TNAG-2218-FCO40-3186-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 198

CONFIDENTIAL

FM HONG KONG

TO IMMEDIATE FCO

TELNO 2786

OF 140747Z SEPTEMBER 90

CONFIDENTIAL

HKB OIZ

TOP COPY

012/6 Q-DIST?

1990

89

013361

MDHIAN 9048

VALIDITY OF ACTS BY THE LEGISLATIVE COUNCIL

·

1 AT PRESENT THERE IS NO PROVISION IN THE ROYAL INSTRUCTIONS (RI) WHICH COVER THE VALIDITY OF ACTS DONE BY A DISQUALIFIED ELECTED MEMBERS OF THE LEGISLATIVE COUNCIL OR ACTS OF THE COUNCIL WHICH A DISQUALIFIED MEMBER HAS TAKEN PART. THIS IS UNLIKE THE LAWS FOR THE URBAN COUNCIL, REGIONAL COUNCIL, AND THE DISTRICT BOARDS, WHICH INVARIABLY CONTAIN A PROVISION ALONG THE FOLLOWING LINES:

QUOTE THE PROCEEDINGS OF THE (COUNCIL) OR A COMMITTEE THEREOF SHALL NOT BE INVALIDATED BY ANY VACANCY AMONG THEIR NUMBER, OR BY ANY DEFECT IN THE ELECTION OR DISQUALIFICATION OF ANY MEMBER THEREOF. UNQUOTE

THE QUESTION THEREFORE ARISES WHETHER A SIMILAR PROVISION SHOULD BE INCLUDED IN THE RI.

2. AT PRESENT ACTS OF ELECTED MEMBERS OF THE LEGISLATIVE COUNCIL DISQUALIFIED BY AN ELECTION PETITION ARE VALIDATED BY SECTION 39 OF THE LEGISLATIVE COUNCIL (ELECTORAL PROVISIONS) ORDINANCE (CAP 381). AN EQUIVALENT SECTION IS IN THE ELECTORAL PROVISIONS ORDINANCE (CAP 367) WHICH, UPON THE ENACTMENT OF THE ELECTORAL PROVISIONS CAMENDMENT) BILL 1990, WILL BE EXTENDED TO COVER DIRECTLY ELECTED MEMBERS OF THE COUNCIL. ON THE OTHER HAND, APPOINTED MEMBERS OF THE COUNCIL ARE COVERED AS THEY WOULD REMAIN MEMBERS UNTIL A VACANCY IS DECLARED (RI XVII) OR THEIR RESIGNATION IS ACCEPTED (RI XVIII).

3. IT THEREFORE APPEARS THAT AN ANOMALY EXISTS WHICH MAY OPEN TO CHALLENGE ACTS DONE BY A MEMBER WHO SHOULD BE DISQUALIFIED FOR REASONS OTHER THAN A SUCCESSFUL ELECTION PETITION AGAINST HIM

(E.G. CERTAIN CIRCUMSTANCES AS SET OUT IN SECTION 9 OF CAP 381). OUR CONCERN IS THAT SINCE MATTERS IN LEGCO ARE DECIDED BY A MAJORITY (RI XXII) THERE IS ALWAYS A POSSIBILITY THAT IN A CLOSE DECISION THE VOTE OF A DISQUALIFIED MEMBER COULD BE DECISIVE. THIS COULD THROW DOUBT ON THE VALIDITY OF A LAW PASSED IN SUCH

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