PLC Paper No. LS 908
Paper for the House Committee
on 23 January 1998
Fourth report of the Subcommittee on subsidiary legislation relating to Legislative Council election
Purpose
This paper reports on the deliberations of the Subcommittee on the following subsidiary legislation -
- Legislative Council (Formation of Election Committee) (Appeals) Regulation; and
- Legislative Council (Election Petition) Rules.
The subsidiary legislation
Legislative Council (Formation of Election Committee) (Appeals) Regulation
2.The Legislative Council Ordinance provides for a right of appeal in relation to the registration of electors for the Legislative Council (LegCo) elections and the results of the Election Committee (EC) subsector elections.
3.The Regulation provides for the functions and duties of a Revising Officer and the procedures to be followed by him in handling the appeals in relation to the registration and return of EC members.
4.The Regulation was gazetted on 9 January 1998 and tabled in the Provisional Legislative Council on 14 January 1998. The deadline for amendments to the Regulation is 11 February 1998, or 18 February 1998 if extended by resolution.
Legislative Council (Election Petition) Rules
5.Under the Legislative Council Ordinance, an election petition in respect of a LegCo election may be lodged with the Court of First Instance of the High Court. An election petition may be lodged during a period of two months following the publication of the result of the election. The petition is triable in open court, and the Chief Justice of the Court of Final Appeal is empowered to make rules providing for matters relating to the preparation, lodgement, service, trial, withdrawal and costs of election petitions to the High Court.
6.The Rules were gazetted on 16 January 1998 and tabled in the Provisional Legislative Council on 21 January 1998. The deadline for amendments to the Rules is 18 February 1998, or 25 February 1998 if extended by resolution.
Deliberations of the Subcommittee
7.Under the chairmanship of Hon IP Kwok-him, the Subcommittee has held one meeting with representatives of the Administration and the Registration and Electoral Office to discuss the subsidiary legislation. The main deliberations of the Subcommittee are set out in the following paragraphs.
Legislative Council (Formation of Election Committee) (Appeals) Regulation
Appeals procedures
8.A member has enquired whether the appeals procedures in the Regulation are similar to those provided in the Legislative Council (Registration of Electors) (Appeals) Regulation which was tabled in the Council on 26 November 1997.
9.The Administration has advised that the Regulation provides similar arrangements in respect of the registration and return of EC members. The EC will comprise three types of members : members returned by EC subsector elections, nominees nominated by the religious subsector; and ex-officio members. Under the Regulation, a person claiming to be a candidate at an EC subsector election may appeal against the result of the election; a person who is registered as an elector for a functional constituency (FC) and as an ex-officio member in the EC Final Register may object to the latter registration; and a person may object to the registration of an EC member of the religious subsector as a member in the EC Final Register.
Appeal against result of EC subsector election
10.Section 2(3)(b) states that an appeal may be lodged against the result of an EC subsector election on the ground that material irregularity occurred in relation to the election, or to the polling or counting of votes at the election. A member has sought clarification on the term aterial irregularity�
11.The Administration has explained that material irregularity refers to circumstances which would materially affect the outcome of an election. Minor incidents such as one of the voters has subsequently turned out to be ineligible to vote at an election would not be considered as material irregularity. It is for the person lodging the appeal to substantiate his case.
Appeals in relation to registration of ex-officio members
12.Section 3(1) states that a person who is registered as an elector for a FC and is registered as an ex-officio member in the final register of members of the EC may submit a written representation to the Revising Officer to object to his registration as an ex-officio member of the EC on the ground that he has declined registration as an ex-officio member of the EC.
13.In response to members, the Administration has clarified that an ex-officio member of EC (i.e. a Provisional Legislative Council Member or a Hong Kong deputy to the National People Congress) who has been registered as a FC elector is allowed a choice to vote between the EC and the FC to which he belongs. Under section 37 of the Electoral Affairs Commission (Registration) (Electors For Functional Constituencies) (Voters For Subsectors) (Members Of Election Committee) (Legislative Council) Regulation, such a person may decline registration as an ex-officio member by a written notice on or before 7 March 1998. For those who do not decline registration by the 7 March deadline, appropriate notations will be put against their entries in the FC Final Register to denote their EC membership status. The FC Final Register will be published on or before 15 March 1998.
Submission of representations under sections 5 and 6
14.Sections 5 and 6 state that representations on an appeal notice or a written representation should reach the Revising Officer on a date 忛ot later than 1 day before the date fixed for the hearing�
15.Noting the Administration advice that the intention was to require the representations to reach the Revising Officer at least 24 hours before the time of the hearing, members have reservations about whether the provision as drafted could reflect clearly the policy intention.
16.After consideration, the Administration has no objection to the Subcommittee putting forward amendments to the Regulation to stipulate that the representations regarding the appeal notice or the written representations referred to in sections 5(2)(c)(iii), 5(2)(d)(i)(C), 5(2)(d)(ii)(C), 6(1)(a)(iii), 6(2)(a)(iii) and 6(3)(a)(iii) should reach the Revising Officer 忛ot later than 1 clear day before the date fixed for the hearing� This amendment will make it clear that there should be at least one day between the day the representations are to reach the Revising Officer and the date fixed for the hearing concerned.
Legislative Council (Election Petition) Rules
Time for trial of petition
17.Noting that the Legislation Council (Formation of Election Committee) (Appeals) Regulation provides that the Revising Officer who receives an appeal notice or a written representation shall fix a date for holding a hearing 弌s soon as practicable� a member has queried why no similar arrangement in respect of election petitions has been provided for in the Rules. The member also points out that as there is at present no special court for the trial of election petitions and in order to ensure that LegCo elections are open; fair and honest, special arrangement should be made to enable hearings of petitions to be fixed as expeditiously as possible. Any delay in fixing hearing dates would result in substantial litigation costs, hence discouraging persons concerned from lodging election petitions. He is of the view that the absence of such an arrangement would render the Rules of no useful purpose.
18.The Administration has explained that any election petition lodged will be dealt with as soon as practicable. The practice and procedure of the High Court would in general apply to an election petition as if it were an ordinary action within the jurisdiction of the High Court. Since the Judiciary is independent from the executive and legislative branches of government, the member concern will be reflected to the Judiciary for attention.
19.Most members agree with the Administration that it is inappropriate for the Administration and the legislature to intercede with the independence of the Judiciary which is the basis of the Hong Kong legal system. Some members have pointed out that the proceedings of an election petition can become very protracted, depending on its nature. The Subcommittee does not support any amendments to the Rules in this respect. However, the Subcommittee agrees that the question of a special court to handle election petitions should be referred to the Provisional Legislative Council Panel on Administration of Justice and Legal Services, and the Panel on Constitutional Affairs for consideration.
Trial of petition
20.Members note that while the jurisdiction of the High Court covers both civil and criminal matters, an election petition is a civil action. The sole purpose of the petition is to question the election of a person to the LegCo. While any charge of a corrupt or illegal practice may be inquired into, and evidence in relation thereto may be received on the trial of a petition as provided in section 11(3) of the Rules, the persons involved in the petition would not be given any criminal penalty. Separate criminal proceedings will be instituted in respect of criminal charges if necessary.
Amendments to subsidiary legislation
21.Hon IP Kwok-him, on behalf of the Subcommittee, will move a motion to amend the Legislative Council (Formation of Election Committee) (Appeals) Regulation as indicated in paragraph 16 above. The Administration has no objection to the proposed amendments. The draft amendments are attached in the Appendix.
Recommendation
22.The Subcommittee recommends that, subject to the amendments to be moved by the Chairman, the two items of subsidiary legislation be supported.
Advice sought
23.Members are invited to support the recommendation of the Subcommittee.
Provisional Legislative Council Secretariat
22 January 1998
