Provisional Legislative Council

PLC Paper No. CB(2) 1071
(These minutes have been
seen by the Administration)

Ref : CB2/BC/2/97

Bills Committee on the Electoral Affairs Commission Bill

Minutes of the second meeting
held on Tuesday, 14 August 1997 at 8:30 a.m.
in Conference Room A of the Legislative Council Building

Members Present :

Hon Ronald ARCULLI (Chairman)
Dr Hon Raymond HO Chung-tai
Hon CHAN Yuen-han
Hon TSANG Yok-sing
Hon IP Kwok-him
Hon Bruce LIU Sing-lee
Hon NGAN Kam-chuen
Hon LAU Kong-wah
Hon CHOY So-yuk

Members Absent :

Hon WONG Siu-yee
Hon Mrs Sophie LEUNG LAU Yau-fun, JP
Dr Hon Charles YEUNG Chun-Kam

Public Officers Attending :

Mr Patrick HO
Principal Assistant Secretary for Constitutional Affairs

Mr LI Wing
Chief Electoral Officer

Mr James O’Neil
Principal Government Counsel

Ms Phyllis KO
Senior Assistant Law Draftsman (Acting)

Assistant Secretary for Constitutional Affairs
Clerk in Attendance :
Mrs Percy MA
Clerk to Bills Committee

Staff in Attendance :

Mr LEE Yu-sung

Legal Adviser (Acting)
Mr Stephen LAM

Senior Assistant Legal Adviser (Acting)
Mrs Justina LAM

Assistant Secretary General 2
Miss Flora TAI

Senior Assistant Secretary (2) 3

I. Meeting with the Administration

Table of Comparison of the Bill and the former Boundary and Election Commission (BEC) Ordinance

(PLC Paper No. CB(2)144 - English version

PLC Paper No. CB(2)150 - Chinese version)

At the invitation of the Chairman, Principal Government Counsel (PGC) briefed members on the table of comparison of the Bill and the former BEC Ordinance. Members noted that: (a) "election" under clause 2(2) included "by-election"; (b) clause 3(4) was a new clause requiring persons appointed to have a right to vote under Basic Law Article 26; (c) on page 2 of the note to the comparison table, clause 4(g) should read clause 4(h); (d) on page 3 of the same note relating to clause 6(3), the word "added" should be "omitted"; (e) clause 17(2) together with clause 20(6) provided flexibility for the Commission to estimate the total population of Hong Kong with available information which was best possible in the circumstances, for the purpose of making recommendations on GC boundaries; and (f) paragraph 1(5) of Schedule 2 provided for replacement by another member of the Commission or by another person during temporary absence of the Chairman or any other member respectively. In this connection, the Chairman asked and PGC confirmed that the restrictions prescribed in clause 3(5) would apply to an appointment made under paragraph 1(5) of schedule 2 by virtue of paragraph 1(6).

2. The Chairman then invited questions from members on the comparison table and asked the Administration to respond accordingly. The gist of the discussion is summarized in paragraphs 3 - 10 .

Clause 3 - Establishment and membership

3. With reference to clause 3(5)(f)(v), some members expressed concern that such a restriction was too vague and could be unnecessarily stringent as any person who participated in an election of Election Committee members otherwise then as an elector would be disqualified for appointment to the Commission. Principal Assistant Secretary for Constitutional Affairs (PASCA) explained that it was necessary to cast the provision as presently proposed in the Bill because the practical arrangements relating to the Election Committee election had yet to be worked out. However, the general principle was that whether a person should be disqualified from appointment to the Commission would depend on the extent and nature of his involvement in such elections.

4. In response to members’ enquiry, PASCA confirmed that clause 3(7) and section 3(9) of the BEC Ordinance served the same purpose despite the use of the word "and" in the Bill to replace the word "or" in the Ordinance.

Clause 5 - General powers of Commission

Clause 6 - Commission to issue guideline

Clause 7 - Regulations

5. Members noted that the Administration agreed to move a Committee stage amendment (CSA) to clause 6(3) to allow the Commission to take appropriate action in respect of a complaint relating to a breach of guidelines. However, the guidelines issued by the Commission under clause 6 were not legally binding. They only served to assist candidates and election agents in understanding their statutory obligations, and to provide administrative arrangements so as to ensure the conduct of elections in a fair and efficient manner. PASCA supplemented that the Commission could, under clause 7, provide that any contravention of its regulations would be an offence and punishable by a fine or imprisonment. Mr Bruce LIU maintained that the Commission should be given sufficient statutory powers in order for it to discharge its functions effectively. The range of powers which could be taken by the Commission should be specified in clause 5 of the Bill. The Chairman shared a similar view. Mr LIU also remarked that it would be more effective if the Commission could take immediate action against any breach of guidelines or regulations. Mr IP Kwok-him therefore suggested and PASCA agreed to include the power of the Commission to issue a reprimand or censure in clause 6(3). In this connection, Mr LAU Kong-wah suggested that an appeal mechanism should be put in place for the person being complained against. In response, PASCA agreed to stipulate in clause 6 such an appeal mechanism which had already been established in the 1995 elections.

6. Members noted that clause 7(6) was a new specific provision to cater for corporate voters in the 1998 elections and the Commission would supervise those elections. Dr Raymond HO Chung-tai asked and PASCA responded that clause 7(6) mainly referred to body corporate. In response to Mr IP Kwok-him relating to clause 7(6)(b), PGC said that it was unlikely for the court to construe candidates on nomination lists in respect of election of geographical constituencies under the proportional representation voting system as being partnership. Some members also referred to the phrase "attributable to the neglect or omission on the part of " in clause 7(6) and expressed concern that the provisions had imposed a very stringent requirement on the parties concerned particularly in the light that they might not have any experience in corporate voting. PGC pointed out that although the provisions of the Criminal Procedure Ordinance (Cap. 221) which covered liability of directors only referred to "consent" and "connivance", modern drafting did include the words "neglect" or "omission". He undertook to provide precedent, if any, for members’ reference. Adm

Clause 13 - Members disqualified from nomination

7. With reference to clause 13(1)(a)(ii), the Chairman queried whether the provision was sufficiently clear to exclude the Commission members from becoming members of the election committee. PASCA explained that it was the intention of the Administration to disqualify Commission members from becoming members of the election committee. The Administration would re-draft the provision in order to clearly reflect such an intention. Adm

Clause 14 - Immunity

8. With reference to the omission of the phrase "purported performance of a function" in clause 14(1)(b), the Chairman remarked that it would be safer to include such a phrase so that the Commission would be immune if it took a course of action in good faith even though such action was outside its ambit. Mr Bruce LIU shared the view. After consideration, PASCA agreed to insert the phrase into clause 14(1)(b) in order to better protect the Commission. Adm

Clause 23 - Tabling of report

9. In response to the Chairman, PASCA said that Members could express their views on the provisional recommendations during the public consultation period. In addition, recommendations on the geographical constituency boundaries would be submitted in the form of subsidiary legislation for negative vetting to the Legislative Council. In this connection, Acting Senior Assistant Legal Adviser pointed out that it would be preferable to include reference to the Provisional Legislative Council in clause 23(2) for the sake of certainty. PASCA responded that he could not see any practical need to include such a reference. The Chairman opined that technical amendments might be needed for the avoidance of any doubt or uncertainty.

Schedule 1 (disqualifying criteria for Commission membership)

10. In terms of drafting, members in general were of the view that it was inappropriate for the Bill to refer to repealed or former Ordinances. PASCA explained that it was a transitional measure as references to the repealed/former Ordinance would be substituted by references to the new electoral laws by way of amendments in due course. For ease of cross-reference, members suggested the Administration consider re-inserting the relevant provisions word-by-word in the Bill. Adm

Other issues arising from the last meeting

Demarcation of geographical constituency boundaries in respect of Legislative Council election

(PLC Paper No. CB(2) 150)

11. Members noted the information note on the comparison of population size of geographical constituencies in the 1995 Legislative Council elections which was tabled at the meeting and subsequently issued to absent members. Based on the information provided, members reiterated the need to adopt a lower margin of population deviation in order to uphold the principles of equal representation and fairness. PASCA informed the meeting that the Administration after reconsideration had agreed to reduce the margin rule to 15% for Legislative Council elections. A majority of members present found the Administration’s proposal acceptable. However, Mr LAU Kong-wah reserved his position on the matter, pending information on population of District Board districts to be provided by the Administration. Ms CHOY So-yuk then asked and PASCA responded that the 15% margin rule would apply to Legislative Council election only for the time being. The Administration would propose amendments to the Ordinance after a decision had been taken in due course on the electoral arrangements including the respective margin rules for the Municipal Councils and District Boards elections. Adm

Information note on the updating of the registers of electors

12. In response to members’ request at the last meeting, PASCA said that an information note on the updating of the registers of electors (including the updating procedures and areas for improvements made) would be provided to members as soon as possible. Adm

Establishment and membership of the Commission

13. Members noted that it was the intention of the Administration to exclude persons who were closely involved in the three-tier elections from joining the Commission in order to avoid any direct conflict of interests as the Commission was to supervise these elections. Members of the three-tier Councils, candidates, agents and subscribers of candidates were therefore not eligible. Clause 3(5)(f)(vii) would serve as a safety net to cover any other persons who were considered, in the opinion of the Chief Executive, actively engaged in politics. PASCA stressed that relevant provisions of the Bill were considered adequate to ensure political neutrality of the Commission. Some members shared the Administration’s view and remarked that it would be impossible to draw up an exhaustive list. The Chairman also cautioned about infringement of the Bill of Rights or international covenants if the exclusion net was spread too widely. Members noted that the Administration had concluded that it was not necessary to include: (a) local deputies to the National People’s Congress and the National Committee of the Chinese People’s Political Consultative Conference; and (b) former members of the Executive Council as persons not eligible for appointment to the Commission under clause 3(5). Mr LAU Kong-wah also asked whether a person who had been a candidate of the Selection Committee for the election of Chief Executive would be considered as politically active. PASCA said that each case had to be assessed on an individual basis but public perception would be an important factor for consideration.

Appointment of members of committees of the Commission

14. At the last meeting, members asked the Administration to consider applying clause 3(5) to appointment of members of a committee established by the Commission under clause 7(g). While the Administration agreed that similar criteria should be imposed on members of committees of the Commission, PASCA said that the Administration had to consider carefully whether public officers should be subject to similar restriction as their participation might be required to facilitate the working of the committees. In this connection, the Chairman said that participation of public officers in these committees was acceptable providing that their role was advisory in nature.

II. Any other business

15. Members agreed to proceed with the clause-by-clause examination at the next meeting to be held on Friday, 15 August 1997 at 8:30 am.

16. There being no other business, the meeting ended at 12:05 pm.

Provisional Legislative Council Secretariat
26 August 1997