Chapter 3
Members of the Legislative Council
3.1This Chapter focuses on how Members of the Legislative Council are elected from their constituencies, what they need to do after assumption of office and what practices and procedures have been put in place to ensure that Members, as representatives of their constituencies to serve in the Legislative Council, perform their constitutional functions in a manner which inspires public trust and confidence in the Legislature. This Chapter also examines the procedures for the disqualification of Members from office under Article 79 of the Basic Law.
3.2Although the emphasis of this Companion is not on the details of the electoral system or how the election of Legislative Council Members is conducted, it may be useful to readers if some background information is provided on the development of the two groups of constituencies, namely the functional and the geographical, returning Members to the Legislative Council since before reunification; and the changes to the composition of the Council initiated by this development. All these issues are relevant to the understanding of how and why the current set of Rules of Procedure came into being, and for considering necessary modifications in the Rules of Procedure in light of the constitutional development in the HKSAR.
Election of Members
3.3According to Article 68 of the Basic Law, the Legislative Council of the HKSAR shall be constituted by election. The specific method for forming the Legislative Council is prescribed in Annex II to the Basic Law. Annex II provides that for the third term of the Legislative Council there should be 60 seats in the Council made up of 30 for Members returned by functional constituencies and 30 for Members returned by geographical constituencies. Annex II also provides that for the formation of the Legislative Council after 2007, amendments must be made in accordance with the provisions in Annex II if there is a need to do so. In accordance with the Interpretation by the Standing Committee of the NPC promulgated on 26 April 2004, the Chief Executive shall make a report to the Standing Committee of the NPC as regards whether there is a need to make an amendment to the method for selecting the Chief Executive and for forming the Legislative Council, and the Standing Committee shall then, in accordance with Article 68 of the Basic Law, make a determination in the light of the actual situation in the HKSAR and in accordance with the principle of gradual and orderly progress. This has been explained in Chapter 2.
3.4For the formation of the Fourth and Fifth Legislative Councils, it was decided by the Standing Committee of the NPC, on 26 April 2004 and 29 December 2007 respectively, that the ratio between Members returned by functional constituencies and those returned by geographical constituencies through direct elections, who should respectively occupy half of the seats of the Legislative Council, was to remain unchanged.
3.5At the Council meeting of 23 June 2010, the Legislative Council passed a motion to propose to amend Annex II to the Basic Law to increase the number of seats in the Fifth Legislative Council to 70, with 35 from each of the two groups of constituencies. The passage of the motion which required a two-thirds majority vote of the Members of the Council, was largely due to the fact that the Government had agreed to introduce the arrangement of "one-person-two-votes" in the 2012 Legislative Council Election. On 15 December 2010, the Government introduced the Legislative Council (Amendment) Bill for the election of the Fifth Legislative Council which contained, inter alia, the "one-person-one-vote" election arrangement for functional constituencies. The Bill was passed on 3 March 2011. Details are provided below.
Constituencies
Historical background
3.6The concept of functional constituencies and geographical constituencies was first introduced in the Green Paper on the Further Development of Representative Government of Hong Kong announced by Governor Sir Edward Youde at a special Legislative Council sitting on 18 July 1984, towards the final stages of the two-year negotiation between the UK Government and the Government of the People's Republic of China over the future of Hong Kong. The Green Paper proposed a progressive development of a more representative Government by building on the two different types of shared interests among the people in the community, namely those arising from their place of residence and those arising from their occupation, which were described as geographical constituencies and functional constituencies respectively. The Green Paper proposed two types of indirect elections: one through functional constituencies by way of a formal election of representatives from a wide range of functional constituencies such as commerce, industry, the medical profession, the legal profession, educational institutions, etc.; and one through an electoral college consisting of bodies with elected elements such as District Boards, the two Municipal Councils, etc.
3.7After consultation, the Government published a White Paper in August 1984 and announced that 12 Members would be returned from each group of the two constituencies in 1985. In respect of functional constituencies, the Government also laid down guidelines for their determination and voting eligibility. For economic and social constituencies, votes would be based on organisations, associations and institutions with a territory-wide coverage, i.e. corporate votes. For professional constituencies, these would be based on membership of those professions with well-established and recognized qualifications, i.e. individual votes. In respect of geographical constituencies, the Government took note of the public's strong reactions about the lack of direct election in the 1984 Green Paper and agreed that a review would take place in 1987.
3.8In 1988, the Government proposed in its plan to introduce 10 directly elected seats in the Legislative Council in 1991. In May 1989, the Unofficial Members of the Executive and Legislative Councils reached a consensus on the pace of democratic reform and one of the proposals was to have one-third of the seats of the Council, i.e. 20 seats, directly elected in 1991 and not less than 50%, i.e. 30 seats, directly elected in 1995. Seats of functional constituencies should be 20 in 1991 and no more than 30 in 1995. Following further negotiations between the UK Government and Government of the People's Republic of China, the Chinese Government finally agreed to increase the number of directly elected seats to 20 in the 60-member First Legislative Council of HKSAR, to 24 in the Second Legislative Council and to 30 in the Third Legislative Council. The Hong Kong Government then announced that the number of directly elected seats of the Hong Kong Legislative Council would be increased to 18 in 1991 and to 20 in 1995. [1]
3.9On the other hand, the number of seats for functional constituencies in the Hong Kong Legislative Council was increased from 12 in the 1985-1988 legislative term to 14 in the 1988-1991 term, to 21 in the 1991-1995 term, and to 30 in the 1995-1997 term.[2] Those Members returned in the 1985, 1988 and 1991 elections were elected according to the principles set out in the White Paper, i.e. corporate votes for economic and social constituencies and individual votes for professional constituencies.
3.10In July 1992, Christopher Patten arrived in Hong Kong to replace Lord David Wilson as Governor of Hong Kong. On 7 October 1992, he announced in his first Policy Address new electoral arrangements for the functional constituencies as well as other electoral arrangements for district organisations. The new arrangements for functional constituencies included the broadening of the franchise of existing functional constituencies by replacing corporate voting with individual voting and the introduction of 9 functional constituencies which further broadened the size of the electorate. These arrangements were considered by the Government of the People's Republic of China to have deviated from the electoral arrangements originally agreed between China and the U.K. for maintaining the prosperity and stability of Hong Kong, making it not possible for the composition of the last Legislative Council to be in conformity with that stipulated in the Basic Law. The "through train" arrangement set out in the Decision[3] of the Standing Committee to provide for a smooth transition of the Legislature upon the establishment of the HKSAR was therefore no longer applicable.[4]
3.11Nevertheless the Hong Kong Government introduced two bills into the Legislative Council on 15 December 1993 and 9 March 1994, to put in place the new electoral arrangements for the District Boards Election in 1994 and for the Legislative Council Election in 1995 respectively. The two bills were passed by the Legislative Council on 24 February 1994 and 30 June 1994 respectively. In the 1995 Legislative Council election, 30 Members were returned from 28 functional constituencies which had a total of 1 147 107 registered electors, and they served until 30 June 1997.
3.12On 1 July 1997, the Provisional Legislative Council commenced its operation in Hong Kong.[5] On 3 October 1997, it passed the legislation to provide for the election of the First Legislative Council. Among the 60 Members of the First Legislative Council, the 30 seats for functional constituencies were to come from 28 constituencies. The original methods to return Members from functional constituencies were maintained.[6] As for the 20 Members from geographical constituencies, the election was conducted using a list system of proportional representation[7] which has been used up to this date. The remaining 10 seats were returned by an Election Committee.
3.13Changes were made in subsequent elections to the components of 30 functional constituencies to incorporate more sectors of the community into this group of constituencies. The number of directly elected seats representing the geographical constituencies was increased progressively to 24 in the Second Legislative Council and to 30 in the Third and Fourth Legislative Councils. In 2010, as explained in Chapter 2, a decision was made to enlarge the electorate to return Members from functional constituencies by way of the "one-person-one-vote" method for the Fifth Legislative Council and the number of Members to be returned from functional constituencies was increased to 35. Details are provided in Appendix 3-A.
3.14In the 2012 Legislative Council election, every elector was entitled to two votes, one for each of the two groups of constituencies. The number of registered voters for functional constituencies was increased from 229 861 in the 2008 Election to 3 466 201 in the 2012 Election.[8] For geographical constituencies, the 35 seats were to come from 5 geographical constituencies[9]. The population represented by each seat in the geographical constituencies was 205 163. [10]
Impact on procedures
3.15While there have been functional constituencies and geographical constituencies in the Legislature, strictly speaking, since 1985, their impact on the working of the Council has been different before and after the establishment of the HKSAR. The voting procedure in the Standing Orders of the pre-1997 Legislature made no distinction between these two groups of Members. All Members voted as members of the same group for any motion before the Council and where the Members who voted in favour of a motion were in the majority among those who voted, the motion was passed. The voting procedure of the HKSAR Legislature is provided in Annex II to the Basic Law. Unlike bills (or motions) introduced by the Government, the passage of which only require a simple majority vote of the Members present, the passage of motions, bills or amendments to government bills introduced by individual Members requires a simple majority vote of each of the two groups of Members present. Records show that even if there is a majority of Members in support of a Members' motion, the motion may not necessarily be passed under this voting method.
3.16As for taking decisions in committees, the voting method which was used in committees in the pre-1997 Legislature, i.e. by a majority of the votes of the Members present and voting, has been adopted for use in the committees of the Legislature after 1997. There is no distinction between Members from the two groups of constituencies when voting on motions in committees.
Qualifications of Members
3.17Under Article 67 of the Basic Law, the Legislative Council shall be composed of Chinese citizens who are permanent residents of the HKSAR with no right of abode in any foreign country. This Article also provides that permanent residents who are not of Chinese nationality or who have the right of abode in foreign countries may also be elected members of the Legislative Council provided that the proportion of such members does not exceed 20% of the total membership of the Council. Those Members who are currently exempted from this nationality/right of abode requirement are those coming from the 12 functional constituencies listed in section 37(3) of the Legislative Council Ordinance (Cap. 542) [11]. This list and number of Members are subject to amendment provided that Article 67 is complied with.
3.18The Legislative Council Ordinance [12] stipulates the eligibility for nomination as candidates for the geographical constituencies and functional constituencies:
(a)For geographical constituencies, a person is eligible only if he has reached 21 years of age, is registered and eligible to be registered as an elector for that constituency, is not disqualified from being elected as a Member by virtue of section 39 of the Ordinance[13] and any other laws, has ordinarily resided in Hong Kong for the 3 years immediately preceding nomination and is a Chinese citizen who is a permanent resident of the HKSAR with no right of abode in any country other than the People's Republic of China; and
(b)For functional constituencies, the criteria are basically the same but the person to be nominated as a candidate of a functional constituency (other than the District Council functional constituencies) must be able to satisfy the Returning Officer[14] for that constituency that he has a substantial connection with the constituency. Those nominated for the 12 functional constituencies listed in section 37(3) of the Ordinance are exempted from the nationality/right of abode requirement as explained above.
3.19A Member of the Legislative Council is not eligible to be nominated as a candidate at a by-election; and a person who resigns as a Member within 6 months ending on the date of a by-election is also not eligible to be nominated as a candidate at that by-election.
Timing for general elections and by-elections
3.20Sections 1 and 2 of the Legislative Council Ordinance also provide that the general election for each term of office of the Legislative Council must be not earlier than 60 days and not later than 15 days before the new term of office of the Legislative Council is to begin. To enable such a general election to be held, the Chief Executive may, before the end of a term of office of the Legislative Council, prorogue that Council to terminate its operation. Members remain as Members of the Legislative Council and may take part in the general election as candidates during the prorogation of the Council.
3.21Where a vacancy arises from resignation or death or other reasons as set out in section 15 of the Legislative Council Ordinance, the Clerk to the Legislative Council must, by notice published in the Gazette, declare the existence of that vacancy within 21 days after becoming aware of it.[15] The Electoral Affairs Commission must arrange for a by-election unless the by-election, if held, would take place within 4 months preceding the end of the Council's current term of office or the Chief Executive has published in the Gazette an order to dissolve the Council in accordance with the Basic Law.[16] There is no stipulation in the law on when a by-election ought to be held, but section 7 of the Electoral Affairs Commission (Electoral Procedures) (Legislative Council) Regulations provides the following:
(a)That the nomination period must not begin earlier than the date on which the election notice or by-election notice is published in the Gazette;
(b)That the nomination period must not be less than 14 days or more than 21 days; and
(c)That the nomination period must end not less than 28 days and not more than 42 days before the date on which the relevant election is to be held.
Assumption of office
3.22The term of office of the Legislative Council shall be four years according to the Basic Law, except for the first term which was two years. Section 6(1) of the Legislative Council Ordinance provides that each term of office is to begin on a date to be specified by the Chief Executive in Council. With the exception of the First Legislative Council which commenced on 1 July 1998, the Chief Executive in Council has been designating 1 October as the commencement date of a new term of office of the Legislative Council since the Second Legislative Council.
3.23Under section 12 of the Legislative Council Ordinance, a person returned as a Member at a general election holds office from the beginning of the term of office in the Legislative Council next following the election and vacates office at the end of the term. A person returned as a Member at a by-election holds office from the date on which the result of the by-election was declared and vacates office at the end of the term of office of the Legislative Council during which the by-election was held. The person is regarded as having accepted office unless written notice is given to the Clerk to the Legislative Council of non-acceptance of office within 7 days after notification of the person's election is published in the Gazette. A notice of non-acceptance takes effect on the date on which the notice is received by the Clerk to the Legislative Council and the person giving the notice is taken to have resigned from office as a Member from that date. The Clerk to the Legislative Council must, within 21 days after receiving the notice, publish in the Gazette a notice to the effect that the person has not accepted office as a Member.[17]
3.24As a person elected to office is regarded as having assumed office on the date specified in the notice of the Gazette after election, that person is a Member with effect from that date but he cannot attend a meeting or vote in a meeting until he has taken the Oath or made an Affirmation. If a Member, with no valid reason, is absent from meetings for three consecutive months without the consent of the President of the Legislative Council, he is subject to disqualification of membership under Article 79(2) of the Basic Law.
Taking of the Legislative Council Oath
3.25Article 104 of the Basic Law stipulates that when assuming office, members of the Legislative Council must, in accordance with law, swear to uphold the Basic Law of the HKSAR and swear allegiance to the HKSAR. The meaning of "in accordance with law" in that Article has been held by the Court[18] to mean that "a Legislative Councillor must take his oath in a manner and form that accord with the law of Hong Kong".
The manner and form of The Legislative Council Oath
3.26The Oaths and Declarations Ordinance (Cap. 11) provides that a Member of the Legislative Council shall, as soon as possible after the commencement of his term of office, take the Legislative Council Oath which is specified in Part IV of Schedule 2 to the Ordinance, as follows:
"I swear that, being a member of the Legislative Council of the Hong Kong Special Administrative Region of the People's Republic of China, I will uphold the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, bear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China and serve the Hong Kong Special Administrative Region conscientiously, dutifully, in full accordance with the law, honestly and with integrity."
3.27A Member may, for religious reasons, choose to swear by saying the words "I swear by Almighty God that", followed by the words in the Legislative Council Oath.[19] A Member may also choose to make an affirmation instead of taking an oath. For this purpose, suitable adaptation is made in accordance with the prescribed wordings provided in section 7 of the same Ordinance. Other than the above, the law does not allow a Member to use any other form and manner in taking the Legislative Council Oath. Any oath taken which amounts to deviation from the prescribed wording of the Oath as permitted under the law would be inconsistent with Article 104 of the Basic Law and will therefore be unlawful and of no effect. [20] [21]
Oath-taking at the first meeting or other meeting of the Term
3.28In line with the requirement of Article 104 of the Basic Law on the taking of the oath of allegiance when assuming office by a Member, provisions are made in the Rules of Procedure as follows:
(a)Rule 1 stipulates that no Member shall attend a meeting or vote in a meeting until he has made the Legislative Council Oath (or affirmation) in accordance with the Oaths and Declarations Ordinance. Where a general election for all Members of the Legislative Council is held, a Member who had previously made the Oath (or affirmation) shall again do so before he attends a meeting or votes in the Council: and
(b)Rule 12(1) stipulates that the taking of the Legislative Council Oath shall take place at the first meeting of the term.
3.29The first meeting of a new term is often held on the second or third Wednesday in October. The taking of Oath by Members is held at the beginning of the meeting, administered by the Clerk to the Legislative Council in accordance with section 19 of the Oaths and Declarations Ordinance.[22] This is followed by the election of the President of the Legislative Council.
3.30For those Members who fail to take the Oath at the first meeting or who are returned to the Council through a by-election during the term, the taking of the Oath is held at the start of the earliest meeting possible, and it will be administered by the President or any Member acting in his place.[23]
Failure to take oath
3.31Section 21 of the Oaths and Declarations Ordinance provides that if a person declines or neglects to take an oath which he is required to take, he shall vacate the office, or if he has not entered on his office, be disqualified from entering on it. This provision is also applicable to a Legislative Council Member.
Order in taking the Oath or Affirmation
3.32The order of Members in taking the Oath (or affirmation) is determined according to the continuous period of time for which the Member has held office in the Legislative Council. A Member who has held office for a longer continuous period shall have precedence. Where two or more Members have held office for the same continuous period, their order shall be determined according to the number of strokes in the traditional characters of the Members' surnames and then names in Chinese. A Member whose name has less number of strokes shall have precedence.[24]
Signing of written Oath or Affirmation
3.33It has been the convention for Members to sign on the printed version of the Oath or Affirmation after they have taken the Oath or Affirmation. There is no requirement under the law that the Legislative Council Oath must be signed. It is therefore for the individual Members to decide whether they wish to sign on the printed version. All signed copies of the Legislative Council Oath are kept in the Legislative Council Archives.
Seating in the Chamber and Conference Rooms
3.34Members are allocated dedicated seating for Council meetings, meetings of the House Committee, the Finance Committee and the two subcommittees of the Finance Committee. Fixed seating is necessary for these meetings as voting often takes place and, where a division has been ordered, the counting of votes is carried out through an electronic voting system which is installed in the individual seats of Members. According to Rule 48 of the Rules of Procedure, where an electronic system of voting is provided in the Council or a committee of the whole Council, the Members present and voting are required to cast their votes by using the electronic system unless the President or Chairman otherwise orders.
3.35Prior to the establishment of the First Legislative Council, for Council sittings, the allocation of seats in the Chamber was determined by the precedence of Members, with the Members having the longest continuous service in the Legislature seated in the front. This seating arrangement was considered appropriate when the majority of Members were either official or appointed. With more Members returning to the Council by way of elections, whether through functional constituencies or geographical constituencies, there was a growing need for those who belonged to the same political party or affiliation to be seated near to each other for easy communication. During a briefing session for Members-elect of the First Legislative Council, it was agreed that from then onwards, Members should sit according to their preferred grouping. It was also agreed that the Members should be consulted on their preferred group and seats be allocated by the drawing of lots. This method of allocation was further fine-tuned in subsequent terms based on the size of groupings and physical constraints in the Chamber of the old Legislative Council Building.
3.36In anticipation of the relocation of the Legislative Council to the new Legislative Council Complex at Tamar in September 2011, the matter was examined by The Legislative Council Commission. In June 2011, the Commission adopted an allocation method having regard to the new configuration of the Chamber and also the need for meetings of the House Committee and the Finance Committee to be held in a separate Conference Room. This allocation method, which has been used up to this date, is explained below.
3.37When assuming office, Members are invited to indicate to the Legislative Council Secretariat whether they wish to sit as a group in the Chamber and in Conference Room 1, and if so, provide the names of the group as well as their preferred seats in the two meeting venues. Members are then invited to attend a closed meeting before the commencement of the first session of the new term to discuss and finalize the seating arrangements. The principle adopted in the allocation of seats is that Members in larger groups will have priority in selecting the block of seats over those in smaller groups and individual Members. For Members with the same group size, lots will be drawn to determine their relative priority in selecting the blocks of seats to be allocated to the groups. Members within the same group will determine among themselves the allocation of the seats within the block of seats allocated to the group. For Members who do not belong to any group, lots will be drawn to determine their relative priority in selecting seats in the meeting venues.
3.38For the two subcommittees of the Finance Committee, namely the Establishment Subcommittee and the Public Works Subcommittee, the clerks to the two subcommittees determine the seating according to the grouping provided to the Secretariat and arrange for Members of the same grouping to be seated near to each other.
3.39For other meetings of committees, Members may sit in any unallocated seats. Seats on one side of the meeting room are usually reserved for public officers who have notified the clerk to the committee of their attendance and a seating plan is provided to allow the chairman to identify the individual public officers attending. For any persons or groups invited by committee to attend the meeting, separate seats will be designated for them and their seating will appear on the seating plan which will also be provided for members of the committee.
Addressing a Member
3.40A person elected to the Legislature is addressed as a Member of the Legislative Council. When being addressed formally, in writing or in official ceremonies, or at meetings of the Legislative Council, the prefix "The Honourable" is used before their name. It is for each individual Member to decide whether their professional titles should be added, and if added, such title should be put before "The Honourable", followed by the awards received by the Member, if any, such as "Dr the Honourable (name), G.B.S.".[25] A female Member may choose to add her personal status in her name, such as "The Honourable Mrs (name)" or "The Honourable Ms (name)" but this is not compulsory.
3.41Where a HKSAR award received by a Member is added to the name of the Member, only the highest rank of the awards received by the Member should be included. For example, if a Member receives a Golden Bauhinia Star (G.B.S.) several years after being awarded a Silver Bauhinia Star (S.B.S.), only G.B.S. should be included. Where a Member is appointed as a Justice of the Peace (J.P.), the title may be added to the name of the Member, but after the awards, such as "The Honourable (name), G.B.S, J.P.".
3.42In correspondence or official ceremonies, there is no need to use the prefix "The Honourable" each time the name is mentioned. After the Member has been addressed as "The Honourable" for the first time, he/she may be referred to as "Mr", "Mrs" or "Ms" in the subsequent part of the correspondence or official proceedings.
Responsibilities and conduct of Members
3.43Upon election, Members are returned to the Legislative Council as representatives of their respective constituencies. They have the duty to participate in the work of the Council so that the Legislative Council may perform the powers and functions given to it under the Basic Law. The responsibilities of a Member are wide-ranging. Members are required to observe the rules of order [26] in the Council and committees as set out in the Rules of Procedure. Apart from attending meetings of the Council and taking part in the enactment process of laws, in debates on public policies, and in raising questions to the Government, Members are also expected to take an active role in committees, to handle public complaints under the Redress System[27] and to make themselves available to their constituents. Through maintaining communication with constituents[28], Members should be familiar and up to date with the concerns of the public about Government policies or legislation to be, or being, considered by the Legislative Council, and are well placed to convey to the Government what needs to be done to address these concerns. This communication process requires Members to acquire and develop specialized knowledge in specific areas of public policies and legislation and establish effective channels to listen to the views of the public. The exchange of views among Members who represent different interests in the community also helps enhance greater understanding of the impact any new policies or legislation may have on affected stakeholders and the community at large.
Advisory Guidelines on Members' conduct
3.44In Hong Kong, Members of the Legislative Council are expected to conduct themselves in a manner which inspires the public's trust and confidence in the Legislature.[29] Although there is no code of practice for Legislative Council Members, there is a set of advisory guidelines on matters of ethics issued to all Members at the start of each new term. This was first drawn up by the Committee on Members' Interests[30] of the pre-1997 Legislature in June 1996 after it had taken into account the practices adopted by overseas legislatures in monitoring the conduct of Members of the Parliament. The current set of guidelines, which is called the "Advisory Guidelines on Matters of Ethics in relation to the Conduct of Members of the Legislative Council of the Hong Kong Special Administrative Region in their capacity as such" (the "Advisory Guidelines"), has been developed based on the principles laid down in the first set of Advisory Guidelines drawn up in June 1996 and adopted by the HKSAR Legislature in 1997.
3.45Over the years, the Advisory Guidelines have been reviewed from time to time in the light of new developments arising from public discussions on the general expectation of a Member's conduct. While it was the practice for the Committee on Members' Interests to consult Members at the start of a new term before issuing the Advisory Guidelines, a decision was made by the Committee on Members' Interests of the Fifth Legislative Council that in future, the Advisory Guidelines should remain in force until amended and should be issued to all Members when they take office.
3.46The current set of Advisory Guidelines (Appendix 3-B) is based on the version adopted in June 2009 after the then Committee on Members' Interests decided that the Advisory Guidelines should only contain guidelines which are advisory in nature. The versions used in previous terms of the HKSAR Legislative Council contained also specific standards which were provisions relating to the registration and declaration of Members' interests and the making of reimbursement claims for operating expenses or advance of operating expenses included in the Rules of Procedure. It was considered by the Committee that the inclusion of these provisions in the Advisory Guidelines would be misleading as breaches of these provisions would result in sanctions which were set out in the Rules of Procedure. To avoid confusion, these specific standards were removed from the Advisory Guidelines in 2009. The standards currently set out in the Advisory Guidelines are only general and advisory in nature, but they contain the important principles in determining whether a Member has met the standard of conduct expected of him or her as a Member of the Legislature.
Guarding the integrity of the Legislative Council
3.47The first principle set out in the Advisory Guidelines is that "A Member should ensure that his or her conduct must not be such as to bring discredit upon the Legislative Council".[31] This principle derived from one of the general principles identified by the Nolan Committee[32] of the House of Commons of the UK Parliament as applicable to holders of public office. The Nolan report states that:
"Members shall at all times conduct themselves in a manner which will tend to maintain and strengthen the public's trust and confidence in the integrity of Parliament and never undertake any action which would bring the House of Commons, or its Members generally into disrepute." [33]
3.48To elaborate on this point, the Advisory Guidelines further provide that Members should not place themselves in a position which may be contrary to the generally assumed standard of conduct expected of a Member. An example has been quoted. Where a Member needs to decide whether to engage in activities of a commercial nature, such as advertisement activities, he or she should accord due consideration as to whether the nature and contents of such activities might be regarded as not in keeping with the position or prestige of a Member of the Council, and thereby bringing discredit upon the Council.
3.49In relation to a particular case studied by the Committee on Members' Interests in respect of a Member's appearance in commercial advertisements, a question was raised whether any restriction on such appearance would infringe on a Member's freedom of expression enshrined in Article 16 of the Hong Kong Bill of Rights Ordinance (Cap. 383). The legal advice given to the Committee on Members' Interests was that the freedom of expression in this Article is not absolute and restriction may be imposed on a need basis. It would be for the Council to decide on the scope of restriction, its enforceability and whether there are other means to achieve the same objective.
Follow the spirit of the rules and not just the words
3.50Another principle set out in the Advisory Guidelines is that Members should "adhere to the spirit and the letter of any rules or regulations made by the Council, its committees or the President for the regulation of the practice and procedure of the Council and its committees or Members' behaviour in their conduct of the business of the Council".
3.51This provision was adapted from clause 2 of Rule 43 (currently Rule 23) of the Rules of the House of Representatives of the United States of America. It is important that Members should seek to comply with the spirit as well as the letter of the Rules.
Should not make use of the office of a Member to further private interest
3.52Members should be mindful at all times of any conflict between their personal and public interests and should always resolve any such conflict in favour of public interest.[34] The privileges and rights which come with the capacity of a Member of the Legislative Council, such as freedom of speech in the Council, the right to move, speak and vote on motions, are given to them for the pursuance of their public duty. It is important to demonstrate to the public that Members must not take advantage of their position as a Member to pursue their private interests. In the Advisory Guidelines, the following standards have been provided:
-A Member should not, in his capacity as such, seek to influence another person to further the Member's private interest;[35]
-A Member should not knowingly take advantage of, or benefit from, information that is obtained in his capacity as a Member of the Council and which is not generally available to the public;[36]
-A Member should ask for information only about matters of public interest and should not seek information for private or personal interest.[37]
3.53The above standards only serve to illustrate how Members are expected to conduct themselves in their ethical discharge of duties but they are not exhaustive. Members should be cautious about the existence of any potential conflict of interest and ensure that they would not take advantage of their capacity as a Member to seek information or to influence others for their private purpose.
Personal information provided by Member should be correct and true
3.54The Legislative Council publishes the biographies of all Members on the official website of the Council. The biographies contain some personal information about the Members, including their education and professional qualifications. Members are reminded that the personal information they provide to the Council and the Legislative Council Secretariat, such as qualifications, should be correct and true as much in the interests of the reputation of the institution as a whole as of their personal reputation.[38]
Disclosure of pecuniary interests
3.55There is a long history in the Hong Kong Legislature of requiring a Member to make known any pecuniary interests he may have on any matter considered by the Council or any committee and to disallow the Member from voting on such matter. This requirement is reflected in Rule 83A of the Rules of Procedure which stipulates that: "In the Council or in any committee or subcommittee, a Member shall not move any motion or amendment relating to a matter in which he has a pecuniary interest, whether direct or indirect, or speak on any such matter, except where he discloses the nature of that interest." The origin of this provision in the Rules of Procedure can be traced back to 1968 when the Standing Orders were amended to include a disclosure of interest requirement.[39] This requirement has been reviewed and fine-tuned over the years, having regard to the developments in overseas legislatures. In the current Rules of the Procedure of the HKSAR Legislature, there are rules to provide for the registration and declaration of pecuniary interests as well as for the voting on matters in which Members have a direct pecuniary interest. There is also a mechanism to provide for the investigation of complaints against Members for non-compliance with the rules and the imposition of sanctions by resolution of the Council.
Historical background
3.56In the 1968 Standing Orders of the pre-1997 Legislative Council, there was a new requirement in Standing Order No. 65(1) that "a Member shall not move any motion or amendment relating to a matter in which he has a direct pecuniary interest or speak or vote on any such matter, whether in the Council or in any committee, without disclosing the nature of that interest". The purpose behind the disclosure of pecuniary interests was to make it known to all parties any "direct" pecuniary interest which a Member had on a matter before the Council or a committee, and which might reasonably be thought by others to have influenced the Member's speech or vote on the matter. Members were allowed to vote on a matter in which they had a direct pecuniary interest provided that they disclosed the nature of that interest. However a Member's vote could be disallowed on grounds of non-disclosure of his personal pecuniary interest upon a motion passed by the Council.
3.57In July 1985, in anticipation of the first batch of 12 Members returned from functional constituencies and 12 elected from the Electoral College to the Legislative Council, the Clerk of Councils [40] instituted an administrative arrangement to compile a list of Members' interests. The purpose was to facilitate the planning of business in the Council and to anticipate where conflicts of interest might arise. All Members were requested to register at the start of the new term particulars of remunerated directorships of public or private companies; remunerated employments or offices; and remunerated trades, professions or vocations. Based on Members' returns, a list was compiled by the Clerk of Councils and updated annually for inspection by the media and the public.
3.58In October 1989, an Ad Hoc Group was set up under the OMELCO committee system to review the Standing Orders of the Legislative Council. In its study of Standing Order No. 65, the Ad Hoc Group noted that the practice of asking Members to disclose their remunerated services and maintaining a list of Members' interests for public inspection was an administrative measure implemented by the Clerk of Councils and was not part of the procedure of the Council. This practice was in fact similar to the procedure relating to the Register of Members' Interests adopted by the House of Commons in the UK which required its Members to disclose 9 classes of pecuniary interests including those 3 classes declared by Members of the Hong Kong Legislature. Concerning the purpose of the Register, the UK Select Committee on Members' Interests provided the following explanation[41]:
"The purpose of the register is to record generally and to give public notice of the interest and benefits which a Member enjoys and which might on occasion affect the discharge of his Parliamentary duties. The register is supplementary to and not in place of the obligation on a Member to declare his interests where the occasion arises" [42].
3.59The Ad Hoc Group also noted that it was also a practice for Members to declare direct pecuniary interest at OMELCO committee meetings.[43] As a result of this review, the Standing Orders were amended on 10 July 1991 to put in place a mechanism for the registration and declaration of Members' interests. Apart from extending the classes of pecuniary interests required to be disclosed to cover all 9 classes of pecuniary interests which Members of the UK House of Commons were at that time required to disclose, the Council also agreed to set up a standing committee similar to the UK Select Committee on Members' Interests, named the Committee on Members' Interests. This new standing committee was given the responsibility to conduct enquiries in relation to complaints and recommend sanctions by moving resolutions in the Council, and to provide advice for Members on the standards of ethics. This mechanism came into force on 12 September 1991.
3.60In July 1992, the Committee on Members' Interests produced a set of "Guidelines on Registration of Interests" to facilitate Members in making their returns on the 9 classes of "registrable interests". A review of the mechanism was undertaken by the Committee in the following year with a view to tightening up the registration and declaration arrangements. At the Council sitting on 4 May 1994, a series of amendments were made to the Standing Orders. Among these were the raising of the level of disclosure for financial sponsorships received during election and the requirement that registration of interests received by spouses should be extended to "financial sponsorships", overseas visits", "payments, and other material benefits or advantages" arising out of Members' membership of the Council.[44]
3.61Another major change made in 1994 was the amendments to the rules governing the disclosure of interests in the proceedings of the Council and committees. Under the new procedure[45], Members should not vote on any matter in which they had a direct pecuniary interest even if they had disclosed that interest. "Indirect pecuniary interest" should also be disclosed when moving a motion or an amendment or speaking on a matter in which a Member had a pecuniary interest. Where a Member had a direct pecuniary interest in a matter and was present at any debate or proceedings of the Council or a committee on that matter, he was required to declare that interest [46].
Mechanism for the registration and declaration of Members' interests
3.62The above mechanism for the registration and disclosure of Members' interests was adopted by the First Legislative Council of the HKSAR as part of its Rules of Procedure made on 2 July 1998. Further changes have taken place since then to cater for changing circumstances, such as the inclusion of donations received for meeting expenses in Legislative Council elections as registrable interests [47], and the requirement to disclose names of parent companies of remunerated directorships in subsidiary companies[48]. The mechanism now works in the following manner:
(a)Every Member must furnish particulars of his registrable interests to the Clerk in a form approved by the President before the first meeting of the term [49] or, for a new Member to fill a vacant seat, with 14 days from the date of his becoming a Member[50];
(b)Any change in such registrable interests should be furnished to the Clerk in a form approved by the President within 14 days of any such change[51];
(c)The forms which contain the particulars in (a) and (b) above are entered into a Register of Members' Interests and are available for public inspection[52];
(d)A Member is not allowed to move any motion or amendment relating to a matter in which he has a direct or indirect pecuniary interest or speak on such matter, in the Council or any committee or subcommittee, without disclosing the nature of that interest[53];
(e)In the Council or in any committee or subcommittee, a Member is not allowed to vote on any motion in which he has a direct pecuniary interest except where his interest is in common with the rest of the population of Hong Kong or a sector thereof or his vote is given on a matter of Government policy; such Member should also withdraw if the vote is taken in the Council or a committee of the whole Council[54];
(f)Any complaints made in relation to the registration and declaration of Members' interests are investigated by the Committee on Members' Interests which reports to the Council and makes recommendations, including a recommendation for sanctions[55]; and
(g)Any Member who fails to comply with the relevant rules on the registration and declaration of interests may be admonished, reprimanded or suspended by resolution of the Council[56].
3.63In 2006, the Council decided that the Committee on Members' Interests should also consider any complaints relating to claims for reimbursement of operating expenses or applications for an advance of operating funds. When considering or investigating such complaints, the Committee should also have regard to the provisions of A Guide for Reimbursement of Operating Expenses for Members of the Legislative Council ("the Reimbursement Guide"[57]) apart from all other relevant matters. A new Rule 83AA was provided in the Rules of Procedure to require Members to ensure that any information provided or declaration made is true, accurate and complete, and Members should act according to any undertaking that they have given[58]. In this respect, emphasis has been placed on the need to avoid conflict of interests in the guiding principles of the Guide. For example, a Member should refrain from claiming reimbursement for any transaction from which he or his relatives or business associates may be perceived to have benefited. If a conflict of interest cannot be avoided, the Member should make a declaration of the interest involved which will be made available for public inspection. If the perceived conflict of interest has become a matter of public concern, the Member should take steps to resolve the conflict in favour of the public interest.[59]
Registrable interests
3.64The registrable interests referred to in paragraph 3.62(a) and (b) above are set out in Rule 83(5) of the Rules of Procedure. There are at present 8 categories of registrable interests (as two categories of interests were amalgamated into one in 1994, as listed in category (b) below):
(a)remunerated directorships of public or private companies (including holding companies of such companies [60]);
(b)remunerated employments, offices, trades, professions or vocations [61];
(c)names of clients when the interests from the above arise from the personal services by the Member's being a Member of the Council;
(d)election donations or financial sponsorships to the Member or his spouse;
(e)overseas visits made arising out of the membership of the Council by the Member or his spouse, the cost of which has not been wholly borne by the Member or public funds;
(f)payments, benefits and advantages received arising out of the membership of the Council from any Government or organisation of a place outside Hong Kong or from any person who is not a permanent resident of Hong Kong [62];
(g)land and property; and
(h)names of companies in which a Member (or with or on behalf of his or her spouse or infant children) has a beneficial interest in shares of a number greater than one-hundredth of the total number of shares.
3.65For registering the particulars of registrable interests, Members are required to use the registration form approved by the President for such purpose (Appendix 3-C). Explanatory notes are provided in the registration form to facilitate Members in understanding the meaning of the terms used in the form and the extent of details required. Members are also provided with a set of Guidelines on Registration of Interests (Appendix 3-D) which sets out the purpose of the Register and the general principles to be followed when completing the registration form. Both the Guidelines and the registration form are reviewed from time to time by the Committee on Members' Interests and where changes are to be made to the Registration Form, approval is sought from the President for making such changes. All Members are consulted before proposing any changes to the Guidelines and to the Registration Form. Where the changes are made as a result of amendments to the Rules of Procedure or consequential to legislative changes, no further consultation with Members is required.
Remunerated directorships
3.66Remunerated directorships to be registered refer to all directorships in any local or overseas public and private companies for which a fee, honorarium, allowance or other "material benefits" is payable. Members are required to give the name of the company and state briefly the nature of the business of the company. If the company has a holding company within the meaning of section 13 [63] of the Companies Ordinance (Cap. 622), the name of that holding company should also be registered.
3.67Where a Member is a remunerated director of a company which holds a group of other companies, he should also register any subsidiary or associated directorships which he holds within the same group, whether remunerated or not.
3.68"Material benefits" refer to any interests received from a single source in the course of one year where the total value of such interest exceeds 5% of the annual salary (excluding general expenses allowance), or any one-off benefits exceeding $10,000 in value. This definition also applies to remunerated employment, offices, etc., financial sponsorships, and other payments and benefits received from outside Hong Kong.
Remunerated employments, offices, trades, professions or vocation
3.69This category of registrable interest covers all remunerated employments, offices (including public offices), trades or professions for which a salary, honorarium, allowance or other material benefit is payable. Where the remunerated position is one of a consultant nature, the Member should also state the nature of the consultancy. If the name of a firm is mentioned, the nature of business of the firm should also be provided.
Clients
3.70Under Rule 83(5)(c) of the Rules of Procedure, a Member should also register the name of any client when the interests from any remunerated directorship or employment, trade, profession, etc. arise from the personal services by the Member's being a Member of the Council. When this category of registrable interest was first included in the Standing Orders in 1991, Members were conscious of the great difficulty in complying with this requirement due to the question of client confidentiality, particularly in the case of the legal profession. Emphasis was therefore placed on whether the personal service provided by the Member to the client arose out of his being a Member of the Council. The present requirement is that the name of the client should be disclosed, except where such disclosure would be contrary to any legal or established professional duty of privacy or confidentiality. To facilitate Members in deciding under what circumstances the names of their clients should be registered, some examples are provided in the Guidelines on Registration of Interests[64].
3.71Where the services are provided by those rendered by an organisation of which the Member is a partner, director, employee or office holder, the Member's obligation is to register those interests within his knowledge. It would not be necessary for the Member to find out the names of all the clients who have received services from the Member's organisation.
Election donations or financial sponsorship
3.72From April 1999 onwards, Members have been required to register all donations received as a candidate for meeting election expenses in their election to the Council. This requirement is in line with that specified in section 37(1) of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554)[65]. For the purpose of stating the details of donations, Members may produce a copy of the election return relating to election donations which they have lodged with the Chief Electoral Officer under that Ordinance.
3.73For financial sponsorships, Members should register any payment or material benefit or advantage received by the Members themselves or by their spouses relating to their membership of the Legislative Council. These sponsorships include any cash subsidies received from their own political organisations (as defined in "political body" in the Societies Ordinance (Cap. 151)). The material benefits or advantage should include those not generally available to members of the public. Members should ensure that they make full and timely returns of such registration by making necessary enquiries with their spouses on the receipt of financial sponsorships.
Overseas visits
3.74Members should register any overseas visit made by themselves or their spouses relating to or arising out of their membership of the Legislative Council if the cost of the visit was not wholly borne by themselves or by public funds of Hong Kong. The details of registration include the nature of the interests received, such as passage, accommodation, etc. Before accepting any invitation to sponsored visit, a Member should make an effort to understand the nature of such visit and consider whether the acceptance of such invitation could give rise of any perceived conflict of interest.
Payments, benefits and advantages received from outside Hong Kong
3.75Any payments, benefits and advantages received by a Member or his spouse from any government or organisation of a place outside Hong Kong, including any government or organisation in other parts of China, or from a person who does not qualify as a "Hong Kong permanent resident" should be registered. This category of interest was added onto the list of registrable interests in the Rules of Procedure of the Provisional Legislative Council and was adopted by the First Legislative Council in its Rules of Procedure. The definition of a "Hong Kong permanent resident" is set out in paragraph 2 of Article 24 of the Basic Law of the HKSAR.
3.76Payments and material benefits include such benefits received by a company in which a Member or his spouse has a controlling interest or the largest shareholding.
Land and property
3.77The intention of this category of registrable interest is to register any land or property from which a Member derives income. It is therefore not necessary for a Member to register his only and principal residence in Hong Kong which he owns and ordinarily resides in it unless he also derives income from it. The land and property to be registered include that owned by the Member in his name, or held jointly through a company or through another person, where the Member has a right over its disposition (e.g. more than 50% in the shareholding of the company or in the property) or has any pecuniary interest deriving from it. Land and property held by a Member as trustee and in which the Member has no autonomous right of disposition need not be registered.
Shareholdings
3.78It is the obligation of a Member to register any interest held by himself or with or on behalf of his spouse or dependent children in shares of a number greater than 1% of the total shares of any public or private company. Nominee shareholding is not included in this category. There is no need to register the size or value of the shareholdings. Only the name of the company and the nature of its business should be registered.
Direct and indirect pecuniary interests
3.79Members have always been reminded that notwithstanding that they might have registered their interests in the registration form, they still have the obligation to disclose the nature of any pecuniary interests, whether direct or indirect, that they may have in a matter on which they speak in the Council or in a committee. As failure to make such disclosure at the time of speaking in the Council or in a committee may lead to sanctions, questions have often been raised by Members on exactly what "direct" and "indirect" pecuniary interest means.
Direct pecuniary interest
3.80Dating back to July 1985, guidance notes had already been issued by the Clerk of Councils to assist Members to decide under what circumstances they should disclose their interests. The guidance notes issued in July 1985 provided the following general principles:
"(a)It is the Members themselves who must first decide whether they have such interests;
(b)Regarding direct pecuniary interest, the interest should be 'immediate' and not merely of a remote or general character. It must be personal to the Member and not merely one which is shared with the general public."
3.81For direct pecuniary interests, the Clerk of Councils also provided the following illustrations in the guidance notes:
"(a)Where a Member has no special interest but only the same interest as every other member of the public affected, no declaration at all is necessary. We all consume electricity or take taxis or trams from time to time but this does not mean we have, within the legal meaning, a special interest to declare. But if he owns a taxi, a Member does have such a special interest;
(b)A distinction can be made between close and remote pecuniary interests. Thus, when the raising of charges of a company (or its close competitors) is discussed, directors or shareholders, etc. of that company have a direct pecuniary interest. But when matters affecting the entire industry are discussed (e.g. regulation of the banking industry), companies in that industry have only a remote pecuniary interest (in essence the same as every other company in the industry);
(c)No distinction should be made between executive and non-executive directorships. Both types of director owe identical legal duties under the Companies Ordinance to forward the interests of their shareholders;
(d)The Director of a property company with significant residential holdings, or the owner or tenant of a rented flat, would have a direct pecuniary interest and should so declare, when rent control is discussed."
3.82In recent years, the meaning of "direct pecuniary interest" has been raised on a number of occasions in the proceedings of the Council [66] and committees. In this respect, the Legal Adviser to the Committee on Members' Interests has advised [67] that the term "direct pecuniary interest" is intended to carry its natural meaning, and that in Hong Kong it has been generally accepted that for a pecuniary interest to be direct, it should be immediate and not merely of a remote or general character. In addition, the interest must be personal to the Member and not merely one which is shared with the general public.
3.83As regards the meaning of "pecuniary interest", the Legal Adviser has referred to the definitions of the term in statutes in some common law jurisdictions which have put in place a declaration of interest scheme similar to that in Hong Kong. In some of these statutes, "pecuniary interests" is defined to mean an interest that a person has in a matter due to a reasonable likelihood or expectation of appreciable financial gain or loss to the person.
Indirect pecuniary interest
3.84The requirement for Members to disclose the nature of indirect pecuniary interest when moving a motion or amendment and speaking in the Council or a committee only started in 1994. While a Member is not allowed to vote on the matter in which he has a direct pecuniary interest, he is allowed to do so if the pecuniary interest is indirect. According to the advice given by the Legal Adviser to the Committee on Members' Interests[68], indirect pecuniary interest "is an interest not immediate and personal to a Member, but does have a certain relationship with the Member which would make a reasonable person to consider that such interest might have certain influence on the action or speech of the Member". In some common law jurisdictions, there are statutory provisions to the effect that a member of the council or local board has an indirect pecuniary interest in any matter in which the council or local board is concerned, if the member or his nominee is a shareholder in, or a director or officer of, a company that has a direct pecuniary interest in the matter; or the member is a partner, or is in the employment, of a person or body that has a direct pecuniary interest in the matter.[69]
3.85Regarding the nature of pecuniary interest involved in "non-executive directorships", it has been made clear to Members since the registration of interests system was first put in place that there is no distinction between executive and non-executive directors in law. Both are members of the board of directors of a company and both owe a fiduciary duty to their company. Although an independent non-executive director has no executive or management responsibility in the company, he has the same duty to act bona fide in the interest of the company as a whole.
3.86Whether a pecuniary interest is direct or indirect is a matter for individual Members to judge according to the actual circumstances which may vary in each case. Under normal circumstances, if the company of which a Member is a non-executive director has a direct pecuniary interest in a matter, the Member should have an indirect pecuniary interest in the matter. It follows that the Member should, for the purpose of making the required disclosures under Rule 83A of the Rules of Procedure, take reasonable steps to find out whether the company of which he is a non-executive director has a pecuniary interest in the matter under consideration by the Council or a committee. Using public works projects as an example, the view of the Committee on Members' Interests is that a company is regarded as having a direct pecuniary interest in a project if the company has bid for a contract or has been awarded a contract under the project. A Member who is a director of the company is regarded as having an indirect pecuniary interest in the project. He is expected to take reasonable steps to find out, for the purpose of making the required disclosures under Rule 83A of the Rules of Procedure, whether the company of which he is a director has a pecuniary interest in the matter under the consideration of a committee. The same principle also applies to a Member who is a remunerated director of a parent company of a subsidiary company which has a direct pecuniary interest in a matter considered by the Council or a committee.[70]
3.87The fact that a Member has registered the interest of a directorship does not obviate his obligation to disclose at the relevant meeting a pecuniary interest arising from the directorship. A declaration should be brief, but should make specific reference to the nature of the Members' interest. Where the nature of the interest is judged to be a direct pecuniary interest, the Member should withdraw at the time of voting or any Member may move without notice to disallow his vote.[71]
3.88Where the pecuniary interest is common to all Members, such as in the case of a financial proposal put before the Finance Committee regarding a change to Members' remuneration, allowances or reimbursement of operating expenses, there is specific provision in the Finance Committee Procedure[72] to enable the Chairman to declare that all Members have the same pecuniary interest in the question and have this declaration recorded in the minutes. This is more an administrative arrangement to facilitate a more efficient way to declare Members' pecuniary interests when the interests are the same among all Members. The fact that Members may vote on such a proposal in which they have a direct pecuniary interest is because the proposal is on a matter of Government policy[73].
3.89Rule 83A of the Rules of Procedure does not specify at which juncture of a Member's speech the Member should disclose the pecuniary interest he has in the matter. It is the responsibility of a Member to decide the most appropriate time in his speech to disclose his interest in a matter being considered, which will enable other people to judge if his views on the matter may have been influenced by his interest. The view of the Committee on Members' Interests is that a Member should disclose his pecuniary interest at the beginning of his speech on the matter.[74]
Claims for Reimbursement of Operating Expenses
3.90Members of the Legislative Council are provided with various kinds of reimbursements to cover the expenses arising out of their Legislative Council duties. These reimbursable expenses include staff remuneration and benefits, stationery, equipment and furniture for their offices, printing and website expenses, consultancy services, and office accommodation costs such as rentals, insurance, etc. To assist Members to set up and operate their offices, they may apply for advance of operating funds. A detailed guide, titled "A Guide for Reimbursement of Operating Expenses for Members of the Legislative Council" has been provided to ensure that public funds are used in an open, fair and accountable manner for the performance of their public duties. As mentioned in paragraph 3.63, Members are required to follow the Guide and ensure that the information they provide in making claims or applications for advance of funds is true, accurate and complete. Any complaints and allegations concerning Members' claims are referred to the Committee on Members' Interests for consideration. More details about operating expenses reimbursements are provided in Chapter 4.
Non-compliance and sanctions
3.91Under Rule 85 of the Rules of Procedure, any Member who fails to register their registrable interests in accordance with Rule 83, fails to disclose direct or indirect pecuniary interests in accordance with Rule 83A, or fails to comply with Rule 83AA in making claims for operating expenses reimbursements or applications for advance of funds may be admonished, reprimanded or suspended by the Council on a motion to that effect. Any complaint against a Member for non-compliance with any of these rules is referred to the Committee on Members' Interests for consideration and investigation. If the complaint is found to be substantiated, it is for the committee to recommend a form of sanction which is commensurate with the level of non-compliance and a motion to that effect should be moved in the Council. Nevertheless, there are cases where no sanction is recommended if the failure to comply with the requirement under Rule 83 is not deliberate and no conflict of interest with the Member's role as a Legislative Council Member is involved.[75]
3.92As regards a failure to comply with Rule 84(1) or (1A), there is no explicit provision in the terms of reference of the Committee on Members' Interests that it may investigate a complaint against a Member for having voted on a matter in which he is alleged to have a direct pecuniary interest. Rule 84(3A) and (4) have provided mechanisms to deal with non-compliance of Rule 84(1) and (1A) at the time of the Council or committee meeting. As regards the recommendation of a sanction for non-compliance of Rule 84(1) or (1A), Rule 73(1)(e) provides that the Committee on Members' Interest has the duty to report to the Council and make recommendations as to a sanction under Rule 85 (which covers sanctions in respect of a failure to comply with Rule 84(1) or (1A)). It may be taken to mean that the Committee on Members' Interest has the role to consider a complaint about an alleged non-compliance with Rule 84(1) or (1A) in order to decide what recommendation it should make to the Council.
3.93The Committee on Members' Interests has no jurisdiction over the handling of complaints against Members in relation to their conduct as a Member of the Legislative Council. The subject of Members' conduct has been raised for discussion in the Hong Kong Legislature both before and after 1997, but no consensus could be reached among Members for putting in place a formal mechanism to monitor Members' conduct. In the two attempts of the Committee on Members' Interests of the pre-1997 Legislature to empower the Committee to investigate into complaints about alleged misconduct of Members, the motions moved on both occasions, on 19 July 1995 and 3 April 1996, failed to get the support of the majority of Members of the respective Councils[76]. The only avenue available in the current Rules of Procedure in dealing with allegations against Members for misbehaviour is through the disqualification of a Member from office under Article 79(7) of the Basic Law, which is explained in the latter part of this Chapter.
Cessation of office
3.94According to section 15 of the Legislative Council Ordinance, a Member ceases to hold office if he resigns from that office; dies; is declared in accordance with Article 79 of the Basic Law to be no longer qualified to hold that office; and if he is the President, has been found to be incapable by reason of mental incapacity of managing and administering his or her own property and affairs; and if he is not one of the 12 Members who are exempted from the nationality requirement, has altered his nationality or has a right of abode in a country other than the People's Republic of China.
3.95A Member may, at any time, resign from the office of a Member by giving written notice signed by him to the Clerk to the Legislative Council. The notice of resignation shall take effect on the date on which the notice is received by the Clerk or if a later date is specified in the notice, on that later date.[77] There is nothing in the law which disallows the Member who has given notice of resignation to withdraw his notice before the effective date. The declaration which the Clerk to the Legislative Council makes under section 35 of the Legislative Council Ordinance is a declaration of the existence of the vacancy after becoming aware of the vacancy and not the notice of resignation. However, in the event of the death of a Member, the Clerk may not be notified immediately. Section 35 therefore provides that the Clerk to the Legislative Council must make the declaration within 21 days after becoming aware of the existence of the vacancy. Upon such declaration by the Clerk, the Electoral Affairs Commission must arrange for a by-election to be held in accordance with section 36 of the Legislative Council Ordinance.
Disqualification of Members from Office
3.96Among the circumstances listed under section 15 of the Legislative Council Ordinance resulting in the cessation of the office of a Member, the declaration that a Member be no longer qualified for office is set out in the Basic Law. Article 79 of the Basic Law provides that the President of the Legislative Council shall declare that a member of the Council is no longer qualified for the office under the following circumstances:
(1)When he or she loses the ability to discharge his or her duties as a result of serious illness or other reasons;
(2)When he or she, with no valid reason, is absent from meetings for three consecutive months without the consent of the President;
(3)When he or she loses or renounces his or her status as a permanent resident of the HKSAR;
(4)When he or she accepts a government appointment and becomes a public servant;
(5)When he or she is bankrupt or fails to comply with a court order to repay debts;
(6)When he or she is convicted and sentenced to imprisonment for one month or more for a criminal offence committed within or outside the HKSAR and is relieved of his or her duties by a motion passed by two-thirds of the members of the Legislative Council present; and
(7)When he or she is censured for misbehaviour or breach of oath by a vote of two-thirds of the members of the Legislative Council present.
3.97Article 79 of the Basic Law is clear in its intention to leave matters relating to the disqualification of a Member from office, i.e. the removal of a Member from office, to the Council itself, which coincides with the parliamentary principle adopted by common law jurisdictions that "only the House has the inherent right to decide matters affecting its own membership"[78]. While the circumstances under Article 79(1) to (5) are clear and can be decided by the President based on facts, the circumstances under Article 79(6) and (7) can be open to different views and interpretations by Members of the Council of the day. A two-thirds vote of the Members of the Council present at the time of voting is required under both circumstances for determining whether the Member concerned should be disqualified from office or not. To ensure that any Member who may be subject to disqualification from office under Article 79(6) or (7) would not be deprived of a proper procedure for fairness and natural justice, the Committee on Rules of Procedure of the First Legislative Council began its studies on the procedural arrangements for the implementation of this Article as soon as it was established in July 1998. Two sets of procedures were then proposed and were adopted by the Council at its meetings on 9 September 1998 and 28 April 1999 to provide for the implementation of Article 79(6) and (7) respectively.
Implementation of Article 79(6)
3.98In the deliberation of an appropriate procedure to implement Article 79(6) the Committee on Rules of Procedure decided on a general principle as follows:
"It [the Committee on Rules of Procedure] is of the view that as far as possible , the general philosophy and principles underlying the way Council business is conducted should be maintained, and existing procedures governing motions, rules of speaking, etc. should remain unchanged. Only when general rules are considered not applicable should specific rules be drawn up for incorporation into the Rules of Procedure, or suitable amendments made to exiting rules, to cater for such special circumstances." [79]
3.99For the implementation of Article 79(6), the Committee on Rules of Procedure considered that whilst the rules governing motions and rules of speaking in the Rules of Procedure could generally apply to the motion referred to in the Article, there were special circumstances which required specific rules to be drawn up in this case and a new Part JA (Procedures for Particular Motions) in the Rules of Procedure was proposed to deal with motions of this nature. The procedural arrangements, which were endorsed by the Council on 9 September 1998, are explained below.
Notice of motion
3.100For the purpose of initiating action to disqualify a Member under Article 79(6), a motion to relieve the Member of his or her duties is required and the passage of this motion requires a two-thirds majority vote of the Members of the Legislative Council present. After a Member is convicted and sentenced to imprisonment for one month or more for a criminal offence committed within or outside HKSAR, any Member of the Council or any designated public officer may move a motion to relieve the Member of his or her duties under Article 79(6).[80] The notice required for the motion is the same as for any other motions, i.e. not less than 12 clear days before the day on which the motion is to be considered by the Council. The President, as the case may be, may in his discretion dispense with such notice.[81]
Motion in prescribed form
3.101As the objective and effect of the motion moved under Article 79(6) should be single-barrelled and unequivocal, there is a need for the wording of the motion to be short and precise. Prescribed wording for the motion is provided in Rule 49B (1) of the Rules of Procedure, as follows:
"That whereas (name of Member) was convicted on (date) in (court) in (place) of a criminal offence(s) and was sentenced on (date) by (court) to imprisonment for one month or more (as particularized in the Schedule to this motion), this Council relieves (name of Member) of his/her duties as a Member of the Legislative Council."
Motion not amendable
3.102A motion moved under Article 79(6) is not amendable[82] as the decision of the Council on whether the Member ought to be relieved of his or her duties in the light of the conviction and sentence should be precise. There should be no uncertainty over whether or not the requirement under Article 79(6) has been fulfilled.
Case pending review in a court of law
3.103In the event that Members of the Council may not be in a position to decide because, for example, an appeal is pending, procedures are available in the Rules of Procedure for the debate to be adjourned upon a motion moved without notice by a Member.[83] If the Council has so decided, the debate so adjourned may be resumed at a subsequent meeting provided that the Member who moved the original motion gives notice of his intention to resume the debate no less than 5 days before the day on which it is to be resumed.
3.104In September 1998, a judicial review[84] was sought by a Member to challenge the President's decision to place on the council Agenda a motion to relieve the Member from his duties under Article 79(6) when an appeal lodged by the Member was due to be heard in court in two month's time. The Court dismissed the application. According to the Court's judgment, by placing the motion on the Agenda, the President is not deciding that the issue has to be decided then. If any Member considers that it is premature for the issue to be debated, he may propose that the debate be deferred, for example, until after the appellate process has been completed. The President's decision to place the motion on the Agenda merely gives Members of the Legislative Council the opportunity to decide whether the issue should be debated at that meeting.
Manner of speaking at debate
3.105As regards contents of speeches, the implications of the following subrules of Rule 41 of the Rules of Procedure on the debate have been considered and the conclusions of the Committee on Rules of Procedure are as follows:
(a)Rule 41(2): Where reference is made to a case for which an appeal is pending in a court of law, the President is guided by the principle of whether there is real and substantial prejudice to the administration of justice and decides whether or not reference to the matters in the Member's speech which may be relevant to the appeal should be allowed.
(b)Rule 41(5): This subrule which provides that: "A Member shall not impute improper motives to another Member" should apply to the debate as Members should only speak on the established facts and the Member concerned, like any other Member, should be equally protected from being unfairly spoken about.
(c)Rule 41(7): This subrule has been amended to make debates on motions under Part JA exempted from this subrule which disallows the raising of the conduct of a Member of the Legislative Council other than in the performance of his official duties.
3.106In view of the serious nature of a motion moved to relieve a Member of his duties as a Member under Article 79(6), the speaking time for each Member is 15 minutes. Rule 37 of the Rules of Procedure has been amended so that the House Committee may not recommend a shorter speaking time for this motion. The mover will have 15 minutes for moving the motion and another 15 minutes making his or her reply. As for the Member concerned, the Member should have ample opportunity to speak. Under Rule 38 of the Rules of Procedure, the President has the discretion to grant leave to the Member concerned to speak more than once if so required.
Written statement by the Member concerned
3.107Any written statement presented by the Member concerned to explain himself will be dealt with under item (h) "Personal explanations" in Rule 18 (Order of Business at a Meeting) and in accordance with Rule 28A (Personal Explanations). The precise contents of the statement should be submitted to the President in advance to ensure that it will not provoke a debate and that the content is appropriate. If the Member concerned cannot be present to deliver the statement, the President may direct that the statement submitted be taken as read and that the text be recorded in the Official Record of Proceedings of that meeting. In no circumstances would the statement, which is a Personal Explanation, be allowed to be read out by another Member of the Council.
Voting
3.108The voting requirement for the motion moved under Article 79(6) is specific in the Basic Law. The motion requires a two-thirds majority vote of the Members of the Legislative Council present. As to whether the Member concerned is allowed to vote on this motion, Rule 84(1) of the Rules of Procedure states that a Member shall not vote upon any question in which he has a direct pecuniary interest. If the Member concerned considers that the remuneration received by him as a Member of the Legislative Council is not direct pecuniary interest and chooses to vote, Rule 84 of the Rules of Procedure provides a mechanism for the Council to decide whether the Member concerned should withdraw or vote on the motion, or if he has voted, whether his vote should be disallowed.
Application of Rule 32 to motions moved under Article 79(6)
3.109According to Rule 32 of the Rules of Procedure, where the Council has passed a motion, no Member may move the same motion again; except with the permission of the President, he may move a motion to rescind that decision of the Council. If a motion to rescind the decision of the Council is put before the President for his consideration, the President will give regard to the non-reversibility aspect of the Council's decision when deciding whether or not permission should be granted. As the President will declare the Member disqualified for the office once the motion moved under Article 79(6) is passed, the decision will become non-reversible. If the motion is decided in the negative, no further motion shall be moved in relation to the same question in the current session.
Implementation of Article 79(7)
3.110Article 79(7) provides that the President of the Legislative Council shall declare a Member of the Council no longer qualified for the office when the Member is censured for misbehaviour or breach of oath by a vote of two-thirds of the Members of the Legislative Council present. On the same principle which applies to Article 79(6) above, the Committee on Rules of Procedure considered that there are special circumstances in this case which require specific rules to be made while general rules on motions and rules of speaking may apply.
3.111Unlike cases in Article 79(6) which relate to specific convictions and sentences to imprisonment, cases in Article 79(7) refer to an evaluation of whether the condition of either "misbehaviour" or "breach of oath" is satisfied.
3.112In the course of its study, the Committee on Rules of Procedure of the First Legislative Council noted that some overseas parliaments require their Members to act in the interests of the nation and conduct themselves with credibility as a Member of the Parliament, and that the Member should not abuse their privilege and act in such a manner as to bring the Parliament into disrepute. The Committee also noted the guiding principle in these legislatures that the legislature should exercise its penal jurisdiction as sparingly as possible and only when satisfied that it is essential to do so in order to provide a reasonable protection for the legislature and its Members. As for "breach of oath", the Committee considered that while the "oath" in Article 79(7) clearly referred to the oath under Article 104 of the Basic Law, there remained questions on how an act of a Member could constitute a breach of the oath. It concluded that it would be more appropriate for the Council of the day to make a decision on the kind of behaviour which would be regarded as a "misbehaviour" or "breach of oath" leading to the disqualification of a Member from office under Article 79(7).[85] Nevertheless, having regard to the serious consequence of an allegation made under the Article, it would be necessary to provide a mechanism for investigating and assessing the act(s) set out in the allegation. Decisions on whether such act(s) amount to "misbehaviour" or "breach of oath" under Article 79(7) should rest with the Members of the Council.
3.113On 28 April 1999, the First Legislative Council endorsed the procedure for implementing Article 79(7). The procedure is set out in Part JA (Procedures for Particular Motions) of the Rules of Procedure, Rule 73A (Investigation Committee), as well as in other parts of the Rules of Procedure as explained below.
Initiation of the censure motion
3.114Under the mechanism approved by the Legislative Council for inclusion in the Rules of Procedure on 28 April 1999, the censure motion to be moved under Article 79(7) should be initiated by a Member who wishes to move the motion plus 3 other Members.[86] All 4 Members need to sign the notice of motion. The requirement of 4 Members to sign the notice of the censure motion serves to deter abuse of the mechanism but at the same time ensure that minority Members of the Council would not be barred from initiating actions under Article 79(7).
3.115The notice period for a censure motion under Article 79(7) is the same as that for other motions, i.e. not less than 12 clear days before the day on which the motion is to be considered by the Council.[87] The motion should be in prescribed form as set out in Rule 49B(1A) of the Rules of Procedure, as follows:
"That this Council, in accordance with Article 79(7) of the Basic Law, censures (name of Member) for misbehaviour/breach of oath under Article 104 of the Basic Law/misbehaviour and breach of oath under Article 104 of the Basic Law (details as particularized in the Schedule to this motion)"
3.116As the Members who initiate the motion are responsible for providing the details of the alleged misbehaviour or breach of oath in the Schedule, these Members, according to a decision of the House Committee on 16 October 2009, cannot be members of the investigation committee appointed to investigate into the allegation. These Members may be required to provide evidence to the investigation committee to substantiate the allegation. This motion, similar to the motion moved under Article 79(6) is non-amendable.
Referral to an investigation committee
3.117According to the procedure laid down in Rule 49B(2A) of the Rules of Procedure, upon the moving of the censure motion, debate shall be adjourned and the matter stated in the motion shall be referred to an investigation committee unless the Council, on a motion which may be moved without notice by any Member, otherwise orders. If the latter motion is agreed to by the Council, no further action shall be taken on the censure motion.
3.118The purpose of Rule 49B(2A) is to provide a mechanism for the matter in the motion to be automatically referred to an investigation committee appointed by the President to establish the facts of the matter and to express its views on the matter before Members of the Council proceed to debate the motion and decide whether or not to support it. Where it is considered that there is no need to refer the matter for investigation, any Member may move without notice after the censure motion has been moved to request the Council to decide not to refer the matter to an investigation committee. If that motion is passed, the censure motion will not be proceeded with. In other words, under this mechanism, the censure motion will not be proceeded with without going through the investigation process. The procedure to dispense with the investigation is to allow the Council an opportunity to dispose of frivolous allegations.
3.119The investigation committee is established on an ad hoc case-by-case basis, and the scope of investigation is confined to the particulars set out in the schedule to the motion. The formation of the committee and procedure of investigation are provided in Rule 73A of the Rules of Procedure, but the committee may determine its own practice and procedure subject to the Rules of Procedure. In January 2010, an investigation committee was appointed for the first time under Rule 49B(2A). Upon its formation, the Investigation Committee proceeded to draw up a set of practice and procedures for the committee having regard to the procedures in Rule 73A, as well as practices in other committees of the Council for ordering the attendance of witnesses and experience in other legislatures in the investigation of alleged misbehaviours of their Members. This set of practice and procedures was uploaded onto the official website of the Legislative Council and attached to the Investigation Committee's Report which was tabled in the Council on 28 March 2012.
3.120It is not necessary for a subcommittee to be formed under the House Committee to consider the terms of reference of the investigation committee as is usually the case for setting up select committees. On 16 October 2009, a subcommittee was set up under the House Committee to consider the election procedure for nominating the chairman, deputy chairman and members of the investigation committee in accordance with Rule 73(1) of the Rules of Procedure. The investigation committee, once appointed, has no direct working relationship with the House Committee. The investigation committee as soon as it has completed the investigation of the matter referred to it, shall report to the Council. There is no need for a separate motion to endorse or take note of the report as the report only serves as a reference for Members to decide whether the Member concerned should be disqualified from office under Article 79(7). The investigation committee is dissolved after tabling of its report, unless it is revived to deal with any further matters arising from the investigation by resolution of the Council.
Further proceedings on the censure motion
3.121The resumption of the debate on the censure motion is provided for in Rule 40(6A) of the Rules of Procedure. This subrule provides that a debate adjourned under Rule 49B(2A) shall be resumed at the earliest meeting of the Council at which normal business is transacted after the report of the investigation committee has been laid on the Table of the Council. The general rules on debate and manner of speaking apply to the debate on the censure motion. Similar to the arrangements for the debate on the motion moved under Article 79(6), the principles in the application of Rule 41(2), (5) and (7) will apply to the debate on the censure motion.
3.122As regards voting, the passage of the censure motion also requires a two-thirds majority vote of all the Members of the Council present. The arrangements regarding the presence of the Member concerned at the time of voting and his right to vote are the same as those for a motion moved under Article 79(6). The application of Rule 32 to the decision of the Council on the censure motion is also the same as that for the motion moved under Article 79(6).
Other sanctions
3.123Other than the disqualification of membership under Article 79(6) and (7), the only sanctions which may be imposed on a Member in respect of his or her duties as a Member of the Legislative Council are provided in Rule 85 (Sanctions relating to Interests, Operating Expenses or Operating Funds) of the Rules of Procedure. This has been explained in paragraph 3.91-93 above. The forms of sanctions, i.e. admonishment, reprimand or suspension, provided in Rule 85 have not been extended to other misbehaviour in the Council although much discussion has taken place inside and outside the Council on whether persistent grossly disorderly conduct in the Council or committee should also be subject to sanctions, such as suspension, apart from ordering the immediate withdrawal of the Member from the Council or committee for the remainder of that meeting. The matter is being examined by the Committee on Rules of Procedure.
- [1]
- See Research Paper: Political Development in Hong Kong since the 1980s published by the Research and Library Division of the Legislative Council Secretariat (September 1996).
- [2]
- The number of seats of functional constituencies in the last term of the pre-1997 Legislature was the same as that of the First Legislative Council of HKSAR.
- [3]
- According to Decision of the Standing Committee adopted by the Seventh NPC on 4 April 1990, if the composition of the last Hong Kong Legislative Council before the establishment of the HKSAR is in conformity with the relevant provisions of this Decision and the Basic Law, those of its members who uphold the Basic Law and pledge allegiance to the HKSAR of the People's Republic of China, and who meet the requirements set forth in the Basic Law may, upon confirmation by the Preparatory Committee, become members of the First Legislative Council of HKSAR.
- [4]
- See《魯平口述香港回歸》, pp. 84-85.
- [5]
- See Chapter 1, para. 1.4.
- [6]
- The original voting system for functional constituencies was retained: 3 smallest constituencies by preferential elimination voting system; Labour constituency by block vote system; others by single-seat, single-vote system.
- [7]
- Under this system, an elector is entitled to cast a single vote for a list and not for an individual candidate. The number of valid votes cast for the election in a geographical constituency is divided by the number of vacancies to be elected for that constituency to arrive at the quota of votes. Each list that achieves the quota would have one candidate on the list elected. When all the vacancies in a constituency are not filled by applying the quota, then the filling of the remaining seat or seats will be decided by the largest remainder of votes cast for each list after the deduction of the quota or a number of quotas of votes cast for that list. If there are votes cast for a list that exceed the quota or quotas necessary to return all the candidates in the list, the list will be treated as having no further votes remaining.
- [8]
- See Report on the 2008 Legislative Council general election, Electoral Affairs Commission; and Report on the 2012 Legislative Council general election, Electoral Affairs Commission.
- [9]
- The power to decide on the delineation, the name, and the number of seats in each constituency is vested with the Chief Executive in Council, having regard to the relevant recommendations of the Electoral Affairs Commission. In delineating the geographical constituencies, the Electoral Affairs Commission follows the statutory criteria stipulated in the Legislative Council Ordinance and the Electoral Affairs Commission Ordinance and the working principles adopted by the Commission. In gist, there are to be 5 geographical constituencies and the number of Members to be returned from each constituency is to be not less than 5 or greater than 9. The extent of each proposed constituency is such that the population in that constituency is as near as practicable to the "resulting number" which is obtained by multiplying the population quota by the number of seats in that constituency.
- [10]
- Message from the Chairman of the Electoral Affairs Commission on the Public Consultation on the Provisional Recommendations on the Delineation of Geographical Constituencies for the 2012 Legislative Council Election (June 2011).
- [11]
- The 12 functional constituencies are legal; accountancy; engineering; architectural, surveying and planning; real estate and construction; tourism; commercial (first); industrial (first); finance; financial services; import and export; and insurance.
- [12]
- Section 37 of the Legislative Council Ordinance.
- [13]
- Section 39 of the Legislative Council Ordinance lists out the persons who are disqualified from being nominated as a candidate and from being elected as a Member.
- [14]
- Section 78 of the Legislative Council Ordinance.
- [15]
- Section 35 of the Legislative Council Ordinance.
- [16]
- Section 36 of the Legislative Council Ordinance.
- [17]
- Section 13 of the Legislative Council Ordinance (Cap. 542).
- [18]
- Leung Kwok Hung v Clerk to the Legislative Council [2004] H.K.E.C. 1242.
- [19]
- Section 5 of the Oaths and Declarations Ordinance.
- [20]
- In the case of Leung Kwok Hung v Clerk to the Legislative Council [2004] H.K.E.C. 1242, the Court said that "the form of the oath to be taken by a Legislative Councillor is fixed by statute and, until, or unless, that form is amended by the Legislative Council itself, it must be adhered to if a Legislative Councillor is to take the oath "in accordance with law".
- [21]
- The President of the Legislative Council, after he was elected as President on 10 October 2012, ruled that Hon WONG Yuk-man who omitted certain words in the Oath he took at the first meeting of the term had not made or subscribed an oath or affirmation in accordance with the provision of the Oaths and Declarations Ordinance. The President allowed Mr WONG to attend the next meeting of the Council, i.e. 17 October 2012, to take the Legislative Council Oath.
- [22]
- Prior to October 2012, it was a convention for all Members to remain standing while other Members were taking Oath at meetings of the Council. On 10 October 2012, with the number of Members increased to 70, discretion was given to individual Members to decide whether they wished to sit or stand while others were taking Oath.
- [23]
- Section 19 of the Oaths and Declarations Ordinance.
- [24]
- Rule 1 of House Rules.
- [25]
- Based on Departmental Standing Instructions issued by Government Secretariat of Hong Kong (1979).
- [26]
- Rule 45 of the Rules of Procedure provides for order in Council and committee, including the power of the President and chairman of any standing or select committee to act upon grossly disorderly conduct of Members.
- [27]
- The Redress System is operated by the Legislative Council Secretariat, with Members serving on a roster to handle complaints and representations from the public.
- [28]
- Members are provided with various kinds of reimbursements for expenses arising from their Legislative Council duties, including reimbursements for the operation of Members' Offices and the setting up of district offices in their constituencies.
- [29]
- Report of the Ad Hoc Group on Review of Standing Orders submitted the LegCo In-house Meeting (1991).
- [30]
- The terms of reference of the Committee on Members' Interests includes the consideration of matters of ethics in relation to the conduct of Members in their capacity as such, and to give advice and issue guidelines on such matters.
- [31]
- The wording was adopted from a similar provision adopted by the Parliament of Victoria, Australia.
- [32]
- On 25 October 1994, the Committee on Standards in Public Life was set up by the Prime Minister of the UK Government to examine current concerns about standards of conduct of all holders of public office, including arrangements relating to financial and commercial activities, and make recommendations as to any changes in present arrangements which might be required to ensure the highest standards of propriety in pubic life. Lord Nolan was the first Chairmen of the Committee. The Committee is often referred to as the Nolan Committee.
- [33]
- Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 22nd Edition, p. 420.
- [34]
- Erskine May (22nd Edition), p. 420.
- [35]
- This standard was adapted from a provision of the Members' Standards of Office Act 1986 (Ontario), Canada.
- [36]
- This standard was adapted from a provision of the Canadian Code for Ministers and Public Office Holders.
- [37]
- This standard was adapted from a provision in the Draft Code for India's Members of Parliament.
- [38]
- This standard was added in 2004-2005 after the Committee on Members' Interests deliberated an email message from a member of the public raising doubts about the academic standing of the educational qualifications claimed by a Member on the Legislative Council Website.
- [39]
- A provision to disallow Members from voting on a matter with direct pecuniary interest was provided in the 1929 Standing Orders but there was no requirement that a Member needed to disclose his pecuniary interest when speaking on the matter. In the 1968 Standing Orders, this provision was amended in such a way that the disallowance of vote only applied to non-disclosure of direct pecuniary interests.
- [40]
- Prior to 1994, support services to the official business of the Executive Council and the Legislative Council was provided by the Clerk of Councils who assigned a Clerk to service the Executive Council and a Clerk to service the Legislative Council.
- [41]
- Report of the Select Committee on Members' Interests made on 12 December 1974.
- [42]
- Report of the LegCo Ad Hoc Group to study the Standing Orders of the Legislative Council (March 1991), Appendix D "Declaration of Interest by Members of the Legislative Council".
- [43]
- Report of the LegCo Ad Hoc Group to Study the Standing Orders of the Legislative Council presented to LegCo In-house Meeting on 19 March 1991.
- [44]
- Council sitting on 4 May 1994. Hansard.
- [45]
- The new procedure was set out in Standing Order 65(1), (1A) and (1B) and was adopted as Rule 84(1), (2) and (3) of the Rules of Procedure of the First Legislative Council.
- [46]
- Rule 84(3) of the Rules of procedure was amended on 28 April 1999 so that only those Members speaking at the debate or proceedings were required to declare any direct pecuniary interests which they had in the matter. This subrule subsequently became part of Rule 83A.
- [47]
- Amendment made to Rule 83(5)(d)(i) of Rules of Procedure on 28 April 1999.
- [48]
- Amendment made to Rule 83(5)(a) of the Rules of Procedure on 26 April 2006.
- [49]
- Rule 83(1) of the Rules of Procedure.
- [50]
- Rule 83(2) of the Rules of Procedure.
- [51]
- Rule 83(3) of the Rules of Procedure.
- [52]
- Rule 83(4) of the Rules of Procedure; the register is available for public inspection during office hours and starting from January 2001, the register is also accessible on the official website of the Legislative Council.
- [53]
- Rule 83A of the Rules of Procedure.
- [54]
- Rule 84(1) and (1A) of the Rules of Procedure.
- [55]
- Rule 73(1) of the Rules of Procedure.
- [56]
- Rule 85 of the Rules of Procedure.
- [57]
- Guide for Reimbursement of Operating Expenses for Members of the Legislative Council is available at the Legislative Council website.
- [58]
- Rules 83AA, 73(1)(ca), (e), 73(1A) and 85 of the Rules of Procedure.
- [59]
- "A Guide for Reimbursement of Operating Expenses for Members of the Legislative Council" (October 2013), para. 7-12.
- [60]
- Amendments made by the Council on 26 April 2006 and on 8 January 2014.
- [61]
- Two categories of registrable interests were amalgamated to become one category on 4 May 1994.
- [62]
- This arrangement was adopted by the Provisional Legislative Council on 12 April 1997 and it formed part of the Rules of Procedure adopted by the First Legislative Council on 2 July 1998.
- [63]
- Section 13 and Section 15 of the Companies Ordinance (Cap. 622) provide definitions for a "holding company" and a "subsidiary" respectively. A body corporate is a holding company of another body corporate if it controls the composition of the other body corporate's board of directors; or controls more than half of the voting rights in that other body corporate; or holds more than half of that body corporate's issued share capital. This other body corporate is a subsidiary of the holding company. For details, please refer to the Ordinance.
- [64]
- See Appendix 3-D.
- [65]
- The Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554) replaced the former Corrupt and Illegal Practices Ordinance on 16 February 2000.
- [66]
- Debate on motion moved by Hon LEE Wing-tat under Rule 84(3A) of the Rules of Procedure to require Hon David LI to withdraw on grounds of direct pecuniary interest when the Council voted on Ir Dr Hon Raymond Ho's motion to seek authorization of the Council for the Subcommittee to Study Issues Arising from Lehman Brothers-related Minibonds and Structured Products to summon witnesses (Council meeting of 12 November 2008). Hansard.
- [67]
- A note on the Meaning of "Indirect Pecuniary Interest: in Rule 83A of the Rules of Procedure of the Legislative Council" (LC Paper No. LS12/02-03) issued for the meeting of the Committee on Members' Interests on 8 April 2003. This note was referred to in a paper to the Committee for its meeting on 16 December 2009 (LC Paper No. CMI 17/09-10).
- [68]
- LC Paper No. LS12/02-03; LC Paper No. CMI 17/08-09.
- [69]
- See, for example, section 2 of the Municipal Conflict of Interest Act of Ontario, Canada, R.S.O. 1990. c. M.50.
- [70]
- See Report of the Committee on Members' Interests on its consideration of a complaint against Ir Dr Hon Raymond HO, Hon Jeffrey LAM and Hon Abraham SHEK (June 2011), para. 3.14.
- [71]
- Rule 84 of the Rules of Procedure.
- [72]
- Finance Committee Procedure, para. 41.
- [73]
- Rule 84(1) of the Rules of Procedure applies.
- [74]
- See Report of the Committee on Members' Interests on its consideration of a complaint against Ir Dr Hon Raymond HO, Hon Jeffrey LAM and Hon Abraham SHEK (June 2011), para. 3.11.
- [75]
- See Report of the Committee on Members' Interests on a complaint against Hon Albert HO Chun-yan tabled in the Council on 10 July 2013, para. 35-37.
- [76]
- A Legislative Council Election took place in September 1995. The Committee on Members' Interests decided to re-submit the proposal to the new Council for its consideration on 3 April 1996.
- [77]
- Section 14 of the Legislative Council Ordinance.
- [78]
- See House of Commons Procedure and Practice (Canada), 2nd edition, p. 245. In the U.K. "The expulsion by the House of Commons of one of its Members may be regarded as an example of the House's power to regulate its own constitution though it is, for convenience, treated as one of the methods of punishment at the disposal of the House." See Erskine May (24th Edition), pp. 198-199.
- [79]
- See Report of the Committee on Rules of Procedure on the Procedural Arrangement for Implementing Article 79(6) of the Basic Law (September 1998), p. 3.
- [80]
- Rule 30(1) of the Rules of Procedure.
- [81]
- Rule 29(1) of the Rules of Procedure.
- [82]
- Rule 49(B)(2) of the Rules of Procedure.
- [83]
- Rule 40(1) and (6) of the Rules of Procedure.
- [84]
- Chim Pui Chung v President of the Legislative Council of HKSAR, HCAL000071,1998.
- [85]
- Progress Report of the Committee on Rules of Procedure for the Period July 1998 to April 1999.
- [86]
- Rule 30(1A) of the Rules of Procedure.
- [87]
- Rule 29(1) of the Rules of Procedure.