Bills Committee on Legislative Council (Amendment) Bill 1999 (Minutes) 24 May 99

Legislative Council

LC Paper No. CB(2)2870/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/BC/16/98

Legislative Council Bills Committee on
Legislative Council (Amendment) Bill 1999

Minutes of 15th meeting
held on Monday, 24 May 1999 at 8:30 am
in Conference Room A of the Legislative Council Building Members Present:

Hon Ronald ARCULLI, JP (Chairman)
Hon Cyd HO Sau-lan
Dr Hon Raymond HO Chung-tai, JP
Hon LEE Wing-tat
Hon LEE Kai-ming, JP
Hon NG Leung-sing
Hon Mrs Selina CHOW, JP
Hon CHAN Wing-chan
Hon CHAN Kam-lam
Dr Hon LEONG Che-hung, JP
Hon SIN Chung-kai
Hon Andrew WONG Wang-fat, JP
Hon WONG Yung-kan
Hon Howard YOUNG, JP
Hon YEUNG Sum
Hon Mrs Miriam LAU Kin-yee, JP
Hon Ambrose LAU Hon-chuen, JP
Dr Hon TANG Siu-tong, JP
Hon TAM Yiu-chung, JP

Members Absent :

Prof Hon NG Ching-fai
Hon Margaret NG
Hon MA Fung-kwok
Hon CHEUNG Man-kwong
Hon Christine LOH
Hon Bernard CHAN
Hon LEUNG Yiu-chung
Hon Gary CHENG Kai-nam
Hon YEUNG Yiu-chung
Hon LAU Kong-wah
Hon LAU Wong-fat, GBS, JP
Hon Emily LAU Wai-hing, JP
Hon CHOY So-yuk

Public Officers Attending :

Mr Robin IP: Deputy Secretary for Constitutional Affairs
Miss Shirley YUNG: Principal Assistant Secretary for Constitutional Affairs (4)
Mr Bassanio SO: Principal Assistant Secretary for Constitutional Affairs (5)
Mr James O'NEIL: Deputy Solicitor General (Constitutional)
Ms Phyllis KO: Acting Deputy Principal Government Counsel (Elections)

Clerk in Attendance :

Mrs Percy MA: Chief Assistant Secretary (2) 3

Staff in Attendance :

Mr Jimmy MA, JP: Legal Adviser
Mr Stephen LAM: Assistant Legal Adviser 4
Mrs Eleanor CHOW: Senior Assistant Secretary (2) 7

I. Clause by clause examination of the Bill

Clause 24 (section 40(1)(b)(iii)) - Disqualification of candidates and Members
(LC Paper No. CB(2) 2171/98-99(01) & (02))

Members noted the following relating to sections 15(3) and 40(1)(b)(iii) of the Legislative Council Ordinance (LCO) -

Article 79 of the Basic Law provided for the circumstances under which the President of the LegCo should declare that a Member of the Council was no longer qualified for the office. Article 79(7) specified that if a Member was censured for misbehaviour or breach of oath by a vote of two-thirds of the Members of the LegCo present, the President should declare that that Member was no longer qualified for the office; and
By virtue of section 15(3) of LCO, the kind of misbehaviour for which a Member may be censured under Article 79(7) included, but was not limited to, a breach of oath given under section 40(1)(b)(iii) of the LCO. A person was required when nominated as a candidate for election to the Council, to give a promissory oath to the effect that, if elected, he would not do anything during his term of office that would give rise to the circumstances in section 40(1)(b)(iii)(A)-(I). The conditions set out under section 40(1)(b)(iii) were largely the same as the disqualification conditions for candidates contesting in LegCo election.

2. Mr Andrew WONG informed members that the issue had been discussed by the Committee on Rules of Procedure which had referred the matter to the Panel on Constitutional Affairs for follow up. In response to the Panel, the Bill proposed to replace the words "would result" with "results" to make it clear that it could only constitute a breach of the promissory oath if the disqualifying circumstances had actually arisen. While he considered that the proposed amendment acceptable, he questioned whether it was necessary and appropriate for the LCO to define, in such an indirect and artificial manner, certain types of conduct to be "misbehaviour" under section 40(1)(b)(iii). He pointed out that unlike the electoral arrangement of the previous LegCo, the LCO specified separate disqualification conditions for LegCo candidates being nominated and elected, and serving Members under sections 39 and 15 respectively. He considered it a better arrangement to incorporate the relevant provisions under section 40(1)(b)(iii) into section 15(3) of the LCO. He asked the Administration whether it was possible to do so and if not, whether it was possible to add to or supplement the circumstances listed in Article 79 in the LCO. The Chairman said that he had reservation about Mr WONG's suggestion.

3. Referring to the Administration's paper presented to the Panel (LC Paper No. CB(2) 2171/98-99(01)), Deputy Secretary for Constitutional Affairs (DS for CA) and Deputy Solicitor General (DSG) advised that prior to the handover, a single set of disqualification conditions applied to LegCo candidates and serving Members of LegCo. As some of these provisions were not provided in Article 79, sections 15(3) and 40(1)(b)(iii) were introduced by way of Committee Stage Amendments (CSAs) to the Legislative Council Bill by the Administration in response to the request of the relevant Bills Committee of the Provisional LegCo. The rationale for the amendments was that, within the parameters of the Basic Law, disqualification conditions which applied to LegCo candidates and to serving Members of the Council should be the same as far as possible. Section 40 of the LCO sought to provide a mechanism to make the provisions compatible. As the existing provisions governing the disqualification of candidates and Members were working well, the Administration did not see the need to make major changes.

4. In response to Mr LEE Wing-tat's query that the disqualification conditions set out in sections 15 and 40(1)(b)(iii) were in excess of those stipulated in Article 79, the Chairman said that the Provisional LegCo was of the view that the set of disqualification conditions applicable to a LegCo candidate or a serving Member of the previous legislature should continue to be adopted after the handover. As some of these provisions were not provided in Article 79, amendments were therefore made to the Legislative Council Bill to ensure their continued application. Mr Andrew WONG said that items (B) - (I) of section 40(1)(b)(iii) were not covered by Article 79. He opined that these items could be included in section 15, thereby doing away with the requirement of a promissory oath.

5. In response to members, Legal Adviser (LA) said that given that the Basic Law was a constitutional document, the circumstances listed in Article 79 could not be added to or amended by local legislation, but there was scope for LegCo to elaborate on the kind of "misbehaviour" for which a Member could be censured under Article 79(7). While he considered the existing arrangement did not contravene the Basic Law, he pointed out that there were operational difficulties in dealing with overlapping disqualification conditions, e.g. in the case of the acceptance of a government appointment, whether it should be regarded as a breach of oath under section 40(1)(b)(iii)(A)(I), or a breach specified under Article 79(4). In the case of the former, the LegCo president would only declare that the relevant Members was no longer qualified for the office after he was censured for a breach of oath by a vote of two-thirds of the LegCo Members present under Article 79(7). In the case of the latter, the President of LegCo should act in accordance with Article 79 to declare that the relevant LegCo Member was no longer qualified for the office.

6. In response to Mr LEE Wing-tat, LA said that it would appear that in the case of a breach under section 40(1)(b)(iii) which was also a breach specified under Article 79(1) to (5), it was for the LegCo President to declare the disqualification of the relevant Member (paragraph 3(a) and 4 of Administration's paper refers). He pointed out that consideration needed to be given to deal with the situation where the relevant Member requested for the disqualification mechanism under Article 79(7) be triggered off first.

7. Mr Andrew WONG said that the Administration had not answered his question raised in paragraph 2 above. DSG responded that Article 79 was a fundamental provision. The seven items in Article 79 were an exhaustive list of the matters which could result in Members being disqualified. It was not appropriate for the domestic legislation to add to the list in Article 79. However, it was perfectly appropriate for sections 15(3) and 40(1)(b)(iii) to give an explanation to the term "misbehaviour". The provisions did not seek to add to the list of circumstances whereby a Member could be disqualified. They merely sought to elaborate the term "misbehaviour" stipulated in Article 79(7). In response to members, the Administration undertook to give a response in writing.

Adm

Clause 27 (new section 43A) - Advance polling days

8. The Chairman said that at the last meeting, the Bills Committee had requested the Administration to consider whether there was a need to designate more than one date for advance polling, given that the general election was held on only one day and the number of electors involved in advance polling was much smaller.

Clause 28 (section 45) - Termination of election proceedings

9. Members noted this was a technical amendment.

10. The Chairman advised that at the last meeting, Members had expressed concern about the proposal that the election proceedings for functional constituency (FC) should continue if a candidate had become disqualified or died before the polling day, or else the choice of the electors would be limited. Members had pointed out that unlike geographical constituency (GC) elections which were operated under the proportional representative system, FC elections adopted basically a "single seat, single vote" system. Therefore an uniform approach of election proceedings for FC and GC might not be appropriate. There was also concern about tactical voting. The Bills Committee had requested the Administration to reconsider the matter.

11. Dr YEUNG Sum opined that in the case where one of the two candidates competing in a constituency had become disqualified or died, a vote of confidence on the uncontested election of the remaining candidate might be necessary. Mr Andrew WONG did not support a vote of confidence which had wide implications. He reiterated his view that the existing arrangement for termination of election proceedings when a candidate had become disqualified or died had its merits, e.g. in cases where political murder was involved.

12. Mrs Selina CHOW said that she had reservation about applying different arrangements for GC, FC and EC elections. DS for CA responded that the Administration supported a uniform approach for termination of election proceedings for GC, FC and EC elections. Having regard to members' views, it was reconsidering the matter. He undertook to revert to members as soon as practicable.	Adm

Clause 31 (section 48) - Advance polling

13. Mr LEE Wing-tat queried why an elector whose application had been approved could only vote on the advance polling day but not on the general polling day, except in the case of the cancellation of the advance polling day. DS for CA explained that the names of electors whose application for advance polling had been approved would be included in the voter register for advance polling. Should an elector subsequently decide to vote on the general election day, the Electoral Affairs Commission (EAC) would have difficulty to put back the elector's name into the voter register for the polling station to which he belonged.

14. The Chairman said that the problem could be overcome by opening polling station(s) for advance polling on the general election day. The question was whether it was worthwhile to do so given the small number of such electors. DS for CA responded that the Administration's initial view was to open only one polling station at a central location for advance polling. The same station might or might not be used for general election. Mr Howard YOUNG pointed out that many Hong Kong people travelling to the Mainland would also be eligible to apply advance polling. Under the circumstances, one polling station for advance polling might be inadequate.

15. Mr LEE Wing-tat pointed out that canvassing activities at polling station(s) for advance polling could be chaotic, especially when there was only one polling station. He and some members supported the prohibition of canvassing activities on the advance and general polling days. Mr TAM Yiu-chung said that the Democratic Alliance for the Betterment of Hong Kong had reservation on the issue.

Application procedure for advance polling

16. Mr Howard YOUNG asked about the application procedure for advance polling and whether the proposal of advance polling was made to facilitate civil servants who had to work on the election day to vote. DS for CA responded that the objective of introducing advance polling was to allow individual electors who could not vote on the general polling day to vote in advance. The arrangement was not restricted to civil servants. According to past experience, some electors might be unable to cast their votes on the general polling day due to various reasons such as work commitment, departing Hong Kong on vacation or business trips on polling day. The Administration's preliminary view was that the eligibility criteria for advance polling should not be too strict, otherwise it would deter electors from applying and hence defeat the purpose of providing convenience to electors. In addition, the Administration would have difficulty in verifying the applications if too many restrictions were imposed. The Administration initially intended to schedule the advance polling day on a weekday. The EAC would be responsible for drafting the relevant subsidiary legislation for advance polling.

17. Mrs Selina CHOW said that if the criteria for application for advance polling were too loose, it was tantamount to setting another general election day. Mr TAM Yiu-chung commented that while a strict set of eligibility criteria was difficult to enforce, a loose set of criteria would give rise to abuse. It was not easy to strike a right balance.

18. DS for CA responded that given the purpose of advance polling was to provide convenience to electors, it was undesirable to impose strict criteria. As long as the electors gave a reasonable explanation, they would be allowed to vote on the advance polling day. Although the EAC had yet to work out the details of the application procedure for advance polling, it was the intention to ask electors to apply in writing.

19. In response to Mr NG Leung-sing, DS for CA advised that the advance polling arrangements in overseas countries as follows -

In Canada, all electors could go to specified advance polling stations on the advance polling day to cast their vote without having to make prior applications;
In Japan, electors who could not vote on the polling day for specified reasons might go to specified polling stations to cast their votes within a certain period before the election. No prior application was required; and
In Australia, any electors who could not vote on the polling day for specified reasons might cast their vote at specified polling stations within a certain period before the election without having to make prior applications. They however had to explain at the advance polling stations the reasons why they could not vote on the polling day before they could cast their vote.

20. In response to members, DS for CA undertook to provide the above information in writing.	Adm

Exit polls

21. Members expressed concern that if the media announced the results of the exit polls conducted on the advance polling day before the polling on the general election closed, it might undermine the fairness and impartiality of the elections. Members asked how the Administration would deal with the problem.

22. DS for CA responded that according to the existing guidelines on election activities, the EAC had already required the media not to announce the results of the exit polls before the close of polls. In addition, section 60 of the LCO stipulated that a person must not, without lawful authority, require an elector to disclose the candidate for whom the elector voted at an election. He said that the EAC would expand the current guidelines to cover advance polling.

23. Miss Cyd HO asked whether there were any cases of violation of the EAC guidelines in this respect in the 1998 LegCo election. DS for CA replied in the negative. Mr LEE Wing-tat supplemented that there were such incidents in the 1995 election.

24. Mr LEE Wing-tat said that as specified in clause 6, advance polling should be conducted within 15 days before the general polling day. He expressed concern that the media and some relevant parties might announce the results of the exit polls during the interim period. The Chairman said that if exit polls for advance polling were allowed, it was possible for political parties to strategically arrange for more electors to vote on the advance polling day so as to affect the outcome of the general election. Dr YEUNG Sum said that the Administration should discuss with the media with a view to expanding the existing EAC guidelines to require the media not to announce the results of exit polls for advance polling until the close of polling on the general election day. Mr LEE Wing-tat said that the Administration should consider legislating against the release of exit poll results.

25. Mrs Selina CHOW said that she had reservation about advance polling. In the absence of a detailed application procedure for advance polling and guidelines for exit polls, it was difficult for members to make a decision on the matter. DS for CA responded that Members had urged for the introduction of advance polling on a number of previous occasions. The Panel on Constitutional Affairs was briefed on and supported the proposal. Mr Andrew WONG, Chairman of the Panel on Constitutional Affairs, confirmed the Panel's stance. He said that it was the majority view of members that electors should not be deprived of the right to vote just because they had other engagements on the general election day. Mrs Selina CHOW said that she was not aware of the background for introducing advance polling. She requested the Clerk to circulate the relevant information to members. She said that if the purpose for advance polling was to provide convenience to electors, the application procedure should be simple and user-friendly.

26. Given the limited time for scrutiny of the Bill, the Chairman suggested that a provision should be added to the Bill to the effect that the implementation of advance polling would be subject to the endorsement of LegCo on the application procedure and the guideline for exit polls to be worked out by the Administration. The Administration undertook to consider members' views expressed at the meeting.

Adm

II. Date of next meeting

27. The next meeting would be held on 24 May 1999 at 2:30 pm.

28. The meeting ended at 10:35 am.

Legislative Council Secretariat
23 September 1999

Legislative Council

Legislative Council Bills Committee on Legislative Council (Amendment) Bill 1999

Legislative Council Bills Committee on
Legislative Council (Amendment) Bill 1999