LC Paper No. CB(2)1463/98-99

Ref : CB2/PS/3/98

Legislative Council
Panel on Constitutional Affairs
Subcommittee on mechanism for amending the Basic Law

Minutes of meeting
held on Thursday, 7 January 1999 at 4:30 pm
in Conference Room B of the Legislative Council Building



Members Present :

Hon Andrew WONG Wang-fat, JP (Chairman)
Hon Martin LEE Chu-ming, SC, JP
Hon CHEUNG Man-kwong
Hon Christine LOH
Hon Jasper TSANG Yok-sing, JP
Hon Howard YOUNG, JP
Dr Hon YEUNG Sum
Hon Emily LAU Wai-hing, JP
Hon Ambrose LAU Hon-chuen, JP

Members Absent :

Hon Ronald ARCULLI, JP
Hon Ambrose CHEUNG Wing-sum, JP

Members Attending :

Hon LEUNG Yiu-chung
Hon David CHU Yu-lin

Clerk in Attendance :

Mrs Percy MA
Chief Assistant Secretary (2)3

Staff in Attendance :

Mr Jimmy MA
Legal Adviser

Ms Mariana LEUNG
Senior Assistant Secretary (2)7


I. Election of Chairman

Mr Andrew WONG Wang-fat was nominated by Dr YEUNG Sum and seconded by Mr Martin LEE. Mr WONG accepted the nomination. There being no other nomination, Mr WONG took over the chair.

II. Way forward
(LC Paper No. CB(2)954/98-99(02))

Meetings of the Subcommittee

2. The Chairman said that an amendment proposal to the Basic Law required the joint consent of the three concerned parties. As LegCo was only one of these parties, he was of the view that, other than discussion on issues such as the modus operandi of the Subcommittee and receiving public views on the matter, closed-door meetings should be held when members discussed detailed proposals on the mechanism for amending the Basic Law.

3. Dr YEUNG Sum said that, in principle, meetings of the Subcommittee should be open to the public. Subject to members' agreement, closed-door meetings could be held if necessary. Ms Emily LAU echoed Dr YEUNG's view and said that she would not agree to holding meetings in camera unless absolutely necessary such as when confidential and sensitive issues were discussed. She added that the Subcommittee was merely a working group, not a decision making body. Mr Martin LEE said that while meetings might be held behind closed door at a later stage subject to the agreement of the Subcommittee, he could not agree to adopting such an arrangement at this stage. Mr Howard YOUNG said that he was not convinced that closed-door meetings were necessary as the matter under discussion was procedural in nature. However, members could consider holding closed-door meetings at the request of a party invited to give views to the Subcommittee. The Chairman supplemented that closed-door meetings could facilitate members to eventually reach consensus. He pointed out that some members might find it difficult to change their stance on a certain issue already made known to the public at open meetings. Ms Emily LAU said that members should be prudent about expressing their views in public. She also pointed out that holding closed-door meetings did not necessarily mean that matters discussed would not be made public, and in some cases it would only result in inaccurate news reporting.

4. After some further discussion, members agreed that the usual practice of holding open meetings should be followed by the Subcommittee as far as practicable. However, meetings to discuss detailed proposals on the mechanism for amending the Basic Law could be held behind closed door, subject to the agreement of the Subcommittee.

Public consultation

Parties to be consulted

5. Dr YEUNG Sum and Mr LEUNG Yiu-chung suggested that the Subcommittee should invite views from the public including academics and the legal profession on the subject, before having further discussions with the Administration and the local deputies to the National People's Congress (NPC). Members agreed.

6. Mr Martin LEE referred members to Article 159 of the Basic Law (BL 159) which stipulated that prior to the submission of any bills for amendment to the Basic Law, consent had to be obtained from two-thirds of the deputies of the Region to the NPC, two-thirds of all the members of the Legislative Council of the Region, and the Chief Executive (CE) of the Region. He doubted if the Administration could represent the CE who was one of the three concerned parties referred to in BL 159. Mr LEE suggested that the CE should be informed of the establishment of the Subcommittee and be invited to give his views on the subject to the Subcommittee at a later stage, if he so wished. It would be up to the CE to decide whether he or a representative appointed by him would attend meetings of the Subcommittee. Members agreed.

Scope of consultation

7. Members noted that the Administration had set out in its paper (LC Paper No. CB(2)954/98-99(02)) the list of issues which required further study and discussed whether the list should form the basis for public consultation.

8. Mr CHEUNG Man-kwong referred members to point (f) of the list, i.e. how to ensure that the amendment proposal did not contravene the established basic policies of the PRC regarding Hong Kong (basic policies). He asked who or which organisation within the HKSAR could decide whether a proposal to amend the Basic Law contravened the basic policies. He said that presumably, the basic policies should have been laid down in Annex I of the Sino-British Joint Declaration (the Joint Declaration) and the Basic Law. He was therefore concerned whether any proposal to amend the Basic Law would be construed as a contravention of the basic policies.

9. Mr Martin LEE said that the original proposal made by him as a member of the Basic Law Drafting Committee was that any amendment to the Basic Law should not contravene the Joint Declaration. The proposal was not accepted as Mainland members disagreed. Although BL 159 made no specific reference to the Joint Declaration, he was of the view that the basic policies should refer to the Joint Declaration, not the Basic Law. The latter was therefore subject to amendment. The Chairman said that the Preamble to the Basic Law clearly indicated that "the basic policies of the PRC regarding Hong Kong have been elaborated by the Chinese Government in the Sino-British Joint Declaration". However, the party that could decide whether an amendment proposal contravened the basic policies remained a question to be answered.

10. In response to the Chairman, Legal Adviser (LA) said that in his view, the provision was meant to govern the NPC in its consideration of any proposed amendments to the Basic Law. He agreed to let members have his considered view on this. LA

11. Mr TSANG Yok-sing opined that the Subcommittee should first focus its study on the mechanism for amending the Basic Law. Without a mechanism in place, it would be impossible for any proposal for amending the Basic Law to be put forward, regardless of whether it contravened the basic policies or not.

12. Mr Martin LEE said that an amendment proposal was subject to the joint consent of the local NPC deputies, the LegCo and the CE; and the scrutiny of the Committee for the Basic Law before it was submitted to the NPC. In short, each of the three concerned parties and the NPC could raise objection to a proposal if it was considered to be in contravention to the basic policies.

13. Mr LEUNG Yiu-chung suggested that LA be invited to make proposals on the list of issues set out in the Administration's paper for members' consideration. LA said that legally speaking, BL 159 was drafted in a way that it could be subject to liberal interpretation. While he agreed that points (a) to (h) as set out in the Administration's paper were relevant issues to be studied, he pointed out that only point (a) was a legal issue. He did not feel that he was in a position to make proposals on the other points which were for members to consider.

Conclusion

14. After some further discussion, members agreed as follows -

  1. the list of issues set out in the Administration's paper should form the basis for public consultation. However, the list was not meant to be exhaustive. Any views from the public on issues relevant to the subject matter could also be considered;

  2. members could propose additional issues for inclusion in the list;

  3. apart from consulting the public by way of placing advertisements in local newspapers, members could propose specific persons/groups to be invited to give views to the Subcommittee;

  4. the Clerk would issue a circular to invite members' proposals on (b) and (c) above which would be considered at the next Panel meeting to be held on 18 January 1999.

    (Post-meeting note: LC Paper No. CB(2)1009/ 98-99 was issued by the Clerk on 8 January 1999.)

Research study

15. Mr LEUNG Yiu-chung proposed that a research be conducted on the procedure for amending constitutions of overseas countries. In view of the uniqueness of BL 159 and the "one country, two systems" model, the Chairman pointed out that to carry out a comparative study as proposed might not be relevant to members' consideration of the subject matter. Dr YEUNG Sum and Miss Christine LOH echoed the view. Mr Howard YOUNG agreed but added that consideration could be given to studying the form of an amendment proposal, e.g whether the amendment was in the form of a bill, a notice or a resolution. Mr Martin LEE said that overseas experience would be useful, especially those countries with a bicameral system of legislature, such as the UK and USA.

16. There being no other business, the meeting ended at 5:50 pm.



Legislative Council Secretariat
11 March 1999