President’s ruling on amending motions by three Members

President’s ruling on amending motions by three Members to the proposed resolution under section 7(1) of

the Public Finance Ordinance (Cap. 2) Three Members have respectively given notices under Rule 29(6)(a) of the Rules of Procedure (“RoP”) to move a total of four amending motions in Appendix 1 at the Legislative Council (“LegCo”) meeting of 18 March 2020 to the resolution proposed by the Secretary for Financial Services and the Treasury (“the Proposed Resolution”) under section 7(1) of the Public Finance Ordinance (Cap. 2):

Member Number of amending motions

Dr Hon Fernando CHEUNG 2 Hon WU Chi-wai 1 Hon Andrew WAN 1 Total: 4

The Proposed Resolution 2. The Proposed Resolution seeks to give authority for a sum not exceeding $215,865,713,000 to enable the Government to carry on its services between the start of the financial year on 1 April 2020 and the time when the Appropriation Ordinance 2020 comes into operation. The sum so charged may be expended against the heads of expenditure as shown in the Estimates of Expenditure 2020-21 laid before LegCo on 26 February 2020. Members’ amending motions 3. The four amending motions proposed by the three Members may be divided into two groups. The first group (comprising Dr CHEUNG’s first amending motion and Mr WU’s amending motion) and the second group (comprising Dr CHEUNG’s second amending motion and Mr WAN’s amending motion) seek to cut all the expenditure in respect of Head 21 (Chief Executive’s Office) and Head 122 (Hong Kong Police Force) respectively under the Proposed Resolution. The Administration’s views

4. The Administration submits in Appendix 2 that it does not have any comment on the four amending motions from the angle of RoP. However, it

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considers that all these motions should not be admitted as they, if passed, would have a material effect of putting major public services into disarray and seriously disrupting the operation of the Government. Moreover, it remains the Government’s view that legislative proposals relating to public expenditure or political structure or the operation of the Government, whether or not leading to an increase or decrease in public expenditure, are strictly prohibited under Article 74 of the Basic Law (“BL”). Members’ responses

5. Dr Hon Fernando CHEUNG, Hon WU Chi-wai and Hon Andrew WAN disagree with the Administration’s views, as shown in their respective responses in Appendices 3 and 4. My opinion

6. The four amending motions proposed by the three Members seek to achieve the effect that no expenditure should be authorized in respect of Head 21 (Chief Executive’s Office) and Head 122 (Hong Kong Police Force) under the Proposed Resolution. I note that the Administration has no comments on those amending motions from the angle of RoP.

7. I find the four amending motions relevant to the subject matter of the

Proposed Resolution as they merely seek to amend the details of the Proposed Resolution by varying the relevant conditions or limitations on the authorization of expenditure in respect of Head 21 and Head 122 under section 7(1) of Cap. 2. They are thus within the scope of authority stipulated in that section.

8. I understand that the four amending motions, if passed, would adversely

affect the operation of the Chief Executive’s Office and the Hong Kong Police Force. Nevertheless, as pointed out in past rulings, the merits of Members’ proposed amendments, including their possible impact on the operation of the Government, are not factors that the President should take into account when considering the admissibility of amendments.

9. I note the disagreement between the Legislature and the Government on

the interpretation of BL 74. In my view and as reiterated in past rulings, it is incumbent upon the President to adhere to the LegCo’s view that BL 74 applies to Members’ bills only and does not apply to the President’s consideration of the admissibility of Members’ amendments to the Government’s legislative proposals (such as bills, subsidiary legislation and proposed resolutions) in accordance with RoP.

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My ruling

10. I rule that all of the four amending motions proposed by Dr Hon Fernando CHEUNG, Hon WU Chi-wai and Hon Andrew WAN are admissible. 16 March 2020

Appendix 1

Public Finance Ordinance

and

Rule 29(6) of the Rules of Procedure of the Legislative Council of the Hong Kong Special Administrative Region

Amending Motion

Resolved that the motion to be moved by the Secretary for Financial Services and the Treasury under section 7(1) of the Public Finance Ordinance (Cap. 2) at the Legislative Council meeting of 18 March 2020 be amended as set out in the Schedule.

Dr Hon Fernando CHEUNG’s first amending motion

Schedule

Amendments to Motion to be Moved by Secretary for Financial Services and the Treasury

under Section 7(1) of Public Finance Ordinance

1. Paragraph 1 amended Paragraph 1─

Delete “$215,865,713,000”

Substitute “$215,840,614,000”.

2. Schedule 1 amended Schedule 1─

Add “21 Chief Executive’s

Office 000 Operational expenses 0”.


and


Amending Motion


Dr Hon Fernando CHEUNG’s second amending motion

Schedule


under Section 7(1) of Public Finance Ordinance

1. Paragraph 1 amended Paragraph 1─ Delete

“$215,865,713,000” Substitute “$210,280,401,000”.

2. Schedule 1 amended Schedule 1─ Add “122 Hong Kong

Police Force 000 103

Operational expenses Rewards and special services

0 0

207 Expenses of witnesses, prisoners and deportees

0”.

3. Schedule 2 amended Schedule 2─ Add “122 Hong Kong

Police Force 603 Plant, vehicles and

equipment 0

614 Alterations, additions and improvements to in-service Marine Police craft (block vote)

0

661 Minor plant, vehicles and equipment (block vote)

0

695 Police specialised vehicles (block vote)

0”.


and


___________________

Amending Motion ___________________


___________________

Hon WU Chi-wai’s amending motion

Schedule


under Section 7(1) of Public Finance Ordinance 1. Paragraph 1 amended Paragraph 1—

Delete “$215,865,713,000”

Substitute “$215,840,614,000”.

2. Paragraph 2A added

After paragraph 2—

Add “2A. This Resolution does not apply to Head 21 in the

Estimates of Expenditure 2020-21 laid before the Legislative Council on 26 February 2020.”.


and


___________________

Amending Motion ___________________


___________________

Hon Andrew WAN’s amending motion

Schedule


under Section 7(1) of Public Finance Ordinance 1. Paragraph 1 amended Paragraph 1—

Delete “$215,865,713,000”

Substitute “$210,280,401,000”.

2. Paragraph 2A added

After paragraph 2—

Add “2A. This Resolution does not apply to Head 122 in the

Estimates of Expenditure 2020-21 laid before the Legislative Council on 26 February 2020.”.

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12 March 2020

Clerk to the Legislative Council

Legislative Council Secretariat

Legislative Council Complex1 Legislative Council RoadCentral

Hong Kong

(Attn: Ms Lilian Mok)

Dear Ms Mok,

Amending motions to the Administration's proposed resolution underthe Public Finance Ordinance (Cap. 2) ("PFO")

Thank you for your two letters, both dated 9 March 2020, tothe Secretary for Financial Services and the Treasury on the captionedsubject. I am authorised to reply on his behalf.

The proposed amending motions

We do not have any comment on the amending motionsproposed by Dr Hon Femando Cheung, Hon Wu Chi-wai and Hon AndrewWan to the Administration's proposed resolution under section 7(1) of thePFO (see the attachments to your aforesaid letters) from the angle of the

Appendix 2

Rules of Procedure ("RoP") of the Legislative Council ("LegCo").

That said, having carefully examined the proposed amendingmotions, we consider that these proposed amending motions should not beadmitted on the following grounds.

The proposed amending motions reduce the sum to be chargedon the general revenue for expenditure on the services of the Governmentin respect of the financial year commencing on 1 April 2020 by notapplying the Administration's proposed resolution to Heads 21 and 122 inthe Estimates of Expenditure 2020-21 laid before LegCo on26 February 2020.

The proposed amending motions seek to cut all of theexpenditure of Heads 21 and 122 under the Administration's proposedresolution, including personal emoluments. These proposed amendingmotions, if admitted and passed, would impair the capacity of theGovernment in the effective delivery of public service and in dischargingits legal obligations as an employer, and would have a material effect of

putting major public services into disarray and seriously disrupting theoperation of the Government. This could not be in the public interest.

Basic Law ("BL") implications

The above is without prejudice to the Government's view onArticle 74 of the BL ("BL74"). It remains our view that the introductionof legislative proposals, whether in the fonn of bills or amending motionsto the Administration's proposed resolution, is subject to the restrictions setout in BL74. Legislative proposals relating to "public expenditure orpolitical structure or the operation of the government", whether or notleading to an increase or decrease in public expenditure, are strictlyprohibited under BL74.

We should be grateful if the President could take th6 above

views and analysis into account in considering whether to admit the

proposed amending motions under the relevant provisions of the BL andthe RoP.

Yours sincerely,

(Edward Cheng)

for Secretary for Financial Services and the Treasury

c. c. Director of Administration

Department of Justice (Attn: Dr Boyce Yung)

立法會秘書處莫頴琛女士：

莫女士：

就政府意見的回應

就政府對我提出修訂財經事務及庫務局局長根據《公共財政條例》第 7(1) 條提出的議案的意見，我的回應如下：

1. 基本法第 74 條只規管立法會議員提出法律草案，對政府法案或議案的修正案，並不在此限。

2. 基本法第 73 條列明：「香港特別行政區立法會行使下列職權： ( 一 ) 根據本法規定並依照法定程序制定、修改和廢除法律......」

法律的修改，不少均會涉及公共開支，而上述根據《公共財政條例》第 7(1) 條提出的議案，本身便是與政府臨時撥款有關。因此禁止對上述議案提出修正案，必然違反基本法賦予立法會議員的權力。

3. 立法會過往均可讓議員提出削減開支的修正案，一直行之有效。

如有問題，請與我的助理郭先生聯絡（電話：xxxx xxxx ）。謝謝。

立法會議員張超雄

二零二零年三月十三日

附錄 3 Appendix 3(只備中文本Chinese version only)

sswwu

螢光標示

香港中區立法會道一號

立法會綜合大樓

立法會主席

梁君彥議員

梁主席﹕

有關就根據《公共財政條例》動議的擬議決議案提出修訂議案事宜

我們接獲政府當局予立法會的函件，反對我們就政府根據《公共財政條例》動議

的擬議決議案提出修訂議案。對於政府的觀點，我們回應如下﹕

1. 提出的修訂議案只要合乎《基本法》和立法會《議事規則》，就可以提出。

2. 當局歷年都引用《基本法》第七十四條，反對議員就《撥款條例草案》提出

修正案。不過，立法會主席於歷年裁決書中已表示第七十四條並不適用。雖

然是次提出的決議案並非《撥款條例草案》，但主席就《撥款條例草案》的裁

決原則 (即﹕第七十四條並不適用) 應該同樣適用於就是次決議案提出的修

訂議案。因此，當局引用《基本法》第七十四條，並不適用於今次我們提出

的修訂議案上。

3. 立法會議員過去都有就《撥款條例草案》提出若干修正案，並獲立法會主席

批准提出。因此，立法會主席應秉行過去的先例，並將該等先例延伸至是次

決議案的修訂議案上，批准我們提出的修訂議案。

立法會議員胡志偉尹兆堅

謹啟

2020年 3月 13日

附錄 4Appendix 4(只備中文本Chinese version only)

Documents

President’s ruling on amending motions by three Members