Panel on Constitutional Affairs ( Minutes ) 21 Sep 98

LC Paper No. CB(2)424/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/PL/CA

Legislative Council
Panel on Constitutional Affairs

Minutes of meeting
held on Monday, 21 September 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 Margaret NG
Hon Ronald ARCULLI, JP
Hon CHEUNG Man-kwong
Hon Ambrose CHEUNG Wing-sum, JP
Hon Gary CHENG Kai-nam
Hon Jasper TSANG Yok-sing, JP
Dr Hon YEUNG Sum
Hon Ambrose LAU Hon-chuen, JP
Hon SZETO Wah

Members Absent :

Hon Martin LEE Chu-ming, SC, JP
Hon Christine LOH
Hon Howard YOUNG, JP

Members Attending :

Hon Fred LI Wah-ming
Hon Mrs Selina CHOW LIANG Shuk-yee, JP
Hon James TO Kun-sun

Public Officers Attending :

Item III
Mr Tony Y H YEN, JP: Law Draftsman
Mr J D S SCOTT: Senior Assistant Law Draftsman
Mr M R SCOTT: Senior Assistant Solicitor General
Mr John WONG: Senior Government Counsel
Mr Jacky LUM: Assistant Director of Administration
Item IV
Mrs Maureen CHAN: Deputy Secretary for Constitutional Affairs (3)
Mr John LEUNG: Principal Assistant Secretary for Constitutional Affairs (6)
Dr Gloria TAM: Assistant Director of Health (Hygiene)
Item V
Mr Robin IP: Deputy Secretary for Constitutional Affairs (2)
Miss Shirley YUNG: Principal Assistant Secretary for Constitutional Affairs (4)
Mr LEE Lap-sun: Deputy Secretary for Home Affairs (2)
Mr Kenneth NG: Senior Statistician (HAB)
Mr LI Wing: Chief Electoral Officer
Registration and Electoral Office

Clerk in Attendance :

Mrs Percy MA: Chief Assistant Secretary (2)3

Staff in Attendance :

Mr Jimmy MA, JP: Legal Adviser
Mrs Eleanor CHOW: Senior Assistant Secretary (2)7

I. Confirmation of minutes of meetings on 14 and 20 July 1998
(LC Paper Nos. CB(2)117 and 182/98-99)

The minutes of the meetings held on 14 and 20 July 1998 were confirmed.

II. Items for discussion at the next meeting
(LC Paper No. CB(2)285/98-99(01))

2. The Chairman advised members that the briefing by the Secretary for Constitutional Affairs on the Policy Address had been scheduled to be held at the next regular meeting on 19 October 1998. He suggested and members agreed to set aside one hour for the policy briefing and to schedule not more than two agenda items for the next meeting. Members noted that Miss Christine LOH had prepared a paper on "An Open Process for Community Discussion - Background Paper on Constitutional Conventions" (LC Paper CB(2)301/98-99(01) and agreed to discuss the item at the next meeting.

(Post-meeting note : The policy briefing was re-scheduled to be held on 9 October 1998. With the agreement of the Chairman, the following two items have been added to the agenda -

Relations between the Hong Kong Special Administrative Region Government and the People's Republic of China Government; and
Review of district organisations.)

III. Adaptation of laws

Timetable for Adaptation of Laws Programme
(LC Paper Nos. CB(2)298/98-99(01)

3. The Law Draftsman said that the Adaptation of Laws Programme was essentially a programme to amend all the references in the laws which were inconsistent with the Basic Law or with the status of Hong Kong as a Special Administrative Region (HKSAR) of the People's Republic of China (PRC). Although the Hong Kong Reunification Bill, which was passed by the Provisional Legislative Council (PLC) on 1 July 1997, set out how the most important references such as "Crown" and "Governor" were to be construed after 1 July 1997, it did not actually change the words in the Ordinances. The PLC had also enacted six Adaptation of Laws Ordinances which dealt with subjects essential to the operation of the HKSAR. The next step was to deal with the adaptation of non-essential items on an ordinance by ordinance basis. To complete the exercise, the Administration had grouped the ordinances of similar nature into one single bill. A total of 638 Ordinances which required adaptation were divided into 54 Adaptation of Laws Bills. The timetable of adaptation of bills to be introduced into LegCo was set out in the paper but the actual number of bills and their order of introduction might be adjusted as and when necessary. The Law Draftsman assured members that about 95% of the adaptation of laws involved merely technical amendments.

4. Miss Margaret NG said that the Administration and the legal profession might have different views as to whether an amendment was technical in nature or amounted to a change in policy. She urged the Administration to consult the legal profession on all adaptation of laws bills. She further questioned the delay in completing the adaptation of laws exercise, given that the matter had been dealt with well before the change of sovereignty by the Sino-British Joint Liaison Group and that funding had been approved by the Finance Committee of the former Legislative Council for the Administration to expedite action in this respect.

5. The Law Draftsman explained that the adaptation of laws involving some 600 ordinances was a colossal exercise. The exercise had gone through different stages with each serving a different purpose. Prior to the handover, the Administration had prepared papers on all the references in existing laws which required to be amended for the discussion of the Sino-British Joint Liaison Group. However, detailed drafting of adaptation bills had not been undertaken at the time. During the PLC session, as the PLC should only enact laws which were essential for the normal operation of the HKSAR, only six adaptation of laws bills including the Adaptation of Laws (Interpretative Provisions) Bill and the Adaptation of Laws (Nationality Related Matters) Bill were enacted. The next stage of the exercise was to introduce specific amendments to the remaining ordinances. As a lot of amendments had been introduced to these ordinances in the past few years, it was necessary to scrutinize afresh the ordinances section by section at this stage. He assured members that the legal profession would be consulted and that the Administration would not use the adaptation exercise as an instrument to implement policy changes. Any textual amendments which were considered to be controversial would be highlighted in the LegCo Brief when the bill was introduced into the Council.

6. Regarding the review of ordinances binding on the Government but not on relevant PRC organs which arose in the context of the controversial Adaptation of Laws (Interpretative Provisions) Ordinance and which was recently discussed by the Panel on Administration of Justice and Legal Services, Miss Margaret NG urged the Administration to enhance co-ordination among policy bureaux and to advise on which policy bureau should be responsible for coordinating and collating the review.

7. The Chairman remarked that the Panel on Administration of Justice and Legal Services should be a more appropriate forum to discuss Miss NG's concern and issues relating to the Adaptation of Laws programme.

Adaptation of the Legislative Council (Powers and Privileges) Ordinance, the Legislative Council Commission Ordinance and the Private Bills Ordinance
(LC Paper CB(2)285/98-99(02))

8. The Law Draftsman said that many of the changes in the three Ordinances were basically housekeeping amendments. However, a few issues were legally more complex in nature and there were three possible approaches to achieve adaptation-

to retain the existing provision;
to amend the provision in line with the Basic Law; or
to repeal the provision and rely on the protection conferred by the Basic Law.

The Law Draftsman said that the Administration had yet to decide on the approach to be adopted and would like to seek members' view on the subject.

9. On (c) above, Miss Margaret NG commented that it would not be prudent to repeal an existing provision which offered greater degree of certainty and to replace it by one which had not been tested in court. She opined that in the context of the adaptation of laws exercise, this principle should apply to ordinances across the board and not just the three Ordinances in question, given that the Basic Law only set out the broad policy principle and any amendment which appeared to be technical in nature might have policy implications. Some members expressed similar views and agreed that to be in line with the spirit of the Basic Law, provisions of laws currently in force should be maintained except for any that contravened the Basic Law.

10. In response to members, the Law Draftsman confirmed that the three Ordinances were not in breach of the Basic Law. He further said that while he concurred with members' view at large, he was concerned that some of the adaptations might not be so straight forward. For example, although both Article 78 of the Basic Law and section 5 of the Legislative Council (Powers and Privileges) Ordinance dealt with protection to Members from arrest, they were written differently and might therefore have different legal implications. Article 78 of the Basic Law stated that Members shall not be subjected to arrest when attending or on their way to a meeting of the Council. Section 5 of the Ordinance contained more elaborate provisions which stated that Members shall not be liable to arrest for any civil debt whilst going to, attending at or returning from a sitting of the Council or a committee, and for any criminal offence whilst attending at a sitting of the Council or a committee. The Law Draftsman said that the Administration had yet to decide on the approach for adaptation and would welcome members' comments.

11. The Chairman pointed out that the crux of the problem appeared to be whether an existing provision that was more specific than the one stipulated in the Basic Law would constitute a contravention of the Basic Law. He was of the view that while the Basic Law provided the direction for specific matters, the details of implementation should be supplemented by the laws currently in force. The overriding principle for the adaptation exercise should be where changes were not warranted, provisions in existing Ordinances should be maintained. Members echoed the Chairman's view and agreed that the least changes should be made to the three Ordinances in question.

12. In response to Miss Emily LAU, the Legal Adviser said that it was appropriate for this Panel to discuss the adaptation of the three Ordinances which were related to the operation of the legislature. While he would need more time to consider the paper provided by the Administration, his initial view was that so long as the provisions of the three Ordinances did not contravene the Basic Law, substantial amendments to the Ordinances were not recommended.

13. Some members said that the example cited by the Law Draftsman illustrated that the Adaptation of Laws Programme, if not carefully implemented, would have the effect of taking away certain legal rights currently enjoyed by Members. Since what appeared to be a technical exercise could result in material changes, they stressed that LegCo should be fully consulted on any amendment made to the three Ordinances. They also cautioned the Administration not to use the adaptation exercise as a means to change existing laws.

14. The Law Draftsman thanked members for their views and said that he inclined to agree with members that any existing laws which did not contravene the Basic Law should be retained. He reassured members that the adaptation exercise was meant to be a technical one and any amendments to existing laws which involved policy implications would be dealt with separately.

IV. Review of district organizations
(LC Paper Nos. CB(2) 236/98-99, 285/98-99(03), 290/98-99(01) and 295/98-99)

15. Referring to the paper on "Problems in policy co-ordination concerning food safety and environmental hygiene" (LC Paper No. CB(2)290/98-99(01)), prepared at the request of the Panel, AD of H explained to members that the Department of Health was the agency for executing health policies and relevant statutory functions. It was responsible for among other things the control of food safety of imported and locally produced food. The functions executed by the Department were funded by the two MCs. The control of food safety functions required the co-operation and co-ordination of other government departments.

16. The Deputy Secretary for Constitutional Affairs (3) (DS for CA(3)) said that since the last Panel meeting on 20 July 1998, the Administration had updated members on the progress of the review of district organizations (LC Paper No. CB(2)285/98-97(03)) and published "A Compendium of Public Views" (issued vide LC Paper No. CB(2)295/98-99). She would also like to take this opportunity to respond to the points made in the press release of the Provisional Urban Council (PUC) in relation to the Compendium. In response to the Chairman, she said that the content of the press release was similar to the letter issued by the Chairman of PUC to Members, of which the Administration was given a copy by the LegCo Secretariat. She then made the following points-

PUC's comment that the Administration appeared to be trying to mislead the public into thinking that public opinions received were very much in favour of dissolving the two Municipal Councils (MCs) was unfounded. The Compendium only recorded all the submissions and views received during the consultation period and did not contain any statistical analysis or conclusion;
The Compendium revealed that there was clear majority support for the Government to assume direct responsibility for food safety and environmental hygiene and that public opinion was diverged on the future of the MCs. The Administration had not drawn any conclusion on the structure of district organizations;
According to the PUC's statistical analysis on some 710 written submissions received, there was more public support in favour of retaining the MCs (297 submissions or 38.8%) than dissolving them (250 submissions or 32.7%). Pointing out that the 297 submissions were in fact supporting three different proposals (merging of the MCs; retaining the MCs; and implementing the "one Municipal Council, one Municipal Services Department" proposal), and that there were in addition 70 submissions in support of the option to merge the MCs with all District Boards to form a number of regional bodies, DS for CA(3) commented that it was difficult for such statistical analysis to reflect fully the composition of public views. The Compendium was compiled in order to enable the public to have a full picture of the views received; and
The PUC had criticized the Administration for not providing analysis on the 2,560 pre-printed submissions and the 1,660 completed questionnaires, and that only samples of these submissions were provided in the Compendium. DS for CA(3) said that in analysing the 2,560 pre-printed submissions which were identical in one way or another, the Administration would give more weight to the quality than the quantity of the submissions. As for the 1,660 completed questionnaires, because of time constraints, the Administration had yet to complete analysis of these questionnaires. The result of the analysis would be incorporated into the consultation report to be released in October 1998.

17. DS for CA(3) further advised that having regard to the public support for the Government to assume direct responsibility for food safety and environmental hygiene, the Administration had commissioned a consultancy study on how the government departments should best be reorganized to discharge the functions. The Administration would brief members on the outcome of the study in due course. The Administration was also formulating proposals to address the problems of fragmentation of responsibilities and resources in the arts and sports areas.

18. Mr SZETO Wah queried the comments made by DS for CA(3) on the quality and quantity of the submissions. He questioned how a majority view could be formed in the absence of a quantitative measure.

19. Mr Ambrose CHEUNG said that during the consultation period, the Administration had received a total of over 4,900 submissions, comprising some 710 written submissions, over 2,560 submissions which were identical in one way or the other and some 1,600 completed questionnaires. However, the manner in which the Administration presented the result of the consultation was biased and unacceptable. The Administration had quoted selective public views to mislead people that public opinion was in favour of the dissolution of the MCs. He made the following comments-

The findings of the analysis of the PUC on the Compendium contradicted with those of the Administration. The PUC concluded that the majority view was to retain or merge the MCs and that views were divided on the proposal for the Administration to assume responsibility for food safety and environmental hygiene;
Out of the 3,270 written and pre-printed submissions, the Administration had focused only on the 710 written submissions which supported its aims while ignoring the other 2,560 pre-printed submissions, a vast majority of which (over 90%) supported maintaining the status quo;
On the 1,660 completed questionnaires, contrary to DS for CA(3)'s earlier advice that these had yet to be analysed by the Administration, paragraph 8 of the Administration's paper (LC Paper No. CB(2) 285/98-99(03)) had already drawn a conclusion by stating that "the majority of the respondents supported the proposal for the Administration to assume direct responsibility for food safety and environmental hygiene, while views on the future structure of district organizations were diverse";
Without making public the details of the pre-printed submissions and completed questionnaires, the Administration had clearly adopted a selective approach in releasing public opinion obtained during the consultation period. It would be most inappropriate for the Chief Executive (CE) to announce a decision on the matter in the Policy Address on the basis of the Administration's assessment of the collected views;
With reference to DS for CA(3)'s comment that the Administration would attach more weight to the quality than quantity of the submissions, Mr CHEUNG said that the Administration had never announced such criteria during the whole consultation process;
On the consultancy study of restructuring government departments to take up food safety and environment hygiene functions, he was disappointed that no plan had been made to consult or discuss with the MCs; and
The methodology adopted by the Administration in analysing the public views gathered during the consultation period was not considered to be objective and fair. An independent research agency should be commissioned to take on the task.

20. Dr YEUNG Sum echoed Mr CHEUNG's views and added that-

The Administration had, in paragraph 13 of the paper, quoted a number of public opinion surveys including the ones conducted by the Hong Kong Institute of Asia-Pacific Studies of the Chinese University of Hong Kong and the Social Sciences Research Centre of the University of Hong Kong to illustrate the public support for its proposal to assume direct responsibility for food safety and environmental hygiene. However, on the future of the MCs, no similar reference was made to the surveys conducted by the two Universities, the majority view of which was against dissolving the MCs. He questioned the credibility of the Administration in conducting the public consultation;
The Administration had the precedent of using "lack of mainstream opinion" and "divided public opinion" as an excuse not to implement direct election in 1988. He warned members that the Administration was employing similar tactics to scrap the MCs; and
He doubted whether the CE had been presented with a full picture of the public views obtained. At a meeting between Members of the Democratic Party and the CE the week before, CE had told him that he was advised by Government officials that there was majority support for the dissolution of the MCs. CE also appeared to be not aware of the result of the public opinion surveys on the subject conducted by the two Universities. Having regard to the fact that the CE might have been given misleading information, he suggested that the CE should be urged not to hasten to make a final decision in the Policy Address.

21. Mr Fred LI said that the Compendium did not provide any basis for the dissolution of the MCs. Referring to the 710 written submissions as recorded in Part I of the Compendium, he pointed out that there were divided views on the future of the MCs. In fact, more people supported the retention or amalgamation of the two MCs. On Part II of the Compendium which contained the extract of minutes of meetings of the LegCo, two Provisional Municipal Councils, Provisional District Boards and Area Committees, over 70% supported the amalgamation or retention of the MCs. In addition, the opinion surveys conducted by the two Universities did not support dissolving the MCs. However, the Administration did not seem to have paid much attention to these views. As far as food safety and environmental hygiene functions were concerned, he said that the advantage of the present structure was that the MCs could react quickly and flexibly in emergency situations when additional funding or resources were needed.

22. Miss Emily LAU said that it was not unusual for the public to have divided views on a subject. She said that in order to ensure a fair and just outcome for all parties concerned, the best way was to conduct a referendum on the issue. In response, DS for CA(3) said that it was not appropriate for a referendum to be conducted in Hong Kong at this stage.

23. DS for CA(3) discounted accusations that the Administration had been misleading the public given that the consultation was conducted in an open and fair manner. She reiterated that a preliminary assessment of the collected views indicated that the majority view supported the Government assuming direct responsibility for food safety and environmental hygiene, although there were different views on whether the MCs should be merged or dissolved. She stressed that the Administration had not made any public statement about dissolving the MCs and that such news reported in the media were merely speculation. She reiterated that the Administration had not drawn any conclusion on the future of the MCs. As regards opinion surveys conducted on the matter, she said that the results of which depended very much on how the questions were worded and sequenced. She said that the Principal Assistant Secretary for Constitutional Affairs (6) (PAS for CA(6)) would brief members in more detail.

24. PAS for CA(6) said that the Administration had collected information on the 10 opinion surveys conducted by various bodies, namely three surveys conducted by the newspapers using interactive voice response telephone system; two surveys conducted by the Democratic Party and the Democratic Alliance for the Betterment of Hong Kong using interactive voice response telephone system; one survey conducted by a TV station in the form of telephone poll; and four surveys conducted by the University of Hong Kong and the Chinese University of Hong Kong using random sampling method through telephone interviews. He summarized the results of these opinion polls as follows-

On whether the Government should assume direct responsibility for food safety and environmental hygiene, except the opinion survey conducted by the Democratic Party, the other nine surveys indicated that about 50-60% of the respondents supported the proposal;
Although many respondents preferred option 1 i.e. to amalgamate the MCs into one territory-wide council responsible for providing services relating to arts and culture as well as sports and recreation, there was no majority support i.e. less than 50%; and
The poll conducted by the TV station indicated that over half of the respondents supported dissolving the MCs.

25. PAS for CA(6) further commented that the above surveys had certain limitations-

Telephone polls lacked representation as respondents were not selected by using the random sampling method and it was not possible to ascertain whether they were adults or children;
According to the survey conducted by the University of Hong Kong, the answers given by respondents were sometimes contradictory as they might not have a thorough understanding of the operation, structure and functions of the existing district organisations and the implication of the review; and
As all the surveys were conducted before 29 July 1998 on which the motion on "One Municipal Council, one Municipal Services Department" was debated in the LegCo, the respondents might not be fully aware of the arguments in favour of or against the proposal.

26. In response to the Chairman and Dr YEUNG Sum, PAS for CA(6) undertook to provide relevant information concerning the 10 opinion surveys for reference of members.

(Post-meeting note: Analysis on the 10 opinion surveys and details of the surveys conducted by the Chinese University of Hong Kong and the University of Hong Kong have been issued to members vide LC Paper Nos. CB(2)314 and 343/98-99.)

27. As some members still wished to speak and time was running short, the Chairman suggested to arrange a special meeting to continue discussion on the item. Members agreed that the meeting should be held on the following Monday, 28 September 1998, at 8:30 am. Members also agreed that a letter should be sent to the CE urging him not to reach any decision in the Policy Address before the Panel had a thorough discussion with the Administration.

(Post-meeting note: The meeting was rescheduled to be held at 2:00 pm on Saturday, 26 September 1998.)

V. Review of the 1998 Legislative Council election
(LC Paper Nos. CB(2)285/98-99(04) and (05))

28. Members noted that the Report on the 1998 Legislative Council Elections had been submitted to the CE by the Electoral Affairs Commission (EAC) on 24 August 1998.

29. The Deputy Secretary for Home Affairs (2) (DS for HA(2)) said that the opinion survey on voting behaviour in the 1998 LegCo election, which commenced on the day immediately after the LegCo elections on 24 May 1998, was the largest and most comprehensive post-election survey. He then briefed members on details of the survey and its major findings as set out in LC Paper No. CB(2) 285/98-99(04). He said that the information collected would assist in the improvement of publicity for and the conduct of future elections.

30. The Chairman informed members that pages 3-15 of the Survey Report were attached to the paper. Two copies of the full Survey Report containing tables and appendices were available in the LegCo Library.

31. Dr YEUNG Sum asked whether the EAC would consider including the names and logos of political parties on ballot papers in the LegCo elections to be held in 2000 and whether such decision required the consent of the Administration. Mr Fred LI asked whether the photographs of candidates could be printed on ballot papers as well.

32. Chief Electoral Officer (CEO) of the Registration and Electoral Office replied that the EAC was recently informed that technical advancement in printing had made it possible for ballot papers to be printed in various colours. This facilitated the use of logos in printed materials. The EAC felt that in the LegCo elections to be held in 2000, the names and logos of political parties might be allowed on ballot papers, on conditions that any unfairness to independent candidates could be alleviated. If the proposal was implemented, any rule or policy to be followed would be made known to all intended candidates well in advance, say, at least a year before the election, to allow independent candidates enough time to develop and establish a logo or name known to the public. CEO said that the proposal to include candidates' photographs onto the ballot paper was still being considered by the EAC as technical problems had remained to be resolved. For example, it might be difficult to match the photographs of candidates on a geographical constituency list against their names on the ballot paper, and any mistake in matching might annul the election. However, the EAC would welcome members' further suggestions on the matter. While the EAC would seek the Administration's advice on the subject, the EAC was empowered to make regulations regarding electoral procedure and arrangements under the EAC Ordinance.

33. Mr LEE Wing-tat asked whether the Administration would consider adopting the practice in some overseas countries where electioneering activities were prohibited on the election day, to allow a cooling off period for electors, given that the opinion survey revealed that 86% of the voters did not find the candidates' electioneering on the election day useful in helping them to decide on their votes. CEO said that the EAC had commented on the proposal on a number of occasions. The EAC remained of the view that there would be enforcement difficulties and the proposal, if implemented, might not achieve the desired effect. In further response to Mr LEE, he agreed to reflect members' views to the EAC for further consideration.

REO

34. There being no other business, the meeting ended at 4:35 pm.

Legislative Council Secretariat
16 October 1998

Legislative Council Panel on Constitutional Affairs

Legislative Council
Panel on Constitutional Affairs