Provisional Legislative Council
PLC Paper No. CB(2) 183
Ref : CB2/BC/2/97
Report of the Bills Committee on
Electoral Affairs Commission Bill
1.This paper reports on the deliberations of the Bills Committee on the Electoral Affairs Commission Bill.
2.The Bill was introduced into the Council on 23 July 1997. It seeks to provide for the establishment of the Electoral Affairs Commission (the Commission) as a body corporate. The Commission will be responsible for-
The Bills Committee
- reviewing and making recommendations on geographical constituency boundaries for the three-tier elections;
- the conduct and supervision of these elections;
- supervising the registration of electors;
- regulating the procedure and making practical arrangements for the elections; and
- making practical arrangements relating to the formation of an 800-member election committee for electing ten members of the first HKSAR Legislative Council.
3.At the House Committee meeting held on 8 August 1997, a Bills Committee was formed to study the Bill. Under the chairmanship of Hon Ronald ARCULLI, the Bills Committee has held three meetings with the Administration. The membership list of the Bills Committee is in Appendix I.
Deliberations of the Bills Committee
4. The Bills Committee has noted that -
- the provisions of the Electoral Affairs Commission Bill are mostly modelled on the former Boundary and Election Commission (BEC) Ordinance; and
- the Commission will be required to submit recommendations on the delineation of geographical constituencies for the first Legislative Council election to the Chief Executive before 31 October 1997.
The major deliberations of the Bills Committee are summarized in the following paragraphs.
Membership of the Commission
5.Under clause 3(2) and (3), the Commission shall consist of three members to be appointed by the Chief Executive, including a Chairman who is a Judge of the High Court to be appointed in consultation with the Chief Justice of the Court of Final Appeal.
6.The Bills Committee notes that the respective provision relating to membership of the former BEC Ordinance and the Bill is the same except that the former Ordinance required the President of Legislative Council to nominate one member. The Administration has explained that the old arrangement was acceptable in the past because the then President of Legislative Council was an appointed Member. However, as all Legislative Council Members including the President will be returned by elections and since one of the functions of the Commission is to supervise these elections, this arrangement should not continue in order not to give rise to doubts on the independence of the Commission.
7.Both the Bill and the former BEC Ordinance have set out a number of similar disqualifying criteria for appointment to the Commission.
8.Under the former BEC Ordinance, a person who was an incumbent, or who had been, within the past four years immediately before the date of appointment, a member of the Executive Council would not be eligible for appointment to the BEC. While the Bill retains the restriction on incumbent members of the Executive Council, a person will no longer be disqualified from appointment to the Commission merely because he has been a member of the former Executive Council within the past four years immediately before the date of appointment. The Administration explains that the change is necessary in order not to restrict unnecessarily the pool of candidates for appointment to the Commission as all members of the Executive Council are appointed. The impartiality of the Commission will not be affected even if it consists of a member who is a former Executive Council Member. Despite the Administration's explanation, the Bills Committee has reservations about the change and will move a Committee stage amendment (CSA) to disqualify a person who has been a member of the former Executive Council or the Executive Council within the past four years from appointment to the Commission.
9.Under clause 3(5), a person is not eligible for appointment as a member of the Commission if he is or becomes or has been, within the four years immediately before the date of appointment, a member of the three-tier councils. The Bills Committee holds the view that the following categories of persons should also not be eligible for appointment -
- 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 of the Chief Executive; and
- a member of the Selection Committee or the Election Committee of the Chief Executive refered to in Annex I to the Basic Law.
10.The Administration explains that since the Commission will be responsible for conducting and supervising the three-tier elections, specific provisions are necessary to bar members of the three-tier councils from appointment to the Commission. Moreover, clause 3(5)(f)(vii) stipulates that a person who, in the opinion of the Chief Executive, has been actively engaged in politics, is not eligible for appointment. The Administration is of the view that the provisions in the Bill are adequate to ensure that the Commission will operate impartially.
11.The Bills Committee will move CSAs to disqualify the categories of persons in paragraph 9 above from appointment as members of the Commission.
Members of the Commission disqualified from nomination
12. Clause 13 disqualifies the members of the Commission from holding office as a member of certain specific public bodies or participating in elections (other than as electors) while holding office as a member of the Commission or within four years of ceasing to be a member of the Commission. The Bills Committee is of the view 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 will move a CSA to such an effect.
Demarcation of geographical constituency boundaries in respect of Legislative Council election
13. The Bill provides that in making recommendations on geographical constituency boundaries in respect of Legislative Council election, the Commission shall ensure that the population per seat in each geographical constituency shall not differ from the population quota (i.e. the average population per geographical seat) by more than 25%, and that the District Board constituencies which existed before 1 July 1997 will be used as "building blocks" for delineating Legislative Council geographical constituencies.
14. The Bills Committee expresses reservations about adopting a wide margin of 25% population deviation. As the whole of Hong Kong will be divided into five geographical constituencies for the first Legislative Council election and each constituency shall return between three to five seats, a constituency exceeding the population quota by 25% will be significantly larger than one which is 25% below the population quota. The principle of equal representation should be taken into account in the demarcation of boundaries. The Administration has explained that the 25% margin rule which was used for the three-tier elections in 1995 will provide flexibility for the Commission in following the statutory criteria to delineate geographical constituency boundaries. The population deviation will be kept as small as possible and the Commission will be required to give an explanation for any departure from the 25% margin rule.
15. The Bills Committee requests the Administration to review the 25% margin rule and to consider whether a lower margin of deviation such as 10% or 15% should be adopted. After reconsideration, the Administration agrees to reduce the margin rule to 15% and will move a CSA to that effect. The Bills Committee finds the arrangement acceptable.
Guidelines of the Commission
16. The Administration explains that the guidelines issued by the Commission under clause 6 are not legally binding. They only serve to assist candidates and election agents in understanding their statutory obligations as well as to provide administrative arrangements to ensure the conduct of elections in a fair and efficient manner. In response to the Bills Committee, the Administration agrees to move a CSA to clause 6(3) to allow the Commission to take such action (including the issuing of a reprimand or censure) it considers appropriate in respect of a complaint relating to a breach of guidelines as well as to give a reasonable opportunity for the person being complained against to make representations to the Commission.
Appointment of members of committees of the Commission
17. Under clause 7(g), the Commission may make regulations to provide for, inter alia, the establishment and appointment of committees. The Bills Committee feels that it is only reasonable that similar disqualifying criteria for appointment of members of the Commission stipulated in clause 3(5) should apply to the appointment of members of the committees.
18. The Administration agrees that while similar criteria should be imposed on members of committees of the Commission, it is necessary to exempt judicial officers from the restriction. This is because based on past experience, they may be required to serve on the committees to assist or provide advice to the committees. The Administration will move a CSA to that effect.
Elections of municipal councils and district boards
19. The Administration advises that apart from the Legislative Council elections, the Commission will also be responsible for the conduct and supervision of elections of the municipal councils and the district boards. As decisions on the framework for relevant electoral arrangements have yet to be made, the Administration is unable at this stage to include in the Bill detailed provisions on the Commission's powers and duties in respect of these elections. When drafting the electoral legislation for the municipal councils and the district boards in future, the Administration will make consequential amendments to the Ordinance to provide for the specific powers and duties of the Commission in these elections.
20. The Administration explains that the Commission will consult the public on the provisional recommendations on geographical constituency boundaries before submission to the Chief Executive. Because of the tight election schedule, a 14-day consultation period is proposed in respect of the recommendations for the first Legislative Council election. As for subsequent elections, a consultation period of 30 days is proposed. The final recommendations of the Commission on geographical constituency boundaries will be considered by the Chief Executive in Council and presented to the Provisional Legislative Council in the form of subsidiary legislation which is subject to the negative vetting procedure.
21. In view of the complexity of the electoral package, a member suggests that the 14-day public consultation period be extended. Taking into account the tight time frame, the Bills Committee proposes that a period of not less than 14 days should be provided for public consultation. The Administration agrees to move a CSA to clause 19 to that effect.
22. There are some other CSAs agreed by the Bills Committee and to be moved by the Administration which include -
- amendments to give a clearer picture of the functions and operation of the Commission; and
- some technical amendments in relation to the drafting aspect of the Bill.
Committee stage amendments
23. The draft Committee stage amendments proposed by the Administration and the Bills Committee are in Appendices II and III respectively.
Recommendations of the Bills Committee
24. The Bills Committee supports that the Second Reading debate on the Bill be resumed on 27 August 1997, subject to the CSAs to be moved by the Administration.
Consultation with House Committee
25. The Bills Committee reported its deliberations to the House Committee verbally on 15 August 1997 and a written report of the Bills Committee was presented to the House committee on 22 August 1997. Members noted that Hon LAU Kong-wah has also given notice to move CSAs to the Bill.
Provisional Legislative Council Secretariat
22 August 1997