Provisional Legislative Council
PLC Paper No. CB(2)1074
(These minutes have been
seen by the Administration)
Ref : CB2/BC/2/97
Bills Committee on Electoral Affairs Commission Bill
Minutes of the third meeting
held on Tuesday, 15 August 1997 at 8:30 am
in Conference Room A of the Legislative Council Building
Members Present :
Hon Ronald ARCULLI (Chairman)
Dr Hon Raymond HO Chung-tai, JP
Hon CHAN Yuen-han
Hon Mrs Sophie LEUNG LAU Yau-fun, JP
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
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)
- Mr Tony CHENG
- 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)
- Mrs Justina LAM
- Assistant Secretary General 2
- Mr Stephen LAM
- Senior Assistant Legal Adviser (Acting)
- Miss Flora TAI
- Senior Assistant Secretary (2)3
I. Matters arising from the last meeting
Margin rule for demarcation of boundaries
(PLC Paper No. CB(2)155(02))
The Administration had agreed to reduce the 25% margin rule for demarcation of boundaries to 15% at the last meeting. At Mr LAU Kong-wah's request, the Administration had provided an information note on Estimated Population by District Board District (1996) for him to consider whether a smaller percentage of 10% should be adopted. The information note was tabled at the meeting and subsequently issued to absent members vide PLC Paper No. CB(2)155. Principal Assistant Secretary for Constitutional Affairs (PASCA) explained that the Commission was required to make recommendations on Geographical Constituency boundaries and to estimate the total population of Hong Kong or any proposed constituency in the year in which the election to which the recommendations related was to be held. If it was not practicable to do so, it had to have regard to the available information which was the best possible in the circumstances for the purpose of making recommendations. In this connection, he confirmed that the information provided were the latest available estimated population for the year 1996.
II. Clause-by-clause examination of the Bill
(PLC Paper No. CB(2)155(01))
Committee stage amendments to be moved by the Administration
2. In the ensuing discussion, members took note of the draft amendments to the Bill proposed by the Administration which were tabled at the meeting and subsequently issued to absent members vide PLC Paper No. CB(2)155.
|Clause 3 Establishment and membership|
3. Members noted that the Administration would move a Committee stage amendment (CSA) to substitute "a military force of the Central People's Government" in clause 3(5)(e) with "the armed forces of any country". Some members expressed concern as to whether the provision as amended covered military forces of the Central People's Government and whether the phrase "of any country" was necessary. In response, Principal Government Counsel (PGC) explained that the drafting intention was to include military forces of the Central People's Government. If the phrase "of any country" was not included, the term "armed forces" might not convey the intended meaning of "national forces". After discussion, members suggested and PASCA agreed that the amendment would be "the armed forces of the Central People's Government or any other country".
4. On disqualifying criteria for appointment to the Commission, the Chairman advised the Administration that the Bills Committee held the view that apart from a person who had been a member of the former Executive Council or the Executive Council within the past four years, the following categories of persons should not be eligible for appointment to the Commission -
- a member of any congress, parliament, assembly or council, whether central or local, of any place outside Hong Kong;
- a member of the National Committee or a Local Committee of the Chinese People's Political Consultative Conferences;
- a candidate for the election as Chief Executive;
- a member of the Selection Committee or the Election Committee of the Chief Executive referred to in Annex I of the Basic Law.
As PASCA had confirmed that the Administration would not move any amendment in this respect, members agreed that the Bills Committee would move CSAs to such an effect.
|5. For the sake of consistency, Acting Senior Assistant Legal Adviser (SALA) proposed and PGC agreed to substitute "has become" in clause 3(5)(c) with "become". In this regard, the word would also be deleted from the Chinese text.
|6. A member pointed out that a person who participated in any election for electing members of the election committee otherwise than as an elector was not eligible for appointment to the Commission in clause 3(5)(f)(v). He queried why such a stringent restriction was imposed. Some members also pointed out that the phrase "or stood as a candidate in any election for electing the members of that committee" was redundant as it had been covered in subclause (i). PASCA explained that the clause was meant to be a general provision as information regarding the composition and formation of the election committee was not available at the drafting stage of the Bill. In the light of members' views, he agreed to consider deleting the phrase "or stood as a candidate in any election for electing the members of that committee or participated in such an election otherwise than as an elector" from clause 3(5)(f)(v).
Clause 4 Functions of Commission
7. Members noted that the Administration would move minor amendments to clauses 4(g), 5(f), 5(g), 8(1), 11 and 12(1)(a) to substitute the word "enactment" with "Ordinance".
Clause 6 Commission to issue guidelines
|8. In response to members, the Administration agreed to introduce a CSA to the effect that before the Commission reprimanded or censured a person, it shall, if practicable, give a reasonable opportunity for that person to make representations. Some members queried whether the phrase "if practicable" should be included in proposed new clause 6(4) as the Commission should conduct a thorough investigation into a case before taking any action. PGC explained that it was intended to cover urgent situations where the Commission must act even though it could not get in touch with the person involved or where the person involved was not identifiable. After discussion, the Chairman suggested and PASCA agreed to replace the phrase "if practicable" with "make a reasonable effort to contact that person". In this regard, the Administration also agreed to move a technical amendment to add "any" before "other" in clause 6(1)(a)(ii)(B).
Clause 7 Regulations
9. Some members had expressed concern at the last meeting that the threshold for convicting a body corporate under clause 7(6)(a) might be too low. After consideration, members agreed that the drafting of that provision was acceptable on the grounds that : (a) the Administration's advice that the phrase "attributable to the neglect or omission on the part" had been used in other legislation; (b) a lower burden of proof on the part of the Commission would facilitate its work; (c) the provision sought to prescribe the circumstances under which a breach of the regulations would constitute an offence, but the provision per se did not impose any criminal liability; and (d) the Legislative Council would have a final vetting power on these regulations to be made by the Commission.
Clause 13 Members disqualified from nomination
|10. The Bills Committee agreed that a member of the Commission, during his term of office or within four years of ceasing to be a member of the Commission, should be disqualified from becoming a candidate in the election of the Chief Executive, a member of the Election Committee referred to in Annex I to the Basic Law, or a member of the Executive Council. The Bills Committee would move a CSA to such an effect. In this connection, members noted that the Administration would move CSAs : (a) to amend clause 13(1)(a)(ii) and clause 13(1)(b)(v) as "from being a member of the election committee" and "being a member of the election committee" respectively; and (b) to add clause 13(3) as stipulated in PLC Paper No. CB(2)155(01).
Clause 18 Report on boundaries
|11. Members noted the proposed amendment to clause 18(3)(b) to be moved by the Administration. At the suggestion of the Chairman, PASCA agreed to make similar amendment to clause 18(3)(c) so that the two provisions would be consistent with each other.
Clause 19 Provisional recommendations
|12. A 14-day consultation period was proposed in the Bill in respect of the recommendations for the first Legislative Council election because of the tight election schedule. However, in view of the complexity of the electoral package, a member suggested that the 14-day public consultation period be extended. Taking into account the tight time frame, members proposed that a period of not less than 14 days should be provided for public consultation. PASCA agreed that the Administration would move a CSA to clause 19 to such an effect.||Adm|
Clause 20 Criteria for making recommendations
13. Having regard to the Bills Committee's reservation about adopting a wide margin of 25% of population deviation, the Administration had agreed to reduce the margin rule to 15% and would move a CSA to that effect. After consideration, the Bills Committee agreed that the arrangement was acceptable.
14. After discussion, members noted that the Administration would move a CSA to paragraph b(iii) of Part II of Schedule 1 of the Bill to the effect that members of the former Boundary and Election Commission would not be disqualified from appointment to the Commission.
|15. Members agreed that the Bills Committee would move amendments to delete paragraph (b)(viii) from Part II of Schedule I. The relevant provisions would be incorporated in CSAs to be moved by the Bills Committee to clause 3(5) of the Bill (paragraph 3 above refers).
||Ag LA |
Schedule 2 Provisions applicable to Commission
16. Acting Legal Adviser confirmed that the provisions stipulated in Schedule 2 were similar to the former Boundary and Election Commission Ordinance (Cap. 432) and there was no substantive change in drafting.
17. Members agreed that the Chairman would make a verbal report to the House Committee on 15 August 1997 recommending that the Bill would resume its Second Reading debate on 27 August 1997. As the deadline for giving notice of CSAs was 16 August 1997, the Bills Committee would recommend to the House Committee that the President's permission be sought to extend the deadline for giving notice of CSAs to 5:00 pm on 21 August 1997. Subject to the agreement of the President to extend the deadline, members agreed that all the CSAs to be moved by the Administration and by the Bills Committee should be ready by 1:00 pm on Tuesday, 19 August 1997 for circulation to members and the deadline for comment would be 1:00 pm on Wednesday, 20 August 1997.
18. There being no other business, the meeting ended at 10:45 am.
Provisional Legislative Council Secretariat
6 October 1997