Legislative Council

LC Paper No. CB(2)2813/98-99
(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 14th meeting
held on Friday, 21 May 1999 at 10:45 am
in Conference Room A of the Legislative Council Building Members Present:

Hon Ronald ARCULLI, JP (Chairman)
Dr Hon Raymond HO Chung-tai, JP
Hon LEE Wing-tat
Hon LEE Kai-ming, JP
Hon NG Leung-sing
Prof Hon NG Ching-fai
Hon Mrs Selina CHOW, JP
Hon MA Fung-kwok
Hon CHEUNG Man-kwong
Hon CHAN Wing-chan
Hon CHAN Kam-lam
Hon SIN Chung-kai
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 :

Hon Cyd HO Sau-lan
Hon Margaret NG
Hon Christine LOH
Hon Bernard CHAN
Dr Hon LEONG Che-hung, JP
Hon LEUNG Yiu-chung
Hon Gary CHENG Kai-nam
Hon Andrew WONG Wang-fat, JP
Hon WONG Yung-kan
Hon LAU Wong-fat, GBS, JP
Hon LAU Kong-wah
Hon Emily LAU Wai-hing, JP

Public Officers Attending :

Mr Robin IP
Deputy Secretary for Constitutional Affairs

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

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

Mr James O'NEIL
Deputy Solicitor General (Constitutional)

Ms Phyllis KO
Acting Deputy Principal Government Counsel (Elections)

Clerk in Attendance :

Mrs Percy MA
Chief Assistant Secretary (2) 3

Staff in Attendance :

Mr Jimmy MA, JP
Legal Adviser

Mr Stephen LAM
Assistant Legal Adviser 4

Ms Eleanor CHOW
Senior Assistant Secretary (2) 7

I. The way forward

The Chairman said that if the Legislative Council (Amendment) Bill 1999 (the Bill) was to be passed in the current LegCo session at its last meeting on 14 July 1999, the Bills Committee should make a report to the House Committee on 2 July 1999. Under the circumstances, the deadline for giving notice of Committee Stage amendments (CSAs) was 5 July 1999. He sought members' view on the timetable.

2. Mr LEE wing-tat said that given the limited time available, Members would only have the capacity to deal with either this Bill or the Elections (Corrupt and Illegal Conduct) Bill (ECIC Bill). Members present at the meeting supported his view.

3. Deputy Secretary for Constitutional Affairs (DS for CA) thanked members for their hard work and said that having regard to the progress of the ECIC Bill, the Administration would prefer to accord priority to this Bill. Members agreed. Members also agreed that the three time slots originally scheduled for the ECIC Bill on 18, 24 and 25 May 1999 should be taken up by this Bills Committee.

II. Administration's response to points raised on 7 May 1999 by the Bills Committee
(LC Paper No. CB(2) 2028/98-99(01))

Item 1 - Restructure of the banking sector and the securities and futures market

4. Members noted that the Secretary for Financial Services was being consulted on the issue. The Administration would revert to the Bills Committee in due course. Adm

Item 2 - Concept of functional constituencies (FCs)

5. Referring to the submission from the Hong Kong Veterinary Association Limited (LC Paper No. CB(2) 1941/98-99(01)) which raised objection to its not being included as an elector for any FC, Mr LEE Wing-tat said that the Administration's position on the matter was not acceptable. DS for CA responded that not all registered professionals were eligible electors for an FC. The Administration had considered including veterinary surgeons as electors in the Medical, Health Services or Agriculture and Fisheries FCs. Having consulted the relevant departments and bureaux and taking into account the services provided by electors of the Medical, Health Services and Agriculture and Fisheries FCs, the Administration had come to the view that it would not be appropriate to include veterinary surgeons in any of these FCs.

Item 3 - Election Committee (EC) referred to in Annexes I and II of the Basic Law

6. Members were not satisfied with the reply which had failed to address the question on whether the EC proposed in the Bill for the LegCo election in 2000 would be the same EC responsible for the election of the second term Chief Executive (CE) in 2002.

7. Mr LEE Wing-tat said that if the Administration did not clarify the issue, it might give rise to posible litigation. He pointed out that there were a number of unknowns regarding the EC in question, namely -

  1. whether the EC subsectors for the second term LegCo were the same as those for the EC for electing the second term CE;

  2. whether the members of the EC for the second term LegCo were the same as those of the EC for electing the second term CE; and

  3. whether a new EC would be formed in 2002 for the election of the second term CE.

8. Mr CHEUNG Man-kwong believed that the Administration had already considered the pros and cons of having the same or different EC for the second term LegCo and CE election. He said that the Administration should disclose such information to facilitate the public and Members to deliberate the issue before any legislation was made. He expressed concern about the influence that the EC might have on the CE between 2000 and 2002, should it be the same EC responsible for electing the second term CE. Mr Sin Chung-kai pointed out that the functions of the EC would affect a person's decision on whether or not to run the candidature for an EC member.

9. The Chairman said that there were practical and technical issues which the Administration must clarify. Given that the term of office of the EC provided for in Annex I to the Basic Law was five years, membership of the EC might change resulting from events such as change of membership in LegCo. He supported the suggestion made by Mr Andrew WONG at previous meetings that only incumbent LegCo Members could become members of the EC and when there were no incumbent LegCo Members, the persons holding office as LegCo Members during the previous term should be deemed to be ex-officio members of the EC. Such principle should also apply to other ex-officio members of the EC.

10. Mr Howard YOUNG said that since the Administration had not provided a definite reply on the matter, he would not rule out the possibility that the EC for electing the CE in 2002 might be different from the EC for the second term LegCo. He pointed out that at present there was no legal mechanism for by-election of members of the EC.

11. Mr CHAN Kam-lam shared the concerns raised by members. Given the complexity of the matter which required careful deliberation by all parties concerned, he suggested to put the matter aside for the time being in order to proceed with the scrutiny of the Bill.

12. Mr NG Leung-sing said that since the Administration did not give a direct reply, it was for members to consider either accepting the Administration's reply as it was or moving CSAs to clarify the issue. He requested the Legal Adviser to provide legal advice in this regard. LA

13. In response to members, DS for CA reiterated the position of the Administration as set out in the reply. The Chairman requested the Administration to reconsider the matter and revert to the Bills Committee at the meeting on 28 May 1999. In view of the importance of the issue, members also requested that the Secretary for Constitutional Affairs should attend the meeting to explain the Administration's position. Adm

III. Administration's response to points raised on 12 May 1999 by the Bills Committee
(LC Paper No. CB(2) 2028/98-99(02))

Item 1 - Religious subsector of EC

14. In response to Mr LEE Wing-tat, DS for CA said that the Administration had exchanged views with the six religious bodies on the arrangements regarding the Religious subsector of the EC. He would revert to the Bills Committee if any legislative amendments to the relevant provisions were required. Adm

Item 2 - Drafting of section 1(9) and (10) of Schedule 2

15. Members noted the reply.

Item 3 - LegCo Members as ex-officio members of EC

16. Members noted the reply.

IV. Clause by clause examination of the Bill

Clause 22 (section 38) - Nomination list for geographical constituencies (GCs)

17. Members noted that the Administration had agreed to introduce CSAs to delete the provision which allowed the Returning Officer (RO) to add the name of surplus nominees to a GC list, if he came to know that the candidate had died or become disqualified after the close of nomination but before close of polling.

Clause 23 (section 39) - Disqualification of a candidate and a Member

18. Mr LEE Wing-tat said that the Democratic Party had reservation on section 39(1)(c) which stipulated that a person was disqualified from being nominated as a candidate and from being elected as a Member if the person had been convicted of treason.

Clause 24 (section 40(1)(b)(iii)) - Qualification of a candidate

19. The Chairman said that Mr Andrew WONG, who was not present at the meeting, would like to discuss the provision at the next meeting.

Clause 25 (new 42A) - Validly nominated candidates

Declaration of the death of a candidate

20. Referring to new section 42A(2)(a), Mr Howard YOUNG questioned whether it was the role of the RO to declare that a candidate had died, and if so, what evidence he must have in hand before he made such a declaration. He did not consider that ROs were the appropriate authority to pronounce the death of a candidate.

21. Deputy Solicitor General (DSG) responded that the declaration made under 42A(2)(a) would only be for the purpose of the Legislative Council Ordinance (LCO) and not for any other purpose. The RO had to satisfy himself that the candidate was dead before he made the declaration. The Chairman asked the Administration to consider improving the drafting of the provision to that effect. Termination of election proceedings for FCs Adm

22. The Chairman said that the Bill proposed that the election should continue if a candidate was disqualified or died before the polling day. As far as FC election was concerned, where there were two candidates and one had become disqualified or died, the remaining candidate would be automatically elected as a Member of the LegCo. A by-election would not be arranged under the new arrangement. He reiterated his concern about the proposed arrangement for FCs.

23. Mr SIN Chung-kai said that the existing arrangement which allowed for a by-election to be held had its merit. The proposed arrangement contravened the principle of election, given that a fair election must not deprive electors from having the right to choose. Mr LEE Wing-tat and Mr LEE Kai-ming concurred and said that the new arrangement was appropriate for GC elections which consisted of multi-seat constituencies. Mr LEE Kai-ming added that given the small electorate size, a by-election for FC would not be too costly.

24. DS for CA explained that the new arrangement aimed to minimize the risk of disruption to the electoral process. It was the view of the Administration that an uniform approach should be adopted for GC and FC elections in order to avoid confusion.

25. The Chairman responded that a broad brush approach for both the GC and FC elections might not be appropriate. He pointed out that the new arrangement was especially unfair to FCs which composed of different categories of professionals e.g. the Architecture, Surveying and Planning FC which comprised architects, surveyors and urban planners. In the event that a nominated candidate of a particular profession had become disqualified or died, the electors concerned would not have the opportunity to nominate another candidate to contest at the election. He requested the Administration to reconsider the issue. Adm

26. Mr CHAN Kam-lam said that to facilitate members' consideration, it would be useful if the Administration could provide information on arrangements adopted by other countries such as New Zealand which had different election and voting systems. Adm

Clause 27 (new section 43A) - Advance polling

27. In response to Mr LEE Wing-tat, DS for CA explained that the phrase "(if there is not any later advance polling day)" in new section 43A(1) sought to facilitate the CE to direct the cancellation of advance polling on a particular day to the general election day, if there was not any later advance polling day. DSG supplemented that it was a statutory requirement to gazette the designation of advance polling day. If there was unforeseeable circumstance which led to the change of advance polling date, the public would be notified through the mass media, as there might not be sufficient time to publish the revised date in the gazette.

28. Mr LEE Wing-tat suggested that the advance polling day should be set at two weeks prior to the general election, in order that the advance polling day could be postponed by one week if warranted.

29. DS for CA said that there were practical difficulties to conduct advance polling on a date other than the one designated, given that there were lots of preparatory works such as advance booking of polling stations, preparation of register, manpower arrangements, etc. The Chairman opined that under the circumstances, it was unnecessary to designate more than one date for advance polling. Mr LEE Wing-tat echoed the view and pointed out that the general election day which involved over 2 million electors lasted for only one day. DS for CA undertook to consider members' suggestions. Adm

    (Post-meeting note : The Administration and the Legal Adviser's responses to concerns raised by the Bills Committee at this meeting were circulated to members vide LC Paper No. CB(2) 2135/98-99(01) on 28 May 1999 and LS 198/98-99 under cover of LC Paper No. CB(2) 2171/98-99 on 2 June 1999.)

V. Date of next meeting

30. The next meeting would be held on 24 May 1999 at 8:30am.

31. The meeting ended at 12:45 pm.

Legislative Council Secretariat
14 September 1999