Provisional Legislative Council

PLC Paper No. CB(2)1040

Paper for the House Committee meeting
on 20 February 1998

Sixth and final report of the Subcommittee on subsidiary legislation relating to Legislative Council election

Purpose

1.This paper reports on the deliberations of the Subcommittee on the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation.

2.The Regulation sets out the procedure for conducting the 1998 Legislative Council (LegCo) geographical constituency (GC), functional constituency (FC) and Election Committee (EC) elections. Schedule 1 to the Regulation sets out the procedure for the EC subsector and sub-subsector elections and the religious subsector nominations.

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

4.In order to allow sufficient time for members to scrutinize the Regulation, Hon IP Kwok-him, Chairman of the Subcommittee has moved a motion to extend the scrutiny period of the Regulation to the Council meeting on 25 February 1998.

5.The Subcommittee has held four meetings with representatives of the Administration and the Registration and Electoral Office (REO) to discuss the subsidiary legislation. The main deliberations of the Subcommittee are set out in the following paragraphs.

Rectification of a nomination form

6.Under section 18, a Returning Officer may allow a candidate an opportunity to rectify an error, an omission or anything which may affect the validity of a nomination form within the nomination period. However, a nomination form cannot be rectified after the expiry of the nomination period.

7.Members are concerned that if a nomination form is submitted shortly before the close of the nomination period, and by the time the Returning Officer detects an error that needs to be rectified, the nomination period might have already been expired. Under the circumstance, the Returning Officer has no authority to allow the form to be rectified. Members have suggested that the provision should be amended to allow a nomination form to be rectified within a short period of time after the expiry of the nomination period.

8.The Electoral Affairs Commission (EAC) advises that the provision allows the Returning Officer to give the candidate a reasonable opportunity to rectify anything that may affect the validity of the nomination form only when the Returning Officer considers that it can be rectified within the nomination period. Allowing an additional period of time after the expiry of the nomination period for the rectification of any anomaly will be tantamount to extending the nomination period. There must be one deadline, and this deadline (i.e. expiry of the nomination period) has been and will continue to be publicized. Prospective candidates are advised to duly take into account this arrangement in putting forward their nominations. On the other hand, the correction of minor errors that do not affect the validity of the nomination form is not the concern of this Regulation and can be done administratively.

9.The Administration also advises that apart from early submission of nomination forms, it is advisable for a candidate who submits a nomination form on the last few days of the nomination period to include more than the minimum required number of subscribers in his nomination form, to avoid the risk of invalidation of the nomination should one or more of the subscribers be subsequently found not to be qualified as subscribers.

Appointment of agents

10.A candidate or a list of candidates jointly may appoint one election agent; one or more election expense agents; a maximum of two polling agents for each polling station and one or more counting agents. Apart from an election expense agent, all the other agents must be a person who is registered as an elector for a GC.

Duty of a candidate ranking first in priority on a GC list

11.Under sections 23, 25, 42 and 66 of the Regulation, notice of appointment or notice of revocation of appointment of the above agents must be in a specified form and signed by the candidate or, in the case of a GC list, all candidates on the list. Such notices must be served to the Returning Officer, or to the Presiding Officer concerned if the appointment or revocation of appointment of a polling agent is made on the polling day. In the case of a GC list, other than the notice of appointment of a polling agent and a counting agent on a polling day which may be submitted by an election agent, the candidate ranking first in priority on the list is given the duty to serve the notice of appointment or notice of revocation of appointment in other circumstances.

12.Some members have reservations about the requirement for the candidate ranking first in priority on a GC list to serve the notice, particularly when the notice is signed by all the candidates on the list. They ask for some flexibility in the arrangement.

13.Having considered members’ views, the EAC agrees to amend the provisions to the effect that any one of the candidates on the list is allowed to serve the notice of appointment or revocation of appointment of an election agent, an election expense agent, a polling agent or a counting agent. Members note that an election agent may also serve notices required under sections 25, 42 and 66 in accordance with his general power provided for under section 23(18).

14.However, in situations where a candidate is the receiving end, the EAC advises that the Returning Officer must have one point of contact with a GC list with several candidates. Section 24(1) states that the Returning Officer must send to the candidate ranking first in priority on a multiple candidates list a notice containing the particulars of the election agents of the other lists of candidates for the GC. Section 49(12) states that the Returning Officer must give notice to the candidate ranking first in priority on a multiple candidates list of the arrangements for the drawing of lots in respect of the order of appearance of lists on ballot papers. The provisions will be amended to the effect that the notice may be given to an election agent, instead of the first candidate on the list.

GC elector requirement

15.Noting that polling staff appointed to work in polling stations are not required to be registered as GC electors, some members have queried why the requirement is imposed on polling agents.

16.The EAC explains that the GC elector requirement is to ensure that only Hong Kong people with sufficient connection with the election will be appointed as polling agents. As all polling staff are civil servants who will be trained on electoral matters, they will meet this test. Since a circular to recruit these polling staff has already been issued, it is neither reasonable nor practicable to impose an additional condition (i.e. the GC elector requirement) on the applicants. However, the inclusion of this requirement for polling staff will be considered for the next round of elections.

17.Some members have proposed to remove the GC elector requirement and to restrict the appointment of polling agents to holders of Hong Kong identity cards. One member is of the view that there should not be any restriction at all and therefore objects to the proposal. Other members consider the proposal acceptable. The Administration and the REO have subsequently agreed that the Hong Kong identity card requirement should be applicable to the appointment of an election agent, a polling agent and a counting agent.

Polling arrangements (section 30)

18.Members note that one-stop polling service will be provided to all electors in the 1998 LegCo elections. A person may be entitled to cast one to three votes in various combinations of the following capacities -

1. an elector of the five GCs;

2. an elector of the six special functional constituencies (SFC) (i.e. the Urban Council FC, Regional Council FC, Heung Yee Kuk FC, Agriculture and Fisheries FC, Insurance FC and Transport FC);

3. an elector of the Part 3 FCs (i.e. the 22 FCs specified in Part 3 of Schedule 1 to the Legislative Council Ordinance);

4. an authorised representative (AR) of a corporate elector of an FC; and

5. an elector of the EC.

19.Members note that three types of polling stations are proposed : GC, SFC and EC polling stations. There will be about 500 polling stations for the five GCs which will be used also for polling for the Part 3 FCs. The three polling stations for the six SFCs, one each in Hong Kong Island, Kowloon and New Territories, will be used also for polling of the Part 3 FCs and the five GCs to which the SFC electors/ARs belong. The four EC polling stations will be used also for polling for the Part 3 FCs, the six SFCs and the five GCs to which the EC electors belong.

20.Some members have reservations about the different polling arrangements adopted for the 28 FCs. As the SFC electors are required to attend designated polling stations which might be quite far away from their place of residence, members have expressed concern that this might affect their turnout rate. The REO advises that the voting system applicable to the six SFCs is different from that applicable to the 22 Part 3 FCs. The allocation of designated polling stations will facilitate speedy sorting and counting of votes of the SFCs which have a small electorate. However, members hold the view that for the convenience of the SFC electors, they should be allowed to cast all the votes that they are entitled to in the GC polling stations near to their residence, similar to the arrangement adopted for the Part 3 FCs.

21.After consideration, the EAC agrees to implement members’ suggestion. However, it draws members’ attention to the fact that the arrangement will result in a longer sorting and counting process.

Admission of persons to polling stations (section 44)

22.Members are concerned about the practical arrangements for the Presiding Officer to regulate the number of candidates, election agents and polling agents to be admitted to the polling station for the purpose of maintaining order in the polling station and ensuring that polling is conducted smoothly.

23.The REO advises that admission will be on a first come first served basis. In order that as many candidates, election agents and polling agents as possible will have a chance to attend at the polling station to observe the conduct of the poll, any candidate, election agent or polling agent who has been admitted to the polling station will only be allowed to stay in the area designated for such purpose for one hour, unless the designated area is not occupied to its full seating capacity. Re-admission after leaving the polling station is allowed on a first come first served basis and subject to the capacity of the designated area not being exceeded. Those persons queuing outside the polling station will be issued with a number chit to record the order of their turn to get into the designated area.

24.On section 44(1) which stipulates that a person must not enter a polling station other than to vote, members have sought clarification as to whether small children accompanying electors to vote are allowed to enter a polling station. After consideration, the EAC agrees that the Presiding Officer may permit a child who should not be left unattended outside a polling station to accompany an elector to enter a polling station.

Acts which constitute an offence within a polling station

25.Other than persons specified in section 45(7), a person who communicates with an elector or authorized representative within a polling station, or a person who uses a mobile telephone, paging machine or any other device for electronic communication within a polling station commits an offence under section 45(1) and (6) respectively.

26.Members have queried the use of the word "communicates" in view of its broad meaning. Members also have reservations about the provision governing the use of mobile telephones and paging machines within a polling station on polling day.

27.At the request of the Subcommittee, the EAC has re-considered the matter and agrees to amend the provisions to the effect that a person will commit an offence under section 45(1) and (6) only if he acts contrary to a direction of the Presiding Officer.

Forms of ballot papers (section 49)

Printing of photographs of candidates on ballot papers

28.In response to members, the REO advises that the EAC does not feel it practicable to allow photographs of candidates to be printed on the ballot paper because its size will be greatly increased as to be unmanageable. Furthermore, the time between the close of the nomination period and the polling day is too short to ensure that the photograph of each of the candidates on the ballot paper will correctly match the name of the candidate, and any mistake caused may annul the election results. Electors have the opportunity to see the photographs of the candidates and their names together on the introductory leaflet sent by the REO to electors after the close of nomination, and on the leaflets sent by the candidates during their election campaign. In addition, enlarged copies of the introductory leaflet will be displayed within the no canvassing zone outside a polling station.

29.Some members do not find the explanation convincing and are of the view that the problems in implementing the proposal as highlighted by the EAC are not insurmountable and can be resolved through appropriate administrative measures.

Candidate numbering system

30.Under section 49(6), (8), (9) and (10), a number, to be determined by drawing lots, will be allocated to each list of candidates appear on a GC ballot paper, each candidate for a Part 3 FC and each candidate on an EC ballot paper. A letter of the alphabet will be allocated to each candidate for a SFC.

31.In response to some members’ concern that the use of arabic numerals for lists of GC candidates and individual FC and EC candidates might cause confusion to electors, the EAC has proposed that for easy identification, a two-digit or three-digit number could be allocated to each candidate or list of candidate(s) so that it will be unique for that particular candidate or list of candidate(s). The proposal will not entail any amendment to the existing provisions.

32.Members did not accept the proposal and, after discussion, agree to adopt the following candidate numbering system -

1. For GC lists - a number will be allocated to each GC list, e.g. 1 to 10 for each of the five GCs;

2. For EC candidates - a two-digit number will be allocated to each candidate, e.g. 20 to 99;

3. For Part 3 FC candidates - a letter of the alphabet to be followed by a number will be allocated to each candidate of the 22 FCs, e.g. A1 to A20 for the Labour FC; B1 to B20 for the Education FC;

4. For SFC candidates - a letter of the alphabet to be preceded by the abbreviation of the FC concerned will be allocated to each candidate of the six SFCs, e.g. UC A to UC Z for the Urban Council FC, and TR A to TR Z for the Transport FC.

33.In relation to paragraph 32(a) above, a member has proposed that the order of priority of individual candidates on a GC list should also be indicated by a number, as the order of a particular candidate on a GC list might affect an elector’s decision as to whether to vote for that list.

34.The Administration and the REO explain that under the list voting system used for the 1998 LegCo GC election, nomination of candidates must be made in the form of lists, and the names of the candidates must be ranked in order of priority by the groups/parties concerned. Each elector will cast for the list of his preference, instead of for a particular candidate. Likewise, electioneering activities would be conducted on the basis of the lists instead of individual candidates. The Government will conduct a series of publicity activities including publication of posters and leaflets to promote the 1998 LegCo elections in order to familiarize the public with the electoral and polling arrangements, especially the list voting system to be introduced for the first time for GC election. Since a number will be allocated to lists of candidates on a ballot paper, allocation of a further number to individual candidates on the list will cause confusion to electors.

35.After consideration, majority of the members present at the meeting agree that each candidate should be allocated a letter of the alphabet to indicate their respective order of priority on the list, beginning with the letter "a" for the candidate ranking first in priority.

36.The Administration and the REO have no objection to members’ proposals on the candidate numbering system.

Questions to be asked from persons applying for a ballot paper

37.Members have sought clarifications about the operation of sections 50 and 51 which appear to be contradictory. Section 50(1) states that the Presiding Officer must not give a ballot paper to a person unless that officer is satisfied by inspecting that person’s identity document or any other document showing the person’s name and photograph that he or she is the person registered in the final register, whom he or she claims to be. Section 51(5) states that the Presiding Officer must not give a ballot paper to any person who fails to answer the questions set out in subsection (3).

38.The EAC explains that section 51 needs not be invoked if the Presiding Officer is satisfied under section 50 with the identity of the person to whom the Presiding Officer will issue a ballot paper. Section 51 will be invoked only when the Presiding Officer has reasonable ground to question the bona fides of the person, or when required by a candidate or agent to ask the questions.

39.The Administration and the REO have no objection to members’ suggestion that the circumstances under which section 51 will be invoked should be expressly provided in the Regulation to avoid misunderstanding.

Schedule 1

40.In the light of the changes in the procedure for conducting the 1998 LegCo GC, FC and EC elections as set out in the above paragraphs, consequential amendments are to be made in relation to the procedure for the EC subsector and sub-subsector elections and the religious subsector nominations as prescribed in Schedule 1 to the Regulation.

Other concerns

41.To address members’ other concerns, the REO agrees to take necessary action as follows -

1. Returning Officers will be reminded to ensure provision of adequate passage way for the public in designation of no canvassing zones and no staying zones for polling stations (section 40);

2. The layout of the counting station will be designed to ensure that candidates and their respective election agents or counting agents are able to observe how individual votes are counted (section 68); and

3. Administrative measures will be taken to ensure that only those who have no known political affiliation will be appointed as polling and counting staff (section 89).

42.On members’ suggestion that the names and photographs of election staff in polling stations should be displayed for general information, the Administration and the REO have agreed to consider the suggestion and put it into implementation where practicable.

Amendments to the Regulation

43.In view of the compressed timetable for the 1998 LegCo election, members have agreed to the proposal of the Administration and the REO that the amendments to the Regulation (as indicated in paragraphs 13, 14, 17, 21, 24, 27, 36, 39 and 40 above) and other technical or consequential amendments will be moved by the Chairman of the Subcommittee in the form of a resolution, instead of by the EAC in the form of an Amendment Regulation which is subject to the scrutiny of the LegCo under section 34 of the Interpretation and General Clauses Ordinance (Cap. 1). The Administration and the REO have indicated that they have no objection to the Subcommittee putting forward these amendments. The draft amendments will be issued to members separately.

Recommendation

44.The Subcommittee recommends that, subject to the amendments to be moved by the Chairman, the Regulation be supported.

Advice sought

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

Provisional Legislative Council Secretariat
17 February 1998