LC Paper No. CB(2)624/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/PL/CA

Legislative Council
Panel on Constitutional Affairs

Minutes of meeting
held on Monday, 19 October 1998 at 2:30 pm
in Conference Room A of the Legislative Council Building

Members Present :

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

Members Absent :

Hon CHEUNG Man-kwong
Hon Howard YOUNG, JP
Dr Hon YEUNG Sum

Members Attending :

Hon Fred LI Wah-ming

Public Officers Attending :
Item II

Ms Carol YIP
Acting Deputy Secretary for Constitutional Affairs (1)

Ms Alice LAU
Principal Assistant Secretary for Constitutional Affairs (1)

Ms Wendy CHEUNG
Principal Assistant Secretary for Constitutional Affairs (2)

Item III

Mrs Maureen CHAN
Deputy Secretary for Constitutional Affairs (3)

Mr John LEUNG
Principal Assistant Secretary for Constitutional Affairs (6)

Item IV

Mr Robin IP
Deputy Secretary for Constitutional Affairs (2)

Miss Shirley YUNG
Principal Assistant Secretary for Constitutional Affairs (4)

Clerk in Attendance :

Mrs Percy MA
Chief Assistant Secretary (2)3

Staff in Attendance :
Ms Mariana LEUNG
Senior Assistant Secretary (2)7

I.Confirmation of minutes of meetings

(LC Paper Nos. CB(2)424 and 425/98-99)

1. The minutes of the meetings held on 21 and 26 September 1998 were confirmed.

2. The Chairman said that to follow up on paragraph 20 of the minutes of the meeting on 26 September 1998 concerning the appointment of the Consultant, the Administration had provided an information note which was tabled at the meeting (LC Paper No. CB(2)445/98-99). Further discussion on the subject could continue under agenda item III below.

II.Relationship between the Hong Kong Special Administrative Region Government and the Central People's Government

(LC Paper No. CB(2)427/98-99(02))

3. Referring to the paper, Acting Deputy Secretary for Constitutional Affairs (1) (DS for CA(1) (Ag)) briefed members on the working relationship between the Government of the Hong Kong Special Administrative Region (HKSARG) and the Hong Kong and Macau Affairs Office, Commissioner's Office of the Ministry of Foreign Affairs and Hong Kong Garrison. She said that the establishment of the Beijing Office would further enhance the liaison and communications with the Central People's Government (CPG).

4. Mr Martin LEE said that the spirit of Article 22 of the Basic Law (BL 22) had clearly provided that all offices set up in the HKSAR by departments of the Central Government, or by provinces, autonomous regions, or municipalities directly under the Central Government, and the personnel of these offices shall abide by the laws of the Region. He pointed out that the Mainland members of the Basic Law Drafting Committee had proposed to include this Article in the Basic Law as an assurance to Hong Kong members that Mainland offices would not be given a superior status in Hong Kong after 1 July 1997. However, with the passage of the Adaptation of Laws (Interpretative Provisions) Bill by the Provisional Legislative Council in April 1998, section 66 of the Interpretation and General Clauses Ordinance (Cap. 1) was amended to the effect that no Ordinance shall be binding on these offices unless it was therein expressly provided, thus placing these offices above the law. Mr LEE asked whether it was the decision of the HKSARG or the CPG to introduce the Bill in the first place and the reasons for according a superior status to these offices.

5. DS for CA(1) (Ag) explained that the adaptation of section 66 of Cap. 1 was part of the adaptation of laws programme initiated by the HKSARG which sought to amend all references in some 600 ordinances which were inconsistent with the Basic Law or with the status of Hong Kong as a HKSAR.

6. Mr LEE said that the historical reason for the "Crown" not to be bound by certain laws of Hong Kong was that Hong Kong was then a British colony. Since HKSARG was now part of the CPG and enjoyed a high degree of autonomy, he queried whether the retention of section 66 of Cap. 1 was necessary. DS for CA(1) (Ag) said that the question raised was one relating to legal policy. She reiterated that the adaptation of laws programme was a technical exercise, and not meant to be a law reform exercise.

7. The Chairman said that the controversy could be traced back to the adaptation of section 66 of Cap. 1 during which references to the "Crown" were adapted to "State". The Panel might wish to discuss the subject in detail at a future meeting. Miss Margaret NG said that the subject had been scheduled for discussion at the next meeting of the Panel on Administration of Justice and Legal Services.

(Post-meeting note : The subject was discussed at a special meeting of the Panel on Administration of Justice and Legal Services held at 4:30 pm on 2 November 1998.)

8. Miss Margaret NG asked whether the Xinhua News Agency was one of the authorised Mainland offices in the HKSAR, and if so, why it was not included in the paper prepared by the Administration. DS for CA(1) (Ag) said that the authorised "State" organs stationed in the HKSAR included the Commissioner's Office of the Ministry of Foreign Affairs, the Hong Kong Garrison, and the Xinhua News Agency. Prior to the reunification, the Xinhua News Agency had been acting as a representative of the CPG in its contacts with the Hong Kong Government. But after the reunification, the role of the Xinhua News Agency had changed and its working contact with the HKSARG had reduced tremendously. It was therefore not included in the paper which focused mainly on the "working relationship" between the HKSARG and the CPG.

9. Miss Margaret NG requested the Administration to include information on the relationship of the Xinhua News Agency with the HKSARG in the paper and to provide a list of all the Mainland offices in Hong Kong, irrespective of whether or not they had any working relationship with the HKSARG. Mr SZETO Wah requested the Administration to provide a list of the authorised functions of the Xinhua News Agency. On the Administration's comment that the contact between the HKSARG and the Xinhua News Agency had reduced, Mr Martin LEE said that according to Mr LU Ping, there was no need for the continued existence of the Xinhua News Agency in Hong Kong after the reunification.

10. Ms Emily LAU enquired about the role of the Chinese Communist Party (CCP) and its relationship with the Mainland offices in HKSAR. DS for CA(1) (Ag) explained that this was outside the scope of CAB's work. In response to queries, she said that the HKSARG had not been advised by the CPG that the CCP was a Mainland authorised office in the HKSAR.

11. Ms Emily LAU expressed concern that if the Xinhua News Agency was an organ representing the CCP, any exemptions applicable to it as a State organ defined under section 66 of Cap. 1 would be automatically extended to the CCP. DS for CA(1) (Ag) advised members that a subordinate organ of the CPG or of relevant Central Authorities had to meet the following three tests in order to fall within the definition of "State" as provided for under section 66 of Cap. 1 -

  1. it carried out executive functions of the CPG, or functions for which the CPG had responsibility under the Basic Law;

  2. it did not exercise commercial functions; and

  3. it was acting within the scope of the authority and functions delegated to it by the CPG or the relevant Central Authority.

12. Miss Christine LOH requested the Administration to provide a paper on the Chinese Communist Party. DS for CA(1) (Ag) said that the subject was not within the purview of the CAB, but she agreed to gather relevant information.

13. Mr LEE Wing-tat asked whether the HKSARG was aware of the executive functions of the personnel working in the Commissioner's Office of the Ministry of Foreign Affairs (MFA Office) and the Hong Kong Garrison, and whether it had been advised of or provided with a list of the names and post titles of these personnel. DS for CA(1) (Ag) said that the HKSARG had some general information about the personnel and organisational structure of the MFA Office. As regards the Hong Kong Garrison, the Security Bureau was the main contact point between the HKSARG and the Garrison. Principal Assistant Secretary for Constitutional Affairs (1) (PAS for CA(1)) supplemented that the CAB had developed a working relationship with the MFA Office in handling external affairs. However, in the course of handling external affairs, there was no practical need for the CAB to have comprehensive information on the personnel working in the MFA Office such as their names and post titles. For example, unlike consular staff, these personnel were not foreign diplomats and did not enjoy any privileges and exemptions. There was hence no practical need to verify claims for privileges and immunities against a list of entitled persons. In further response to members, PAS for CA(1) said that on an informal basis, CAB was given to understand that there were about 130 staff working for the MFA Office. Under BL 22, departments of the Central Government which would set up offices in the HKSARG must obtain the consent of the HKSARG and the approval of the CPG, and people from other parts of China must apply for approval for entry into the HKSAR. The Immigration Department was responsible for granting permission for entry into the HKSAR.

14. Mr SZETO Wah was concerned how the HKSARG could determine who were authorised by the CPG to carry out executive functions in the HKSAR in the absence of name lists of the personnel of these Mainland offices.

15. Mr LEE Wing-tat sought information on the functions of the Beijing Office and the responsibilities of its Director. Members agreed that the paper prepared for discussion by the Finance Committee in March 1998 should be circulated to members for reference.
Clerk

(Post-meeting note : Paper No. FCR (98-99)115 on the proposed set up of the Beijing Office and relevant extract of the minutes of the Finance Committee meeting on 27 March 1998 were issued to members vide LC Paper No. CB(2)487/98-99 on 23 October 1998.)

16. Mr SZETO Wah said that he had a meeting with the Secretary for Constitutional Affairs (SCA) concerning the issuance of Home Visit Permits. However, on further enquiry, SCA had refused to disclose to him the name of the Mainland official responsible for handling the matter. DS for CA(1) (Ag) explained that details of some 30 cases put forward by Mr SZETO had been referred to the Hong Kong and Macau Affairs Office. Such cases were handled by the Office, not individual officers in their name, and hence there was no need to make reference to the name of the individual officers handling the matter.

17. As time was running short, the Chairman suggested and members agreed that further discussion of the item would continue at the next meeting. The Administration was requested to provide information on the following points raised by members - Adm

  1. To explain the Xinhua News Agency's working relationship with the HKSAR, and provide a list of its authorised functions;

  2. To provide a list of the State organs of CPG in Hong Kong;

  3. To provide information concerning the role and activities of the CCP in Hong Kong, and whether the existence of the CCP affected HKSAR's autonomy;

  4. To provide a list of the personnel (including names and post titles) of the Xinhua News Agency and Commissioner's Office of the Ministry of Foreign Affairs;

  5. To explain the working relationship between the Hong Kong and Macau Affairs Office and the HKSAR and its Beijing Office (paras. 5, 6 &12 of the paper), with particular reference to the role of the Beijing Office as an "additional channel" for liaison and communications with CPG;

  6. To elaborate on the word "handling" in line 5, para. 7 of the paper; and

  7. To advise the Mainland authorities the HKSARG should contact in matters relating to Taiwan.

18. Given the importance of the subject, Members requested SCA to attend the next meeting on 16 November 1998 and asked DS for CA (1) (Ag) to relate the message to SCA. Adm

III.Review of district organizations

(Consultation Report on Review of District Organizations and LC Paper No. CB(2)440/98-99(01))

19. Deputy Secretary for Constitutional Affairs (3) (DS for CA(3)) said that to follow up on the Consultation Report which was briefly discussed at the special Panel meeting held on 9 October 1998, the Administration had prepared a paper on "Review of District Organizations: Legislative Work for setting up new structure for delivery of Municipal Services" which explained the new framework for delivery of food safety and environmental hygiene services. Annex B to the paper set out the list of legislation that would need to be amended or repealed and the likely extent of amendments of these legislation. Annex C to the paper was a chart showing the legislative timetable and the steps involved in the 1999 District Councils (DC) election.

20. In answer to Ms Emily LAU's question as to why there was a change in the English name of the "District Boards" (DBs) to "District Councils" without any corresponding change in its Chinese name, DS for CA(3) said that the opportunity was taken to give effect to the change which was proposed by DB members some years ago.

Resource implication

21. Mr LEE Wing-tat sought clarification on the SCA's remark concerning a reduction in rates following the dissolution of the MCs, as reported in some recent press reports. In his view, the dissolution of the MCs and rates reduction were separate matters. Miss Margaret NG said that rates reduction appeared to be a logical deduction from the Government's claim that cost would be reduced as a result of streamlining the existing structure.

22. DS for CA(3) explained that under the existing funding arrangements, the MCs were funded directly through a percentage share of rates, unlike other government departments which received funds through annual appropriation by the LegCo. The new department and bureau would be funded from general revenue as any other government departments. The public resources necessary for maintaining the functions and services of the existing MCs would be adequate to finance the reorganisation. DS for CA(3) said that the dissolution of the MCs would not necessarily result in a reduction in rates. However, it was a matter for the Financial Secretary to consider in the next year's Budget.

23. DS for CA(3) added that the new department and bureau would be staffed by way of re-deployment of existing staff from the Municipal Services Departments, Department of Health, Agricultural and Fisheries Department and Environmental Protection Department etc. Ms Emily LAU reiterated her previous view that she would not wish to see any request for "new money" or creation of "new posts" including any post to head the new bureau.

24. Mr Ambrose CHEUNG Wing-sum said that according to some press reports, savings would be achieved as a result of the dissolution of the two MCs. He would like to know whether there would be any real savings in view of the Administration's proposal that there should be an increase in the honoraria and allowances for DC members. He also requested the Administration to carry out a comparative study between the existing and proposed structures with a view to providing a quantitative analysis on the savings achieved, in terms of costs and manpower.

25. DS for CA(3) agreed that a comparative study as proposed by Mr CHEUNG could be done in the longer term. As far as she was aware, savings could be achieved as a result of the reorganisation. She said that members would be advised of the details once the Consultancy Study on Food Safety and Environmental Hygiene Services (the Consultancy Study) was completed. As regards increase in the honoraria and allowances for DC members, she said that the matter was being considered in consultation with the Home Affairs Bureau, and members would be advised of the outcome in due course.

Arts and culture, sports and recreation

26. Mr Ambrose CHEUNG Wing-sum expressed concern that there was a lack of overall planning for the reorganization. He pointed out that the Administration had been inconsistent in its approach in reviewing the food safety and environmental hygiene services vis-a-vis the arts, cultural, sports and recreational services. Unlike the former review, no public consultation or consultancy study had been conducted on the latter review. He said that the Administration should prepare an overall timetable on implementation of the new framework for consideration of the Panel.

27. DS for CA(3) explained that the Administration had briefed various LegCo Panels on the progress of the review and would continue discussions with the relevant Panels on subsequent developments. As far as the review on the arts and sports areas was concerned, although concerns over problems in the current structure had been expressed by the arts and sports community during the public consultation exercise, no concrete solutions had been proposed. The Administration hoped that the new structure now proposed would help address the problems identified.

28. Miss Christine LOH said that she supported the proposal to establish a new bureau to be responsible for food and environment because placing environment under the Planning, Environment and Lands Bureau constituted a conflict of interest. She opined that in naming the new bureau, "environment" should be placed in front of "food" because the former was much wider in scope. She enquired whether the Administration would also consider setting up a new bureau to be responsible for arts and culture, sports and recreation which were important services to the community. In her view, it would be undesirable for these services to be transferred to the Home Affairs Bureau. DS for CA(3) said that a new bureau was not considered at this stage. However, the Administration would consider if such a proposal was made.

Assessment of public views

29. Mr Fred LI Wah-ming said that the Consultation Report on the Review of District Organisations had quoted views from four academics, namely Professor Joseph CHENG, Dr Peter CHEUNG, Professor LAU Pui-king and Professor LAU Siu-kai. He had studied all these submissions and criticised the Administration for being selective in quoting the academics' views. Of the four academics quoted, Professors LAU Pui-king and LAU Siu-kai in fact supported option III as presented in the Consultation Document i.e. to merge the two MCs and all DBs to form several regional bodies, but not option II i.e. the dissolution of the MCs. Professor Joseph CHENG supported a two-tier structure subject to all seats being returned by direct elections. Dr Peter CHEUNG supported that the powers of the two MCs following dissolution should be transferred to the District Boards. Moreover, many other academics who had expressed their views against the dissolution of the MCs were not quoted. Mr Martin LEE added that quoting views out of context could be deceptive and would mislead the public. He said that it was questionable whether the academics were in support of the Administration's whole package of proposals on the review.

30. Principal Assistant Secretary for Constitutional Affairs (6) (PAS for CA(6)) explained that the academics, including those contacted by the Administration unofficially, generally agreed that there was no need for a three-tier representative structure. However, it was recognised that there were different views among the academics concerning the size and functions of DBs. Some suggested that the DBs could be merged into a smaller number of councils with some executive powers, while other suggested that the DBs should retain their advisory role and be given more resources. These views were recorded in footnote 33 of the Consultation Report. The Chairman asked the Administration whether it had done a detailed analysis on the percentage of academics who were in support of DBs retaining their advisory role or being given more executive powers, and on the area of expertise of the academics concerned, PAS for CA(6) replied in the negative.

31. After discussion, the meeting agreed that a special meeting would be held to receive views from the academics who had either submitted their views to the CAB or were interested in the subject. Clerk

(Post-meeting note: The special meeting has been scheduled for Monday, 9 November 1998 at 2:30 pm.)

Legislative process and timetable

32. On the list of legislation that would need to be amended or repealed in order to transfer authority or functions from the MCs to the Administration or any public body (Annex B to the paper), members pointed out that some 150 ordinances and by-laws were involved. They expressed concern about the very tight time frame for completing the legislative work. DS for CA(3) said that many of the ordinances involved only consequential amendments.

33. In response to Mr Fred LI Wah-ming, DS for CA (3) said that as the terms of office of the Provisional District Board (PDB) members would expire by the end of 1999, election of members of the 18 DCs should be held no later than December 1999. A bill on the composition, functions and elections of the DCs would be introduced into LegCo in the end of 1998 or early 1999. In view of the lead time required for making arrangements for the election, it was necessary for the bill to be passed by early 1999.

34. In further response to Mr LI, DS for CA(3) said that a new department and a bureau would be set up to be responsible for food safety and environmental hygiene. A request for creation of a new head and subhead for the establishment of the new department and bureau would be submitted to the LegCo Finance Committee for approval. An advisory committee would also be set up to advise the new bureau on major policy issues. However, it was likely that any proposal to transfer the functions of the MCs to statutory bodies, namely the Hong Kong Arts Development Council and the Hong Kong Sports Development Board, would be submitted to the LegCo for approval in the form of amending legislation.

35. Mr SZETO Wah requested that a legislative timetable and the sequence of introduction of the legislation in Annex B, other than the District Councils Bill, be provided to the Panel. In response to Miss Margaret NG, DS for CA(3) said that the Department of Justice was aware of the timetable for drafting the necessary legislation and would accord due priority to the task. Adm

36. Mr Ambrose CHEUNG Wing-sum remarked that as all legislative proposals arising from the review of district organizations were inter-related, they should be presented to LegCo as a package. He suggested that the Administration should introduce an omnibus bill on the subject to facilitate the consideration of LegCo. A few members supported the suggestion and pointed out that a single bill would allow Members to have an overall view on the proposed changes in making their decision as to whether or not to support the legislative proposals which gave effect to the new framework for delivery of municipal services. Mr LEE Wing-tat opined that the Administration should take the opportunity to review and update obsolete provisions in the ordinances and by-laws concerned.

Way forward

37. DS for CA(3) indicated that the Report on the Consultancy Study might be ready for discussion by the next Panel meeting to be held in mid-November. The Administration might also brief the Panel on the draft DCs Bill at the meeting. In response to Mr CHEUNG's request that the Administration should confirm at the next Panel meeting as to whether an omnibus bill would be introduced, DS for CA(3) said that the Administration would consider members' suggestion seriously but pointed out that the suggestion might give rise to problems in drafting the legislation. Adm

IV.Hon Christine LOH's paper entitled "An open process for community discussion - Background paper on constitutional conventions"

(LC Paper No. CB(2)301/98-99(01))

38. The Chairman referred members to Miss Christine LOH's paper which called upon the Administration to consider establishing an open process, namely constitutional conventions, in discussing major issues concerning the community with a view to arriving at a consensus with the public. He invited the Administration's comments on Miss LOH's proposal in relation to establishing a constitutional convention to discuss constitutional development in Hong Kong.

39. Deputy Secretary for Constitutional Affairs (2) (DS for CA(2)) said that the Basic Law (BL) had already laid down the blueprint for constitutional development in Hong Kong. The Administration would comply with the BL provisions and come up with a suitable model for Hong Kong, with a view to progressing towards the ultimate aim of universal suffrage in the elections of the Chief Executive (CE) and the LegCo. For the time being, the Administration was heavily engaged in preparing for the second LegCo election in the year 2000.

40. Miss Christine LOH opined that in working towards the goal of universal suffrage in the elections of the CE and LegCo, a lot of work had to be done in the interim. She said that she was under the impression that neither the CE nor the Administration was prepared to initiate any discussions on the matter in the form of a constitutional convention. In the circumstances, she suggested that the relevant LegCo Panel might consider conducting hearings to receive public views on the subject, in an open and organised manner.

41. While Ms Emily LAU supported the idea, she said that the Administration should participate in the process in view of the scale of involvement in terms of resources and manpower. In the light of past experiences, there were limitations for LegCo Panels to conduct similar forums and achieve the desired effect. Subject to the Panel's view, she suggested that the support of the House Committee should be sought for requesting the Administration to conduct a constitutional convention on constitutional development in Hong Kong.

42. The Chairman said that any LegCo Panel could, within its terms of reference, conduct open hearings on any subject of public interest to stimulate discussion within the community, to solicit public views, to formulate its own views and eventually to convince the Administration to put into implementation certain proposals. However, establishing a constitutional convention was a matter for the Administration, not LegCo committees. He said that the genius of Miss LOH's proposal was that the public could be widely involved in the discussion of a major issue, in a rational manner, so as to reduce confrontation within a community.

43. DS for CA(2) said that at present there were already different ways for the public to give views on the constitutional development of Hong Kong, and establishing a constitutional convention as proposed by Miss LOH was not the only way. In response to Miss LOH, he said that the Administration had yet to come up with any proposal in this respect. Where necessary, the Administration would continue discussion with members on political development of Hong Kong at future meetings of the Panel.

44. The Chairman said that gauging of public views could be conducted in different modes. For example, the Administration could conduct a consultative referendum. The Administration could also introduce a white bill for consultation with the LegCo and for public consultation.

45. Miss Christine LOH said that in view of the Administration's attitude on the matter, this Panel or the LegCo as a whole should consider how the matter should be further pursued. Members agreed that the item should be further discussed at the next meeting.

46. In response to members' enquiries, DS for CA(2) said that the Administration would brief the Panel in the near future on a bill to provide for the election of the second LegCo in the year 2000. On the urgency of the bill, PAS for CA(4) said that the bill had to be passed before other practical arrangements for the election including demarcation of constituency boundaries, voter registration and the election of the Election Committee could be implemented. It was hoped that the proposal could be put forward for discussion at the Panel by the end of this year.

V.Items for discussion at the next meeting

(LC Paper No. CB(2)427/98-99(01))

47. Members agreed that the next meeting to be held on 16 November 1998 would continue discussion on the following items -

  1. Relationship between the Hong Kong Special Administrative Region Government and the Central People's Government and other related issues;

  2. Review of district organizations; and

  3. Hon Christine LOH's paper entitled "An open process for community discussion - Background paper on constitutional conventions".

48. There being no other business, the meeting ended at 4:50 pm.


Legislative Council Secretariat
13 November 1998