Legislative Council

LC Paper No. CB(2)1326/98-99

Ref : CB2/BC/11/98

Purpose

1. This paper reports on the deliberations of the Bills Committee on the District Councils Bill.

The Bill

2. The Bill seeks to provide for : -

1. the declaration of Districts, the establishment of a body known as a District Council (DC) for each District, the composition of membership in a DC, the qualification for membership and disqualification from being a member; and

2. in the case of elected members, the procedures for electing members to DCs.

Background

3. The District Councils Bill will replace the existing Provisional District Boards Ordinance (Cap. 366) with effect from January 2000. Following the Review of District Organizations in 1998, the Executive Council has given approval in principle for adopting the following changes as the general direction for the future development of District Boards (DBs) :

1. the structure of the 18 DBs should be retained and the 18 Provisional DBs should be renamed as "District Councils" (DC) in English, upon expiry of the term of their members on 31 December 1999;

2. DCs should be given additional resources and responsibility, particularly in the areas of advising on food and environmental hygiene and organizing/subsidizing recreational and cultural activities at the district level; and

3. the first election to DCs should be held in late 1999 with the number of elected seats to be determined as the basis of one elected seat per 17,000 population.

4. According to the Administration, the majority view during the public consultation of the Review of District Organizations favours the retention of the structure of the 18 DBs with enhanced role and additional resources. While there are divergent views on the composition of DB members, some have indicated support of the retention of appointed member in the future DBs (DCs).

The Bills Committee

5. At the House Committee meeting on 18 December 1998, Members agreed to form a Bills Committee to examine the Bill. The Bills Committee comprises 28 members and Hon Ambrose LAU Hon-chuen has been elected Chairman of the Bills Committee. A total of 13 meetings (equivalent to 17 two-hours sessions) have been held to discuss with the Administration the principles, policy aspects and detailed provisions of the Bill. The Bills Committee has also received 139 written submission from the public and met 21 deputations which have given representation at a meeting of the Bills Committee.

6. The membership list of the Bills Committee is in Appendix I.

Deliberations of the Bills Committee

7. Some of the provisions in the Bill are controversial and members have expressed divergent views over these issues. These issues are mainly concerned with the provisions for appointed and ex-officio membership in the DCs, the functions of a DC, the qualifications and disqualification of membership, powers of the Chief Executive (CE) and the Chief Executive in Council and the quorum of DC meetings. The deliberations of the Bills Committee are summarized below.

Appointed and ex-officio membership

8. Members of the Democratic Party and the Frontier are strongly opposed to the retention of appointed and ex-officio membership in DCs. They consider it a retrograde step in democracy as all members of DBs, except the ex-officio members, were already returned by direct election in 1994. They are also concerned that as DC members will be electors for the purpose of electing the CE and returning a member (or members) to the Legislative Council (LegCo), the Administration can, through appointed membership in the DCs, create a pro-government camp to influence the results of the elections of CE and LegCo. Members of the Democratic Party and the Frontier have also queried whether the provision of appointed membership in the DCs is in contravention of Article 39 of the Basic Law and the provisions (in particular Article 25) of the International Covenant on Civil and Political Rights (ICCPR). In this respect, Members of the Democratic Party have proposed to delete all provisions in the Bill relating to the appointed and ex-officio members in DCs. Appointed membership

9. In response to members' concerns, the Administration has explained that the retention of appointed membership is only to reflect the interest of different sectors in the District, because some experienced and capable people who are interested in contributing to district affairs may not wish to join the direct election of DCs. Appointment of these people in DCs can enhance the quality of DCs in deliberating business. The arrangement will also increase public participation in community and district affairs.

10. Members of the Democratic Party have disagreed with the Administration's argument. They are of the view that those capable people who wish to contribute to district affairs should take part in DC elections. These Members have pointed out that the successful candidates in the 1994 DB election comprised people from different fields, and that some 20% - 30% of them were professionals or businessmen. It is therefore not necessary to provide for appointed members in the future DCs to strike a balance in the composition of membership, as claimed by the Administration.

11. Some other members of the Bills Committee do not have a strong view regarding appointed membership. Some members agree with the Administration that appointed members can enhance the representativeness of DCs as advisory bodies since appointed members will be drawn from different sectors of the community.

12. Several members have urged the Administration to consider specifying the criteria for appointed members to the DCs, by way of legislative provisions or publication of guidelines. In this connection, some members are strongly of the view that persons who have failed in an election should not be appointed to DCs during the same term. A member has proposed that certain categories of persons are not suitable for appointment to DCs. These categories include persons who have failed in an election of the DB/DC or municipal councils in the past six years, and persons who are politically active or are members of a political body. The Administration has responded that it will be inappropriate to provide additional criteria in the legislation, other than those general provisions in clause 12 of the Bill. In general, the appointment will have regard to the person's capability, experience and his potential contribution to district affairs. The Administration has taken note of members' concern about the appointment of DC members.

13. In response to members' concern, representatives of the Administration have pointed out that appointed members cannot dominate the decisions of DCs as the proportion of appointed membership is only one-fifth of the total membership in DCs. Moreover, procedures for the election of CE are yet to be formulated and LegCo Members will be consulted in due course.

14. With regard to the concern that appointed membership is in contravention of Article 39 of the Basic Law and the provisions in the ICCPR, the Department of Justice has responded that Article 25 of ICCPR in relation to the right to vote applies to legislative organs which exercise legal and de facto power. As DCs are not organs of this nature, the provision for appointed members as proposed in the Bill is not inconsistent with Article 25 of ICCPR. The Legal Adviser has advised that on a strict application of the ICCPR, the statutory scheme of appointed membership to an advisory body falls outside Article 25 of ICCPR. The Department of Justice has further confirmed that the Bill is in compliance with the Basic Law.

Ex-officio membership

15. With regard to the ex-officio membership of the Chairmen of the 27 Rural Committees (RC) in nine DCs in the New Territories, the Administration has explained that such membership has existed since the establishment of the DBs in the 1980's. Ex-officio membership is considered an effective measure in the New Territories' district administration to ensure that the views and interests of indigenous residents can be fully reflected. Members of the Democratic Party have disagreed with the Administration's argument, since indigenous villagers can, as other residents in the districts, elect their representatives to DCs through the direct election. These Members consider that the ex-officio membership has conferred a double voting right to the indigenous villagers, i.e. one vote for election of the Village Representative who can then stand for election as the RC Chairman, and another vote for returning a member to the DC through direct election. The Administration has pointed out, however, that some indigenous villagers may have moved to live in another District, and this should not have deprived them of the right to vote for their Village Representatives. Some other Bills Committee members have indicated support of the retention of ex-officio membership which has been a long-standing practice in DBs in the New Territories.

16. Concerning ex-officio seats which are outside the boundary of a DC, the Administration has clarified that there is only one RC in Tsuen Wan with three villages located in the neighbouring Kwai Tsing District. The villagers concerned however wish to maintain status quo. To address members' concern about the legal position of a RC straddling two Districts, the Administration has agreed to propose a Committee Stage Amendment (CSA) to amend clause 9 and Schedule 3 of the Bill to set out clearly the number of Rural Committees, their names and the District Councils to which these RCs belong. Clause 17 of the Bill will also be amended to make it clear that the Chairman of a RC cannot accept office as an ex-officio member in more than one DC concurrently.

17. Members of the Democratic Party have proposed during discussion that the Village Representative election should form part of the Bill and brought under the regulation of the Corrupt and Illegal Practices Ordinance. The Administration is of the view that the issue falls outside the scope of the Bill.

Proportion of elected seats to appointed and ex-officio seats

18. Some Members of the Democratic Party have queried that the proportion of elected seats to the total number of appointed and ex-officio seats in a DC will be less than four-fifths as claimed by the Administration. They are concerned that appointed and ex-officio members together can easily dominate the decisions of DCs, as they represent about 30% of the total membership in some DCs. These Members consider that the Administration may wish to create a pro-government camp with appointed and ex-officio membership in DCs. The Administration has responded that members should not assume that all appointed and ex-officio members will hold different views from the elected members. Moreover, elected members will still be the majority in DCs. In this connection, the Administration has also informed members that the number of elected seats for DCs has been increased from 346 to 390 as compared with 1994.

Eligibility for candidature

19. Members of the Democratic Party have also questioned the rationale for requiring a candidate to have ordinarily resided in Hong Kong for the three years immediately proceding the nomination under clause 20(1)(e), and to make a declaration in the nomination form that he/she will uphold the Basic Law. These Members consider it difficult to formulate objective criteria to determine how long a person should have ordinarily resided in Hong Kong before he/she is qualified for candidature in a DC election. As there is no similar requirement for appointed or ex-officio members, this should not apply to elected members for equity reasons. Members have also pointed out that the declaration for upholding the Basic Law is not required for members of other consultative bodies. As the Basic Law has stipulated that DCs are not organs of political powers and have no legislative powers, DC members should not be required to make a declaration on upholding the Basic Law.

20. Some members of the Bills Committee have no strong views on the Democratic Party's suggestion which will enable more people to stand for DC elections. Some other members consider that all members of the DC, elected or appointed, should be subject to the same declaration requirements in accepting office, including the declaration to uphold the Basic Law.

Disqualification of District Council members

21. Several members of the Bills Committee have expressed concern about the calculation of the period of absence from DC meetings as provided in clauses 14, 19 and 24 in the Bill. Members of the Frontier consider that as DC meetings are normally held bi-monthly, DC members should be subject to a higher attendance requirement and that those members who are absent for more than four, rather than six, consecutive months from DC meetings without prior consent of the DC should be disqualified. Some other members of the Bills Committee have also pointed out that the drafting of the clauses can lead to ambiguity in application, because some DCs may vary the frequency of their meetings resulting in uncertainty or unfairness to the absentees. To address members' concerns, the Administration has agreed to move CSAs to clearly spell out the calculation of the absence period and to cater for the situation if no meeting or only one meeting is held during the period.

22. Some members of the Bills Committee have questioned the rationale of the disqualification conditions in clauses 14(1), 19(1) and 24(1), particularly those relating to the offence of treason, offences not committed in Hong Kong and undischarged bankrupts. These members consider that there should be greater flexibility in these provisions to enable more people to participate in public affairs. Those spent convictions and offences which are out-dated or irrelevant to the situation of Hong Kong should therefore be deleted.

23. The Administration has explained that the provisions on the offence of treason are based on similar provisions in the former Electoral Provisions Ordinance and the existing Legislative Council Ordinance. Although some of the offences listed as treason are no longer applicable because of the reunification, other listed offences interpreted in the light of the Reunification Ordinance are still applicable. Moreover, the offence of treason still remains in the Crimes Ordinance. As regards the disqualification provision regarding imprisonment for a term exceeding three months in the past five years, the purpose is to prevent people who have committed serious offences, whether in Hong Kong or elsewhere, from becoming DC members. This is to uphold the image and credibility of District Councils before the public. The disqualification period for certain offences listed in these clauses has been reduced from 10 years to five years in order to enable more people to participate in district affairs.

24. The Administration has further advised that to exclude certain categories of offences committed overseas will create legal uncertainties and practical difficulties to the Returning Officer who has limited time to ascertain the eligibility of a candidate, if the latter declares himself or herself to have been convicted and sentenced to imprisonment outside Hong Kong but the offences should be exempted. The Administration has noted members' concern and accepts that candidates should be required to make a declaration on any criminal conviction in any other place. This requirement will be incorporated in the electoral regulations of the Electoral Affairs Commission.

25. The Administration has also explained that the prohibition against an undischarged bankrupt becoming a DC member is to screen out persons who have a recent public record of poor judgement in relation to their own affairs, as they are not considered suitable to advise on community matters in particular spending public money.

Suspension of operation of DCs before the ordinary election

26. Several members of the Bills Committee, in particular Members of the Democratic Party and the Frontier, have expressed grave concern that incumbent members of the PDBs/DCs may have advantage over other candidates in DC elections. They consider that incumbent members may make use of government-funded activities to publicize themselves and canvass for their own election. Some members have suggested applying the prorogation arrangement of LegCo to PDBs/DCs so that PDBs/DCs can cease operation (i.e. not hold meetings or transact formal business) after nominations for the ordinary election are called, while members can still draw remuneration until the end of their terms of office. One member of the Bills Committee does not support the prorogation arrangement and has suggested terminating the term of PDB members before holding the ordinary election.

27. The Administration has considered members' views and has proposed to apply the prorogation arrangement to DCs which will be required to cease operation before the end of its term to enable an ordinary election to be held. A CSA will be moved to this effect. The arrangement will reduce the possibility of incumbent members making use of the official or government-funded activities to canvass for their election. The Administration has clarified that the existing PDB Ordinance does not provide for early termination of DBs or the office of members prior to the next ordinary election. Moreover, early termination of members' office will pose practical difficulties as members will no longer be entitled to their remuneration on termination of office.

28. On preventing incumbent members from making use of their status to gain election advantage, the Administration has agreed to consider issuing guidelines to government departments advising against inviting incumbent PDB members to officiate at government activities. The Electoral Affairs Commission will also consider issuing guidelines to incumbent members in this respect.

Term of office of District Councils

29. A member has suggested adjusting the term of office of DCs to coincide with the beginning and ending of a financial year. He has pointed out that DCs/PDBs are usually at the peak of their activities towards the end of a calendar year, while less activities are held in March (end of a financial year). To hold an ordinary election at the end of a calendar year will therefore add burden to DC members and DC secretariats. Moreover, a DC term commencing in the beginning of a financial year will ensure adequate funds for the new DC to plan and organise its activities.

30. The Administration does not agree to the proposal which will give rise to practical difficulties in the organization of election activities as both elections for DCs and LegCo will then be held at about the same time. The Administration has advised that adjustments to the annual financial allocation can be arranged and is unlikely to cause any operational difficulties even if the term is set on a date other than 31 March.

Quorum of District Council meetings

31. Some members of the Bills Committee have reservations about the proposed increase of the quorum for DCs from "one-third" to "not less than half" of its membership as provided in clause 68 in the Bill. Despite the Administration's explanation that the average attendance rate of DB meetings was over 80%, some members are of the opinion that such high attendance can seldom sustain throughout DB/DC meetings. A member has pointed out that a higher quorum requirement is sometimes counter-productive as DC meetings cannot be held without a quorum. With regard to the past attendance records of DBs and PDBs, and the fact that the same quorum requirement is adopted by LegCo and most of the statutory boards and committees, the Administration has maintained the view that the quorum requirement for DC meetings is reasonable.

Functions of a District Council

32. Several members of the Bills Committee have queried the addition of "matters relating to food and environmental hygiene services" in clause 59(a). Some members consider that it will give the impression that the Administration has assumed LegCo's agreement to the proposed abolition of the two municipal councils which are currently dealing with matters on food and environmental hygiene. Pending a decision on the future of the Provisional Municipal Councils, some members have questioned the necessity of highlighting "food and environmental hygiene services" under the functions of a DC. Some members have also asked why recreation and cultural services, and other services "affecting the well-being of the people in the District" such as housing and education are not included in clause 59(a). In line with the enhanced role of the future DCs, a member has suggested inclusion of organization of community services under clause 59(b).

33. In the course of discussion, the Administration has explained that the addition of "matters relating to food and environmental hygiene services" is only to reflect the significant public concern raised during the public consultation exercise in 1998. There is, however, no significant change to the role of DCs which remain to be advisory bodies on district matters. The Administration has stressed that it has not assumed LegCo's consent to the proposal to abolish the two municipal councils, and a separate Bill will shortly be submitted to LegCo to transfer the existing powers and functions of the municipal councils to the relevant government departments or agencies. The Administration has, however, taken account of the strong views expressed by members in this regard, and decided to delete reference to "food and environmental hygiene services" in clause 59(a). A CSA will be moved by the Administration to this effect.

34. With regard to members' suggestions of including other services affecting the well-being of people in the District, the Administration is of the view that the drafting of clause 59(a) and (b) is sufficiently wide to cover the organization of recreation and cultural activities in the District. However, to remove any ambiguity that a DC may not undertake community activities such as "Fight Crime Campaign" in the District, the Administration has agreed to include this in clause 59(b) and move a CSA to the effect.

35. Members of the Democratic Party have proposed empowering DCs to decide the priorities of Government Category D public works programmes for the District. The Administration does not agree to the proposed addition because the current arrangement is for the relevant works departments to consult DBs concerned and make decision on a territory wide basis taking into consideration the views of DBs, the urgency and readiness of the projects, and availability of funds. With regard to the provision in Article 97 of the Basic Law that district organizations may be established to be consulted on district administration and other affairs or to be responsible for providing services, the Administration considers it inappropriate to give the future DCs the power to decide on the priorities of Category D public works programmes for the Districts.

36. A member has also proposed amendments to clause 59 to expand the scope of DC functions and powers in relation to local public works and promotion of recreation, sports and cultural activities. The Administration has responded that clause 59(b)(i) of the Bill already covers minor works projects within the District and the proposed addition is unnecessary. As regards the proposal for DCs to take over the planning, construction, maintenance and day to day management of existing recreation and cultural facilities, the Administration is of the view that it will drastically change the existing functions of DBs and does not support the amendment.

37. Members of the Frontier are of the view that the functions of DCs should include receiving and handling of complaints from Hong Kong residents in the districts. They consider that DC members should have the responsibility of dealing with complaints from the people in the districts, as DC members are expected to deal with matters affecting the well-being of the people in the districts. Moreover, since DC members are remunerated, the people of Hong Kong should have higher expectations of them other than attending the bi-monthly meetings of DCs. They have pointed out that former DB members have also taken on this function. That being the case it should be specified in the legislation. The Administration has responded that there are already ample channels for the public to lodge complaints, including the "meet-the-public" scheme operated by PDBs. It is therefore not necessary to specify such a function for DCs.

Powers of the Chief Executive and Chief Executive in Council

38. Several members have expressed serious concern about the range of powers conferred by the Bill upon the CE or CE in Council, in particular the power of CE to give general direction to a DC in the performance of its functions under clause 83(1), to specify a shorter period as the term of office of an appointed member under clause 11(3), and the powers of CE in Council to amend Schedules 1, 2 and 3 in the Bill under clause 8 and make regulations for the better carrying out of the purposes of the Ordinance under clause 79(1). They consider that the circumstances for the exercise of such powers by CE or CE in Council should be clearly defined in legislation, and be subject to limitations to be specified in the law.

39. The Administration has assured members that the powers conferred on CE are not new and similar provisions are found in the former District Board Ordinance, Provisional District Board Ordinance, former Electoral Provisions Ordinance and LegCo Ordinance. The Administration has also confirmed that the powers of CE are confined to administrative acts, while those of the CE in Council are subsidiary legislation subject to the negative vetting procedures of the LegCo. Furthermore, CE must act reasonably and within the constraints of the relevant provisions in the Ordinance.

40. Notwithstanding the Administration's explanation, some members are still concerned that under the negative vetting procedures, the orders made by CE in Council will take effect on the date of Gazette, and any amendment by LegCo can only take effect afterwards. They have insisted that changes to Schedules 1, 2 and 3, i.e. the District boundaries and number of elected and appointed seats in each DC, are sensitive issues requiring prior consultation with and scrutiny by the LegCo. The Administration has accepted members' views and agreed to move a CSA to clause 8 requiring future amendments to Schedules 1, 2 and 3 to be subject to "positive" rather than "negative" vetting of LegCo.

41. The Administration has accepted members' views that clause 11(3) providing CE with the power to offer a shorter term of office to appointed member is unnecessary. Members are of the view that all appointed members should have their term of office expired at the end of the term of the DC, and that the discretion for a shorter term of office originally proposed in clause 11(3) is unwarranted. The Administration has agreed to move a CSA to delete subclause 11(3).

42. In response to a member's observation that "in the public interest" has been omitted in clause 83(1) in relation to directions made by CE to a DC, the Administration has clarified that the omission is inadvertent and a CSA will be moved to reinstate the phrase in clause 83(1).

43. A member is of the view that the criteria based on which CE may give directions "in the public interest" should be specified as the expression "in the public interest" is open to interpretation. A representative of the Department of Justice has responded that acts of CE performed under the Bill are subject to judicial review.

Independent secretariats for DCs

44. Members of the Democratic Party have urged that DCs should be empowered to appoint their own Secretaries and their own staff to enhance accountability of the DC secretariats and District Officers to the DCs. The Administration does not agree to the proposal, on the grounds that the existing system has operated well and enhanced accountability can be achieved by increased communication between DCs and the relevant bureaux/departments.

Election of Chairman of a District Council

45. Two members have proposed that the Chairman of a District Council should be directly elected by all electors in the District concerned. The purpose is to have a much stronger Chairman of the District Council to deal with government officials in servicing the District. While the proposal is agreed to in principle by some Members of the Democratic Party and the Frontier, some other members of the Bills Committee have reservations on the feasibility and effectiveness of the proposal. The Administration has also indicated disagreement to the suggestion.

Auditing of the accounts of District Councils

46. A Member of the Frontier is of the view that the annual accounts of DCs should be forwarded to the Director of Audit for examination to ensure proper spending of public monies. She has pointed out that the total provisions for PDBs in the current year have amounted to some $123 million, and there have been allegations of misuse of funds in the past. She considers, therefore, a separate statement of accounts for DCs should be prepared for examination by the Director of Audit to enhance accountability in the use of public funds.

47. The Administration has responded that the allocation of funds to PDBs or the future DCs is made by the Director of Home Affairs, and the departmental accounts are already subject to the scrutiny of the Director of Audit.

Other issues discussed

48. Members of the Bills Committee have also discussed the definition of certain terms in the Bill such as the "ordinary election" and the considerations for disqualifying "prescribed public officers" from standing as candidates for DC elections and becoming appointed or ex-officio members in DCs. In response to members' concern, the Administration has revised the definition of "ordinary election" in consultation with the Legal Adviser and provided written responses on the criteria for inclusion as "prescribed public officer" under clause 2. The Administration will move a CSA to clause 2.

49. The Bills Committee has also sought clarification from the Administration with regard to the procedures for determining the constituencies under clause 6, acceptance of office by the ex-officio members under clause 17, appointment of members to the committee of DCs under clause 69, conditions for termination of election proceedings under clause 37, who may lodge election petitions under clause 48, and the procedures to be included in the Standing Orders of DCs.

Consequential amendments

50. At the request of members, the Administration will delete an amendment to the Electoral Affairs Commission Ordinance in section 24(b) which is not related to the subject of District Councils Bill. A CSA will be moved by the Administration.

Legislative timetable

51. Most members of the Bills Committee have expressed dissatisfaction that the Administration has set a tight timetable for LegCo to scrutinize the voluminous District Councils Bill which contains a number of controversial provisions. They have pointed out that Members will need time to thoroughly examine the detailed provisions in the Bill and to consider moving CSAs. The Administration has subsequently withdrawn its notice for resuming the Second reading debate of the Bill on 10 February 1999 and deferred it to 10 March 1999. A verbal report on the developments was made to the House Committee meeting on 29 January 1999 by the Chairman of the Bills Committee.

Committee stage amendments

52. The Bills Committee discussed the CSAs to be moved by the Administration. A complete set of the Administration's CSAs and its explanatory note are given in Appendix II.

53. Members of the Democratic Party and the Frontier and some other individual Members have indicated their intention to move CSAs to the Bill. The Bills Committee has passed a motion that while these Members' proposed CSAs can be discussed by the Bills Committee, the Bills Committee will not take a position on these CSAs. The Bills Committee has therefore discussed these CSAs and exchanged views on the principles and practicability of these CSAs.

Recommendations

54. The Bills Committee recommends the resumption of the Second Reading debate on the Bill on 10 March 1999.

Advice sought

55. Members are requested to support the resumption of the Second Reading debate on the Bill.

Legislative Council Secretariat
23 February 1999

Appendix I

Total : 28 members

Date : 26 January 1999