LC Paper No. CB(2)1634/98-99
(These minutes have been
seen by the Administration)
Ref : CB2/BC/11/98
Bills Committee on District Councils Bill
Minutes of Meeting
held on Friday, 22 January 1999 at 4:30 pm
in the Chamber of the Legislative Council Building
Members Present :
Hon Ambrose LAU Hon-chuen, JP (Chairman)
Hon James TIEN Pei-chun, JP
Hon David CHU Yu-lin
Hon Cyd HO Sau-lan
Dr Hon Raymond HO Chung-tai, JP
Hon LEE Wing-tat
Hon Lee Kai-ming, JP
Hon Fred LI Wah-ming
Hon Mrs Selina CHOW LIANG Shuk-yee, JP
Hon Ronald ARCULLI, JP
Hon MA Fung-kwok
Hon CHEUNG Man-kwong
Hon Ambrose CHEUNG Wing-sum, JP
Hon CHAN Wing-chan
Hon CHAN Kam-lam
Hon SIN Chung-kai
Hon Andrew WONG Wang-fat, JP
Hon WONG Yung-kan
Hon Jasper TSANG Yok-sing, JP
Hon Howard YOUNG, JP
Hon YEUNG Yiu-chung
Hon LAU Wong-fat, GBS, JP
Hon Emily LAU Wai-hing, JP
Dr Hon TANG Siu-tong, JP
Hon TAM Yiu-chung, JP
Members Absent :
Hon Eric LI Ka-cheung, JP
Hon Christine LOH
Dr Hon LEONG Che-hung, JP
Hon Andrew CHENG Kar-foo
Hon SZETO Wah
Member Attending :
Hon Martin LEE Chu-ming, SC, JP
Public Officers Attending :
Mr Robin IP
Deputy Secretary for Constitutional Affairs 2
Mrs Maureen CHAN
Deputy Secretary for Constitutional Affairs 3
Mr Paul WONG
Principal Assistant Secretary for Constitutional Affairs
Mr Augustine CHENG
Deputy Director of Home Affairs
Mr James O' NEIL
Principal Government Counsel (Elections)
Mrs N DISSANAYAKE
Senior Assistant Law Draftsman
Mr Vidy CHEUNG
Senior Assistant Law Draftsman
Clerk in Attendance :
Mrs Constance LI
Chief Assistant Secretary (2) 2
Staff in Attendance :
Mrs Justina LAM
Assistant Secretary General 2
Miss Flora TAI
Senior Assistant Secretary (2) 2
I. Schedule of further meetings
Mr Fred LI and Mr CHEUNG Man-kwong requested the Chairman to avoid
selecting those time slots for which other meetings had already been scheduled.
Miss Emily LAU said that she had a Public Accounts Committee meeting to
attend in the morning of 25 January 1999 which also required the presence
of the Legal Adviser.
2. The Chairman responded that as the Administration had clearly stated
its intention to give notice on 26 January 1999 for resumption of the Second
Reading debate on the Bill on 10 February 1999, the Bills Committee had
no choice but to meet as frequently as possible to expedite scrutiny work.
3. Miss HO Sau-lan asked whether the Administration had considered
Mr Ronald ARCULLI's suggestion of deferring the resumption of the
Second Reading debate on the Bill to 10 March 1999. Deputy Secretary
for Constitutional Affairs 2 (DS(CA)2) referred members to the "Timetable
for action leading to the 1999 District Councils Election" (LC Paper No.
CB(2)1137/98-99) and explained that the actions detailed therein were being
taken step by step. Any delay would affect the preparation work for the
District Council (DC) elections as all subsidiary legislation must be approved
by the Council before 14 July 1999, the date of the last Council meeting
for the current session. He hoped that members would expedite scrutiny
of the Bill so that it could be passed before the Chinese New Year.
The Electoral Affairs Commission (EAC) could then proceed with its work
on the demarcation of constituency boundaries.
4. Miss HO said that the EAC could proceed with its work on the demarcation
of constituency boundaries in the meantime as Members had already indicated
that they would not seek to amend the constituency boundaries. Mr
Fred LI echoed Miss HO's view and reminded the Administration that members
had other equally important Council business to attend to.
5. Mr CHEUNG Man-kwong said that the Administration must allow Members
adequate time to properly scrutinize the Bill. He added that the
Administration could take Members' word that they would not propose any
amendment to the constituency boundaries which had been the established
practice in past elections. It would raise serious questions of political
ethics and conflict of interest if any political party or group attempted
to alter the constituency boundaries.
6. Mr Ronald ARCULLI said that in his over 10 years of being a legislator,
he had never seen such inflexibility on the part of the Administration.
He pointed out that the President must also be allowed adequate time to
rule on the Committee Stage amendments (CSAs) proposed by Members.
He shared Mr CHEUNG's view that Members would not seek to change the constituency
boundaries as it would constitute a conflict of interest.
7. Miss Emily LAU asked whether the Bills Committee could continue to
meet if the Administration gave notice on 26 January 1999 to resume the
Second Reading debate on the Bill on 10 February 1999. Miss LAU also
asked what would happen if the Bills Committee could not complete scrutiny
work before the deadline for giving notice for CSAs on 1 February
1999. The Chairman replied that Assistant Secretary General
2 had advised the Bills Committee could continue to meet even though notice
for resumption of Second Reading debate had already been given by the Administration.
8. Deputy Secretary for Constitutional Affairs 3 (DS(CA)3) suggested
that the Bills Committee should proceed with the scrutiny of the Bill and
discuss the way forward at the following meeting, taking account of the
progress work made by then.
II. Committee Stage amendments proposed by members
9. The Chairman said that the meeting scheduled for Monday, 25 January
1999 from 4:30 pm to 6:30 pm would be devoted to discussing CSAs proposed
10. Mr CHEUNG Man-kwong said that Democratic Party Members would be
proposing CSAs to delete all provisions in the Bill which were related
to appointed and ex officio members. Mr CHEUNG explained that the
Democratic Party objected to having appointed and ex officio members on
the following grounds -
- it represented a retrogression in democracy;
- it enabled members who were appointed by the Chief Executive (CE)
to exert influence on the Legislative Council (LegCo) and the selection
exercise of the CE given that the Government had proposed that members
of DCs would elect among their own numbers representatives to sit on LegCo
and to select the CE; and
- it ran counter to the spirit and principle of universal and equal
suffrage enshrined in Article 25 of the International Convenant on Civil
and Political Rights.
11. Mr Andrew WONG said that he would be circulating three lists of
amendments to members. The first list was on his proposal that the
Chairman of a DC should also be elected. The second list set out additional
restrictions on appointing members to DCs, while the third list of amendments
concerned the functions of DCs.
III. Clause by clause examination
12. Mr LEE kai-ming asked the Legal Adviser to also raise his comments,
if any, on individual clauses and the CSAs proposed by the Administration
in the course of the clause by clause examination.
Clauses 29 -31
13. Members did not raise any queries.
Clause 32, New Clauses 34A, 37 and 38A
14. Referring to the CSAs to be moved by the Administration as detailed
in Paper No. CB(2)1147/98-99(01), DS(CA)2 explained that the effect of
the amendments would be that if the Returning Officer became aware of the
death or disqualification of a validly nominated candidate after the close
of nomination but before the polling day, the Returning Officer would be
empowered to invalidate the latter's nomination and the electoral process
could continue without disruption. DS(CA)2 further explained that
existing legislative provisions in respect of the LegCo election required
the election proceedings to be terminated and start afresh in case of death
or disqualification of a validly nominated candidate after the close
of nomination, which would cause disruption to the electoral process.
Amendments would therefore also be proposed to the LegCo Ordinance.
LegCo's Constitutional Affairs Panel was also consulted earlier.
15. Referring to clauses 32(1)(c) and 38(2), Mr TSANG Yok-sing asked
whether "" could adequately reflect the meaning of "fail". The Legal
Adviser pointed out that the Chinese version of "fail" in the LegCo Ordinance
was "". The Chairman suggested that the Legal Adviser further discuss
the amendment with the Administration after the meeting as it only involved
a choice of words.
16. Mr CHEUNG Man-kwong enquired about the legal basis and need for
a DC election candidate to have to make a declaration to uphold the Basic
Law and to swear allegiance to the Hong Kong Special Administration Region
(HKSAR), given that the DC was only a consultative body.
He said that a LegCo Member would lose his office if he was censured by
the Council for breach of oath. He further asked under what circumstances
would a DC member be regarded to have committed a breach of the declaration
and what the consequence would be.
17. DS(CA)2 explained that reference had been made to section 40 of
the LegCo Ordinance and that requiring a DC member to make a declaration
similar to that made by a LegCo Member was appropriate. Principal
Government Counsel (Elections) (PGC(E)) responded that it would be difficult
to see a situation where legal proceedings would be taken against someone
for a breach of a declaration in a nomination form. Nevertheless,
it was an offence to falsely make a statutory declaration.
18. Mr Fred LI said that the functions of LegCo were stated in the Basic
Law. He did not see a similar relationship between the DCs and the
19. Mr CHEUNG Wing-sum pointed out that Article 104 of the Basic Law
clearly stipulated the categories of persons holding public office who
were required, when assuming office, to swear to uphold the Basic Law and
to swear allegiance to the HKSAR. They included Members of LegCo and the
Executive Council, but not members of district organizations. He
said that for the requirement to be enforceable, the relationship between
the DCs and the Basic Law must be clearly stated in the Bill. He
asked whether members of other consultative bodies were also required
to make such a declaration.
|20. DS(CA)2 reiterated that the although Article 104 of the Basic
Law did not include members of district organizations, the requirement
made in clause 33 was appropriate and reasonable. He agreed to consider
members' views and provide a written response.||Adm|
21. Mr CHAN Wing-chan said that since both DC members and LegCo Members
were to serve the people of the HKSAR, there was nothing wrong to require
DC members to make such a declaration. Mr CHAN Kam-lam shared Mr
CHAN Wing-chan's view. He added that the requirement could be removed
if it was not considered essential, thus enabling people who did not uphold
the Basic Law to take part in the DC election.
Clauses 35 and 36
22. Members did not raise any queries.
Clauses 39 - 44
23. Members did not raise any queries.
Clauses 45 and 46
24. Mr Fred LI asked what a level 2 fine represented and whether the
term was easily understood. The Legal Adviser replied that a level
2 fine was a fine between $2,001 and $5,000. He explained that the
Criminal Procedure Ordinance was amended several years ago to introduce
a Standard Scale for fines not exceeding $100,000. It consisted of
six levels, ranging from $2,000 at level 1 to $100,000 at level 6.
He added that having the Standard Scale enabled the fines to be amended
by a single order, instead of on a fine by fine basis.
|25. Referring to clauses 45(1) and 46 (2), Miss HO Sau-lan enquired
about the logic for setting the same level of fine when the former only
concerned negligence of duty while the latter was a deliberate act.
PGC(E) replied that the two types of offences were of similar seriousness.
He pointed out that a clause 45(1) offence also covered an electoral officer
refusing to carry out specific duties, hence putting the election at risk.
Miss HO requested and PGC(E) agreed to provide a table listing out all
the offences and penalties provided for in the Bill for members' easy reference.
26. Mr LI expressed concern that an elector should not be required to
disclose for whom he had voted under any circumstances and asked what constituted
"lawful authority" in clause 46(2). He added that it would not be
possible to verify the information disclosed by the elector, given that
voting was by secret ballot. PGC(E) explained that only a court
of law could order the disclosure of such information by an elector, say,
in connection with an election petition trial or criminal proceedings related
to alleged corrupt practices in an election.
|27. In reply to the Legal Adviser's question on whether "lawful
authority" also included officers investigating the alleged corrupt practices,
PGC(E) explained that lawful authority referred to a court of law only.
The Legal Adviser suggested that it should perhaps be so stated in the
Bill. DS(CA)2 agreed to consider and provide a written response.||Adm|
|28. Miss Emily LAU asked if clause 46(2) was based on an existing
provision and if so, when the power was last used. PGC(E) pointed
out that a similar provision was made in section 60(2) of the LegCo Ordinance
and commented that he was not aware that such a power had ever been invoked.||Adm|
Incumbent Provisional District Board members standing as candidates
29. Miss LAU said that she had earlier expressed concern that candidates
who were incumbent Provisional District Board (PDB) members would enjoy
an unfair advantage. She opined that the Administration should take
effective measures to prevent such candidates from using their status as
a PDB member to gain election benefits over other candidates. She
asked whether any provision had been made in the Bill to deal with this
30. Referring to her response made in an earlier meeting, DS(CA)3 said
that the Administration would make provisions for suspending the operation
of DCs as a CSA, should the Bills Committee have consensus. The amendment
would provide that the DCs would suspend operation, i.e. the DCs would
not hold meetings or transact formal business, upon commencement of nomination
of candidates. However, the suspension would not affect the term
of office of members and they could continue to draw their remuneration
until the end of their office terms.
31. DS(CA)3 added that the Administration would consider issuing guidelines
to departments to advise against inviting incumbent PDB members or other
candidates to officiate at government functions or assisting them in organizing
activities during the election period. In addition, the EAC would
be invited to consider issuing guidelines to prevent incumbent members
from using their status to gain election advantage.
|32. Mr CHEUNG Man-kwong asked whether the Administration would take
similar measures to prevent a DC candidate who was a legislator from making
use of his LegCo Member status in electioneering activities. DS(CA)2
undertook to provide a written response. Miss HO Sau-lan suggested
that the Administration should also look into the situation where the candidate
was a member of the Executive Council.||Adm|
33. The Chairman suggested that the matter be further discussed at the
meeting scheduled for 4:30 pm on Monday, 25 January 1999.
34. Referring members to Table B in Paper No. CB(2)1027/98-99(02), DS(CA)2
explained that a similar provision was made in section 61 of the LegCo
Clauses 48 -51
35. PGC(E) said that a similar provision was made in section 62 of the
LegCo Ordinance, as set out also in Table B.
36. The Legal Adviser pointed out that although there was no substantial
difference between clause 48 and section 62, members might wish to consider
the policy aspect of whether it was appropriate to also require 10 or more
electors to lodge an election petition in respect of a DC election.
37. Mr CHEUNG Man-kwong said that the number of electors of a District
Council constituency was far smaller than that of a LegCo constituency.
He enquired about the rationale for setting the same requirement of 10
or more electors in clause 48(1). He expressed concern that an unsuccessful
candidate might have difficult in finding 10 electors who were willing
to lodge a petition. Miss HO Sau-lan echoed Mr CHEUNG's concern.
38. DS(CA)2 responded that 10 or more electors was an appropriate figure
as a smaller number of say, two or three, might result in frivolous petitions
being lodged. He further pointed out that under clause 48(b), an
unsuccessful candidate could lodge the petition himself.
39. Mr CHEUNG said that he had once made a complaint regarding miscounting
of votes. However, as he had won in the election, the former Boundary and
Election Commission refused to take up his complaint and asked him to seek
a judicial review instead. PGC(E) responded that an election petition
was for challenging an election and not for dealing with procedural queries
where no challenge was proposed. DS(CA)2 added that complaints against
staff of polling stations should be made to the EAC which was required
to deal with all complaints. Moreover, complaints statistics had
also to be reflected in its report to the CE upon the conclusion of an
election. He undertook to provide a written response.
|40. The Legal Adviser also asked DS(CA)2 to provide a written response
on how the by-election procedure provided in clause 32 would be triggered
off after the court had determined that a member had not been duly elected.||Adm|
41. PGC(E) said that clauses 52 and 54 were similar to sections 66 and
68 of the LegCo Ordinance except that under clause 54, a liability was
placed on the petitioner to pay the costs of the respondents if the petition
was taken to have been withdrawn. PGC(E) explained that under clause
52(2), the court could direct a petitioner to give security of not
exceeding $20,000 and that a petition would be taken to have been withdrawn
if the security was not paid. PGC(E) added that the LegCo Ordinance
would be amended accordingly.
Legislative Council Secretariat
31 March 1999