LC Paper No. CB(2)1522/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/PL/CA

Legislative Council
Panel on Constitutional Affairs

Members Present :

Hon Andrew WONG Wang-fat, JP (Chairman)
Hon Emily LAU Wai-hing, JP (Deputy Chairman)
Hon Martin LEE Chu-ming, SC, JP
Hon Margaret NG
Hon Ronald ARCULLI, JP
Hon CHEUNG Man-kwong
Hon Ambrose CHEUNG Wing-sum, JP
Hon LEE Wing-tat
Hon Christine LOH
Hon Gary CHENG Kai-nam
Hon Jasper TSANG Yok-sing, JP
Hon Howard YOUNG, JP

Members Absent :

Dr Hon YEUNG Sum
Hon Ambrose LAU Hon-chuen, JP
Hon SZETO Wah

Public Officers Attending :

Item III

Mr Michael SUEN, JP

Secretary for Constitutional Affairs

Mr Robin IP

Deputy Secretary for Constitutional Affairs (2)

Miss Shirley YUNG

Principal Assistant Secretary for Constitutional Affairs (4)

Item IV

Mrs Carrie YAU

Director of Administration

Mrs Apollonia LIU

Assistant Director of Administration

Mr M J BISHOP

Assistant Director (Investigation Branch/4)
Operation Department, ICAC

Mr I C MCWALTERS

Senior Assistant Director of Public Prosecutions
Department of Justice

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

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I. Confirmation of minutes of meeting on 21 December 1998
(LC Paper No. CB(2)1197/98-99)

The minutes of the meeting held on 21 December 1998 was confirmed.

II. Items for discussion at the next meeting
(LC Paper No.CB(2)1249/98-99(01))

2. The Chairman reminded members that the Administration had advised that it was not in a position to provide any discussion paper for either of the items of "Ministerial system of government" and "Direct elections" on the outstanding list before completion of the 2000 LegCo election to be held in September 2000. He said that as agreed at the last meeting, he would provide a paper on "Ministerial system of government" for members' discussion in due course.

III. Relationship between the executive and the legislature
(LC Paper No.CB(2)1056/98-99(02))

3. Referring to the Administration's paper, Secretary for Constitutional Affairs (SCA) said that the powers and functions of the executive and the legislature had been clearly spelt out in the Basic Law. Some people considered the relationship between the two was under strain because of their different views on various matters. It was the Administration's view that the debates and discussions between the two branches of government would only facilitate the public to understand better the process of making policy decisions. SCA admitted that there were a couple of matters of principle on which the Administration and Members had yet to come to a consensus or reach a compromise. However, this had no bearing on the working relationship between the executive and the legislature in various other matters such as passage of legislation. In sum, the operation of the Government and the effective running of Hong Kong had not been adversely affected.

Motion debates passed by LegCo

4. Pointing out that the motion debates that were passed by the LegCo were often not implemented by the Administration, Mr CHEUNG Man-kwong opined that the executive did not show genuine respect to the views expressed by Members. He said that Members' views, representing public opinion, should be respected. As the current voting procedures had made it very difficult for motions to be passed by the LegCo, the Administration should implement at least those motions that were passed. He remarked that the situation was the result of an "executive-led" government.

5. SCA pointed out that motion debates held by LegCo as a means for Members to give their views on certain issues did not have legislative effect. This was different from motions with legislative effect e.g. enactment of bills which required the approval of the LegCo. In the latter case, the Administration had always taken into account views expressed by Members in considering amendments to bills. SCA supplemented that the number of motions passed was small and that there was already a mechanism for the Administration to report to Panels on the progress of necessary follow-up actions in the circumstance where motions were passed. For cases where no follow-up action was considered necessary, explanation would always be given. SCA stressed that the Administration had not departed from established practices in dealing with motion debates.

Accountability of the executive to the legislature

6. Mr Martin LEE said that under the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong (Joint Declaration), the executive should be accountable to the legislature. He stressed that the "relationship" under discussion should, in reality, refer to "accountability" and not social relations. It was understandable that there were differences in opinion between the executive and the legislature because, in fulfilling their respective constitutional responsibilities, LegCo Members would only support good government policies and be critical about the bad ones. However, he opined that the provisions under the Joint Declaration about the accountability of the executive to the legislature could only make sense when the Chief Executive (CE) and the legislature were all directly elected. In his opinion, the provisions on introduction of Member's bills and the voting procedures of the LegCo under Article 74 and Annex II of the Basic Law respectively, as well as amendments relating to the election of the District Councils, allowed the CE to exercise control over the LegCo which resulted in an "executive-led" government. This was only possible because elections in Hong Kong were not democratic. Mr LEE stressed that he could not accept that elections in Hong Kong were fair unless all the 60 seats in the LegCo were directly elected.

7. In response, SCA said that a good relationship between the executive and the legislature would not affect the accountability of the former to the latter. He pointed out that the term "executive-led government" did not imply that the executive could do whatever it wanted. While the executive was primarily responsible for proposing new policy initiatives, the legislature was involved in the process of policy formulation. Moreover, implementation of policies by way of legislation required the approval of the legislature. As regards the dispute about the rules of procedure applicable to the current LegCo, this was because the executive and the legislature had different views on the matter based on different principles. SCA stressed that elections in Hong Kong had been open and clean, and all the seats in the LegCo were returned through direct and indirect elections. As specified in Annex II of the Basic Law, the number of directly elected seats would be increased in the second and third terms of LegCo, and after 2007, Hong Kong could decide on the pace of democratisation in the region.

Meetings with the CE and the ExCo

8. Mr Howard YOUNG said that while he agreed that the relationship between the executive and the legislature was not on the verge of breakdown, there would definitely be room for improvement. He said that at present, items for discussion at meetings with the CE were usually raised by LegCo Members. He proposed that discussions could be arranged on a thematic basis so that each meeting could focus on specific topics, as well as on the issues of concern to the ExCo.

9. In response, SCA said that other than presentation of the Policy Address and the Budget to the LegCo by the CE and the Financial Secretary respectively on an annual basis, individual policy bureaux had also set out their respective key policy initiatives as part of the Policy Address. It had been a generally accepted practice that the Administration would consult and brief LegCo Panels on preliminary proposals at an early stage so that views expressed by Members could be reflected to the ExCo for consideration. This represented a great improvement as compared to the past where a bill was discussed only when it was introduced into the LegCo. He said that the Administration had always appreciated the invaluable views of Members who had contributed greatly to the process of policy formulation.

10. On issues discussed by the ExCo, SCA said that the agenda for ExCo meetings had to be kept confidential because it would not be appropriate to make public certain sensitive or commercial related information prematurely. In any case, decisions of the ExCo would generally be made public soonest. As regards legislative proposals approved by the ExCo for introduction into the LegCo, the relevant bills would usually be gazetted within a short time. On this point, Mr Howard YOUNG pointed out that he was aware of the confidential nature of the agenda for ExCo meetings. Nevertheless, he was of the view that a more open approach could be adopted in that issues of concern to the ExCo could also be discussed at meetings between LegCo Members and the CE. He pointed out that regular meetings were held between the then ExCo and the LegCo before 1992 on issues discussed by the former. These meetings had served as an effective channel for the then ExCo Members to convince LegCo Members to support implementation of any policy decisions made. Such practice had however discontinued for various reasons.

11. Mr Gary CHENG Kai-nam and Mr Ambrose CHEUNG Wing-sum opined that the Administration's paper had failed to propose any mechanism to improve the relationship between the two branches of government, and the figures in paragraph 2 of the paper only showed the volume of work accomplished by the LegCo without reflecting whether the relationship was good or otherwise. In their views, formal channels should be established for communication between the executive and the legislature. Mr CHENG said that there should be some objective criteria to assess the relationship and a mechanism to ensure the smooth operation of the two branches. Mr CHEUNG suggested that meetings between the ExCo and the LegCo could be held on a regular basis to discuss important issues such as the rules of procedure of the LegCo and interpretation of the provisions of the Basic Law relating to public expenditure or the operation of the Government, etc. Better communication could also be achieved with the CE attending LegCo meetings more often. Apart from improvement of relationship, there was also a constitutional requirement for the CE to do so.

12. SCA responded that difference in views between the Administration and the LegCo was considered normal because they had different roles and accorded different values and principles. On controversial issues, the Administration had tried its best to narrow differences in opinion in order to arrive at a mutually acceptable solution. He opined that there was no absolute criteria or standard to assess the relationship between the executive and the legislature. The examples provided in paragraph 2 of the paper sought to send a clear message to the public that a lot of work had been done by the LegCo and the Administration during the period and communication between them was frequent, despite criticisms that the relationship was still under strain. As far as the Administration was concerned, legislative proposals passed with timely support of Members would reflect a good working relationship between the executive and the legislature.

13. The Chairman said that the focus of discussion should be on SCA's view on a mechanism to improve the working relationship between the executive and the legislature, and not on whether the current relationship was good or otherwise. He said that Members' views expressed at meetings of various Panels and bills committees were always rejected by the Administration. Citing the District Councils Bill as an example, he said that it was the view of many Members that there was hardly any genuine exchange of views at the meetings because of the time constraint in scrutiny of the Bill and the Administration's stance on certain issues.

14. SCA replied that improvements could be considered for the short, medium and long terms. In the short term, i.e. in the coming few years, there would not be any substantial change to the mode of operation between the executive and the legislature as the powers and functions of the two had been stipulated in the Basic Law, although improvements could be made where practicable and necessary. In the longer term, any changes to the existing mode of operation would have to take into account the actual situation that prevailed.

15. Miss Christine LOH said that the CE should spend more time on genuine communication and exchange of views with Members. She referred to a recent meeting between the CE and various political parties during which only two minutes were left for her to put forward her views. She questioned the usefulness of such meetings. Miss LOH added that she was invited to attend small group meetings of the ExCo, conducted both before and after the reunification, for discussion of items relating to the Protection of the Harbour Bill and the Central reclamation respectively. She said that such kind of meetings between the ExCo and the LegCo to discuss specific topics were useful and should continue.

Consultation with the LegCo

16. Miss Margaret NG remarked that while improvements had been made by the Administration in consulting relevant Panels on legislative proposals prior to their introduction into the LegCo, she considered that the consultation process was merely a formality. She said that on a number of occasions, the Administration proposed to brief Panels on draft bills at a very short notice because the bills had been scheduled for introduction into the LegCo shortly. As a result, adequate time could not be provided for thorough discussion. In many cases, the draft bills had already been approved by the ExCo for introduction into the LegCo, and any concerns of Members could only be addressed in the bills committees to be formed. She concluded that the arrangement failed to achieve the objective of incorporating Members' views in the process of drafting legislation, and suggested that the Administration should review its working procedures.

17. Miss NG also commented that although the Administration was willing to accept some of Members' views on general issues, it had always been very firm on major policy issues, e.g proposed abolition of the two Municpal Councils and certain provisions of the District Councils Bill. This was particularly so when a decision had been made by the CE or the ExCo. She hoped that the executive could review the situation as the role and the views of the legislature, people's representatives, should be recognised and respected. SCA explained that policy decisions could not be changed easily. Quoting the review of district organisations as an example, he said that the Administration had conducted extensive consultation with the public and the relevant Panels throughout the process before arriving at its decision.

18. Referring to SCA's earlier comment that the Administration had no vote in the LegCo and Miss Margarat NG's comment that the Administration was adamant on major policy decisions, the Chairman asked the Administration to consider a suggestion. He said that as first ideas might not be infallible, the Administration should listen to Members' views. The problem of the current situation was that as long as the Administraion had managed to secure the support of a majority of Members on a particular proposal, debates and discussions on the proposal within the LegCo became meaningless as the Administration tended to turn a deaf ear to Members' suggestions. In the circumstance, LegCo could not exercise its powers and functions properly. He opined that the Administration could consider sharing its power with certain political parties which could in turn influence the CE in policy making. Such a system could be workable in Hong Kong as Members of the political parties were expected to serve the interests of the community and if their performance was not good, they would not be re-elected for the next term.

19. SCA said that it was a matter for Members to decide whether they should support a particular policy decision. There was no political party which would support the Administration on each and every proposal. With regard to how much support a government could rally from the legislature, he opined that it would depend on the system of government. Under the British parliamentary system, the government formed by the majority party could almost secure the passage of virtually all policies proposed.

20. In conclusion, SCA agreed to relate members' views and various suggestions to enhance communication and cooperation between the executive and the legislature to the CE, for consideration.

Adm

Request for urgent meeting with the CE

21. Ms Emily LAU said that the attitude of the CE and the Administration towards Members was reflected in their actions. She said that she had requested to see the CE the day before on a very urgent matter. The CE referred her to see the SCA instead. However, SCA's office replied that it would not be possible for a meeting to be arranged within the week.

22. SCA advised that the urgent issue raised by Ms LAU concerned comments made on the judgment of the Court of Final Appeal on cases relating to the right of abode of persons born in the Mainland to Hong Kong permanent residents. He explained that the misunderstanding arose because he had not briefed his secretary about the request beforehand. As a result, his secretary had advised Ms LAU that a meeting would not be possible within the week given that he was already fully occupied with appointments. He said that he was willing to make time available to meet with Ms LAU on Friday. Ms LAU said that the CE should explain to the LegCo and the public the stance of the Administration on the issue.

Others

23. Miss Margaret NG and Miss Christine LOH asked SCA to clarify the CE's comment that he himself was also elected. Miss NG pointed out that the implications of his words could be that he would therefore respect more those who were also elected, or that his representativeness was adequate such that any other elected members within the current system of government was redundant. She asked SCA to relate her question to the CE and to provide information to Members. Miss LOH further asked whether the CE was responsible only to his 400 electors. She requested SCA to gather information regarding the amount of time the CE had spent in meeting his electors, in comparison with the time spent in meeting LegCo Members. The information could reflect relatively the extent to which the CE cherished the views of his electors and those of Members.

Adm

24. SCA responded that he trusted that the CE did not mean to undermine the representativeness of LegCo Members. He would interpret CE's words in the context of the constitutional position of the Governor and that of the CE. The Governor was appointed by the British Government and not answerable to any elector, while the CE was elected by the 400 Selection Committee members who had broad representation.

25. On the CE's attitude towards views expressed by LegCo Members, Ms Margaret NG cited an occasion where the CE asked a Member who intended to give his views on an urgent issue to write to him instead. She was of the view that LegCo Members carried with them the constitutional status as well as the responsibility to voice their opinions on issues of concern to the communitiy, and their views should therefore be accorded due weight. Miss Christine LOH echoed the view and related her experience in sending letters to the CE on a number of issues. She said that many of these letters were not given a substantive response, but only an acknowledgement of receipt. SCA undertook to reflect members' views to the CE.

Adm

IV. Application of the Prevention of Bribery Ordinance (Cap. 201) to the Chief Executive
(LC Paper No. CB(2)1249/98-99(02))

26. At the invitation of the Chairman, the Director of Administration (D of A) briefed members on the major points contained in the Administration's paper. She advised that the Administration would conduct a review of the Prevention of Bribery Ordinance (PBO) to see whether certain provisions of the Ordinance should be applicable to the Chief Executive (CE). The CE had also agreed that such a review should be conducted.

The CE's status

27. Ms Emily LAU said that she was pleased to note the Administration's plan to review the PBO. Noting paragraph 4 of the paper which stated that the CE was neither a "government officer" nor a "public servant" under the PBO and referring to Article 43 of the Basic Law (BL) which specified that the CE was the head of the Hong Kong Special Administrative Region (HKSAR), she sought clarifications about the legal status of the CE. She also pointed out that BL 42 stated that all Hong Kong residents would have to abide by the laws in force in the HKSAR.

28. D of A said that as the CE did not fall within the definition of "government officers" or "public servants" of the existing PBO, a review was therefore proposed to be conducted on the possible application of those sections of the PBO that only applied to "government officers" or "public servants" to the CE. Paragraph 5 of the Administration's paper stated that with respect to other provisions of the PBO relating to criminal offences, the CE was subject in common with all other residents of Hong Kong. D of A supplemented that unless expressly provided for in a particular Ordinance, the CE like other residents in Hong Kong was bound by all relevant laws of Hong Kong.

29. The Chairman said that the original position was that the Governor was not subject to certain sections of the PBO that only applied to "government officers' or "public servants". With the adaptation of the term"Governor" to "Chief Executive", the CE was also excluded from the purview of these sections. Under the heading of "Public Servants" of Chapter IV Section 6 of the BL, it was stipulated in Article 104 that the CE was required together with others to swear to uphold the BL and swear allegiance to the HKSAR when assuming office. He asked whether the CE could therefore be categorised as a public servant on this basis. He suggested that the proposed review could be conducted along this direction. Mr Howard YOUNG echoed this point.

30. In response to the Chairman, Senior Assistant Director of Public Prosecutions (SAD/PP) explained that whether certain provisions of a law were applicable to a particular person or office depended upon how the law was drafted, in particular in relation to the definition section of that Ordinance. In relation to the PBO, one had to refer to the definition on "government officers" (previously known as "Crown servants"). It was the Administration's legal opinion that the CE was not a "government officer" or a "public servant" as defined in the PBO. In further response to the Chairman's question on whether the CE could therefore accept bribes, SAD/PP said that the PBO focused upon persons of a particular status or persons in particualr relationships. The offence provisions of the PBO focused upon persons who were government officers, public servants or who were in a relationship of principal and agent. In relation to the CE, the question would be a constitutional law issue in terms of his relationship with the appointing body or the Hong Kong Government. The Chairman asked if the CE could accept bribes if he was authorised by the Central People's Government to do so. SAD/PP said that he could not provide an answer at this stage.

31. Referring to section 3 of the PBO, Mr Martin LEE opined that with adaptation of the references of "Crown servants" and "Governor" to "government officers" and "Chief Executive" respectively, the CE was above the PBO because he could give permission to any public servant to solicit or accept any advantage. As the CE appointed the Independent Commission Against Corruption (ICAC), he was supposed to be immune from bribery offences. Nevertheless, he felt that in this day and age, it would be better from the public's perception that the CE should be like everybody else and not above the law. D of A reiterated that the Administration had undertaken to conduct a review on the applicability of the Ordinance to the CE.

32. Mr CHEUNG Man-kwong said that as the Governor was appointed by and represented the British Government, he was therefore not a public servant. The context within which the PBO was drafted had changed after the reunification and its provisions became out-dated. He echoed the Chairman's opinion that on the basis of BL104, the CE should be defined as a public servant. Mr CHEUNG further pointed out that as government officers and public servants had been defined in relation to an organisation or a government office under the PBO, consideration could be given to include the CE's Office as a public body which would in turn place the CE under the definition of "public servants". He suggested that a simple solution might be to amend the relevant definition section of the PBO.

33. D of A agreed to consider Mr CHEUNG's suggestion. She explained that the CE's Office was part of the Government's organisational structure and its employees, being civil servants, were subject to the PBO. The problem was only with the CE because of his constitutional status.

34. In response to Mr Howard YOUNG, Assistant Director of Administration (AD of A) said that under section 2 of the PBO, the Legislative Council was defined as a public body and Members of the Legislative Council defined as public servants.

Declaration of assets by the CE

35. Ms Emily LAU asked how the ICAC would implement BL 47 which specified that the CE "must be a person of integrity, dedicated to his or her duties". SAD/PP said that he could not provide an interpretation of the BL. The Legal Adviser supplemented that BL 47 could not be interpreted as if it was a criminal provision in an ordinance. However, when the impeachment procedure of the CE under BL 73(9) was invoked, the Chief Justice of the Court of Final Appeal would need to have regard to BL 47 in carrying out the independent investigation.

36. Ms Emily LAU requested that the declaration of assets by the CE under BL 47 be covered in the review so that a statutory framework could be instituted. AD of A responded that the CE, on assuming office, was required under BL 47 to declare his or her assets to the Chief Justice of the Court of Final Appeal of the HKSAR. The declaration should be put on record. In further response to Mr CHEUNG Man-kwong concerning section 10 of the PBO on possession of unexplained property, AD of A supplemented that the CE, as Chairman of the Executive Council, was also required to declare his assets to the ExCo Secretariat on an annual basis. On the basis of such declarations which were available for public inspection, any subsequent changes to the CE's assets other than his official emoluments, after assuming office, could be calculated.

Timetable of review

37. Ms Emily LAU asked D of A to provide a timetable of the review. The Chairman sought clarifications about the objective of the review. D of A said that the policy direction was that the CE, like all government officers and public servants, should be subject to the relevant provisions of the PBO. As the Administration needed time to examine whether any changes proposed would be in conflict with other laws and the BL, she was not in a position to give a definite timetable at this stage. However, she agreed to report to the relevant Panel(s) the progress of the review. As the subject involved constitutional issue, the Chairman was of the view that the report should be made to this Panel.

Adm

Scope of the review

38. Mr Howard YOUNG asked whether the review would include Ordinances other than the PBO. D of A said that she would consult other Bureaux and then consider how to proceed with the review if other Ordinances were involved.

Adm

39. On the Chairman's request to also include in the review the status of Mr Paul YIP Kwok-wah, the Special Adviser to the CE, D of A agreed to consider.

Adm

40. The Chairman asked the Administration to take into account the procedure on impeachment of the CE under 73(9) in conducting the review, i.e. in the event that the CE committed an offence under the PBO, whether BL 73(9) should be invoked before or after the trial. Ms Emily LAU said that the views of academics might also be sought at a later stage if necessary.

Adm

V. Any other business

Schedule of meetings from April to July 1999

41. Members agreed that the regular meetings of the Panel for the months from April to June 1999 would be held on the following dates -

Monday, 19 April 1999
Monday, 17 May 1999
Monday, 21 June 1999

The Panel would decide whether any meeting would be held in July nearer the time.

42. There being no other business, the meeting ended at 4:55 pm.

Legislative Council Secretariat
19 March 1999