LC Paper No. CB(2)80/99-00
(These minutes have been
seen by the Administration)
Ref : CB2/BC/16/98
Legislative Council Bills Committee on
Legislative Council (Amendment) Bill 1999
Minutes of the 3rd meeting
held on Friday, 5 March 1999 at 8:30 am
in the Chamber of the Legislative Council Building
Hon Ronald ARCULLI, JP (Chairman)
Hon Cyd HO Sau-lan
Dr Hon Raymond HO Chung-tai, JP
Hon LEE Wing-tat
Hon LEE Kai-ming, JP
Hon NG Leung-sing
Hon Margaret NG
Hon Mrs Selina CHOW, JP
Hon CHEUNG Man-kwong
Hon CHAN Wing-chan
Hon CHAN Kam-lam
Hon LEUNG Yiu-chung
Hon SIN Chung-kai
Hon WONG Yung-kan
Hon Howard YOUNG, JP
Hon Mrs Miriam LAU Kin-yee, JP
Hon Emily LAU Wai-hing, JP
Hon TAM Yiu-chung, JP
Dr Hon TANG Siu-tong, JP
Members Absent :
Prof Hon NG Ching-fai
Hon MA Fung-kwok
Hon Christine LOH
Hon Bernard CHAN
Dr Hon LEONG Che-hung, JP
Hon Gary CHENG Kai-nam
Hon Andrew WONG Wang-fat, JP
Hon YEUNG Yiu-chung
Hon LAU Kong-wah
Hon LAU Wong-fat, GBS, JP
Hon Ambrose LAU Hon-chuen, JP
Hon CHOY So-yuk
Public Officers Attending :
Clerk in Attendance :
- Mr Robin IP
- Deputy Secretary for Constitutional Affairs
- Mr James O'NEIL
- Deputy Solicitor General (Constitutional)
- Ms Phyllis KO
- Acting Deputy Principal Government Counsel (Elections)
- Miss Shirley YUNG
- Principal Assistant Secretary for Constitutional Affairs (4)
- Mr Bassanio SO
- Principal Assistant Secretary for Constitutional Affairs (5)
Staff in Attendance :
- Mrs Percy MA
- Chief Assistant Secretary (2) 3
- Mr Jimmy MA, JP
- Legal Adviser
- Mr Stephen LAM
- Assistant Legal Adviser 4
- Ms Mariana LEUNG
- Senior Assistant Secretary (2) 7
Pointing out that the Bills Committee had a large membership and that it might have difficulty to meet the quorum requirement, Ms Emily LAU suggested that the quorum requirement of Bills Committee meetings be reviewed to allow greater flexibility. The Chairman agreed to raise the issue at the next House Committee meeting.
(Post-meeting note : The issue was raised by the Chairman at the meeting of the House Committee on 12 March 1999. The matter was referred to the Committee on Rules of Procedure (CRoP) for consideration. The CRoP discussed the subject and reported its deliberations to the House Committee on 7 May 1999. The House Committee noted the CRoP's conclusion that the existing quorum requirement should be maintained.)
II. Matters arising from the meeting on 24 February 1999
(LC Paper No. CB(2)1386/98-99(01))
Ambit of the Bills Committee in moving Committee Stage Amendments (CSAs)
2. Referring to the Administration's response on item (g), Mr LEE Wing-tat asked whether members could propose amendments to provisions which were not covered in the Bill. Miss Margaret NG suggested members to put forward wording of the proposed amendments so that the Bills Committee could discuss. The Chairman said that any proposed amendments should be relevant to the subject matter of the Bill and should not have a charging effect. It was ultimately a matter for the President to decide. He added that the matter had been discussed at previous meetings of the Bills Committee and the Administration's stance had been clearly stated in its response.
III. Clause by clause examination of the Bill
(LC Paper Nos. CB(2)1334/98-99(01) and 1369/98-99)
3. Members proceeded to clause by clause examination of the Bill. The major issues discussed were summarized below.
Clause 1 - Commencement
4. In response to Ms Emily LAU on the effective dates of the various provisions of the Bill, Deputy Secretary for Constitutional Affairs (DS for CA) advised that some provisions which involved repeal or amendment of provisions in the Legislative Council Ordinance (LCO) which provided for the constitution of the first term of LegCo would be retained before the expiry of the first term, while other provisions should take effect as soon as possible after passage of the Bill.
|5. Members noted the Legal Adviser (LA)'s advice that it was not uncommon for the provisions of a bill to have different commencement dates. Upon Ms LAU's request, DS for CA agreed to provide a list showing the effective dates of the various provisions of the Bill.
Clause 2 (section 3) - "Corporate elector" and "corporate member"
6. In response to Mr LEE Wing-tat, Deputy Solicitor General (DSG) said that a corporate elector was an elector with a right to vote in an FC. A corpoarate member was a member of a corporate body. The term "corporate member" was required for the purpose of the substantial connection provision. Section 3(2) of LCO specified a list of circumstances in which a person had substantial connection to either an FC or to a body within an FC. The term "substantial connection" applied to the appointment of an authorized representative for a corporate elector in an FC.
Clauses 2(a)(iii) and 6 - Advance polling
7. The Chairman asked whether advance polling would be implemented for elections of Functional Constituency (FC), Geographical Constituency (GC) and the Election Committee (EC) and the timing for holding advance polling. DS for CA responded that the proposed arrangement for advance polling was to cater for the need of those electors who could not be available to cast their votes on the LegCo general polling day. The Bill provided that advance polling must be held within 15 days before the general polling day for the election and the date for advance polling would be specified by the Chief Executive (CE) by notice published in the Gazette.
8. The Chairman asked whether regulations would be made to provide for the application procedure for advance polling, and whether a person who had been approved to vote on advance polling day could subsequently opt to vote on the general election day as a result of change of circumstances. DS for CA said that an elector may apply to vote on advance polling day in accordance with regulations to be made by the Electoral Affairs Commission (EAC). Under the Bill, an elector whose application for advance polling had been approved could not vote on the general election day, irrespective of whether he had voted on the advance polling day.
9. Miss Cyd HO Sau-lan expressed concern about the security measures to be adopted for advance polling, e.g. whether ballot boxes would be securely sealed and locked before the general election day. She also requested an explanation on an incident in the 1995 LegCo election at which candidates and their agents were not allowed to oversee the delivery of ballot boxes in part of the journey upon arrival at the central counting station because the area concerned was restricted to polling staff only. The Chairman also recalled a similar incident taking place in a previous District Board election where a ballot box had been found to be unlocked on arrival at the central counting station for reasons unknown.
|10. DS for CA said that the Administration's preliminary view was that ballot boxes collected on advance polling day would be locked away in a safe place and transferred to the central counting station after the close of polls on the general election day. As the EAC would be responsible for making regulations for electoral procedure and arrangements for the LegCo election, he undertook to reflect members' concern in this regard to the EAC for its consideration. Regarding the incident referred to by Miss HO, he agreed to gather the relevant information and provide a written reply.
11. In response to Ms Emily LAU as to whether the subsidiary legislation relating to advance polling should be subject to the negative vetting procedure, the Administration advised that after passage of the Bill, the EAC would prepare proposed guidelines on election-related activities in respect of the 2000 LegCo election for public consultation. Members were welcomed to give views on the proposed guidelines to the EAC for consideration. Taking into account the views received, the EAC would make the relevant regulations which would be submitted to LegCo for scrutiny under the negative vetting procedure. In fact, there was already a set of regulations for the 1998 LegCo election which would be modified to suit the 2000 LegCo election.
Other polling arrangements
12. Mr LEE Wing-tat asked the Administration to consider setting up polling stations in hospitals and prisons to facilitate eligible electors who were hospitalized or imprisoned to vote in the LegCo election. Miss Margaret NG said that introducing postal voting might help address Mr LEE's concern.
|13. DS for CA said that the Administration had considered both proposals. There would be about 500 polling stations on the general election day. To set up additional polling stations in hospitals and prisons would have substantial resource and manpower implications. On postal voting, the Administration was of the view that it would be difficult to prevent vote buying and to ensure the secrecy of the mail. In response to Miss Margaret NG, DS for CA agreed to provide information on overseas countries which had implemented postal voting and the measures taken by them to overcome the problems earlier mentioned by him.
14. Mr CHEUNG Man-kwong asked the Administration to consider introducing overseas polling arrangement for Hong Kong (HK) residents staying in overseas countries on a periodic basis. DS for CA said that the Administration had also considered the suggestion. He pointed out that under the provisions of LCO, persons who no longer ordinarily resided in HK did not meet the criteria for registration as electors. As for those persons who resided overseas periodically or who had left HK for only a short period of time for duty visits or other reasons, the number was unlikely to be very large. In addition, the number of overseas polling stations that could be set up in a large country such as USA would be limited, and eligible electors might not wish to travel a long distance in order to vote. He concluded that apart from resource implications, a lot of administrative and operational problems would have to be overcome and only a small group of people would benefit, if the proposal was to be implemented.
15. Mr CHEUNG was of the view that there was a category of persons who would be overseas for a period of a few months for various reasons and asked the Administration to reconsider the proposal, given that it was the basic right of a person to vote at an election. He also pointed out that the problems mentioned by DS for CA were not insurmountable. Mr TAM Yiu-chung said that given the resource implications, the proposal should not be further considered.
|16. Ms Emily LAU requested and the Administration agreed to provide information on overseas countries which had adopted overseas polling arrangement.
Clause 6 (new section 8A) - CE may specify dates for holding advance polling for general election
17. Members sought clarification on clause 6 which empowered CE to specify a date or dates for holding advance polling for a general election. They asked whether CE had the flexibility to direct postponement of advance polling, e.g. because of inclement weather and whether more than one date could be specified for advance polling.
18. DS for CA responded that clause 6 was drafted to the effect that CE would have the flexibility to specify more than one date for holding advance polling. Some members questioned the need for holding advance polling on more than one day, given that the general election would be held on one day only and the number of electors involved in advance polling would be much smaller.
19. LA asked whether the drafting of proposed new section 8(A)(1) had taken into account existing section 8 of LCO which empowered CE to specify different dates for holding different classes of elections, namely GC, FC, and EC elections. Acting Deputy Principal Government Counsel (Election) (DPGC/E (Ag)) confirmed that the provision would allow CE the flexibility to specify different dates for holding advance polling for GC, FC and EC elections.
20. Ms Emily LAU asked whether it was necessary for CE to specify different dates for GC, FC, and EC elections. Mr Howard YOUNG said that corporate electors of FCs might prefer to set aside another day, preferably a working day, for FC elections. He quoted the example that in the 1991 LegCo election, the FC elections were held on a Thursday while the GC elections were held on a Sunday. Mr CHEUNG Man-kwong said that electors of some large FCs such as the Education FC would prefer to hold both GC and FC elections on the same day.
|21. After some further discussion, the Chairman concluded that if the general election was held on one day, it was unreasonable to specifiy more than one date for advance polling. DS for CA agreed to consider the views of members.
Clauses 7 and 8 (sections 9 and 10) - Dissolution of the LegCo
22. Ms Emily LAU pointed out that section 8 of LCO was silent on when a general election should be held after dissolution of LegCo. LA said that section 4(6) of LCO specified that the LegCo dissloved immediately after its term of office ended. Legally speaking, the current LegCo would be dissolved after its term expired on 30 June 2000. DSG supplemented that section 6(1) and (2) of LCO specified that CE must, by notice published in the Gazette, specify a date for holding a general election to elect Members for the second and each subsequent term of office of the LegCo, and the date specified in the notice must be not earlier than 60 days and not later than 15 days before the new term of office of LegCo was to begin.
Section 11 of LCO - Emergency sessions of LegCo
|23. As a related issue, Miss Margaret NG asked for the Administration's view on whether the "deeming provision" in section 11(2) of LCO was legally in order. The Chairman supplemented that under Article 69 of the Basic Law, the first term of office of LegCo shall be two years, i.e. until 30 June 2000. Section 11 stated that when an emergency session of LegCo was convened during the period after the end of the term of office or the dissolution of LegCo, persons holding office as LegCo Members during the term of office of LegCo which immediately preceded the beginning of the emergency session could be deemed as LegCo Members. At a CRoP meeting, a query was raised on whether section 11 was in conformity with Article 69 of the Basic Law. He said that the issue was discussed by the Provisional Legislative Council and asked the Administration to give a response to Ms NG's question.
Clause 9 (section 13(4)) - Acceptance of office as a Member
24. DS for CA said that under section 13(4) of LCO, the Clerk to LegCo must publish a notice in the Gazette within 14 days after receiving a notice of non-acceptance of office as a Member. Under section 35, the Clerk to LegCo must publish a notice in the Gazette within 21 days after becoming aware of the existence of a vacancy in membership of LegCo. Clause 9 sought to amend the 14-day period in section 13(4) to a period of 21 days in order to reconcile the requirement with that in section 35(1).
|25. Ms Emily LAU queried the rationale for amending the period of 14 days referred to in section 13(4) to 21 days, instead of vice versa. She was of the view that any vacancy in membership of the LegCo should be published in the Gazette as soon as practicable so that the EAC could arrange for a by-election to be held. After some discussion, members agreed that the Clerk to LegCo and the EAC would be consulted on the matter by the Clerk to the Bills Committee and the Administration respectively .
Clauses 10 & 11 (sections 18 and 19) - Establishment of and number of Members to be returned by GCs
26. Mr CHEUNG Man-kwong asked whether the number of "5 GCs" referred to in section 18(1) of LCO could be amended to "24 GCs", and the number of Members to be returned for each GC in section 19(2) be amended to "one", so as to implement "single seat, single vote" system for GC elections.
27. DS for CA said that it was the Administration's view that 5 GCs were appropriate for the second term LegCo. The Administration would give its view on any CSAs proposed by Members after it had seen the actual provisions of the amendments.
28. In response to Ms Emily LAU, DS for CA said that the criteria for EAC to make recommendations on delineation of GCs, as stipulated in section 20 of the EAC Ordinance (Cap 541), included factors such as the population size, community identities and the preservation of local ties, physical features and existing boundaries of Districts. Referring members to item (2) of Annex I to the Administration's paper (LC Paper No. 1386/98-99(01)) on the timetable for actions leading to the 2000 LegCo election, PAS for CA(4) said that after passage of the Bill, the EAC would make provisional recommendations on demarcation of GCs. After a period of 30 days of public consultation, the EAC would finalize its recommendations and submit a report to the CE. The CE in Council would make subsidiary legislation which was subject to negative vetting by the LegCo.
Clause 12 - Establishment of FCs
29. Mr LEUNG Yiu-chung opined that the franchise of the 30 FCs should be expanded to cover all eligible electors. He pointed out that some sectors previously eligible to vote in FC elections were now no longer entitled to do so, such as the manufacturing sector which had a work force of 200,000.
30. DS for CA said that the FC system had been evolving with the passage of time. In delineating the electorate for FCs, the traditional concept and criteria applied, i.e. some FCs would be composed of members of major organizations representative of the relevant sectors, or organizations which come under some form of registration or licensing system specific to the relevant sectors. In the case of professionals constituencies, these would be based on membership of those professions with well-established and recognized qualifications, including statutory qualifications. DS for CA added that apart from some technical changes proposed to the delineation of the FC electorates and the proposed establishment of the Catering and District Council FCs to replace the Urban Council and Regional Council FCs, the delineation of the FCs in the Bill followed that of the first term LegCo.
(Post meeting note - The Administration's response to concerns raised by the Bills Committee at this meeting was circulated to members vide LC Paper Nos. CB(2)1459/98-99(02) and CB(2)1658/98-99(01) on 11 March 1999 and 12 April 1999 respectively.)
IV. Date of next meetings
31. Members agreed that the next two meetings to be held on12 and 15 March 1999.
32. There being no other business, the meeting ended at 10:30 am.
Legislative Council Secretariat
11 October 1999