President's ruling on
amendment proposed by Hon LEE Cheuk-yan to motion on
"Regretting the decision of the
Standing Committee of the National People's Congress to rule out universal suffrage in the years 2007 and 2008"
to be moved by Hon Albert HO Chun-yan
at the Legislative Council meeting on 19 May 2004

Hon Albert HO Chun-yan has been given permission to move the following motion at the Council meeting to be held on 19 May 2004:

(Translation)

"That, in view of the objection of the people of Hong Kong at large to the decision of the Standing Committee of the National People's Congress ('NPCSC') to rule out flatly the selection of the Chief Executive by universal suffrage in the year 2007 and the election of all the Members of the Legislative Council ('LegCo') by universal suffrage in the year 2008 in Hong Kong, and to maintain the existing ratio between LegCo Members returned by functional constituencies and Members returned by geographical constituencies through direct elections, as well as the procedures of separate voting on bills and motions introduced by individual Members, this Council considers that the decision of NPCSC completely ignores Hong Kong people's general aspirations for democracy; this Council expresses regret about and dissatisfaction with such decision, and calls upon the people of Hong Kong to continue striving for democracy with all might and never give up."

2. Hon LEE Cheuk-yan has proposed to amend the motion. If I allowed the amendment and Hon LEE Cheuk-yan's amendment was passed by the Council, the motion moved by Hon Albert HO Chun-yan, as amended by Hon LEE Cheuk-yan, would read:

(Translation)

"That, in view of the objection of the people of Hong Kong at large to the decision of the Standing Committee of the National People's Congress ('NPCSC') to rule out flatly the selection of the Chief Executive by universal suffrage in the year 2007 and the election of all the Members of the Legislative Council ('LegCo') by universal suffrage in the year 2008 in Hong Kong, and to maintain the existing ratio between LegCo Members returned by functional constituencies and Members returned by geographical constituencies through direct elections, as well as the procedures of separate voting on bills and motions introduced by individual Members, and as many people also consider that, in making its decision on the constitutional development of Hong Kong without fully consulting the views of the people of Hong Kong, NPCSC has violated the basic principle of 'one country, two systems' and done harm to the Hong Kong Special Administrative Region's 'high degree of autonomy', this Council considers that the decision of NPCSC completely ignores Hong Kong people's general aspirations for democracy and affects the confidence of Hong Kong people in 'one country, two systems', and expresses regret about and dissatisfaction with such decision; this Council urges the Chief Executive to request the State Council to propose to NPCSC that withdrawal of the above decision, and calls upon the people of Hong Kong to continue striving for democracy with all might and never give up."

Advice of Counsel to the Legislature

3. I have sought advice from the Counsel to the Legislature to assist me in considering the proposed amendment.

4. Counsel advises that the first part of the amendment seeks to add the following to the preamble: "而不少市民亦認為，人大常委會未有充份諮詢港人的意見，即就香港的政制發展問題作出決定，是違反'一國兩制'的基本方針，損害特別行政區的'高度自治'，".

5. The principle which the President adopted in her last two rulings relating to the subject dated 30 April 2004 and 7 May 2004 is that a motion (including amendment) is out of order if it involves accusatory expressions against the acts of the NPCSC undertaken according to law which would be likely to degrade it in the public estimation.

6. The accusatory expressions in Mr Martin LEE's proposed amendment to Mr Frederick FUNG Kin-kee's motion and in Mr Albert HO's proposed motion which were ruled out of order by the President are similar in nature to the expressions used in this part of Mr LEE's proposed amendment. They are directed at the NPCSC's, accusing it by necessary implication of having acted in breach of the Basic Law and 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. However, Mr LEE's proposed amendment differs from the other two in that it attributes the accusations to some people of Hong Kong, instead of proposing the accusations for adoption as the Council's view.

7. Counsel advises that, in the light of the principle adopted in the two previous rulings, the President may consider what message a fair-minded person would get from a fair and reasonable reading of the motion as would be amended by Mr LEE. If the President comes to the view that such a person will not associate the Legislative Council with the accusations contained in this part of the proposed amendment motion, she may consider it to be in order. However, if she comes to the view that that person will understand the motion as amended to be carrying a clear message that the Legislative Council is using the accusatory expressions against the NPCSC, she may conclude that this part of the proposed amendment is out of order.

8. Alternatively, the President may consider whether the difference referred to in paragraph 6 above is a difference in form or in substance. If she concludes that the difference is one of form only, she may conclude that to attribute the accusatory expressions to a third party is no less accusatory than attributing them to the Legislative Council. However, the President should only reach such a conclusion if she is satisfied that the way this part of the proposed amendment as drafted is clearly an attempt to avoid being ruled out of order.

9. Counsel advises that the second part of the proposed amendment seeks to add some words so that the relevant part of the motion as would be amended would read: "本會認為人大常委會的決定 … 影響港人對'一國兩制'的信心，". This proposed addition does not on its own appear to fall within the category of accusatory expressions. When read together with the other parts of the motion proper, this proposed addition seeks to add a view on the effect of the NPCSC's decision on the people of Hong Kong rather than accusing the NPCSC of having done anything improper or unlawful.

10. The third part of the proposed amendment seeks to add some words so that the relevant part of the motion as would be amended would read: "本會促請行政長官提請國務院向人大常委會提案撒回上述決定，並呼籲香港市民繼續全力爭取民主，永不放棄。" There are no procedural issues of difficulty in respect of this proposed addition."

My opinion

11. In the final analysis, rulings by the President essentially involve some degree of personal judgment. However, I hope it should be clear to Members that my rulings have not been made according to personal preferences, but have taken into account all information and arguments made available to me, as well as my duty as guardian of the Council's freedom of speech and debate. But, as pointed out in my previous rulings, such freedom is not without bounds.

12. In my previous rulings relating to this subject, I concluded that in view of the constitutional relationship between the NPC/NPCSC and the HKSAR/HKSAR Legislative Council and their relevant powers, it is out of order for Legislative Council to debate a motion (including amendment) involving accusatory expressions against the character of NPCSC or the acts of NPCSC undertaken according to law which would be likely to degrade it in the public estimation. I stand by this conclusion.

13. Having examined the original motion as would have included Mr LEE's proposed amendment, I am of the views that, in respect of the first part of the proposed amendment,:

(a) although Mr LEE's proposed amendment is drafted in such a way as to attribute the accusatory expressions to "many people in Hong Kong" and not to the Council, it nevertheless contains the accusatory expressions of a nature similar to those in Mr Albert HO's original motion that I ruled out of order;

(b) the proposed amendment is an ingenious device to seek to use accusatory expressions against the NPCSC by attributing them to "many people in Hong Kong"; and

(c) if the motion with the proposed amendment is debated by the Council, a fair-minded person will form the view that it seeks to propose that the Council identifies itself with the accusatory expressions against the NPCSC, and hence arrives at its views, and resolves to take the actions, in the latter half of the motion as amended by Mr LEE.

14. I accept the advice of Counsel regarding the other parts of Mr LEE's amendment.

Ruling

15. For the reasons stated above, I rule that the first part of Mr LEE's proposed amendment, i.e. the words "而不少市民亦認為，人大常委會未有充份諮詢港人的意見，即就香港的政制發展問題作出決定，是違反'一國兩制'的基本方針，損害特別行政區的'高度自治'，", is out of order and may not be proposed. If Mr LEE wishes to move the two other parts of the proposed amendment, he should give notice by 9:00 am on Monday 17 May 2004.

( Mrs Rita FAN )
President
Legislative Council

14 May 2004