Speeches

     Following is a question by Dr Hon Fernando Cheung and a reply by the Secretary for Constitutional and Mainland Affairs, Mr Raymond Tam, in the Legislative Council today (October 15):

Question:

     Article 7 of Annex I and Article III of Annex II to the Basic Law provide respectively that if there is a need to amend the method for selecting the Chief Executives and that for forming the Legislative Council (LegCo) for the terms subsequent to the year 2007, such amendments must be made "with the endorsement of a two-thirds majority of all the members of the LegCo". Regarding the interpretation of "all the members of the LegCo", the former Chief Secretary for Administration said in his statement on the "Package of Proposals for the Methods for Selecting the Chief Executive and for Forming the Legislative Council in 2012" delivered at the LegCo meeting on April 14, 2010 that after detailed study by the Department of Justice and careful consideration from different angles, the Government considered that the entire authorised membership of the LegCo, i.e., the 60 LegCo Members stipulated in Article I(1) of Annex II to the Basic Law, rather than the number of the LegCo Members in office, should be taken as the basis for calculating "a two-thirds majority of all the members of the LegCo" (the interpretation in 2010). In this connection, will the Government inform this Council:

(1) whether the interpretation of "all the members of the LegCo" by the Government of the current term is consistent with the interpretation in 2010; if it is not, of the interpretation by the Government of the current term and the circumstances under which such interpretation applies;

(2) whether it has studied if the absence of Members due to involuntary reasons (such as being detained by law enforcement agencies) when the motions to amend the methods for selecting the Chief Executive in 2017 and for forming the LegCo in 2016 are being voted on in the LegCo will affect the number of Members actually meant by "all the members of the LegCo" and may thus affect the voting result of such motions; if it has, of the outcome; and

(3) how the authorities will deal with the situation in which the Government and the President have different understanding of "all the members of the LegCo" and whether the Government will take the understanding of the President as the correct one; if they will, of the reasons; if not, the justifications for that, and whether the Government will take any measures, such as seeking an interpretation of "all the members of the LegCo" from the Standing Committee of the National People's Congress?

Reply:

President,

     According to Article 7 of Annex I to the Basic Law, if there is a need to amend the method for selecting the Chief Executive (CE) for the terms subsequent to the year 2007, such amendments must be made with the endorsement of a two-thirds majority of all the Members of the Legislative Council (LegCo) and the consent of the CE, and they shall be reported to the Standing Committee of the National People's Congress (NPCSC) for approval. The reply to the question raised by Dr Hon Cheung is as follows:

(1) and (2) The HKSAR Government considers that "all the members of the Legislative Council" as stated in Article 7 of Annex I to the Basic Law should refer to the entire authorised membership of the LegCo, irrespective of any vacancies.

     In fact, the HKSAR Government had examined the issue in detail in 2010.  At the LegCo meeting on April 14, 2010, the then Chief Secretary for Administration explained clearly that the Administration reached its conclusion on the matter after carefully considering the relevant provisions of the Basic Law, the purpose of setting a quorum requirement and the relevant case law in overseas jurisdictions.  On the whole, such information supported the interpretation of "all the members of the LegCo" as the entire authorised membership of the LegCo. In other words, according to Article I(1) of Annex II to the Basic Law, given that the number of authorised Members of the LegCo at that time was 60, "a two-thirds majority of all the members of the Legislative Council" would mean 40 Members. Otherwise, in an extreme situation, for example, where a considerable number of vacancies have arisen, resulting in relatively few Members remaining, these Members would be able to exercise all the powers of the LegCo. This will not be reasonable and will not be consistent with one of the important purposes for setting a quorum requirement, namely, to avoid the situation where only a few Members will be able to make decisions for the whole Council, resulting in such decisions not receiving necessary and appropriate respect.

     Hence, given that the number of authorised Members of the current term LegCo is 70, we consider that the requirement of "endorsement of a two-thirds majority of all the members of the LegCo" to amend the method for selecting the CE as provided in Article 7 of Annex I to the Basic Law should mean that such amendments could only be made with the endorsement of at least 47 Members of the LegCo.

(3) The HKSAR Government would not speculate how the President of the LegCo may interpret "all the members of the LegCo".

Ends/Wednesday, October 15, 2014