Provisional Legislative Council
PLC Paper No. CB(2)700

Paper for the House Committee meeting on 5 December 1997

Second 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 two items of subsidiary legislation -

1. Demarcation of Constituencies (Legislative Council) Order 1997; and

2. Legislative Council (Registration of Electors) (Appeals) Regulation.

The subsidiary legislation

Demarcation of Constituencies (Legislative Council) Order 1997

2. The Electoral Affairs Commission (the Commission) is a statutory independent body responsible for making recommendations to the Chief Executive as to demarcation of constituency boundaries for Legislative Council (LegCo) elections. For the first LegCo election in 1998 and as required by the Electoral Affairs Commission Ordinance, the Commission published its provisional recommendations for public consultation on 11 October 1997. The Commission submitted its report containing final recommendations to the Chief Executive on 31 October 1997. On 11 November 1997, the Chief Executive in Council accepted the Commission recommendations in its report in their entirety.

3.. Section 18(2) of the Legislative Council Ordinance (LCO) empowers the Chief Executive in Council to make order to declare areas of Hong Kong to be geographical constituencies and to give names to the geographical constituencies.

4. The Order was gazetted on 14 November 1997 and tabled in the Provisional Legislative Council on 19 November 1997. The deadline for amendments to the Order is 17 December 1997, or 7 January 1998 if extended by resolution. Legislative Council (Registration of Electors) (Appeals) Regulation

5. Under section 34 of the LCO, a person who is dissatisfied with a decision of the Electoral Registration Officer (ERO) made in respect of the registration of electors for LegCo elections and Election Committee subsector elections may appeal against the decisions to a Revising Officer (RO). Section 82 of the LCO empowers the Chief Executive in Council to make regulations to provide for the functions and duties of a RO and the conduct of appeals to him.

6. The Regulation provides for the procedure for the exercise of the right of appeal to the RO, from any decision made by the ERO in relation to a notice of claim or a notice of objection or a notice of appeal.

7. The Regulation was gazetted on 21 November 1997 and tabled in the Provisional Legislative Council on 26 November 1997. The deadline for amendments to the Regulation is 17 December 1997, or 7 January 1998 if extended by resolution.

Deliberations of the Subcommittee

8. Under the chairmanship of Hon IP Kwok-him, the Subcommittee has held one meeting with the Administration to discuss the two items of subsidiary legislation. The main deliberations of the Subcommittee are set out in the following paragraphs.

Demarcation of Constituencies (Legislative Council) Order 1997

9. A member points out that the Hong Kong Island constituency with an estimated population of 1,360,700 is allocated 4 seats, whereas the New Territories East constituency with an estimated population of 1,411,000 is allocated 5 seats. The slight difference in the estimated population (i.e. about 50,000) results in the allocation of one additional seat. He opines that although the Commission recommendation is not in conflict with the statutory criteria, it could have been improved.

10. Members note that the decrease in the population size of the New Territories East constituency is the result of the Commission final recommendation to have the whole of the Yuen Long District included in the New Territories West constituency. The Administration explains that in making recommendations on the demarcation of constituency boundaries, the Commission is bound by certain statutory requirements under the Electoral Affairs Commission Ordinance and the Legislative Council Ordinance. The primary consideration of the Commission was to ensure that the population criterion was complied with. The Commission had also paid regard to other considerations, i.e. community identities, the preservation of local ties and physical features such as size, shape, accessibility and development of the relevant area, whenever it was possible.

Legislative Council (Registration of Electors) (Appeals) Regulation

Appointment and functions of Revising Officer (RO)

11. Under section 77 of the LCO, the Chief Justice of the Court of Final Appeal may appoint any magistrate or any legal officer to be a RO. If no appointment is made, the Registrar of the High Court will be taken to be a RO. Members note that there may be one or more ROs, depending on the number of appeals. The arrangement will provide flexibility for handling appeals within the specified period.

12. Members note the Administration advice that the ERO must deliver a copy of each notice of claim or notice of objection or notice of appeal received by him to the RO. The RO shall then fix a date, time and place for holding a hearing as soon as practicable. The RO is required to make a ruling on each of the appeals received and his determination is final.

Period for handling appeals

13. Members note that the appeals procedure needs to tie in with the statutory voter registration cycle. They express concern about the tight timetable for handling appeals against the 1998 Provisional Register (PR).

14. The Administration explains that the timetable is set having regard to the statutory deadlines for publication of the PR and the Final Register (FR) on 15 February 1998 and 15 March 1998 respectively. Hearings on appeals will be conducted within a two-week period from 15 February to 28 February 1998. A duration of about two weeks will be left before the statutory deadline of 15 March for publication of the 1998 FR, which is the minimum time required by the ERO to finalise and publish the FR. The Administration assures members that appeals will be dealt with as expeditiously as possible and more than one RO may be appointed if necessary.

Appeals relating to appointment/replacement of authorized representatives (ARs)

15. Members note that the first appointment of an AR must be made not later than 16 January 1998, whereas a request for replacement of an AR can be made not later than 14 days before the relevant polling date. In the case where the ERO is satisfied that the AR has died or has suffered a serious illness or incapacity, a request for replacement can be accepted not later than 3 working days before the relevant polling date.

16. In response to members, the Administration advises that hearings on appeals relating to the appointment of ARs will be conducted within the same two-week period, i.e. from 15 February to 28 February 1998. As regards appeals relating to the replacement of ARs, hearings can be conducted within a period of 21 days beginning from 25 days before the relevant polling date if a notice of appeal is received not later than 11 days before such polling date.

Adjournment of hearing

17. Section 5 of the Regulation stipulates that the RO may adjourn a hearing to a date not later than the last day of the period referred to in section 6(2) e.g. 28 February 1998 being the last day for a ruling to be made in respect of an appeal against the 1998 PR.

18. In response to members, the Administration advises that in accordance with section 71 of the Interpretation and General Clauses Ordinance (Cap. 1), if the last day of the hearing happens to be a gale warning day or a public holiday, the hearing shall be conducted on the next following day and shall be considered as conducted in due time.

Publicity

19. On members�comment that the public should be made aware of the procedure and timetable for lodging appeals, the Administration advises that suitable publicity will be arranged after the voter registration drive and before the publication of the PR. Recommendation

20. The Subcommittee recommends that the two items of subsidiary legislation be supported.

Advice sought

21. Members are requested to support the recommendation of the Subcommittee.

Provisional Legislative Council Secretariat
3 December 1997

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