Legislative Council Bill (Minutes) 11 Sept 97

Provisional Legislative Council

PLC Paper No. CB(2)1409
(These minutes have been seen by the Administration)

Ref : CB2/BC/3/97

Bills Committee on Legislative Council Bill Minutes of the ninth meeting held on Thursday, 11 September 1997 from 8:30 am to 5:40 pm in the Chamber of the Legislative Council Building

Members Present:

Hon Ambrose LAU Hon-chuen, JP (Chairman)
Present Hon Ronald ARCULLI, JP (Deputy Chairman)
Hon WONG Siu-yee
Dr Hon Raymond HO Chung-tai, JP
Hon NG Leung-sing
Hon LEE Kai-ming
Hon Mrs Elsie TU, GBM
Hon Mrs Peggy LAM, JP
Hon Henry WU
Hon YUEN Mo
Dr Hon LEONG Che-hung, JP
Hon Mrs Sophie LEUNG LAU Yau-fun, JP
Hon CHAN Yuen-han
Hon CHAN Wing-chan
Hon CHAN Kam-lam
Hon TSANG Yok-sing
Hon CHENG Kai-nam
Hon Andrew WONG wang-fat, JP
Dr Hon Philip WONG Yu-hong
Hon Howard YOUNG, JP
Dr Hon Charles YEUNG Chun-kam
Hon IP Kwok-him
Hon Bruce LIU Sing-lee
Hon Mrs Miriam LAU Kin-yee, JP
Dr Hon TANG Siu-tong, JP
Hon Timothy FOK Tsun-ting
Hon CHOY So-yuk

Members Absent:

Prof Hon NG Ching-fai
Hon Eric LI Ka-cheung, JP
Hon MA Fung-kwok
Hon CHAN Choi-hi
Hon Frederick FUNG Kin-kee
Hon Kennedy WONG Ying-ho

Public officers Attending:

Mr NG Sek-hon: Deputy Secretary for Constitutional Affairs
Mr Patrick HO Chung-kei: Principal Assistant Secretary for Constitutional Affairs
Mr James O'NEIL: Principal Government Counsel

Clerk in Attendance:

Mrs Justina LAM: Assistant Secretary General 2
Mrs Percy MA: Chief Assistant Secretary (2)3

Staff in Attendance:

Mr Jimmy MA: Legal Adviser
Mr Stephen LAM: Assistant Legal Adviser 4
Miss Flora TAI: Senior Assistant Secretary (2) 3

I. Legislative timetable

Members noted that the Administration was agreeable to members' suggestion made at the last meeting that the proposed date of 24 September 1997 for the resumption of the Second Reading debate on the Bill be deferred. The Legal Adviser reminded members that in accordance with Rule 13(2) of the Rules of Procedure, written notice of every meeting of the Council should be given to Members at least 14 clear days before the day of the meeting, but the President could dispense with such notice in cases of emergency. After discussion, members agreed to recommend to the House Committee that the Second Reading debate on the Bill be resumed on 27 September 1997.

Chairman

II. Clause-by-clause examination of the Bill
(PLC Paper No. CB(2) 298)

2.At the Chairmans suggestion, members agreed to examine the Bill clause-by-clause, together with the proposed Committee stage amendments (CSAs) to be introduced by the Administration (which were tabled at the meeting and subsequently issued vide PLC Paper No. CB(2) 298) and CSAs to be proposed by individual Members. The gist of the discussion is summarized in the following paragraphs.

Clause 3 Interpretation

3. The Legal Adviser asked whether the term "partner" should be used in clause 3(2)(a) because its scope was broad and had not been clearly defined in law. Members noted that the Administration did not have a strong view on the matter and would consider the Legal Adviser's view.

Adm

Clause 4 Terms of office of Legislative Council

4. In response to members, the Legal Adviser made the following comments -

Clause 4(6) of the Bill stipulated that unless LegCo was dissolved by the Chief Executive (CE) under the special circumstances prescribed in Article 50 of the Basic Law (BL), it would be dissolved on the date on which its term of office ended;
BL 69 stipulated that the term of office of LegCo should be four years, except for the first term which should be two years. He shared the Administration's view that the word "year" meant a "full year"; and
Clause 4(3) stipulated that the first term of office of LegCo was to begin on 1 July 1998. It was for the CE to specify the following dates for the second and subsequent terms of office of LegCo -
1. a date for holding a general election which must be not earlier than 60 days and not later than 15 days before the new term of office of LegCo was to begin (clauses 6(1) & (2)); and
2. a date for commencement of the term of office of LegCo which must be within 30 days after the date on which the results of the general election for the relevant term of office were declared (clauses 4 (3) & (5)).

5. Mr Andrew WONG made the following comments -

The Bill provided for a general election to be held in two scenarios, i.e. either within three months after LegCo was dissolved by the CE in accordance with BL 50 during its term of office, or after prorogation of the Council and prior to the automatic dissolution upon the end of the fixed term. He considered that the arrangement of having some general elections held after and some prior to dissolution to be inconsistent;
Notwithstanding that the CE could specify the commencement date of each subsequent term of office of LegCo under clause 4(3), in view of the legal advice that the word "year" meant a "full year", it would appear that the second and subsequent terms would have to follow the commencement date of the first term i.e. to begin on 1 July; and
The arrangement under the former electoral system should be retained i.e. LegCo should be dissolved before a general election was held and Council meetings could be held for the consideration of urgent business following a dissolution of the Council. He would propose amendments in this respect.

6. Principal Assistant Secretary for Constitutional Affairs (PAS(CA)) advised that although the constitutional documents in force before 30 June 1997 provided for an election of LegCo Members to be held every four years, there was no reference to the term of office of LegCo. PGC added that the drafting of the Bill had taken into account the following : the first term of LegCo should be two years and subsequent terms four years; the commencement of the first term should be on 1 July 1988; and the specific circumstances under which the CE could dissolve LegCo under BL 50. Although the BL did not strictly require elections to be held within the term, the arrangement was considered necessary for practical reasons. The concept of prorogation which allowed elections to take place before dissolution was therefore introduced.

7. Members raised the following points -

whether the second and subsequent terms of LegCo could follow the previous cycle i.e. to begin in early October to tie in with the Policy Address;
whether there could be a gap between consecutive terms of office of LegCo;
whether the Council could be dissolved before expiry of its term for the purpose of holding a general election; and
whether elections could be held after dissolution of the Council.

8. In response to members, the Administration advised that -

Clause 4(3) allowed the CE the flexibility to specify the commencement date of the second and subsequent terms of office of LegCo. The Administration would consider members' views on the matter and would come to a view before end of the first LegCo term;
BL was silent on whether or not there could be a gap between consecutive terms of LegCo. However, the terms of office of LegCo could not be shorter than those specified in the BL;
Although the CE could not dissolve LegCo before the end of its term for the purpose of holding a general election, clause 6(3) allowed the CE to prorogue the Council before the end of its term to enable a general election to be held during the course of the term; and
Elections could be held after dissolution of the Council.

9. On Mr Andrew WONG's proposal to hold elections after dissolution, Mr Ronald ARCULLI pointed out that under the former electoral system, Council meetings could be held for the consideration of urgent business after dissolution of the Council but before the next following general election. Hence, elections held after dissolution would present no problems. However, there was no provision in the BL to allow LegCo to hold meetings under such circumstances. Although Mr WONG had also proposed another amendment to provide for the convening of emergency sessions of LegCo to deal with such a situation, this amendment might be inconsistent with the BL.

10. In response to Mr Howard YOUNG's query on the terms of LegCo, Principal Government Council (PGC) responded that if the second LegCo was dissolved by the CE under BL 50, the new LegCo elected would be regarded as the third LegCo serving a term of four years. Mr YOUNG then remarked that if that was the case, a dilemma would arise because the second LegCo might not have the time to enact electoral law for the third LegCo. As prescribed in Annex II to the Basic Law (i.e. Method for the Formation of the Legislative Council of the Hong Kong Special Administrative Region and its Voting Procedures), the number of Members to be returned by the Election Committee and geographical constituencies in the second and third terms was different.

11. Mr Andrew WONG did not agree with the Administration's interpretation, considering that it was inconsistent with the fixed term concept provided under the BL. He opined that in such a case, the new LegCo elected was still the second LegCo and should only last for the remainder of the term. PGC responded that BL stipulated that the second and subsequent terms of office of LegCo should be four years. This applied irrespective of whether LegCo stood dissolved at the end of the prescribed term or was dissolved under BL50.

Clause 6 CE to specify dates for holding second and subsequent general elections

12. With reference to the requirement prescribed in clause 6(2) that the date for holding a general election must not be earlier than 60 days and not later than 15 days before the new term of office of LegCo was to begin, Mr Ronald ARCULLI asked and PAS(CA) responded that it was anticipated that the date for holding a general election and the date of commencement of the new term of office of LegCo would be specified at the same time.

In response to Mr CHAN Kam-lam's enquiry, PGC agreed to add a new subclause requiring the CE to publish in the Gazette the date from which LegCo stood prorogued. In this connection, Mr NG Leung-sing asked and PAS(CA) confirmed that the CE was only empowered to prorogue LegCo for the sole reason of holding a general election.

Adm

13. At Legal Adviser's suggestion, members asked the Administration to consider whether it was necessary to include a provision to empower the CE to request emergency sessions of the LegCo and the Provisional Legislative Council (PLC) to be held during the period when the Council was prorogued, to be in line with the arrangement provided under BL 72. PAS(CA) pointed out that the Bill was to provide for the constitution, convening and dissolution of the SAR LegCo; inclusion of a provision relating to convening of emergency sessions when the PLC was prorogued was considered inappropriate. Deputy Secretary for Constitutional Affairs (DS(CA)) supplemented that the Administration would discuss the matter with the President of PLC separately.

Adm

14. Members noted that the Administration would move CSAs to the English text of clause 6(3) by adding "to terminate its operation" after "that Council" and to the Chinese text of clause 6(3) by replacing the term

at the end of the clause with

.

Clause 8 Different dates may be specified for different classes of elections

15. Members noted that the Administration had yet to make a decision on the dates for holding the different classes of elections and the provision was meant to provide flexibility for the CE to specify different dates if necessary.

Clause 9 CE to convene ordinary sessions of Legislative Council

Members noted that the Administration was considering moving an amendment to provide for the CE to appoint the date and time for the first meeting of the first term of office of LegCo and a suitable mechanism to facilitate the conduct of the first meeting.

16. Mr Ronald ARCULLI asked whether the Administration would consider stipulating a requirement in clause 9(2) so that the CE must specify at the same time the dates on which an ordinary session of the Legislative Council was to begin and end. PAS(CA) responded that the provisions as presently drafted followed the established practice under the former electoral legislation and would provide flexibility to give due regard to the workload of each session. Mr ARCULLI informed the meeting that he was considering moving an amendment in this respect because fixing the end date of a session at an early stage would facilitate the Administration to better plan its legislative programme.

Clause 10 How long Members are to hold office

17. In response to Mr Ronald ARCULLI's enquiry about clause 10(1), PAS(CA) explained that a person returned as a Member at a general election was to hold office from the beginning of the term of office of LegCo that began immediately following the election, but not any other subsequent terms. Mr ARCULLI expressed concern that the provision as presently drafted might be interpreted to mean that a Member was to hold office immediately after the election. Mrs Sophie LEUNG suggested to substitute the word "begins" with "follows" so as to avoid any possible confusion. The Legal Adviser and the Administration would further examine the drafting of the provision, having regard to members' views.

LA
Adm

Clause 11 Acceptance of office as a Member
Clause 12 How Member can resign

18. In response to Mr NG Leung-sing's questions, PGC said that it was not necessary to specify the term "the person concerned" in clause 11(2) as it clearly referred to the person who was elected as a Member as stipulated in clause 11(1). However, he agreed that a timeframe could be prescribed in subclause (3) so that the Clerk to LegCo must publish in the Gazette a notice of non-acceptance within 14 days after receiving the notice.

19. Mr Ronald ARCULLI asked why a notice of non-acceptance of office must be published in the Gazette, whereas there was no similar requirement in respect of a notice of resignation. The Legal Adviser informed members that the proposed arrangement followed that provided for in the previous Electoral Provisions Ordinance (Cap. 367) and Legislative Council (Electoral Provisions) Ordinance (Cap. 381). PGC pointed out that a Member's resignation would be brought to the public's attention as the Clerk to LegCo was required under clause 33 to declare in the Gazette the existence of a vacancy in the membership of LegCo.

20. Mr Ronald ARCULLI and Mrs Miriam LAU queried the different basis adopted for the effective date of notice of non-acceptance and notice of resignation. PGC explained that the notice of resignation could take effect on either the date on which it was given to the Clerk to LegCo, or on a later date specified in the notice. However, the notice of non-acceptance took effect on publication in the Gazette.

21. Mrs Miriam LAU queried why a person was in a position to resign as a Member if he/she had not accepted office as a Member in the first place. PGC explained that the tenor of the Bill was that a person who was elected as a Member was to be regarded as having accepted office unless the person gave written notice of non-acceptance within a specified time limit. After discussion, PGC said that the Administration might consider re-drafting clause 11 to the effect that a notice of non-acceptance would take effect on the date on which it was given to the Clerk to LegCo and the person giving the notice was taken to have resigned from office as a Member from that date.

Adm

22. Members noted that the Administration would, having regard to a similar provision in the former electoral legislation, move an amendment to clause 12(3)(a) to substitute "it is given to" with "the notice is received by". In this regard, Mr Ronald ARCULLI suggested that a similar amendment should be made to clause 11.

Clause 13 When Member ceases to hold office

23. Mr Ronald ARCULLI was of the view that BL 79 conferred power upon the President of LegCo to declare the disqualification of a Member under certain circumstances, but it did not preclude LegCo from prescribing additional circumstances under which a Member would cease to hold office, if considered necessary. PGC reiterated that the circumstances prescribed in BL 79 were exhaustive and domestic legislation could not amend or add other circumstances. Mr ARCULLI pointed out that if the specified circumstances under BL 79 were exhaustive, a Member, if for instance became a judge after election and would have been disqualified as a Member under section 21 of the former Legislative Council (Electoral Provisions) Ordinance (Cap. 381), could continue to hold office under the provisions of the Bill. Mr Andrew WONG added that the Administration's interpretation would imply that a Member would not cease to hold office even though he/she was dead or had resigned.

24. Mr Ronald ARCULLI raised the question on whether a Member should be allowed to change nationality after being elected. He opined that a Member should be allowed to change his/her foreign nationality to Chinese nationality, but not vice versa. His view was shared by Mr Howard YOUNG who pointed out that allowing a Member to change his/her nationality from Chinese to foreign might result in the breach of the 20% Nationality Rule. Mr Andrew WONG said that the basic principle underlying BL 67 was that all LegCo Members should be Chinese citizens who were permanent SAR residents, although not more than 20% of the total membership of the Council was allowed to have foreign nationality. He therefore took the view that an elected Member changing his/her Chinese nationality to foreign nationality should be disqualified irrespective of whether he/she was a Member of the 12 specified FCs. Mrs Elsie TU shared the view.

Clause 14 Member to be eligible for re-election

25. Mr CHAN Wing-chan sought clarification on the interpretation of clause 14 which stipulated that a person who ceased to be a Member, subject to section 37, was eligible for re-election as a Member. PGC responded that under clause 14, a person who ceased to be a Member could be re-elected as a Member as long as he/she did not fell under any of the disqualifying circumstances specified in clause 37. Noting that clause 35(4) stipulated that a Member would not be eligible to be nominated as a candidate at a by-election, Mr Andrew WONG asked the Administration to consider whether appropriate reference to this provision should also be made in clause 14.

Adm

Clause 15 Proceedings of Legislative Council not affected by vacancy in membership

26. Mr Howard YOUNG enquired about the implications of vacancy in membership on the quorum for LegCo meetings. PGC said that BL 75 specified that the quorum for the meeting of LegCo should not be less than one half of all its members. While he did not have a considered view on the matter, his initial view was that the quorum should be not less than one half of the members who presently constituted the Council.

PART III ESTABLISHMENT OF CONSTITUENCIES

Clause 16 Establishment of geographical constituencies (GCs)

27. PAS(CA) said that the Administration would move an amendment to specify that clause 16(1) was only applicable to the first term of office of the LegCo. Similar amendments would be made to clauses 18 and 20. In addition, the Administration would move amendments to subclause (2) to specify that the GCs declared by the CE in Council by order would be published in the Gazette and also to delete subclause (4) which was redundant.

Clause 17 Number of Members to be returned for geographical constituency

28. Members noted that the Administration had agreed to add "at the first general election" after "geographical constituency" in clause 17(2).

29. Mr Andrew WONG suggested that the Administration should consider specifying the names of GCs and the number of seats to be returned from each GC in the form of a schedule. Members had different views on the suggestion. DS(CA) did not consider it necessary to introduce further changes to the clause.

PART V REGISTRATION OF ELECTORS

Clause 22 Who is eligible to be registered as an elector : geographical constituencies

30. Dr TANG Siu-tong suggested that the phrase "believes on reasonable grounds" in clause 22(2) be amended as "has evidence to show". This was to safeguard an elector's right to vote which was an important civil right and should not be deprived of lightly. PGC responded that the phrase "believes on reasonable grounds" had been used in other provisions of the Bill. He stressed that the Electoral Registration Officer must act reasonably in arriving at his/her decision which was subject to judicial review. PGC added that the meaning of the term "reasonable" in the language of law was well understood whereas the term "evidence" could imply hearsay or paper evidence.

31. The Legal Adviser remarked that the existing phrase "believes on reasonable ground" was already an improvement compared with the phrase "has reason to believe" used in the former electoral legislation. PAS(CA) also explained that clause 22(2) was only applicable to the "roll over" arrangement which allowed registered electors in the 1997 Provisional Register to remain automatically as eligible electors in the 1998 Provisional Register. The Electoral Affairs Commission would specify by way of subsidiary legislation the detailed arrangements concerning registration of electors. In addition, under the "roll-over" arrangement, a person who was dissatisfied with a decision of the Electoral Registration Officer could appeal against that decision to the Revising Officer.

32. Citing an incident in the 1995 LegCo election, Dr TANG reiterated his concerns that the names of eligible electors were struck off the register without they being aware of it. Some members opined that the previous arrangements for elector registration should be improved and that a monitoring mechanism should be put in place to protect the electors' right to vote. Mr IP Kwok-him said that the crux of the matter was to consider ways to avoid striking off names of eligible electors from the register. Mr NG Leung-sing suggested that the provisional register and a list showing the identity document number of those persons who had voted in the election should be publicized widely, e.g. published in newspapers. Mrs Miriam LAU suggested that clause 22(2) be further tightened up by substituting "believes" with "is satisfied". In addition, in the event that the subsidiary legislation on registration of electors for GCs could not set out in detailed guidelines for the Electoral Registration Officer to follow in altering entries in the provisional register and in compiling the final register, these guidelines should be issued in the form of a practice note.

Adm

33. PAS(CA) agreed to consider Mrs LAU's proposal on clause 22(2) and to relay members' views to the Electoral Affairs Commission for consideration.

Adm

Clause 23 Who is eligible to be registered as an elector : functional constituencies

34. Mr Henry WU asked and DS(CA) responded that clause 23(3)(d) was a special arrangement for electors for the agriculture and fisheries, the insurance or the transport functional constituencies (FC) in order to protect the size of its small electorate. In response to Mrs Sophie LEUNG's enquiry, DS(CA) said that any proposed electors for FCs specified in Schedule 1 who had not been operating for the 12 months immediately before making an application for registration as an elector as required in clause 23(5) would be excluded. The Administration was still in the process of checking, and amendment to Schedule 1 would be made if necessary. Mr WU then asked and DS(CA) confirmed that the term "body" in subclause (5) did not cover individual members. PAS(CA) added that a natural person who was a member of a body would be subject to the "one-year" rule under subclause (6). In this connection, Mr Howard YOUNG asked whether there was a mechanism to prevent a body from admitting individual members simply for the purpose of acquiring more votes in the next LegCo election. DS(CA) responded that written approval from the Secretary for Constitutional Affairs was required for any amendments to the articles of association or rules of a body.

Clause 24 Corporate elector to have authorized representative

35. Mr WONG Siu-yee expressed concern that the term "substantial connection" was unclear and might affect the fairness of the election. Mr Ronald ARCULLI opined that it might not be feasible to give a clearer definition to the term in the legislation even though the meaning of "substantial connection" was widely accepted in law. In this connection, members noted that Mr WONG might move an amendment to the clause to the effect that the persons who were eligible to be appointed as authorized representatives must be employers, directors of the board or senior management staff. Members also noted that the Administration would move a technical amendment to clause 24(6) to add "for registration or replacement of an authorized representative" after "An application".

Clause 26 Elector to reside in Hong Kong

36. Mr Ronald ARCULLI opined that clause 26(3) appeared to be redundant. PGC responded that it was a matter of drafting and undertook to discuss with the Legal Adviser. In this regard, Mr CHENG Kai-nam asked and PGC confirmed that there was no substantive difference between the definition of "principal residence" in subclause (3) and that in the former electoral legislation.

Adm

Clause 29 When person is disqualified from being registered as an elector

37. PAS(CA) informed members that the Administration would move an amendment to clause 29(1)(c)(iii) to the effect that disqualification of an elector would be restricted to serious corruption offences prescribed under Part II of the Prevention of Bribery Ordinance (Cap. 201). With reference to Mr Andrew WONG's proposal that prospective disqualification should be confined to corrupt offences committed in Hong Kong, Mr IP Kwok-him asked and PAS(CA) confirmed that the Administration considered it unnecessary to make any amendment in this respect.

38. Responding to Mr Ronald ARCULLI's enquiry, PAS(CA) explained that the Bill proposed reducing the prospective disqualification of an elector and that of a candidate from seven years to three years and from ten years to five years respectively. The proposal meant to reflect public sentiment that the restriction should be reasonable as a civil right to vote was at stake.

Clause 30 Electoral Registration Officer to compile and publish electoral registers

39. In response to Dr TANG Siu-tong's query on clause 30(4)(a), PGC agreed that the clause should be consistent with clause 22(2) and hence, would be re-drafted. Members noted that the Administration would move an amendment to subclause (5) by adding "have been entered into an omissions list" after "register".

Adm

40. In response to Dr TANG Siu-tong's further enquiries, PAS(CA) explained that "other relevant particulars" in subclause (4)(b) referred to information relating to electors in the register and "such other publications" in subclause (5)(b) would be prescribed by regulations by EAC. In the regulations prescribed by the former BEC, the term referred to major newspapers.

Clause 32 Right of appeal to Revising Officer against decisions of Electoral Registration Officer

41. Members noted that the Administration would move an amendment to clause 32(4) to substitute "legal practitioner" with "legal adviser" on the ground that the term "legal adviser" was broader in scope and allowed more flexibility for the appellant to appoint his/her representative. Moreover, the amended clause would be consistent with the corresponding provision of the former electoral legislation. Mr Andrew WONG and Mr Ronald ARCULLI were of the view that it would be more flexible if the appellant could be represented by any other person, not necessarily a legal adviser. PAS(CA) pointed out that purpose of the provision was to confer a right of being represented by a person who was able to give legal advice on the appellant. It would be up to the Revising Officer to decide whether the appellant could appoint any other person of his/her choice to be the representative. However, the Administration had no strong views on members' proposal. He undertook to liaise with the Legal Adviser on the wording of the provision and to move an amendment to that effect.

Adm

PART VI CONDUCT OF ELECTIONS

Clause 33 Vacancy in membership of Legislative Council to be declared

Members noted that the arrangement prescribed in clause 33 followed that of section 5(g) of the Electoral Provisions Ordinance (Cap. 367). The procedure of by-election would commence after the declaration of the existence of a vacancy by the Clerk to LegCo.

Clause 34 By-election to be held to fill vacancy in membership of Legislative Council

42. Members noted that the circumstances prescribed in clause 33(1) under which a by-election would be held were meant to be exhaustive. The Administration would consider consequential amendments after a decision had been made on the question of disqualification of Members as a result of change of nationality.

Clause 35 Who is eligible to be nominated as a candidate

Members noted that the Administration would move an amendment to the Chinese text of clause 35(3) by substituting

with

.

Clause 36 Nomination lists for geographical constituencies

43. Members noted that the words "is to be adjusted" were redundant and should be deleted.

Clause 37 When a person is disqualified from being nominated as a candidate and from being elected as a Member

44. Referring to the proposed amendment to clause 29(1)(c)(iii), PAS(CA) said that the Administration would move a similar amendment to clause 37(1)(e)(iv). The Administration would also amend subclause (1)(i) by adding "or a voluntary arrangement" after "creditors" in order to reflect changes to the Bankruptcy Ordinance (Cap. 6) which would come into effect shortly.

45. Members noted that Mr Andrew WONG would move his proposed amendments in respect of disqualification of a person from being nominated as a candidate and from being elected as a Member. Mr Andrew WONG reiterated his view that clauses 13 and 37 should be combined so that the two sets of circumstances would be applicable to disqualification of Members from holding office. Mr Ronald ARCULLI shared his view.

46. The Legal Adviser drew members' attention to the fact that the Administration had agreed to move minor amendments to subclause (1)(a)(iii) to delete any reference to employee of LegCo or any committee of that Council, having regard to the fact that only the Legislative Council Commission could appoint an employee. In this regard, the Administration was asked to consider whether it was necessary to include in the Bill the definition of "officer of the Council" as prescribed in the Legislative Council (Powers and Privileges) Ordinance (Cap. 382), i.e. the Clerk or any other officer or person acting within the precincts of the Chamber under the orders of the President.

Adm

47. Mr Ronald ARCULLI queried why the term "salaried representative" was used in place of "salaried functionary" in subclause (1)(g). PGC explained that there were doubts about the meaning of "functionary" which could cover any person who was employed in a non-representative capacity, such as a driver or clerical staff. The Administration therefore proposed to specify that a person who was a representative of the government should be disqualified from being nominated as a candidate and from being elected as a Member. Members expressed concern that "salaried representative" was not an appropriate term as it would not cover honorary consuls who, in their view, should be disqualified. In response, PAS(CA) undertook to consider revising the provision.

Adm

Clause 41 Candidates entitled to send letters to electors free of postage

48. In response to Mr CHENG Kai-nam's enquiry, PAS(CA) explained that each list of candidates would be allowed to send two letters to electors in his/her constituency. Mr CHENG pointed out that the Chinese text of the clause could be interpreted as two letters for each candidate on the list. PAS(CA) undertook to consider the drafting of the Chinese text.

Adm

Clause 46 Who is entitled to vote at an election

49. Mr Howard YOUNG asked whether an authorized representative could vote if the corporate elector concerned had ceased to exist. PAS(CA) explained that clause 51(1)(b) would disqualify a person who had registered as an elector from voting at an election if the person, in case of a functional constituency, had ceased to be a person specified in Part 1 or 2 of Schedule 1. He also drew members' attention that it was an offence under section 14(1) of the Corrupt and Illegal Practices Ordinance (Cap. 288) for a person to vote at an election if that person had been disqualified or was not entitled to do so. In this connection, members noted that the Administration would move an amendment to clause 51(1)(b) to the effect that the disqualification would apply to all electors specified in Schedule 1.

Clause 48 System of voting and counting of votes : functional constituencies specified in Parts 1 and 2 of Schedule 1

50. Members noted that the Bill did not propose any change to the voting and counting system for the old FCs. The nine new FCs would generally use the "single-seat, single-vote" system but Preferential Elimination Voting system would be used for the three smallest FCs, i.e. Agriculture and Fisheries, Insurance and Transport because of their small electorate size. Mr Howard YOUNG queried the criteria for deciding that a FC was a small one. PAS(CA) responded that the three new FCs had less than 300 electors which were about the same as the three old FCs which had used the Preferential Elimination Voting system in the 1995 elections, i.e. the Urban Council, Regional Council and Heung Yee Kuk.

Clause 50 System of voting and counting of votes : Election Committee

51. Members noted that the Administration would consider moving an amendment to confine the provision to the first general election as the number of votes a EC member was entitled to cast would change in subsequent elections.

Adm

Clause 51 When an elector is disqualified from voting at an election

52. Members noted that the Administration was agreeable to the Bills Committee's proposal and would move an amendment to clause 51(3) to the effect that the ex-officio EC members should be required to be registered as GC electors before they could exercise their right to vote in the LegCo EC election. The Administration would also move an amendment to subclause (5)(e) to the effect that the disqualification of an elector would apply to members of the armed forces of the Central People's Government and of any other country or territory.

Adm

53. The Legal Adviser pointed out that no reference had been made to "or territory" in a corresponding provision of the Electoral Affairs Commission Ordinance, i.e. section 3(5)(j). The Administration was therefore asked to consider revising the wording of clause 29(1)(e) and clause 51(5)(e) for the sake of consistency.

Adm

54. In response to Mr Ronald ARCULLI's enquiry, PGC confirmed that an authorized representative of a corporate elector would be disqualified from voting in an election if he/she did not register as a GC elector even though a corporate elector was not required to do so.

Clause 52 Consequences of non-compliance with the requirements of this Ordinance

55. Mr Ronald ARCULLI expressed reservation about the clause which stipulated that the Court must not declare the election invalid if any failure to comply with the regulations made by the Electoral Affairs Commission (EAC) Ordinance or mistake did not affect the result of the election. PGC explained that the provision was to allow an election result to stand despite a technical error having been committed e.g. failure to meet procedural requirements stipulated by EAC. In any event, the decision would be one for the Court to make. PAS(CA) added that the provision was based on a similar provision in the previous legislation, i.e. section 25 of the Electoral Provisions Ordinance (Cap. 367). In this regard, the Legal Adviser drew members' attention to the fact that failure to comply with the regulations was not one of the specified grounds in clause 59 under which an election might be questioned by election petition.

Clause 58 Elector not to be required to disclose how vote was cast

56. Members noted that the Administration would move an amendment to the Chinese text of clause 58(2) by substituting

with

. The amendment was meant to reflect clearly the meaning of the word "require", as different from "ask". Members further noted that a new subclause would be added to the effect that the provision covered an authorized representative of a corporate elector. In response to members' enquiries, PAS(CA) confirmed that the provision would not ban exit polls as any person could ask an elector to disclose how his/her vote was cast but the elector was not required to answer.

PART VII ELECTION PETITIONS

Clause 59 Election may be questioned only by election petition made on specified grounds

57. In response to Mr Bruce LIU's enquiry, PGC reiterated that the general proposition was that the definition of "election" would not normally include voter registration. PAS(CA) supplemented that the Administration had concluded that it was not necessary to extend the scope of the term since the Bill provided a well-established mechanism to ensure the accuracy of the voter register and to deal with any related appeals before the commencement of the nomination proceedings. In further response to Mr LIU, PAS(CA) pointed out that "vote-planting" activities would be regarded as a corrupt or illegal practice and could therefore be dealt with by way of an election petition under subclause (1)(a)(ii).

58. Referring to the phrase "all other steps taken to enable the election to be held" in subclause (3), Mr Ronald ARCULLI opined that the registration process should be regarded as part of an election. PAS(CA) cautioned that according to the judgement of the case of CHOW Wing-kan & others v The Returning Officer, CHAN Ming-kui, an election did not include voter registration. In the light of members' views, the Administration would consider whether it was necessary to stipulate clearly in subclause (3) that voter registration was not included.

Clause 67 When an election petition is terminated

59. In response to members' previous comments on clause 67(2), PAS(CA) said that the Administration would amend subclause (2) to specify how an election petition would be dealt with if the petitioner was a corporate voter which had ceased to exist.

Clause 70 What is to happen if Member is determined not to have been duly elected

60. The Legal Adviser referred members to clause 70(1) which stipulated that a Member was taken never to have been elected if he/she was determined by the Court as not duly elected. Although similar provisions under section 42(1) of the former Electoral Provisions Ordinance (Cap. 367) and section 40(1) of the Legislative Council (Electoral Provisions) Ordinance (Cap. 381) provided that the Member should cease to hold office, no reference was made to when the Member should cease to hold office. As there would be a time gap between a Member declared to have been elected and subsequently determined as not duly elected, he drew members' attention to the possible legal consequences (e.g. contractual obligations) arising from clause 70(1). He added that the matter was raised with the Administration which had responded that the provision so drafted had taken into account the different constitutional framework and the need not to conflict with BL 79. There were no significant differences in terms of practical consequences.

61. PGC said that BL 79 had prescribed all the circumstances under which a Member would cease to hold office. Hence, a Member was taken never to have been elected under the circumstance described.

62. A few members expressed reservations about the Administration's interpretation of BL 79. Other members were concerned about the possible legal consequences and practical difficulties in implementing the provision. PAS(CA) undertook to review the drafting of that provision and make amendment if necessary.

Adm

PART VIII OTHER LEGAL PROCEEDINGS

Clause 73 Appointment of Electoral Registration Officer and assistants

63. The Legal Adviser pointed out that the phrase "The executive authorities of the Government" in clause 73(5) caused confusion when read with BL 59 which stipulated that "the Government of the HKSAR shall be the executive authorities of the Region". It might be simpler to refer to "the Government" in the provision. PAS(CA) undertook to consider the Legal Adviser's suggestion.

Adm

PART X SUBSIDIARY LEGISLATION

Clause 80 CE in Council may make regulations

64. Mrs Elsie TU pointed out that as staff working at polling stations could exert undue influence on electors to the advantage of a particular candidate, she asked whether there would be any regulation governing the kind of persons allowed to work at polling stations. PAS(CA) responded that the appointment of staff to work at polling stations fell within the jurisdiction of the Electoral Affairs Commission which was required by law to conduct an election openly, honestly and fairly. He added that the former Boundary and Election Commission had issued guidelines in this respect. Based on past experience, most of the staff assigned to work at polling stations were public officers who would be screened by the Registration and Electoral Office to ensure that they would not have any direct connection with the candidates.

Clause 81 CE in Council may amend Schedules 1 and 2

65. Members noted that the Administration would move an amendment to clause 81(2) by including reference to the Provisional Legislative Council.

III. Date of next meeting

66. Members agreed to continue examination of the Schedules at the next meeting to be held on Friday, 12 September 1997 at 8:30 am.

67. There being no other business, the meeting ended at 5:40 pm.

Provisional Legislative Council Secretariat
21 April 1998

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