Legislative Council

LC Paper No. CB(2)2812/98-99
(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 12th meeting
held on Friday, 7 May 1999 at 10:45 am
in Conference Room A of the Legislative Council Building Members Present:

Hon Ronald ARCULLI, JP (Chairman)
Hon Cyd HO Sau-lan
Hon LEE Wing-tat
Hon LEE Kai-ming, JP
Hon NG Leung-sing
Prof Hon NG Ching-fai
Hon Margaret NG
Hon CHEUNG Man-kwong
Hon Bernard CHAN
Hon CHAN Wing-chan
Hon CHAN Kam-lam
Hon LEUNG Yiu-chung
Hon Gary CHENG Kai-nam
Hon Andrew WONG Wang-fat, JP
Hon Howard YOUNG, JP
Hon YEUNG Yiu-chung
Hon Mrs Miriam LAU Kin-yee, JP
Hon Ambrose LAU Hon-chuen, JP
Dr Hon TANG Siu-tong, JP
Hon TAM Yiu-chung, JP
Hon CHOY So-yuk

Members Absent :

Dr Hon Raymond HO Chung-tai, JP
Hon Mrs Selina CHOW, JP
Hon MA Fung-kwok
Hon Christine LOH
Dr Hon LEONG Che-hung, JP
Hon SIN Chung-kai
Hon WONG Yung-kan
Hon LAU Kong-wah
Hon LAU Wong-fat, GBS, JP
Hon Emily LAU Wai-hing, JP

Members Attending :

Hon Ambrose CHEUNG Wing-sum, JP

Public Officers Attending :

Mr Robin IP
Deputy Secretary for Constitutional Affairs

Mr James O'NEIL
Deputy Solicitor General (Constitutional)

Miss Shirley YUNG
Principal Assistant Secretary for Constitutional Affairs (4)

Mr Bassanio SO
Principal Assistant Secretary for Constitutional Affairs (5)

Ms Phyllis KO
Acting Deputy Principal Government Counsel (Elections)

Clerk in Attendance :

Mrs Percy MA
Chief Assistant Secretary (2) 3

Staff in Attendance :

Mr Stephen LAM
Assistant Legal Adviser 4

Ms Eleanor CHOW
Senior Assistant Secretary (2) 7

I. Administration's responses to points raised on 14 and 15 April by Members of the Bills Committee
(LC Paper No. CB(2) 1854/98-99(02)

Item I - Loss of election postings

Members noted the reply.

2. Mr LEE Wing-tat asked that in the event of loss of election postings, whether a candidate should include the cost of the election materials as part of the election expenses and if the statutory expenses limit had been exceeded as a result of these expenses, whether the candidate would be regarded as having committed an offence. Mr LEUNG Yiu-chung asked whether the candidate was entitled to cost reimbursement as a result of mail lost by the Post Office. Deputy Solicitor General (DSG) replied that the question of election expenses was dealt with in the Corrupt and Illegal Practices Ordinance and the question relating to mail loss was covered by the Post Office Ordinance. Both were matters not directly related to this Bill.

Item 2 - Composition of the Heung Yee Kuk (HYK) Functional Constituency (FC)

3. Noting that 25% of the membership of the Full Council of the HYK was New Territories Justices of the Peace (NTJPs) appointed by the Government and not returned by direct election, Mr LEE Wing-tat asked whether there was any limit on the number of NTJPs to be appointed. He expressed concern over the influence that the Government might have on the HYK with the increase in the number of appointed NTJPs.

4. Deputy Secretary for Constitutional Affairs (DS for CA) pointed out that the composition of HYK was governed by the HYK Ordinance (Cap. 1097) which was enacted many years ago. The appointment of NTJPs took into account the person's track record of community service, his interest in New Territories affairs and his ability to serve constructively as a member of HYK. With the rapid development of the New Territories and its increased population, the Government had at present no plan to restrict the number of appointed NTJPs arbitrarily.

Item 3 - Veterinary surgeons

5. Mr LEE wing-tat said that the explanation given by the Administration for not including veterinary surgeons as electors of any FC was not acceptable. He pointed out that given that veterinary surgeons were registered professionals, they should be entitled to vote in an FC. Mr LEE Kai-ming opined that veterinary surgeons should be included as electors in the Agriculture and Fisheries FC if not the Medical FC. The Chairman opined that the Hong Kong Veterinary Association should at least be entitled to one vote, if individual veterinary surgeons were not given a right to vote.

6. DS for CA replied that not every category of registered professionals were electors of an FC. Having analysed the nature of services provided by veterinary surgeons, the Administration came to the view that it would not be appropriate to include them in any FC, including the Medical FC whose electors provided services for the well-being of human beings, or the Agriculture and Fisheries FC which were organisations representative of producers in agriculture and fisheries.

Item 4 - Finance FC and Financial Services FC

7. The Chairman expressed concern that the restructuring of the banking sector and the securities and future markets, which was expected to take place in September 2000, would coincide with the 2000 LegCo election. Mr CHEUNG Man-kwong said that as advised by the Secretary for Financial Services, the proposals for restructuring would be implemented within the current LegCo term. He requested the Administration to advise on the arrangements to be adopted if the delineation of the electorates for the Finance and Financial Services FCs would be affected as a result of the restructuring. DS for CA responded that he would consult the Secretary for Financial Services on this issue and revert to the Bills Committee. He assured members that if legislative amendments had to be made in order to implement the measures which would result in changes in the delineation of electorates for the relevant FCs, appropriate consequential amendments to the Legislative Council Ordinance (LCO) would be made and would be subject to the approval of the LegCo. Adm

Item 5 - Judicial officers as eligible electors for the Legal FC

8. Referring to the reply given by the Administration, Miss Margaret NG made the following points -

  1. While she accepted the conclusion that judges and judicial officers should not be included as eligible electors for the Legal FC, she would like the Administration to elaborate on the process by which they were consulted on the matter. Moreover, she did not agree with the Judiciary's view that if judges were involved in selecting a person to represent their views and interests in the law making body, it might be seen as undermining the principle of the separation of powers between the judiciary and the legislature. In this connection, she pointed out that many of the staff working in the executive authorities were FC electors; and

  2. According to her understanding, the aim of FC elections was to ensure that Members returned by FCs would use their professional expertise to contribute to the work of the LegCo for the well-being of the community as a whole, rather than representing only the interests of the sectors concerned.

9. DS for CA and Principal Secretary for Constitutional Affairs (4) (PAS for CA(4)) replied as follows-

  1. On whether judges and judicial officers should be included as eligible electors for the Legal FC, the Administration had sought the view of the Judiciary Administrator who had in turn consulted the judges and judicial officers. The reply given to the Bills Committee had been endorsed by the Judiciary Administrator; and

  2. It was the view of the Judiciary that it was inappropriate for judges and judicial officers to be included as eligible electors for the Legal FC, as conflict of interest might arise. Judicial officers as a group were not included as eligible electors for the Legal FC in the 1985, 1988 and 1991 elections. In the 1995 elections, they were eligible electors for the Community, Social and Personal Services FC by virtue of their being working persons in the Major Industry Group "Public Administration". As judges were tasked to interpret and apply the law, it was of paramount importance that they should be seen as fair, just and independent.

10. In response to Miss NG, the Administration undertook to provide for members' reference papers previously prepared by the Government on the concept of FCs. Adm

11. Miss Cyd HO said that should the Administration accept the principle of separation of powers between the judiciary and the legislature, it should also apply to the staff of the Department of Justice. Mr CHAN Kam-lam said that if Miss HO was worried about conflict of interests between the executive and the legislature, all civil servants should not be allowed to vote.

12. DS for CA said that since lawyers in the Department of Justice had all along been included as eligible electors for the Legal FC, the Administration did not see the need to change the constitutent of the Legal FC in the 2000 LegCo election. PAS for CA (4) supplemented that the role of the Department of Justice was different from that of the Judiciary. It was necessary for the latter to maintain its independence. The Chairman said that the concept of separation of powers should not be interpreted so rigidly as to deprive one's right to vote.

Items 6 and 7 - Eligibility to vote

13. Mrs Miriam LAU expressed concern over the arrangement that registered corporate electors of the Transport FC would not be disqualified from voting even if they had switched to businesses which were unrelated to the FC. DS for CA explained that there was a time element involved in this issue. If the registered corporate electors had switched to other businesses and if it had come to the knowledge of the Administration that they were no longer qualified to be electors for the Transport FC, their names would be removed from the list of electorates in the Schedule to the LCO. On the other hand, if they had switched to other businesses after the present amendments had been enacted, they would not be disqualified from voting. However, they would be disqualified from voting at the next election after their names had been removed from the Schedule to the LCO.

14. PAS for CA (4) supplemented that section 48(5) of the LCO stipulated that a person registered as an elector for a constituency might not be prevented from voting at an election only because the person's name should not have been included in the final register prepared for the constituency. Section 53 of the LCO set out the conditions under which an elector was disqualified from voting at an election. It was an offence under section 14(1) of the Corrupt and Illegal Practice Ordinance for a person to vote at an election if he knew that he was disqualified from voting. If it had come to the knowledge of the electoral staff at a polling station that a registered elector was disqualified from voting, they would remind the elector of the relevant provisions of the Corrupt and Illegal Practices Ordinance. They would not prevent him from casting his vote because they could not ascertain the person's eligibility to vote at that particular point in time and that his right to vote was safeguarded under the law. However, the electoral staff might refer the case to the law enforcement agency for follow-up.

15. Addressing Mrs Miriam LAU's concern, Mr Andrew WONG said that the problem could be resolved by stipulating in law the eligibility of electors for FCs and an overriding principle that a corporate elector who no longer had any substantial connection with the relevant FC should be disqualified from voting. DS for CA responded that given the wide variations in the composition and characteristics of each FC, it was difficult to set a uniform rule on substantial connection for all the FCs. Having regard to the unique characteristics of the Transport FC which comprised many transport sectors, companies and organisations which were eligible electors were listed by name in the Schedule.

16. Miss CHOY So-yok expressed concern that the votes cast by disqualified electors might affect the outcome of the election of a small size FC. The Chairman responded that since votes were cast by secret ballot, it was impossible to ascertain its effect, if any, on an election. DS for CA said that if an election petition was lodged, it was a matter for the court to decide whether a by-election was necessary.

17. In response to Mr LEUNG Yiu-chung, DS for CA said that an elector for a geographical constituency (GC) would not lose his right to vote if he had moved to another district. If he had not notified the Electoral Registration Office the new address before the publication of final register, he was still entitled to vote in the original constituency.

Item 8 - Size of FC electorates

18. Members noted the reply

Item 9 - Submissions

19. In response to members, DS for CA said that the Administration had received from the Clerk to the Bills Committee some additional requests for inclusion as FC electors since the meetings held on 26 and 30 March 1999. These together with other submissions sent directly to the Administration were under consideration. Pointing out that the Hong Kong Air Cargo Terminals Limited which had now requested to be transferred from the Industrial (First) FC to the Transport FC, Mrs Miriam LAU asked whether the Administration would consider inviting corporate electors of other FCs involved in similar businesses to transfer to the Transport FC. DS for CA replied that if a corporate elector was eligible to be registered in more than one FC, it was a matter for it to decide whether it should stay in the existing FC or transfer to another FC of its choice. Should it wish to pursue the matter, it should submit a request to the Administration for consideration.

II. Administration's responses to points raised on 22 and 27 April by Members of the Bills Committee
(LC Paper No. CB(2) 1854/98-99(03))

Item 1 - Establishment of Election Committee (EC)

20. The Chairman said that the Administration's reply had not addressed the concerns raised by members. Members' specific concern was whether the EC formed under this Bill for the purpose of returning six Members in the 2000 LegCo election was the same as the EC for electing the Chief Executive (CE) provided for in Annex I of the Basic Law. He asked the Administration not to evade the issue.

21. Mr LEE Wing-tat said that if the Administration continued to be evasive, the House Committee should be asked to raise the matter with the Chief Secretary for the Administration.

22. Mr Andrew WONG asked whether introducing a bill to abolish the second term LegCo EC and replace it with a new EC for the selection of CE in 2002 would contravene the Basic Law. The Chairman pointed out that since the EC's term of office was five years as stipulated in Annex I of the Basic Law, it was not possible to abolish the second term LegCo EC. In addition, the EC had the responsibility to conduct a by-election in case of disqualification of a Member returned by the EC during the term. Assistant Legal Adviser said that unless the Administration could provide justifications to the otherwise, the EC for returning the six Members of LegCo and electing the CE as provided for in Annexes I and II of the Basic Law should be the same. The Administration was asked to respond to Mr WONG's concern in writing. Adm

23. Mr CHAN Kam-lam advised that he had discussed the issue with some members of the Drafting Committee for the Basic Law. They generally considered that the EC mentioned in Annexes I and II was the same. There was little discussion on the establishment of EC during the drafting of the Basic Law, probably due to the fact that the issue was not controversial.

24. Mr Andrew WONG said that given that the membership of LegCo and the local deputies to the National People's Congress who were ex-officio members of the EC was subject to change following election and by-election, the Administration should consider specifying in law that only incumbent LegCo Members could become members of EC and when there were no incumbent Members, the persons holding office during the previous term should be deemed to be ex-officio members of the EC. The Chairman asked the Administration to reconsider the issue. Adm

    (Post-meeting note - The Administration's response to concerns raised by the Bills Committee at this meeting was circulated to members vide LC Paper No. CB(2) 2028/98-99(01).)

III. Date of next meeting

25. The next meeting would be held on 12 May 1999 at 8:30 am to continue discussion on LC Paper No. CB(2) 1854/98-99(03).

26. The meeting ended at 12:45 pm.

Legislative Council Secretariat
14 September 1999