Bills Committees -- Minutes 12 August 1997

Provisional Legislative Council
PLC Paper No. CB(2) 498
(These minutes have been seen by the Administration)
Ref : CB2/BC/2/97

Bills Committee on the Electoral Affairs Commission Bill

Minutes of the first meeting held on Tuesday, 12 August 1997 at 10:45 am in Conference Room A of the Legislative Council Building

Members Present :

Member Absent:

Public Officers Attending:

Mr Patrick HO: Principal Assistant Secretary for Constitutional Affairs
Mr LI Wing: Chief Electoral Officer
Mr Vidy CHEUNG: Senior Assistant Law Draftsman (Acting)
Mr Tony CHENG: Assistant Secretary for Constitutional Affairs

Clerk in Attendance:

Mrs Percy MA: Clerk to Bills Committee

Staff in Attendance :

Mr LEE Yu-sung: Legal Adviser (Acting)
Mr Stephen LAM: Senior Assistant Legal Adviser (Acting)
Mrs Justina LAM: Assistant Secretary General 2
Miss Flora TAI: Senior Assistant Secretary (2) 3

I. Election of Chairman

Mr Bruce LIU was elected as presiding member for the election of Chairman. Mr Ronald ARCULLI was nominated by Mrs Sophie LEUNG LAU Yau-fun, seconded by Mr IP Kwok-him and accepted the nomination. There being no other nominations, the presiding member declared Mr ARCULLI Chairman of the Bills Committee. Mr ARCULLI then took the chair of the meeting.

II. Meeting with the Administration

2. At the invitation of the Chairman, Principal Assistant Secretary for Constitutional Affairs (PASCA) briefed members on: (a) the role and functions of the proposed Electoral Affairs Commission (the Commission); (b) its composition and operation; (c) the criteria for demarcating geographical constituency (GC) boundaries; and (d) the recommendations on GC boundaries as set out in the Provisional Legislative Council Brief issued by the Constitutional Affairs Bureau on 10 July 1997 (File Ref : CAB C1/33). Members raised a number of questions and the Administration responded accordingly. The gist of the discussion is summarized in the following paragraphs.

Establishment and Membership of the Commission

3. In response to the Chairman, PASCA explained that the tenure of office for the chairman and members of the Commission would be between three and five years as determined by the Chief Executive in order to provide continuity for the work of the Commission. The tenure of office for the chairman of the former Boundary and Election Commission (BEC) was longer than that for members. In response to Mr IP Kwok-him, PASCA explained that Part II of Schedule 1 to the Bill had set out the persons who would be disqualified under clause 3(5)(b) from appointment or holding office as members of the Commission. PASCA also confirmed that members of the former three-tier Councils before 1 July 1997 fell into the category under clause 3(5)(f). He supplemented that it was the intention of the Administration to bar members of the three-tier Councils from joining the Commission to prevent any conflict of interest. Mr WONG Siu-yee asked and PASCA responded that military personnel were not eligible for appointment as members of the BEC. PASCA added that since it was not possible to prescribe an exhaustive list, the Bill could only set out those persons who clearly were not eligible for appointment. He pointed out that persons considered by the Chief Executive to be actively engaged in politics would not be eligible for appointment under clause 3(5)(f)(vii) of the Bill. In this connection, some members were of the view that any member of the National People's Congress and the Chinese People's Political Consultative Conference should be barred from appointment to the Commission in order not to undermine its impartiality. Some members further suggested the Administration consider whether a member of the Selection Committee or the Election Committee of the Chief Executive should be included in clause 3(5) of the Bill. He undertook to consider views expressed and revert to members at the next meeting.

Adm

4. Mr IP Kwok-him asked about the basis for the Chief Executive to determine the remuneration and allowances for the chairman and members of the Commission. PASCA explained the Administration's intention that the chairman of the Commission, being a Judge of the High Court, would not be given any allowances in addition to his salary as a Judge. The Chief Executive would determine the amount of allowances for members of the Commission, having regard to various factors including the responsibility and workload of the Commission and allowance entitlement of other commissions of a similar nature. In this connection, members noted that members of the BEC received a monthly allowance of $20,000.

General Powers and Functions of the Commission

5. Mr Bruce LIU queried whether the Commission had been given sufficient powers to perform its statutory functions effectively. He suggested that expressed provisions should be included in the Bill to allow the Commission to reprimand or take necessary action against a person for breach of its regulations or guidelines. Dr Raymond HO Chung-tai also asked and PASCA agreed to confirm whether "elections" in clause 4(b) covered by-elections.

Adm

Criteria for Demarcating GC Boundaries

6. PASCA informed the meeting that the law would provide that the population per seat in each GC should not differ from the population quota by more than 25%. He stressed that: (a) the 25% margin rule would give flexibility to the Commission in following the statutory criteria to delineate the GCs; (b) the same margin rule was widely accepted and adopted for the three-tier elections in 1995; (c) the Commission was required to observe the principle of equal representation; and (d) the District Board constituencies which existed before 1 July 1997 would be used as "building blocks" for delineating GCs. He reminded members that the Commission would, as a first principle under the proposed legislation, be required to keep the deviation as small as possible although the statutory maximum was 25%. Departure from the margin rule would only take place under exceptional circumstances and would require explanation.

7. Members present pointed out that as the whole of Hong Kong would be divided into five GCs for the first Legislative Council election and each constituency should return three to five seats, a margin rule as high as 25% could result in a significant difference in the size of population among constituencies, hence go against the principle of equal representation. For example, a constituency exceeding the population quota by 25% would be significantly larger than one which was 25% below the population quota. Members therefore requested the Administration to review the 25% margin rule for drawing up demarcation of GC boundaries and to consider whether a smaller percentage such as 10% or 15% should be adopted.

Adm

Registration of Electors

8. Mr LAU Kong-wah asked and PASCA responded that the Commission was empowered to draw up the procedures for registration of electors by way of subsidiary legislation. However, it would be a matter for the Commission to decide whether fresh registration of electors would be necessary, having regard to time factor, financial implications and practical limitations. PASCA assured members that the Commission would give consideration to members' views and public opinion in this respect. The Administration would also work closely with the Commission to ensure that elections would be conducted openly and fairly. At Mr LAU's request, PASCA agreed to provide information on updating of register of electors and the Boundary and Election Commission's recommendations for improvement in the light of experience in the 1995 LegCo elections.

Adm

Elections of District Organizations

9. In response to Mr LAU Kong-wah's enquiry, PASCA informed members that a decision on the timing and exact arrangements for the first elections of the Municipal Councils and the District Boards of the Hong Kong Special Administrative Region (HKSAR) had yet to be made. Moreover, it was the wish of the Administration that recommendations by the proposed Commission on the relevant GC boundaries should be submitted at least 12 months before the relevant elections, if practicable.

Major Differences between the Commission and the BEC
(PLC Paper No. CB(2)134 - English version
PLC Paper No. CB(2)139 - Chinese version)

10. The ensuing discussion was based on the information paper provided by the Administration on the similarities and differences between the Commission and the BEC in terms of their composition, functions, powers and duties.

Clause 3 - Establishment and Membership of the Commission

11. Members noted that the Bill did not provide for a member of the Commission to be nominated by the President of the LegCo, as provided in the former Boundary and Election Commission Ordinance (the former Ordinance). PASCA explained that the former arrangement was acceptable because the then President of the Legislative Council was an appointed member when the BEC was set up in 1993. However, all Legislative Council Members, including the Chairman, would be returned by elections in the future. Therefore the former arrangement should not continue so as to avoid any doubts by the public on the independence of the Commission, as one of its functions was to supervise these elections.

12. Members were of the view that a person who had been a member of the Executive Council within the past four years should be disqualified from appointment to the Commission in order to ensure the Commission's impartiality. This arrangement was adopted in the former BEC Ordinance. PASCA said that the pool of candidates for appointment to the Commission should not be restricted unnecessarily. The Administration was of the view that it was unnecessary for this category of persons to be disqualified from appointment to the Commission. The consideration would however, be different in the case of serving members of the Executive Council who would, as in the past, be disqualified from appointment to the Commission.

Clause 4 - Functions of the Commission

13. Mr IP Kwok-him queried why clause 4(e) of the Bill only required the Commission to keep under view the matters referred to in clauses 4(b), (c) and (d), instead of requiring it to conduct regular reviews. PASCA pointed out that the drafting would allow the Commission to conduct reviews as need arose, but would not preclude the Commission from conducting regular reviews. In further response to Mr IP, PASCA explained that clauses 4(g) & (h) were added in order to cover general functions which might need to be performed by the Commission. No amendment would be necessary if the Commission was required to perform any other functions under the Ordinance in the future.

Clause 6 - Commission to issue guidelines

14. Mr Bruce LIU expressed concern that if the phrase "take such action as it considers appropriate in respect of" was deleted from clause 6(3) of the Bill, the Commission might be precluded from taking action even though it had made the decision to do so. PASCA agreed to re-insert the phrase in the clause.	Adm

Clause 9 - Chief Electoral Officer

15. Mr IP Kwok-him asked and PASCA responded that the Commission had the same power as that of the BEC to appoint committees to assist in discharging its functions. It was therefore considered appropriate to stipulate committee attendance of the Chief Electoral Officer in clause 9(4)(b) in the Bill. In this connection, the Chairman asked and PASCA agreed to consider whether the restrictions prescribed in clause 3(5) should also apply to the appointment of members of a committee established by the Commission. Mr IP further asked and PASCA confirmed that clause 7(1)(g) empowered the Commission to establish committees including a committee to deal with any complaint relating to the Commission's guidelines referred to in clause 6(3).

Adm

Clause 14 - Immunity

16. In response to Mr IP Kwok-him, PASCA explained that clause 14(1) was recast in two parts without any substantive change in order to improve the drafting of the provisions.	Adm Legal Adviser

17. At the Chairman's request, PASCA agreed to provide a comparison table on provisions of the Bill and the former Ordinance by noon on the following day to facilitate members' discussion at the next meeting. Legal Adviser also undertook to provide relevant information in this respect for members' easy reference.

Timetable for the Bill

18. PASCA explained to members that based on previous experience, the recommendations on GC boundaries should be submitted to the Chief Executive at least 12 months before the relevant election to allow for various practical steps which needed to be taken after the enactment of the GC boundaries (in the form of subsidiary legislation). However, this time frame would not be achievable for the first election of the HKSAR Legislative Council which was to be held within the second quarter of 1998. It was therefore proposed that for the first report on final recommendations by the Commission to the Chief Executive, the deadline for submission should be set at 31 October 1997. As the Commission was required to consult the public on the provisional recommendations before submission of final recommendation to the Chief Executive, PASCA urged members to consider and pass the Bill as early as possible in view of the tight schedule.

III. Dates of future meetings

19. Members agreed to schedule the following meetings -

Thursday, 14 August 1997 from 8:30 am to 12:45 pm; and
Friday, 15 August 1997 from 8:30 am to 12:45 pm.

20. There being no other business, the meeting ended at 12:45 pm.

Provisional Legislative Council Secretariat
28 October 1997