LC Paper No. CB(2)2560/98-99
(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 CHEUNG Man-kwong
Hon Ambrose CHEUNG Wing-sum, JP
Hon Christine LOH
Hon LEE Wing-tat
Hon Gary CHENG Kai-nam
Hon Jasper TSANG Yok-sing, JP
Hon Howard YOUNG, JP
Dr Hon YEUNG Sum
Hon Ambrose LAU Hon-chuen, JP

Members Absent :

Hon Emily LAU Wai-hing, JP (Deputy Chairman)
Hon Ronald ARCULLI, JP
Hon Martin LEE Chu-ming, SC, JP
Hon Margaret NG
Hon SZETO Wah

Member Attending :

Hon LEUNG Yiu-chung

Public Officers Attending :

Item IV

Mr Robin IP

Deputy Secretary for Constitutional Affairs (2)

Mr LI Wing

Chief Electoral Officer, Registration and Electoral Office

Miss Shirley YUNG

Principal Assistant Secretary for Constitutional Affairs (4)

Item V

Mr Clement MAK

Deputy Secretary for Constitutional Affairs (1)

Ms Carol YIP

Principal Assistant Secretary for Constitutional Affairs (3)

Mr Philip TANG

Assistant Secretary for Constitutional Affairs (3)

Mr James O'NEIL

Deputy Solicitor General

Mr Peter H H WONG

Senior Assistant Solictor General

Clerk in Attendance :

Mrs Percy MA

Chief Assistant Secretary (2)3

Staff in Attendance :

Mr Jimmy MA

Legal Adviser

Mrs Eleanor CHOW

Senior Assistant Secretary (2)7

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I. Confirmation of minutes of meetings on 15 and 22 March 1999
(LC Papers Nos. CB(2) 1925 and 1956/98-99)

The minutes of meetings of 15 and 22 March 1999 were confirmed.

II. Information papers issued since last meeting
(LC papers Nos. CB(2) 1885 and 1960/98-99)

2. Members noted that the two papers concerning the consultation fee for the Study on Food Safety and Environmental Hygiene, and the progress of review on application of the Prevention of Bribery Ordinance to the Chief Executive.

III. Items for discussion at the next meeting
(LC Papers Nos. CB(2) 1951/98-99(01) and (02) and LC Paper No. LS186/98-99)

Review of existing mechanism for LegCo to monitor the exercise of delegated authority for the making of subsidiary legislation
(LC Paper No. CB(2) LS 186/98-99)

3. The Chairman said that the issue was referred to the Panel by the House Committee, as a result of the deliberations of the Panel on Transport on whether notices on the maximum fares for licensed ferry services issued by the Commissioner for Transport under section 33(1) of the Ferry Services Ordinance (Cap. 104) were subsidiary legislation.

4. At the invitation of the Chairman, Legal Adviser (LA) briefed members on the background of the existing mechanism for LegCo to monitor the exercise of delegated authority for the making of subsidiary legislation as follows -

1. Under section 34 of the Interpretation and General Clauses Ordinance (Cap. 1), all subsidiary legislation should be laid on the table of the LegCo at the next sitting after the publication in the Gazette of that subsidiary legislation;

2. Section 3 of Cap. 1 defined "subsidiary legislation" as "... any proclamation, rule, regulation, order, resolution, notice, rule of court, bylaw or other instrument made under or by virtue of any Ordinance and having legislative effect". In this regard, to determine whether a notice in the Gazette was subsidiary legislation, it was necessary to decide whether such notice had "legislative effect". If a notice was subsidiary legislation, it would be subject to the "negative vetting procedure" of the LegCo under section 34(1) and (2) of Cap. 1;

3. There was no direct authority on the precise meaning of "having legislative effect". However, there were cases in the Commonwealth jurisdictions in which judges had expressed opinions on the meaning of those words. These opinions were not binding on the courts in Hong Kong; and

4. There were at least some 330 provisions in the Laws of Hong Kong which contained the reference to "by notice in the Gazette". However, there had not been consistency in treatment in that some were published as legal notices while some as general notices. The latter would not be tabled in the Council and were not subject to the scrutiny of the Council. In some ordinances, there were express provisions on whether or not a notice was subsidiary legislation.

5. LA said that the crux of the matter was the definition of "subsidiary legislation" in Cap. 1. In the absence of a clear definition of "having legislative effect", the legislative intent was relevant in determining whether an instrument had legislative effect. He pointed out that the inconsistency in the treatment of "notice in the Gazette" had raised a fundamental issue of whether the existing legislative mechanism for the LegCo to monitor the exercise of power to make subsidiary legislation should be examined in order to provide a clear means of identifying which of the instruments with legal effect made by persons under delegated authority provided by statue should be subject to the scrutiny of the Council.

6. The Chairman said that the Administration had advised that the matter was under examination by the Department of Justice. One possible option was to include an express provision in new legislation to specify whether a statutory instrument was subsidiary legislation. The Chairman opined that such an arrangement would not resolve the basic problem. He suggested and members agreed that the Administration and the Research and Library Division of the LegCo Secretariat should be asked to provide information on the definition of subsidiary legislation in other jurisdictions and whether these jurisdictions had encountered similar problems.	Adm
7. Referring to item IV of Annex A to the paper, Mr LEE Wing-tat pointed out that the notice under section 40 of the Road Traffic Ordinance (Cap. 374) was treated and published as subsidiary legislation in 1984, but recent notices had been published in the form of general notices in the Gazette instead. He said that the Administration should explain why a legal notice was changed to a general notice, as such a decision would have the effect of depriving the legislature the power to scrutinise notices having legislative effect which were not published as subsidiary legislation. He urged that a clear distinction should be made in the relevant legislation between instruments of a legislative character, and those of an administrative character; and that there should be consistency in drafting. Members agreed that the Administration should be asked to comment on the paper prepared by the Legal Service Division and recommend proposals to address members' concern. Members also agreed that the subject should be discussed at the next meeting to be held on 21 June 1999.	Adm
8. In response to members, Deputy Secretary for Constitutional Affairs (2) (DS for CA(2)) undertook to reflect members' views to the Director of Administration.	Adm

List of issues to be considered
LC paper No. CB(2) 1951/98-99(01)

9. Referring to item 5 of the paper on arrangement arising from Articles 50 and 51 of the Basic Law which had been discussed by the Committee on Rules of Procedure and referred to the Panel by the House Committee, Mr Ambrose CHEUNG said that the definition of the word "budget" in overseas countries should be sought to facilitate deliberation by members. The Chairman remarked that overseas expenience might not be relevant. LA expressed similar view and said that the implementation of Articles 50 and 51 must have regard to the legislative intent and the scope of "budget" in the context of each of the Articles of the Basic Law. He advised that the Director of Administration had been requested by the Committee on Rules of Procedure to give a response on the matter.

Adm

10. Members agreed that the following items would be discussed at the next Panel meeting to be held on 21 June 1999 -

1. Publicity strategy to promote the 1999 District Councils election (proposed by the Administration);

2. Mechanism for amending the Basic Law; and

3. Review of existing mechanism for LegCo to monitor the exercise of delegated authority for making of subsidiary legislation.

11. Members also agreed that the following items would be discussed at the Panel meeting to be held on 19 July 1999 -

1. Designation of officials to attend LegCo meetings; and

2. Arrangements arising from Articles 50 and 51 of the Basic Law.

IV. Progress of Year 2000 (Y2K) compliance exercise in Government, Government-funded and Government-regulated organisations
(LC Paper No. CB(2) 1951/98-99(03) and (04))

12. DS for CA(2) said that the Burglar Alarm and Security System in the Constitutional Affairs Bureau, and the Electoral and Registration System (EARS) and the Interactive Voice Response System (IVRS) in the Registration and Electoral Office were all Y2K compliant.

13. Chief Electoral Officer of the Registration and Electoral Office (CEO/REO) supplemented that EARS was a computer database that stored the records of registered electors. The system was designed to store all date-related information in a four-digit year format. Since August 1998 a series of Y2K compliance tests for EARS had been conducted. By March 1999, all rectification work and Y2K compliance tests were completed with satisfactory result. As for the IVRS, it only came into operation in mid-December 1998 to provide information on voter registration through a telephone/fax hotline service using interactive voice/fax response technology. The system was also Y2K compliant.

14. Mr CHENG Kai-nam asked that in the event that there was disrupted delivery of functions of a system as a result of Y2K non-compliance, how long it would take to rectify the problem. CEO/REO replied that the time required to rectify a system would depend on the nature of the problem. For the worst scenario, it would take about two weeks. In fact, the database of EARS had been backed up from time to time and data could be downloaded to standalone computer systems to provide a continuous service to the public in the event of system failure of EARS.

V. Mechanism for amending the Basic Law
(LC Papers Nos. CB(2) 1935/98-99(01) and 1951/98-99(05))

15. Referring to the Administration's paper (LC Paper No. CB(2)1951/98-99(05)), Deputy Secretary for Constitutional Affairs(1) (DS for CA(1)) said that pursuant to the Panel's meetings on 15 and 22 March 1999 at which academics, legal profession, relevant individuals and organisations had given views on the mechanism for amending the Basic Law, a number of new and important issues were identified and required consideration. The Administration had started a preliminary study on the various issues. On those issues relating to the Standing Committee of the National People's Congress (NPCSC), the State Council and the local deputies of the National People's Congress (local NPC deputies), he elaborated on the Administration's preliminary views. (A copy of his speaking note is in Appendix I which was provided by the Administration after the meeting).

16. DS for CA(1) said that the Administration had commenced a comparative study of the experience of other countries on constitutional amendments. Deputy Solicitor General (DSG) briefly reported on the initial outcome of the review. DSG said that the views received by the Panel at the meetings on 15 and 22 March 1999 had placed a lot of emphasis on the importance of a mechanism which would allow public consultation and participation, such as by way of a referendum. The preliminary findings of the study indicated that the referendum mechanism could be embodied in the constitution itself. For example, referendum procedure was mandatory in Switzerland for certain aspect of constitutional reform. It might also be established by legislation as in the case of Finland which had detailed legislative procedure whereby constitutional changes were a result of the outcome of the referendum. In the case of UK, referendum was instituted on an ad hoc basis.

17. DSG further said that the Administration had initially studied procedures for constitutional amendments in five countries, namely USA, Australia, Malaysia, South Africa and Switzerland. The scope of the study covered (a) who may initiate an amendment; (b) forms of amendment; (c) sequence and time frame of deliberation; and (d)special provisions. He then made a verbal report on the result of the initial study which had just been completed and undertook to provide detailed information in writing (in Appendix II). He said that each of the five countries under study had a mechanism for amendment written in the constitution either in lesser or greater detail.

18. Mr CHEUNG Man-kwong said that given that the Basic Law was a constitutional law for the Hong Kong Special Administrative Region (HKSAR), it should not be amended lightly. Articles 158 and 159 of the Basic Law made provisions for interpreting and amending the Basic Law by the NPCSC and NPC respectively. While Article 159 involved a complicated process of amendment, seeking an interpretation of the Basic Law under Article 158 was relatively easy as demonstrated by a recent incident. He held the view that since constitutional amendment was a solemn matter, procedures for amending and interpreting the Basic Law should be equally strict. If seeking an interpretation of the Basic Law was taken as a fast-track approach, Article 159 would be de facto repealed. He urged the Administration to devise stringent procedures for seeking an interpretation of the Basic Law.

19. DS for CA(1) replied that Articles 158 and 159 dealt with different issues. While Article 159 set out the requirements for amending the Basic Law, there was no specific requirement for an interpretation of the Basic Law under Article 158, except paragraph 3 of the Article which made reference to the circumstances under which the Court of Final Appeal should seek an interpretation of the Basic Law from the NPCSC. He assured members that the NPCSC had strict rules of procedure in exercising its power, including the power to interpret the Basic Law. In response to members, DS for CA(1) undertook to provide information in this regard.

Adm

(Post-meeting note : LC Paper No. CB(2)2201/98-99(01) prepared by the Administration was provided to the special meeting of the Panel on Constitutional Affairs held on 3 June 1999.)

20. Mr CHEUNG Man-kwong said that although the word "interpret" was different from the word "amend", they had the same effect of amending the Basic Law. He criticised the Administration of applying double-standards in implementing Articles 158 and 159. Mr LEUNG Yiu-chung supported his views. He pointed out that unlike Article 158, the steps involved in devising a mechanism for amending the Basic Law under Article 159 were very cumbersome, as illustrated in paragraph 7 of LC Paper No. CB(2) 1951/98-99(05). He asked for a timetable for completing the process. He also asked the Administration to report on SCA's visit to Beijing in April 1999.

21. DS for CA(1) replied that SCA's visit to Beijing had been deferred. Given the constitutional importance of the matter, the Administration had set out the important issues raised at the two Panel meetings in March in paragraph 1 of the paper and the steps involved in devising a mechanism in paragraph 7 of the paper. Since it was necessary to consult all the relevant parties fully, and some of the issues could not be resolved by the HKSAR alone, it would be irresponsible for the Administration at this stage to set a timetable unilaterally. The Administration was fully aware of the urgency attached to the matter and would keep the Panel informed of progress made.

22. While Mr LEUNG Yiu-chung appreciated that it would take time for the Administration to discuss the relevant issues with the parties concerned, he was concerned whether the matter would be held up indefinitely. The Chairman said that Mr LEUNG had intended to move a motion to amend the Basic Law. He could proceed with his motion in the absence of a proper mechanism for implementing Article 159, given that the Administration had sought to seek an interpretation of the Basic Law under Article 158 before a proper mechanism was in place. Should Mr LEUNG proceed with the motion which was supported by two-thirds of the LegCo Members, the Chief Executive and the local NPC deputies were obligated to respond to the amendment proposal within a reasonable time.

23. Dr YEUNG Sum said that he could not accept the Administration's reply concerning the timetable. Mr TSANG YOK-sing pointed out that the steps set out in paragraph 7 of the paper involved three stages, namely (i) analysis of issues identified and consultation from steps (a) to (f); (ii) formulating preliminary proposals and consultation with relevant parties from steps (g) to (j); and (iii) finalising proposal and drafting legislation from steps (k) to (m). The Administration could work out a rough timetable for different stages of the process and then seek comments from the Central authorities to see whether the timetable was agreeable.

24. DS for CA(1) reiterated that it was impossible to predict in advance as to how much time each step in the process would take, as many of the steps involved discussions with the Central authorities on matters relating to the NPCSC, the State Council, the Committee for the Basic Law and the local NPC deputies. As SCA would be visiting Beijing later this month, he would reflect members' concerns and seek views from the Central authorities on the feasibility of drawing up a timetable and the important issues identified as a result of the public consultation conducted by the Panel in March 1999.

Adm

25. Mr LEUNG Yiu-chung said that the Administration should present its preliminary proposals to the Central authorities, instead of just listening to the latter's views when visiting Beijing. He hoped that the Administration together with the LegCo could work out an appropriate mechanism for amending the Basic Law. He further asked the Administration to respond to the views of the deputations received by the Panel, as summarised in LC Paper No. CB(2) 1935/98-99(01). DS for CA(1) agreed to do so in due course.

Adm

VI. Any other business

26. Members agreed that the report of the Panel should be presented to the Council on 7 July 1999 in accordance with Rule 77(14) of the Rules of Procedure. The draft report would be circulated to members for endorsement at the next meeting to be held on 21 June 1999.

27. The meeting ended at 4:23 pm.

Legislative Council Secretariat
15 July 1999