(English translation prepared by the
Legislative Council Secretariat
for Members' reference only)

17 November 1998

Dr LEONG Che-hung,
Chairman, House Committee


Dear Sir,

I have given notice to move a resolution to amend Article 74 and Annex II of the Basic Law at the Legislative Council meeting on 2 December. I wish to include an item into the agenda of the House Committee meeting to be held on 20 November, so as to let Members know the contents of my resolution and discuss the mechanism for amending the Basic Law.

I attach a discussion paper for your reference and I hope that you would permit its inclusion in the agenda for discussion at the House Committee meeting.



Yours faithfully,



(TSOI Yiu-cheong)
For Hon LEUNG Yiu-chung

(English translation prepared by the
Legislative Council Secretariat
for Members' reference only)

Purpose

This paper informs Members of Hon LEUNG Yiu-chung's intention to move a resolution to amend the Basic Law in accordance with Article 159 of the Basic Law at the Legislative Council meeting on 2 December and his hope that the House Committee will discuss the mechanism for amending the Basic Law.

Background and arguments

2. Hon LEUNG Yiu-chung has given notice to move a resolution to amend the Basic Law in accordance with Article 159 of the Basic Law at the Legislative Council meeting on 2 December. The resolution proposes to amend Article 74 and provisions in Annex II of the Basic Law.

3. Article 74 of the Basic Law has laid down many barriers for a Member who wishes to introduce a bill relating to public interests: no bills relating to public expenditure or political structure or the operation of the government are allowed, while bills relating to government policies must have the written consent of the Chief Executive before they can be introduced. Hon LEUNG Yiu-chung considers that it is a constitutional right for Members of Legislative Council to introduce "Members' bills". However, the barriers in the Basic Law are contrary to the efforts of the Legislative Council in achieving its objective of a true law-making body, and also deprived the elected Members of their right. As a matter of fact, the barriers laid down in Article 74 of the Basic Law are even worse than the practice adopted during the period of colonial rule (when Members were just not allowed to introduce a bill relating to government expenditure). This is indeed a retrograde step in the development of democracy. Therefore, Article 74 of the Basic Law must be amended immediately to revert to the practice of the former Legislative Council, i.e. the only restriction on introducing a "Member's bill" is that "the written consent of the Chief Executive shall be required before bills relating to government expenditure are introduced."

4. Regarding the voting procedures of the Legislative Council, Hon LEUNG Yiu-chung is of the view that the current "bicameral voting" system was not only wasteful of resources because of the difficulty in getting bills, motions and amendments to bills passed in the Council, but it was also farcical in that the majority had to submit to the minority. One "classic example" was the "Motion of Thanks" moved by Dr LEONG Che-hung two weeks ago. Although 38 votes were in favour of this motion while 19 opposed it, and those in favour of it outnumbered those who were against in each of the "two groups", it was still voted down under the "split voting" mechanism. The same fate befell the motion which was moved by Hon Gary CHENG Kai-nam last Wednesday (11 November). Hon LEUNG Yiu-chung is of the view that in a legislature whose election methods are already highly "divisive", the continued adoption of the bicameral type of split voting system will only render the Legislative Council even more divisive and ineffective. Therefore, the "bicameral voting" procedure must be amended. The simplest way to do it is to revert to the long-standing "simple majority system" adopted in the past.

5. According to Article 159 of the Basic Law, the Hong Kong Special Administrative Region (HKSAR) is vested with the power to propose bills for amendments to the Basic Law, and amendment bills shall obtain the consent of two-thirds of the deputies of the HKSAR to the National People's Congress (NPC), two-thirds of all the Members of the Legislative Council of the HKSAR, and the Chief Executive of the HKSAR before they are submitted to the NPC by the delegation of the HKSAR to the NPC. By proposing this resolution to the Legislative Council, Members of this council are exercising their right, in order to obtain the consent of two-thirds of all the members of the Legislative Council to introduce a bill for amendment to the Basic Law. The consent of the Chief Executive and the local NPC deputies will subsequently be sought.

The mechanism for proposing amendment bills

6. No existing legislation provides specifically for the mechanism and procedure for proposing bills for amending the Basic Law. There is no provision on such important issues as who has the right to propose bills for amending the Basic Law (Will persons other than the local NPC deputies, Members of the Legislative Council and the Chief Executive, such as members of the public, also have the right to propose amendment bills?), and the mechanism under which amendment bills are to seek the joint consent of the local NPC deputies, the Legislative Council and the Chief Executive. A lack of effective legislation in this respect is undoubtedly very inappropriate. As a result, it may be almost impossible to amend the Basic Law. Hon LEUNG Yiu-chung therefore hopes that the House Committee would follow up these issues with a view to urging the HKSAR Government to enact legislation, hence putting in place a clear mechanism and procedure for dealing with the introduction of bills for amending the Basic Law.

7. Hon LEUNG Yiu-chung has proposed that the House Committee could refer the issues in question to the Committee on Rules of Procedure and the Panel on Constitutional Affairs for follow-up actions, or a subcommittee could be set up to look into the issues. As amendment bills must obtain the consent of the Legislative Council, the Chief Executive and the local NPC deputies, it is necessary to invite representatives from the Government and the local NPC deputies to take part in the discussions on the mechanism for amending the Basic Law.

Recommendation

8. Members are invited to study the attached proposed resolution and consider how the issue of putting in place a Basic Law amendment mechanism should be followed-up.


Office of Hon LEUNG Yiu-chung
17 November 1998