serve the District Councils with their expertise. If they stand for election and are elected, they can only become appointed members after they have retired, and may not be appointed after they fail to be elected in the next election.
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment moved by Mr Andrew WONG be passed.
Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr Andrew WONG rose to claim a division.
CHAIRMAN (in Cantonese): Mr Andrew WONG has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): Will Members please proceed to vote?
CHAIRMAN (in Cantonese): Before I declare that the voting shall stop, will Members may wish to check their votes. If there are no queries, voting shall now stop and the result will be displayed.
Functional Constituencies:
Mr Eric LI, Miss Margaret NG, Mr Bernard CHAN and Dr LEONG Che-hung voted for the motion.
Mr Kenneth TING, Mr James TIEN, Mr Edward HO, Mr Michael HO, Dr Raymond HO, Mr LEE Kai-ming, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr CHEUNG Man-kwong, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Mr CHAN Wing-chan, Mrs Sophie LEUNG, Mr SIN Chung-kai, Dr Philip WONG, Mr WONG Yung-kan, Mr Howard YOUNG, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Timothy FOK, Mr LAW Chi-kwong, Mr FUNG Chi-kin and Dr TANG Siu-tong voted against the motion.
Geographical Constituencies and Election Committee:
Mr Andrew WONG voted for the motion.
Mr Albert HO, Mr LEE Wing-tat, Mr Martin LEE, Mr Fred LI, Mr James TO, Miss Christine LOH, Mr Gary CHENG, Mr Jasper TSANG, Dr YEUNG Sum, Mr LAU Kong-wah, Mr Andrew CHENG, Mr SZETO Wah, Mr TAM Yiu-chung, Mr David CHU, Mr HO Sai-chu, Prof NG Ching-fai, Mr CHAN Kam-lam, Mr YEUNG Yiu-chung, Mr Ambrose LAU and Miss CHOY So-yuk voted against the motion.
Mr NG Leung-sing and Mr MA Fung-kwok abstained.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that among the Members returned by functional constituencies, 27 were present, four were in favour of the motion and 23 against it; while among the Members returned by geographical constituencies through direct elections and by the Election Committee, 24 were present, one was in favour of the motion, 20 against it and two abstained. Since the question was not agreed by a majority of each of the two groups of Members present, she therefore declared that the motion was negatived.
SECRETARY FOR CONSTITUTIONAL AFFAIRS (In Cantonese): Madam Chairman, I move the amendment to clause 14(4) and the addition of subclauses 5 and (6) to clause 14, as set out in the paper circularized to Members. We have proposed the amendment in response to the suggestions of the Bills Committee. The purpose of the amendment is to set out clearly that an appointed member will be disqualified fron holding office if he or she does not attend meetings of the District Council for four consecutive months without obtaining the consent of the relevant District Council; however, if only one meeting has been held during the four-month period, the member concerned will only be disqualified from holding office after he or she has been absent from three consecutive District Council meetings. I hereby urge Honourable Members to support the amendment.
Proposed amendment
Clause 14 (see Annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
MR LEE WING-TAT (in Cantonese): Madam Chairman, since this amendment involves the question of appointed members, the Democratic Party also opposes it.
MR ANDREW WONG (in Cantonese): Madam Chairman, the same provision applies to ex officio and elected members. I wish to point out again that I do not understand the intention of the Democratic Party. Do they think that the original term of six months should be retained or that there should be no stipulation at all?
I just want to know the Democratic Party's stand!
MR MARTIN LEE (in Cantonese): Madam Chairman, the Democratic Party's stand is that it does not like appointed members. If the clause is amended to the effect that an appointed member is disqualified whether or not he attends meetings for four consecutive months, I will be in favour of it. (Laughter)
CHAIRMAN (in Cantonese): Secretary for Constitutional Affairs, do you wish to reply?
(The Secretary indicated that he did not wish to reply)
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment moved by the Secretary for Constitutional Affairs be passed. Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr LEE Wing-tat rose to claim a division.
CHAIRMAN (in Cantonese): Mr LEE Wing-tat has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): Will Members may wish to check their votes? If there are no queries, voting shall now stop and the result will be displayed.
Mr Kenneth TING, Mr James TIEN, Mr David CHU, Mr HO Sai-chu, Mr Edward HO, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Mr NG Leung-sing, Prof NG Ching-fai, Miss Margaret NG, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr MA Fung-kwok, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Miss CHAN Yuen-han, Mr Bernard CHAN, Mr CHAN Wing-chan, Mr CHAN Kam-lam, Dr LEONG Che-hung, Mrs Sophie LEUNG, Mr Gary CHENG, Mr Andrew WONG, Dr Philip WONG, Mr WONG Yung-kan, Mr Jasper TSANG, Mr Howard YOUNG, Mr YEUNG Yiu-chung, Mr LAU Kong-wah, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Ambrose LAU, Miss CHOY So-yuk, Mr Timothy FOK, Mr TAM Yiu-chung, Mr FUNG Chi-kin and Dr TANG Siu-tong voted for the motion.
Mr Albert HO, Mr Michael HO, Mr LEE Wing-tat, Mr Martin LEE, Mr Fred LI, Mr James TO, Mr CHEUNG Man-kwong, Miss Christine LOH, Mr SIN Chung-kai, Dr YEUNG Sum, Mr Andrew CHENG, Mr SZETO Wah and Mr LAW Chi-kwong voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that there were 52 Members present, 38 were in favour of the motion and 13 against it. Since the question was agreed by a majority of the Members present, she therefore declared that the motion was carried.
CHAIRMAN (in Cantonese): Mr Ronald ARCULLI, as the Secretary for Constitutional Affairs' amendment has been passed, I granted you leave to revise the terms of your amendment, and the revised amendment has been set out in the paper circularized to Members on 9 March. You may now move your amendment.
MR RONALD ARCULLI: Madam Chairman, I move that clause 14 be further amended as set out in the paper circularized to Members.
My amendment, Madam Chairman, is really quite simple. Under section 12 of the Bill, it sets out the qualifications for eligibility for appointment as a member of the District Council, like the age being 21, the residency and so on.
When I examined the Bill, I noticed that under section 14, which sets out disqualification of appointed members, there is no provision linking it back to section 12 so that if, after the appointment of a member, it was discovered that he or she did not fulfil one of the eligibility criteria, the member would remain a member and would not be disqualified.
Thus, my amendment is to incorporate section 12 into section 14 so that if a mistake has been made, that member will be disqualified. And I think it is really a technical amendment, so I hope all Members would support that, even those who object to appointed members. Because if they do not support it, it means that the appointed members remain. So, maybe Mr LEE will apply that logic and support my amendment.
Proposed amendment
Clause 14 (see Annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
MR MARTIN LEE: Madam Chairman, if the Honourable ARCULLI were to be more technical and said that any appointed District Council member would lose his seat for failure to comply with section 12(c) or (d), which is "is not disqualified from voting in the election" and "is not disqualified from being an appointed member by virtue of section 14 ......", it is more logical. But if he leaves also (a), which is "has reached the 21 years of age", or (e), "has ordinarily resided in Hong Kong ......", I do not see how a member can lose his seat.
Thus, if he is more technical, I may support him. Well, I think the stance of my party is very clear. We do not like appointed District Council members. If he would amend it to be "if all appointed members ......", or "if an appointed member fails to comply with section 12 ......", or "continues to comply with section 12 will still lose his seat", I would then support him.
MR RONALD ARCULLI: Madam Chairman, obviously the hours are very early and maybe my friend's clarity of mind has left him, but as far as section 12(a) is concerned, it could be that at the time of appointment, the appointee had not reached the age of 21, and in which case, he ought not to have been appointed. Now, if this were discovered subsequently, and despite the fact that he attained 21 at the time of discovery, he still should be disqualified because at the time of appointment, he was, let us say, 20, and he should not have been appointed. And likewise with residency. Let us say he lived in Hong Kong for two years and 11 months rather than three years, then it still could not cure the mistake.
Thus, I hope that Mr LEE is satisfied with my explanation and will support my amendment.
MR ANDREW WONG (in Cantonese): Madam Chairman, I think what Mr ARCULLI has said is very sensible, that is, we should compare clause 14(5) and the amendment currently made to clause 24(6). If Mr Martin LEE wishes to make an amendment favourable to elected members, then he should support the amendment made to clause 14(5) and oppose the amendment made to clause 24(6). For it will disqualify someone who has not reached 21 years of age but is elected from holding office as a member for having no double guarantee as mentioned by Mr ARCULLI. On the other hand, an appointed member may get a seat because of the opposition of the Democratic Party. The reason is that the loophole has not been plugged completely. Therefore, I hope that we will not look at the issue by clinging overly onto our principles, so that we are unable to take the facts into consideration.
MR MARTIN LEE (in Cantonese): Madam Chairman, that is a good explanation. But I still think that had he said appointed members shall be disqualified should they comply with or fail to comply with clause 12, then I would certainly support the amendment. (Laughter)
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, the amendment proposed by the Honourable Ronald ARUCLLI is technical in nature and aims at rendering the provisions regarding the disqualification of an appointed member from holding office more precise. The Administration does not object to this amendment.
CHAIRMAN (in Cantonese): Mr Ronald ARUCLLI, do you wish to speak in reply?
(Mr Ronald ARUCLLI indicated that he did not wish to reply)
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment moved by Mr Ronald ARUCLLI be passed.
Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr Ronald ARCULLI rose to claim a division.
CHAIRMAN (in Cantonese): Mr Ronald ARUCLLI has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): Will Honourable Members please proceed to vote. Before I declare that the voting shall stop, Members may wish to check their votes. If there are no queries, voting shall now stop and the result will be displayed.
Functional Constituencies:
Mr Kenneth TING, Mr James TIEN, Mr Edward HO, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Miss Margaret NG, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Mr Bernard CHAN, Mr CHAN Wing-chan, Dr LEONG Che-hung, Mrs Sophie LEUNG, Mr WONG Yung-kan, Mr Howard YOUNG, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Timothy FOK, Mr FUNG Chi-kin and Dr TANG Siu-tong voted for the motion.
Mr Michael HO, Mr CHEUNG Man-kwong, Mr SIN Chung-kai, and Mr LAW Chi-kwong voted against the motion.
Dr Philip WONG abstained.
Geographical Constituencies and Election Committee:
Miss CHAN Yuen-han, Mr Gary CHENG, Mr Andrew WONG, Mr Jasper TSANG, Mr LAU Kong-wah, Mr TAM Yiu-chung, Mr David CHU, Mr HO Sai-chu, Mr NG Leung-sing, Prof NG Ching-fai, Mr MA Fung-kwok, Mr CHAN Kam-lam, Mr YEUNG Yiu-chung, Mr Ambrose LAU and Miss CHOY So-yuk voted for the motion.
Mr Albert HO, Mr LEE Wing-tat, Mr Martin LEE, Mr Fred LI, Mr James TO, Miss Christine LOH, Dr YEUNG Sum, Mr Andrew CHENG and Mr SZETO Wah voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that among the Members returned by functional constituencies, 27 were present, 22 were in favour of the motion, four against it and one abstained; while among the Members returned by geographical constituencies through direct elections and by the Election Committee, 25 were present, 15 were in favour of the motion and nine against it. Since the question was agreed by a majority of each of the two groups of Members present, she therefore declared that the motion was carried.
CLERK (in Cantonese): Clause 14 as amended.
CHAIRMAN (in Cantonese): Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
CHAIRMAN (in Cantonese): Does any Member wish to claim a division?
(No Member responded)
CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.
Schedule 3
CHAIRMAN (in Cantonese): We will now deal with the part of the Bill relating to "number of appointed members".
MR ANDREW WONG (in Cantonese): Madam Chairman, I move the amendment to Schedule 3, as set out in the paper circularized to Members.
To be brief, the proposed amendment seeks to reduce the number of appointed members in each District Council, and that applies to those even existing, and substituting all the numbers by four for each District Council. As the extent of participation by experts required by District Councils and their number should be largely similar, and that both elected and ex officio members should be completely familiar with the affairs of their respective communities, therefore, the principle whereby the number of seats in a District Council is to be determined by the population of the district concerned does not apply. In order that the functions of elected and ex officio members shall not be reduced, there should only be four appointed members in each District Council. I think this is appropriate. I hope that Members would support this amendment in order that the democracy substance will not be reduced by too many appointed members in the districts. Thank you, Madam Chairman.
Proposed amendment
Schedule 3 (see Annex IV)
DR YEUNG SUM (in Cantonese): Although Mr WONG's proposal is to limit the number of appointed members, as a member of the Democratic Party who is opposed to appointed seats in principle, I am opposed to this amendment.
MR MARTIN LEE (in Cantonese): Let me also say something in his favour. As I can see from Schedule 3 drafted by the Government, there are presently only three appointed members in the Wan Chai District Board and now the number is increased to four. But that is not a problem. I only hope that he can amend this and specify that the number of appointed members in each District Council should be zero, then I will lend him my support.
MR SIN CHUNG-KAI (in Cantonese): Mr Andrew WONG's amendment is founded on his own wishful thinking, because the Government has never said that when appointing District Council members, it will always choose experts; it is also difficult to define who are experts, and even experts may make mistakes in their work, thus making it necessary to invite yet other experts to find out whether mistakes have been made.
District Councils are supposed to be advisory bodies, which is why their most important job should be to fully reflect the views of the residents in their respective constituencies. If the Government really wants to listen to the views of experts, it can always invite them to attend District Council meetings for the purpose of giving their views on individual and specific matters. That way, District Council members will be able to know what experts think about the matters in question. Put simply, experts should not be appointed to District Councils as members.
Therefore, this is not simply a question of how many, nor is it simply a question of wishful thinking, or experts. Rather, the amendment actually involves whether or not appointed membership should be accepted in principle. I so submit.
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, according to our proposal, about 20% of the seats in each and every District Council will be taken by appointed members. In this connection, the 18 District Councils territority-wide will have a total of 102 appointed members. This is fairly reasonable. In my opinion, however, it would be inappropriate to restrict the number of appointed members in each District Council to not exceeding four irrespective of the number of seats each District Council has.
For this reason, I urge Honourable Members to vote against the amendment.
CHAIRMAN(in Cantonese): Mr Andrew WONG, please proceed to reply.
MR ANDREW WONG (in Cantonese): Let me put forward my point very concisely. I of course support the practice of fixing the number of elected members in a District Council with reference to the population size of its constituency. But I must add that if appointed members are really supposed to assist in the work of District Councils, the population size criterion will become entirely inappropriate. But the Government has all along adopted this criterion. That is why we now have a number of very small district boards. But the Government has refused to merge some small constituencies and form larger ones, probably for fear of other problems.
Well, I should really be brief, because everybody is getting very tired by now. By proposing to increase the number of appointed members for Wan Chai from three to four, I actually mean to help its District Council (our former colleague Peggy LAM is now watching us from the public gallery). A change to "0" does not seem to be so good, because if "1" is added before it, the number will become "10", and if another "0" is added, the number will become "100". I beg Members' support
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment moved by Mr Andrew WONG be passed.
Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
CHAIRMAN (in Cantonese): Does any Member wish to claim a division?
(No Member responded)
CHAIRMAN (in Cantonese): I think the question is not agreed by a majority respectively from each of the two groups of Members, that is, those returned by functional constituencies and those returned by geographical constituencies through direct elections and by the Election Committee, who are present. I declare the motion negatived.
CLERK (in Cantonese): Schedule 3 as amended.
CHAIRMAN (in Cantonese): Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
CHAIRMAN (in Cantonese): Does any Member wish to claim a division?
(No Member responded)
CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.
Clause 19
CHAIRMAN (in Cantonese): We will now deal with the part of the Bill relating to "disqualification of ex officio members".
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, I move the amendment to clause 19(4) and the addition of subclauses (5) and (6) to clause 19, as set out in the paper circularized to Members.
Similar to that of the amendment to clause 14 which honourable Members have passed earlier on, the purpose of this amendment is to set out clearly that an ex officio member is disqualified from holding office if the member does not attend meetings of the District Council for a specified period of time without obtaining the consent of the council.
I hereby urge Honourable Members to support this amendment.
Proposed amendment
Clause 19 (see Annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
MR LEE WING-TAT (in Cantonese): Madam Chairman, since this amendment involves ex officio members, the Democratic Party will oppose it.
CHAIRMAN (in Cantonese): Secretary for Constitutional Affairs, do you wish to reply?
(The Secretary indicated that he did not wish to reply)
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment moved by the Secretary for Constitutional Affairs be passed.
Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
CHAIRMAN (in Cantonese): Does any Member wish to claim a division?
(No Member responded)
CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.
CLERK (in Cantonese): Clause 19 as amended.
CHAIRMAN (in Cantonese): Those in favour please raise their hands.
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.
CLERK (in Cantonese): Clause 24.
MR CHEUNG MAN-KWONG (in Cantonese): Madam Chairman, it is now already four o'clock in the morning, so, I do feel a bit under pressure in moving this amendment. The Honourable Andrew CHENG has left; the Honourable Martin LEE is leaving for the rest room, and I am afraid he may not come back again. The Democratic Party has moved its amendment to clause 24(1)(d)(i) for exactly the same reason underlying its amendment to clause 21(1)(e)(i). The principal aim of the present amendment is to ensure that no elected member shall be disqualified from holding office on the ground that he or she has been convicted of any offence outside Hong Kong in respect of which he or she has been sentenced to imprisonment for a term exceeding three months without the option of a fine. Honourable Members should know the reasons, because I have already given a very detailed explanation. I guess Honourable Members will not want me to repeat my explanation once again.
Proposed amendment
Clause 24 (see Annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
(No Member indicated a wish to speak)
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, earlier this Council has voted on the amendment moved to clause 21(1)(e)(i) by Mr CHEUNG Man-kwong. In this connection, Honourable Members have agreed that in order to ensure the integrity and credibility of District Council members, the situation where a person has been convicted of an offence in places outside Hong Kong should be included in the provision as one of the conditions leading to the person's disqualification from being nominated as a candidate and from being elected as an elected member. By the same token, an incumbent elected member should also be disqualified from holding office if the member has been sentenced to imprisonment for a term exceeding three months in places outside Hong Kong. I hereby urge Honourable Members to vote down the amendment.
MR CHEUNG MAN-KWONG (in Cantonese): In response to the remarks made by the Government just now, I have this to add: all election candidates should be required to report the offences they have committed outside Hong Kong, if any.
Thank you, Madam Chairman.
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment moved by Mr CHEUNG Man-kwong be passed.
Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr CHEUNG Man-kwong rose to claim a division.
CHAIRMAN (in Cantonese): Mr CHEUNG Man-kwong has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): Will Members please proceed to vote. Before I declare that the voting shall stop, Members may wish to check their votes. If there are no queries, voting shall now stop. A Member who is present has not pressed the voting button.
MR ANDREW WONG (in Cantonese): I have just come in. I do not know what we are supposed to vote on.
CHAIRMAN (in Cantonese): But you are present. Is there any problem with your voting buttons?
MR ANDREW WONG (in Cantonese): I have pressed the "present" button.
CHAIRMAN (in Cantonese): Would Members please check their "present" buttons.
MR ANDREW WONG (in Cantonese): Madam Chairman, I do not intend to cast my vote.
CHAIRMAN (in Cantonese): Mr Andrew WONG, you do not necessarily have to vote, but you still have to press the "present" button, because we need to know the number of Members present. All right, the result will now be displayed.
Functional Constituencies:
Mr Michael HO, Mr CHEUNG Man-kwong, Mr SIN Chung-kai and Mr LAW Chi-kwong voted for the motion.
Mr Kenneth TING, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Mr Ronald ARCULLI, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Mr Bernard CHAN, Mr CHAN Wing-chan, Mrs Sophie LEUNG, Dr Philip WONG, Mr WONG Yung-kan, Mr Howard YOUNG, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Timothy FOK, Mr FUNG Chi-kin and Dr TANG Siu-tong voted against the motion.
Geographical Constituencies and Election Committee:
Mr Albert HO, Mr LEE Wing-tat, Mr Martin LEE, Mr Fred LI, Mr James TO, Miss Christine LOH, Dr YEUNG Sum, Mr Andrew CHENG and Mr SZETO Wah voted for the motion.
Miss CHAN Yuen-han, Mr Gary CHENG, Mr Jasper TSANG, Mr LAU Kong-wah, Mr TAM Yiu-chung, Mr David CHU, Mr HO Sai-chu, Mr NG Leung-sing, Mr CHAN Kam-lam, Mr YEUNG Yiu-chung, Mr Ambrose LAU and Miss CHOY So-yuk voted against the motion.
Prof NG Ching-fai and Mr MA Fung-kwok abstained.
Mr Andrew WONG and Mrs Rita FAN, the Chairman, did not cast any vote.
THE CHAIRMAN announced that among the Members returned by functional constituencies, 22 were present, four were in favour of the motion and 18 against it; while among the Members returned by geographical constituencies through direct elections and by the Election Committee, 25 were present, nine were in favour of the motion, 12 against it and two abstained. Since the question was not agreed by a majority of each of the two groups of Members present, she therefore declared that the motion was negatived.
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, I move the amendment to clause 24(5) and the addition of subclauses (6) and (7) to clause 24, as set out in the paper circularized to Members.
Similar to that of the amendment passed by honourable Members earlier on, the purpose of this amendment is to set out clearly that an elected member is disqualified from holding office if the member does not attend meetings of the District Council for a specified period of time without obtaining the consent of the council. I hereby urge Honourable Members to support this amendment.
Proposed amendment
Clause 24 (see Annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
DR YEUNG SUM (in Cantonese): This proposal of the Government mainly concerns the operation of District Councils. We are thus prepared to support it.
MR CHEUNG MAN-KWONG (in Cantonese): Madam Chairman, since the proposal concerns the question of disqualifying an elected member from holding office, we accept the viewpoint of the Government. We will support the proposal.
CHAIRMAN (in Cantonese): Secretary for Constitutional Affairs, do you wish to reply?
(The Secretary indicated that he did not wish to reply)
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment moved by the Secretary for Constitutional Affairs be passed. Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(No hands raised)
CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.
CHAIRMAN (in Cantonese): Mr Ronald ARCULLI, as the Secretary for Constitutional Affairs' amendment has been passed, I granted you leave to revise the terms of your amendment, and the revised amendment has been set out in the paper circularized to Members on 9 March. You may now move your amendment.
MR RONALD ARCULLI: I move the amendment set out in the paper circularized to Members.
The nature of the amendment on this occasion is identical to the one that I moved to clause 14 earlier, namely, it concerns the disqualification from holding office. If a person who was not eligible to be nominated as a candidate under clause 20 was in fact nominated and this was subsequently discovered, that person ought to be disqualified.
I hope Members will support this amendment.
Proposed amendment
Clause 24 (see Annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
MR CHEUNG MAN-KWONG (in Cantonese): This clause concerns the disqualification of an elected member from holding office. The Democratic Party will support it.
MR LEE WING-TAT (in Cantonese): Madam Chairman, the Honourable CHEUNG Man-kwong has already said what I wanted to say. So, I will not repeat the same views here.
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, the amendment moved by Ronald ARUCLLI is technical in nature the purpose of which is to render the provisions regarding the disqualification of elected members more precise. The Administration have no objection to this amendment.
CHAIRMAN (in Cantonese): Mr Ronald ARUCLLI, do you wish to reply?
(Mr Ronald ARUCLLI indicated that he did not wish to reply)
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment moved by Mr Ronald ARUCLLI be passed. Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(No hands raised)
CHAIRMAN (in Cantonese): I think the question is agreed by a majority respectively from each of the two groups of Members, that is, those returned by functional constituencies and those returned by geographical constituencies through direct elections and by the Election Committee, who are present. I declare the motion passed.
CLERK (in Cantonese): Clause 24 as amended.
CHAIRMAN (in Cantonese): Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
CHAIRMAN (in Cantonese): Does any Member wish to claim a division?
(No Member responded)
CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.
CHAIRMAN (in Cantonese): We will now deal with the part of the Bill relating to "powers of the Chief Executive".
CLERK (in Cantonese): Clause 6.
MR LEE WING-TAT (in Cantonese): Madam Chairman, I move that clause 6 be amended as set out in the paper circularized to Members.
Clause 6 is in essence about the requirement that when making an order which declares any area within a district to be a constituency, the Chief Executive in Council must have regard to the recommendations made by the Electoral Affairs Commission. Our view is that the Electoral Affairs Commission was first established as an independent body, and it has since been able to operate as such. Our trust in this independent body has in fact been the very basis on which it has been conducting its work of declaring and delineating constituencies for the purpose of elections.
In many past elections, this independent Electoral Affairs Commission has achieved a high degree of recognition, and in the last one or two terms, this legislature has never on the whole, proposed any amendment to the recommendations and amendments made by the Commission. That is why we simply cannot understand why the Chief Executive in Council has chosen to "have regard to the recommendations made by the Electoral Affairs Commission". We are of the view that the Chief Executive in Council should have total trust in this independent Commission, in very much the same way as members of the public and the Legislative Council do. That is why we maintain that "must have regard to" should be deleted and replaced by "must act in strict accordance with the recommendations made by the Electoral Affairs Commission on the delineation and declaration of a constituency". This is the reason why I have moved my amendment. Thank you, Madam Chairman.
Proposed amendment
Clause 6 (see Annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
(No Member indicated a wish to speak)
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, in fact clause 6(1) has already authorized the Chief Executive in Council to declare by order any area within a district to be a constituency for the purpose of a District Council election, while clause 6(2) has further required that when making the said order, the Chief Executive in Council must have regard to the recommendations made by the Electoral Affairs Commission; besides, the said order must also undergo a negative vetting procedure in the Legislative Council. The amendment before this Council is in effect requiring the Chief Executive in Council to make the said order on the recommendations made by the Electoral Affairs Commission. This is not only unnecssary but also inflexible, and will serve to limit the power of the Chief Executive in Council. The Administration holds that this is an inappropriate amendment and hence urges Honourable Members to vote against it.
CHAIRMAN (in Cantonese): Mr LEE Wing-tat, do you wish to reply?
MR LEE WING-TAT (in Cantonese): Madam Chairman, I think the reply given the Secretary is not at all relevant to my question. The rationale behind my amendment actually concerns whether or not the executive and the legislature are going to trust the Electoral Affairs Commission which they have both agreed to set up. We expect to see an independent commission, chaired by a judge, which can conduct the delineation of constituencies independently. Although the Legislative Council is statutorily empowered to amend the boundaries of constituencies, which means that we can amend constituency boundaries, this Legislative Council, or the former Legislative Council, has been observing a convention under which all its Members, with or without any political affiliation, are not supposed to amend the recommendations made by the independent Electoral Affairs Commission. The reason is that such actions may be extremely dangerous. Since the executive and the Legislative Council have both endorsed the setting up of this independent body, we should have confidence in it.
But after the Electoral Affairs Commission has made a certain recommendation which either the executive or the legislature dislikes, will we be requested to amend the recommendation? This is possible. Since the Electoral Affairs Commission is autonomous in making its own decisions, as how we would like it to be, its recommendations on constituency boundaries may not necessarily be supported by the executive, or the legislature. But if we take any actions in response to its recommendations, we may well impair the trust which we should have in this body.
Besides, I can still remember what happened around the elections of the Legislative Council in 1998. At that time, some Executive Members, when speaking on constituency boundaries, cast doubts on the powers vested in the Chairman of the Electoral Affairs Commission and even the Commission itself, questioning whether these powers were just too enormous. In fact, such remarks alone can already impair people's trust in the ability of the Electoral Affairs Commission to operate independent of the executive and the legislature, which have themselves both recommended the establishment of this very Commission as an independent body.
Therefore, I hope that my amendment can be passed, as a means of telling the public very clearly that both the executive and the legislature have already surrendered their powers in this respect almost entirely, and that they will not do anything to amend the constituency boundaries recommended by the Electoral Affairs Commission.
Thank you, Madam Chairman.
MR ANDREW WONG (in Cantonese): Madam Chairman, sorry, I was not in this Chamber a moment ago. Actually, I have thought about this point in very great detail. No doubt, the delineation of constituency boundaries involves subsidiary legislation with which the Legislative Council will not normally interfere once they have been promulgated. But basically, if it wants to, the Legislative Council can still afford some flexibility with respect to its handling of subsidiary legislation; I mean, it could still intervene if it so wished. We can basically surrender all our powers to the Electoral Affairs Commission. But if we do not want to surrender the power of enacting subsidiary legislation to this Commission, and if at the same time we do not want the Legislative Council to get involved, we will have to give the Chief Executive the flexibility of intervening if and when he notices any grave error in the recommendations of the Commission. Therefore, from the standpoint of the Legislative Council, there is a need to ensure that it can always enjoy some flexibility in its observation of the convention concerned. Similarly, the Chief Executive also has to make sure that the law will allow him to "have regard to" the recommendations of the Commission, instead of forcing him to act "in strict accordance with" them. Only in this way can we establish the convention meaningfully and successfully, and this is the way to show our respect for the recommendations of the Commission. So, since this is in fact an old provision, and since the convention concerned is still at the formative stage, we should not introduce any amendment to the provision.
DR YEUNG SUM (in Cantonese): Thank you, Madam Chairman. According to the Secretary, this proposal will reduce the powers of the Chief Executive and the Executive Council. But let me point out that this proposal actually concerns a convention which the Legislative Council has been upholding: the work of delineating constituency boundaries should be left to an independent commission which does not involve too many partisan or political considerations. Actually, this convention has already affected the Chief Executive, because the Chief Executive and the Executive Council may have some views about some particular constituencies, or they may well be in favour of the interests of some people. So, it is better to allow an independent commission to operate on its own. Thank you, Madam Chairman.
MR LEE WING-TAT (in Cantonese): Madam Chairman, I wish to speak for the second time.
CHAIRMAN (in Cantonese): Certainly.
MR LEE WING-TAT (in Cantonese): I only wish to comment briefly on the remarks of Mr Andrew WONG.
According to Mr Andrew WONG, the Chief Executive and the Executive Council should be allowed to say that there are errors with the delineation of constituencies. This is precisely what I consider to be most dangerous.
As we all know, in the United States, some of the bodies responsible for delineating constituencies are basically not independent. The delineation practices adopted by them can sometimes be described as terrifying; and, gerrymandering is not altogether uncommon. Amidst so many difficulties, we have established some kind of convention, and we have set up an independent commission. I have repeatedly said that the autonomy enjoyed by this commission is both a good thing and a bad thing. It all depends on what we choose. An independent commission? Complaints from the Chief Executive or the Legislative Council that there are errors or defects with the delineation of constituency boundaries? There are bound to be such complaints, anyway, because we all have different considerations and many different interests are at stake. Unless Mr Andrew WONG can prove that it is correct to assume that the Chief Executive is really detached entirely from any partisan interest...... But if people ask me, I would certainly tell them that partisan interests will always be involved during elections of a political nature.
Therefore, if Mr Andrew WONG is really right in saying that the Commission may make mistakes ( but this has rarely been the case, as evidenced by the last two or three delineation exercises), he should find it all the more necessary to support our argument.
If we allow the Chief Executive or the Executive Council to decide on the appropriateness or otherwise of boundary delineation, we will in fact be allowing the executive to interfere with the many decisions made by the Electoral Affairs Commission, which is supposed to be independent. It is wrong, entirely wrong, for us to do so.
Thank you, Madam Chairman.
MR ANDREW WONG (in Cantonese): Madam Chairman, I understand it is very early in the morning, very early indeed. But there is one point I must make because Mr LEE Wing-tat mentioned the American decision to draw boundaries.
Basically, there are two generally accepted ways of delineating boundaries. What Mr LEE has described is an old method adopted by the United States; boundaries were deliveated by the Administration. That gave rise to gerrymandering whereby boundaries were delinented in such a way that they favoured a certain candidate, a certain incumbent senator, governor, or mayor in office. By now, the United States has come to use another way of delinention. It has adopted the "bipartisan approach" in which two major political parties agree to boundaries after negotiation or compromise. So there is mutual supervision and balance, which can generate a relatively fair outcome.
Another approach is the impartiality approach, which is the one we have adopted. We used to have the Boundary and Election Commission, but now we have the Electoral Affairs Commission responsible for setting the geographic boundaries of constituencies. Basically the boundaries set are legally effective; so its establishment had to undergo legislative procedures. What is the best way to delineate boundaries? Should the Commission be given full powers? As the relevant laws are authoritiative, they must be formulated by the legislature. In our present system, there is a mutual check between the executive authorities and the legislature, that is to say, the executive authorities may intervene, so may the Legislative Council. Therefore, the boundaries delineated by the Commission are not final. If any discrepancy is found the Administration may intervene but the decision of the Commission must be taken into account. Whether it is the parliamentary assembly that wants to intervene, or the Chief Executive who wants to incorporate a change, the opinion of the Commission must be taken into account. Only in this way can we form a good convention. We respect the boundaries delineated by a fair and independent Electoral Affairs Commission.
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment move by Mr LEE Wing-tat be passed.
Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr James TO rose to claim a division.
CHAIRMEN (in Cantonese): Mr James TO has claimed a division. The division bell will ring for one minute.
CHAIRMEN (in Cantonese): Members, the question put is on the amendment moved by Mr LEE Wing-tat to clause 6. Will Members please proceed to vote.
CHAIRMAN (in Cantonese): Before I declare that the voting shall stop, Members may wish to check their votes. If there are no queries, voting shall now stop and the result will be displayed.
Functional Constituencies:
Mr Michael HO, Miss Margaret NG, CHEUNG Man-kwong, Mr SIN Chung-kai and Mr LAW Chi-kwong voted for the motion.
Mr Kenneth TING, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Mr Bernard CHAN, Mr CHAN Wing-chan, Dr LEONG Che-hung, Mrs Sophie LEUNG, Dr Philip WONG, Mr WONG Yung-kan, Mr Howard YOUNG, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Timothy FOK, Mr FUNG Chi-kin and Dr TANG Siu-tong voted against the motion.
Geographical Constituencies and Election Committee:
Mr Albert HO, Mr LEE Wing-tat, Mr Martin LEE, Mr Fred LI, Mr James TO, Miss Christine LOH, Dr YEUNG Sum, Mr Andrew CHENG and Mr SZETO Wah voted for the motion.
Miss CHAN Yuen-han, Mr Gary CHENG, Mr Andrew WONG, Mr Jasper TSANG, Mr TAM Yiu-chung, Mr David CHU, Mr HO Sai-chu, Mr NG Leung-sing, Prof NG Ching-fai, Mr MA Fung-kwok, Mr CHAN Kam-lam, Mr YEUNG Yiu-chung, Mr Ambrose LAU and Miss CHOY So-yuk voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that among the Members returned by functional constituencies, 25 were present, five were in favour of the motion and 20 against it; while among the Members returned by geographical constituencies through direct elections and by the Election Committee, 24 were present, nine were in favour of the motion and 14 against it. Since the question was not agreed by a majority of each of the two groups of Members present, she therefore declared that the motion was negatived.
CHAIRMEN (in Cantonese): As the amendment moved by Mr LEE Wing-tat has been negatived, I now put the question to you and that is: That clause 6 stand part of the Bill. Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
CHAIRMEN (in Cantonese): Does any Member want to claim a division?
(No Member responded)
CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.
CLERK (in Cantonese): Clause 8
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, I move that subclause (1) of clause 8 be amended as set out in the paper circularized to Members.
The object of the amendment is to set out clearly that subject to the approval of the Legislative Council that the Chief Executive in Council may, by order published in the Gazette, amend Schedules 1, 2 and 3, which contain respectively the number of districts declared, establishment of District Councils, as well as the number of elected members and appointed members. The amendment, which is proposed in response to the concern expressed by Members, will turn the negative vetting procedure into positive vetting by the Council. I hereby urge Honourable Members to support the amendment.
Proposed amendment
Clause 8 (see Annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
MR LEE WING-TAT (in Cantonese): Madam Chairman, since this is only a technical amendment, the Democratic Party will support it.
CHAIRMAN (in Cantonese): Secretary for Constitutional Affairs, do you wish to reply?
(The Secretary indicated that he did not wish to reply)
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment moved by the Secretary for Constitutional Affairs be passed. Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(No hands raised)
CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.
CLERK (in Cantonese): Clause 8 as amended.
CHAIRMAN (in Cantonese): Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(No hands raised)
CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.
CLERK (in Cantonese): Clause 79.
MR LEE WING-TAT (in Cantonese): Madam Chairman, I move that clause 79 be amended as set out in the paper circularized to Members.
Actually, this amendment involves one single matter only: To specify in the ordinance that the regulations drawn up by the Chief Executive in Council are subsidiary legislation. Why do I want to do so? Actually, we know very well that these regulations should be scrutinized by the Legislative Council. But a similar problem once occurred when we were dealing with the Ferry Services Ordinance, and we had debated this problem for quite a number of times in the Transport Panel chaired by the Honourable Mrs Miriam LAU. At that time, a number of errors were found in the orders and regulations made under the Ferry Services Ordinance; our Legal Adviser advised us that these orders and regulations should be regarded as subsidiary legislation, and for this reason, they should be tabled before the Legislative Council for scrutiny. But the Government held a different view and therefore refused to submit the relevant provisions to this Council for scrutiny. We argued over and over in the Transport Panel, but both sides refused to yield. Our Legal Adviser insisted on our position that the relevant provisions in the Ferry Services Ordinance should be subsidiary legislation, which should thus be tabled before the Legislative Council. But the Government insisted on the contrary. In order to remove any similar ambiguity, we therefore propose to state the following in clause 79(4): "It is hereby declared that a regulation under this section is subsidiary regulation". The aim of this proposed amendment is to state clearly that all matters related to the ordinance should be scrutinized and passed by the Legislative Council. Thank you, Madam Chairman.
Proposed amendment
Clause 79 (see Annex IV)
CHAIRMAN (in Cantonese): Does any Member wish to speak?
(No Member indicated a wish to speak)
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, subclause (1) of clause 79 gives the Chief Executive in Council with the flexible power to make regulations for the better carrying out of the purposes of the District Councils Ordinance; as such, we are opposed to the proposal to delete the subclause. According to section 3 of the Interpretation and General Clauses Ordinance, regulations made by the Chief Executive in Council shall have legal effect and belong to subsidiary legislation; besides, section 34 of the Ordinance also requires subsidiary legislation to undergo negative vetting in the Legislative Council. For these reasons, we consider it unnecessary to add in subclause (4) to declare regulations made in this manner are subsidiary legislation. I hereby urge Honourable Members to vote against this amendment.
MR JAMES TO (in Cantonese): This amendment is of immense constitutional significance. I think the Government should give further clarification. For record purposes, I hope the Secretary can give further clarification on clause 79, by saying that the Government does interpret the regulations under the section concerned are subsidiary legislation, which should be scrutinized by the Legislative Council. I am referring specifically to clause 79. I believe that this will help the Government in interpreting this particular section in the future, especially when a new Secretary for Constitutional Affairs replaces the incumbent. This will also serve a record purpose.
CHAIRMAN (in Cantonese): Mr LEE Wing-tat, do you wish to reply?
(Mr LEE Wing-tat indicated that he did not wish to reply)
SECRETARY FOR CONSTITUTIONAL AFFAIRS (in Cantonese): Madam Chairman, in fact I have already made the clarification sought by the Honourable James TO just now.
MR ANDREW WONG (in Cantonese): Madam Chairman, I think this clause actually involves many issues. The original subclause (1) in the Bill which reads "the Chief Executive in Council may make regulations ......" is actually a very general provision. The term "the Chief Executive in Council" already implies that the regulations made under this section should be interpreted as subsidiary legislation. That is why when the Honourable LAU Chin-shek proposes in his original amendment that the regulations made under this section should be subsidiary legislation, he is not in fact introducing any thing new. So, I really cannot understand why the Secretary for Constitutional Affairs says that the Government wants to retain a certain degree of flexibility, because this sounds as if such provisions are not subsidiary legislation. I wish to get some authoritative views on this. Insofar as the original clause 79 of the Bill is concerned, does the Government think that the regulations made under the section are subsidiary legislation? If yes, the Government should have no problem with accepting the amendment. But even if the Government does not think so, and if we all support the amendment, such regulations will still be subsidiary legislation as they should be. The major problem with this clause rather concerns yet another issue. The original subclause (1) actually deals with the general powers of making regulations, and as far as I am aware, clause 79 has been copied from the electoral laws almost in its entirety. But we must note that we are discussing the District Councils Bill, and, for this reason, what is said in clause 79 may also apply to all other provisions on District Councils. Is it the intent behind clause 79 that apart from making regulations on electoral matters (and whether these regulations are subsidiary legislation is still not clear), the Chief Executive in Council may also make regulations on other areas. All this has not been clarified. That being the case, I would rather stand with the amendment which Mr LAU Chin-shek originally intended to move. The reason is that should anything go wrong in the future, the Government can still introduce an amendment bill to rectify the situation.
MR JAMES TO (in Cantonese): Madam Chairman, I should perhaps make my points clearer. Actually, what I am talking about does not refer only to this ordinance, or this particular provision. I have been prompted to make such comments because of a series of recent incidents like the adaptation of laws. These incidents have shown that there are a lot of disputes between the Government and Honourable Members concerning the drawing up of rules and regulations; there are a lot of disputes about what regulations should be subsidiary legislation and the power of the Legislative Council to scrutinize some particular regulations.
I used to believe that the Government is a government with at least some degree of integrity, and I also used to believe that it is true to its own principles. But following the recent disputes, my confidence has started to shake. For this reason, I may support the vote of no confidence in the Secretary for Justice today, and, not only this, I have also lost my confidence in the Government ( I am not talking about individual Bureau Secretaries, because I am referring to the integrity of the Government as a whole, not the conduct or moral standards of individual Bureau Secretaries). The recent disputes have really scared Mr LAU Chin-shek and me.
I also wish to point out that even if the amendment is accepted, it will not change the substance of the ordinance. But the Government still chooses to oppose the amendment; its only reason is that the amendment will not produce any difference and is therefore "unnecessary". Mr Andrew WONG talked about flexibility a moment ago. But I think there should be no flexibility at all because all the regulations should be subsidiary legislation, which, according to the Interpretation and General Clauses Ordinance, should have the force of law ─ sorry, it should be "having legal force". If we do not make this point clear enough now, I am afraid problems may arise in the future. And, if we thus blame the Government or even any individual Bureau Secretary for misleading people, we will do that particular Bureau Secretary injustice.
So, I only intend to clarify this point. Does the Government think that all regulations made under clause 79 are subsidiary legislation, which should be scrutinized by the Legislative Council?
MR RONALD ARCULLI: Madam Chairman, I will try and be as brief as possible.
I can to some extent understand the concern that is raised by the Honourable James TO because we did have one incident not so long ago where there was a mistake in gazetting and as a result, the requisite Regulation was not tabled in this Council. And we had long discussion as to whether the Regulation, which was subsidiary legislation, was valid or not due to the absence of tabling. As Members may recall, the conclusion we came to as a Council was that it was valid despite not being tabled, and I think this is where the concern arises.
However, I think when it comes to the matter of drafting, I cannot actually remember coming across any enabling section, like clause 79 in this Bill, where there is a provision adding that regulation made under is subsidiary legislation. I think the oversight on that occasion was the tabling, not the gazetting. Thus, it was whether or not the process was complete. In fact, Members may remember that the Government attempted to gazette it a second time and table it, and we felt that it was unnecessary because, since the first was valid, you could not table valid subsidiary legislation a second time.
After all that has been said and done, I do not think, on this particular occasion, there would be any misunderstanding that the regulations made under clause 79 could be anything but subsidiary legislation, and if it is, it is a question of whether it is negative or positive vetting. Either way, this Council would have the opportunity of actually examining it.
And for myself, if there was any doubt, I would, without hesitation, feel that the amendment justifies support. But to my reading and to my understanding, there is no doubt that the regulations made under clause 79, if passed, would in fact be subsidiary legislation, and a special qualification is unnecessary because it could then create confusion in other laws that we have in enabling regulations which do not have a reference to subsidiary legislation.
Thank you.
CHAIRMAN (in Cantonese): Before I put the question to Members, does any Member wish to speak?
MR ANDREW WONG (in Cantonese): I mentioned two points just now. The first point concerns whether or not the regulations concerned are subsidiary legislation. The second point involves the three kinds of issues mentioned by Honourable Members, that is, the issues relating to subclause (1) of clause 79 in the original Bill. Let me just read out the subclause for Honourable Members' easy understanding: "The Chief Executive in Council may make regulations for the better carrying out of the purposes of this Ordinance." This subclause is quite wide in scope. Such a subclause is appropriate in the context of the Electoral Provisions Ordinance, for example, because in that case, all contents will be about elections. But the insertion of such a subclause in the District Councils Bill (maybe it has been copied direct from the Electoral Provisions Ordinance) may not be so appropriate, and its removal may thus make things much clearer, because the intent should be to specify that the regulations made under clause 79 should refer only to those election-related matters listed in the original subclauses (2), (3) and (4). But as proposed by Mr LAU Chin-shek, following the removal of the original subclause (1), a new subclause is to be added after the original subclause (2), (3) and (4), specifying that the regulations made by the Chief Executive in Council under clause 79 are all subsidiary legislation. This leads people to worry that apart from the matters mentioned in the original subclauses (2), (3) and (4)(which resemble electoral provisions), other matters may be subject to the same restriction. This is where the problem lies. If such a problem really occurs in the future, and if it is really impossible but absolutely necessary to make regulations, can we introduce another amendment bill? The proposed amendment really worries many people, because it may well affect all other rules which have to be made for the implementation of this ordinance, including non-election related matters.
CHAIRMAN (in Cantonese): May I remind Members that this Council is now debating the amendment moved by Mr LEE Wing-tat.
MISS MARGARET NG (in Cantonese): Madam Chairman, I think that Members' speeches today have more or less shown that they have indeed tremendous distrust of the official representatives. I feel that there are ample reasons why they feel it this way.
However, what surprises me is that this kind of technical problems should have been solved by the legal adviser in the Bills Committee. I do not understand why they should be left to us to discuss here tonight, excuse me, this morning. I very much agree with Mr Ronald ARCULLI that even from our perspective, there should not be any doubt about the provision itself and it should always be drafted as subsidiary legislation and has to be tabled to the Legislative Council. As stated in clause 79(1), it is to "make regulations for the better carrying out of the purposes of this Ordinance", it must be confined to the scope of this Ordinance. If the Chief Executive makes some other pieces of subsidiary legislation and we carelessly pass them, those pieces will still not be effected as they are beyond the scope of this Ordinance. Therefore, Madam Chairman, in my opinion — of course I cannot pretend to view it from a legal perspective, however, from my experience gained from having read so many pieces of legislation, I think that we need not harbour so much doubt. The provision should be very reliable.
CHAIRMAN (in Cantonese): I now put the question to you and that is: That the amendment moved by Mr LEE Wing-tat be passed.
Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
Mr LEE Wing-tat rose to claim a division.
CHAIRMAN (in Cantonese): Mr LEE Wing-tat has claimed a division. The division bell will ring for one minute.
CHAIRMAN (in Cantonese): Will Members please proceed to vote?
CHAIRMAN (in Cantonese): Before I declare that the voting shall stop, Members may wish to check their votes. If there are no queries, voting shall now stop and the result will be displayed.
Functional Constituencies:
Mr Michael HO, Mr CHEUNG Man-kwong, Mr SIN Chung-kai and Mr LAW Chi-kwong voted for the motion.
Mr Kenneth TING, Mr Edward HO, Dr Raymond HO, Mr Eric LI, Mr LEE Kai-ming, Miss Margaret NG, Mrs Selina CHOW, Mr Ronald ARCULLI, Mr HUI Cheung-ching, Mr CHAN Kwok-keung, Mr Bernard CHAN, Mr CHAN Wing-chan, Dr LEONG Che-hung, Mrs Sophie LEUNG, Dr Philip WONG, Mr WONG Yung-kan, Mr Howard YOUNG, Mr LAU Wong-fat, Mrs Miriam LAU, Mr Timothy FOK, Mr FUNG Chi-kin and Dr TANG Siu-tong voted against the motion.
Geographical Constituencies and Election Committee:
Mr Albert HO, Mr LEE Wing-tat, Mr Martin LEE, Mr Fred LI, Mr James TO, Miss Christine LOH, Mr Andrew WONG, Dr YEUNG Sum, Mr Andrew CHENG and Mr SZETO Wah voted for the motion.
Miss CHAN Yuen-han, Mr Gary CHENG, Mr Jasper TSANG, Mr LAU Kong-wah, Mr TAM Yiu-chung, Mr David CHU, Mr HO Sai-chu, Mr NG Leung-sing, Prof NG Ching-fai, Mr MA Fung-kwok, Mr CHAN Kam-lam, Mr YEUNG Yiu-chung and Mr Ambrose LAU voted against the motion.
THE CHAIRMAN, Mrs Rita FAN, did not cast any vote.
THE CHAIRMAN announced that among the Members returned by functional constituencies, 26 were present, four were in favour of the motion and 22 against it; while among the Members returned by geographical constituencies through direct elections and by the Election Committee, 24 were present, 10 were in favour of the motion and 13 against it. Since the question was not agreed by a majority of each of the two groups of Members present, she therefore declared that the motion was negatived.
CHAIRMAN (in Cantonese): As the amendment moved by Mr LEE Wing-tat has been negatived, I now put the question to you and that is: That clause 79 stand part of the Bill. Will those in favour please raise their hands?
(Members raised their hands)
CHAIRMAN (in Cantonese): Those against please raise their hands.
(Members raised their hands)
CHAIRMAN (in Cantonese): I think the question is agreed by a majority of the Members present. I declare the motion passed.
CLERK (in Cantonese): Clause 83.
MR LEE WING-TAT (in Cantonese): Madam Chairman, I move the deletion of clause 83, as set out in the paper circularized to Members.
Clause 83 is in fact quite simple, the provision as drafted by the Government reads: "The Chief Executive may, after consultation with a District Council, give that council directions of a general character in relation to the performance of its functions." The Bills Committee held discussions on this provision for quite a length of time. We asked many times on what kind of matters would the Chief Executive give directions to the District Councils. No one could give any examples.
In fact, the District Councils are consultative bodies and it is strange for the Chief Executive to give directions to the councils and require them to do something. For these councils are not executive organs at all. They are unlike the Urban Services Department, the Regional Services Department and the Police Force which are required to discharge certain duties. Since these District Councils are consultative in nature, their functions lie mainly in the giving of advice. Should the Chief Executive give directions to the District Councils, then people will suspect whether the Chief Executive is asking the District Councils to present a certain kind of opinion. This is a question raised by an Honourable colleague in the Bills Committee. In brief, is the Chief Executive trying to give orders to the District Councils to make them show their support for certain policies put forward by the Chief Executive himself or the Government? The Government of course denies it, but that is something perfectly within the purview of the Chief Executive.
We spent a lot of time discussing this issue and we asked the Government many times on that as well, but the Government could not give any examples to us, nor could it explain why this provision had to be formulated. We also asked the Government whether the operation of the District Councils would be affected without such a provision. The Government said it would not. Since this provision is so vague, we propose that it should be deleted. Thank you, Madam Chairman.
Proposed amendment
Clause 83 (see Annex IV)
