Provisional Legislative Council

PLC Paper No. CB(2)989

Paper for the House Committee meeting
on 13 February 1998

Fifth report of the Subcommittee on subsidiary legislation relation to Legislative Council election

Purpose

This paper reports on the deliberations of the Subcommittee on the Electoral Affairs Commission (Nominations Advisory Committees) Regulation.

The subsidiary legislation

2.Under the Legislative Council Ordinance, there are certain qualifications which prospective candidates for elections and prospective nominees for nomination for the religious subsector must satisfy and certain disqualifications to which they may be subject. The Regulation provides for the setting up of the Nominations Advisory Committees (NACs) to provide an informal means for the prospective candidates/nominees and the designated bodies selecting the nominees to ascertain the likely eligibility for nomination well before an election; and provide the Returning Officers (ROs) with timely and impartial legal advice on the validity of any nominations in which they have doubts.

3.The Regulation was gazetted on 16 January 1998 and tabled in the Provisional Legislative Council on 21 January 1998. The deadline for amendments to the Regulation is 18 February 1998, or 25 February 1998 if extended by resolution.

Deliberations of the Subcommittee

3.Under the chairmanship of Hon IP Kwok-him, the Subcommittee has held one meeting with representatives of the Registration and Electoral Office and the Administration to discuss the subsidiary legislation. The main deliberations of the Subcommittee are set out in the following paragraphs.

Appointment of NACs

4.Section 2 provides for the appointment of one or more NACs, each consisting of one member who must be a person admitted or qualified for admission as a barrister or a solicitor under the Legal Practitioners Ordinance; or a person with such qualifications in the law, whether academic or professional.

5.The Chief Electoral Officer (CEO) advises that four one-member NACs will be appointed for the 1998 LegCo elections. The Subcommittee notes that the enabling power for the Electoral Affairs Commission (the Commission) to appoint NACs each consisting of one member comes from section 7(1)(g) of the Electoral Affairs Commission Ordinance which provides that the Commission may by regulation provide for "the establishment or appointment of committees (including or consisting of a person or persons other than members of the Commission) and provide for the function, proceedings and regulation of those committees".

6.Two members have expressed reservations about the proposed structure which might give the public a wrong impression about the size of the NACs. They opine that the appointment of one NAC with four members would be more appropriate. A member has doubts on the efficiency of a multiple-membership NAC. Other members have no strong view on the matter.

7.Members’ views have been considered by the Commission. It advises that a single-member NAC was appointed in the 1995 LegCo election and it operated smoothly without any difficulty. In anticipation of the increase in the number of applications to be made to the NAC in the 1998 LegCo elections, including the Election Committee (EC) subsector elections, four one-member NACs will be appointed. As the applications will have to be handled within extremely tight schedules as shown in the Appendix, it would be more efficient and effective, both in terms of time and cost, if the workload is to be shared among four NACs instead of being handled by just one NAC.

8.The Commission further points out that in a multiple-membership NAC as proposed by members, even if the applications are to be examined by individual members of the NAC initially, the applications would have to be discussed and agreed by the NAC as a whole before a decision could be made. This process will be time consuming and is not practicable, given the tight time frame within which the NAC is required to complete its task. In addition, the modus operandi for a multiple-membership NAC would differ greatly from that for a single-member NAC provided in the Regulation. For example, the questions of chairmanship, quorum and votes etc. would have to be addressed. This would involve substantial redrafting of the Regulation. Given the tight schedule of the 1998 LegCo election, it is only in the interest of prospective candidates for the NACs to start function as soon as possible. It is the intention of the Commission that the NAC will start to consider applications from prospective candidates from 16 February 1998 onwards.

9.The Commission is of the view that the appointment of four one-member NACs would be more conducive to the efficient operation of the scheme than the appointment of only one NAC consisting of four members.

Functions and procedures of NACs

10.Members note that the NACs will provide free legal advice in two stages. Prior to the nomination period, a prospective candidate; a prospective nominee for nomination for the religious subsector; or a designated body selecting nominees may apply for the advice of a NAC regarding eligibility for nomination. An application must be made in a specified form and sent to the CEO by post or by fax or served on the CEO personally on or before a date to be specified by the Commission by notice published in the Gazette. The CEO will provide administrative support to the NACs and is responsible for the allocation and distribution of work or duty among the NACs. Upon receipt of an application, the CEO must refer it to a NAC as soon as reasonably practicable. The NAC must consider the application and advise the applicant before the specified date. The NAC may request for further information from the applicant or request the applicant to present himself or herself to assist in the consideration of the application.

11.After commencement of the nomination period, a RO may apply to a NAC for advice regarding validity of any nominations received. An application must be in writing and sent to the CEO. The NAC to which an application is made will let the RO concerned have its advice in writing. In making a decision as to whether a particular candidate/nominee is validly nominated, the RO must have regard to any advice given by the NAC.

12.In response to members, the Administration explains that the question of lodging an appeal against the advice given by the NACs should not arise. Any advice given by the NACs or a refusal to give such advice does not preclude a person from seeking nomination or proceeding with a nomination as a candidate or presenting an election petition under the Legislative Council Ordinance.

Recommendation

13.The Subcommittee recommends that the Regulation be supported.

Advice sought

14.Members are invited to support the recommendation of the Subcommittee.

Provisional Legislative Council Secretariat
6 February 1998