Legislative Council
LC Paper No. CB(2)2685/98-99
(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 11th meeting
held on Tuesday, 27 April 1999 at 10:45 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
Prof Hon NG Ching-fai
Hon Margaret NG
Hon Mrs Selina CHOW, JP
Hon MA Fung-kwok
Hon CHEUNG Man-kwong
Hon CHAN Wing-chan
Hon CHAN Kam-lam
Dr Hon LEONG Che-hung, JP
Hon Andrew WONG Wang-fat, JP
Hon WONG Yung-kan
Hon Howard YOUNG, JP
Hon YEUNG Yiu-chung
Hon LAU Kong-wah
Hon Mrs Miriam LAU Kin-yee, JP
Hon Ambrose LAU Hon-chuen, JP
Hon Emily LAU Wai-hing, JP
Members Absent :
Hon Christine LOH
Hon Bernard CHAN
Hon LEUNG Yiu-chung
Hon Gary CHENG Kai-nam
Hon SIN Chung-kai
Hon YEUNG Sum
Hon LAU Wong-fat, GBS, JP
Hon TAM Yiu-chung, JP
Hon CHOY So-yuk
Dr Hon TANG Siu-tong, JP
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 Stephen LAM
- Assistant Legal Adviser 4
- Ms Eleanor CHOW
- Senior Assistant Secretary (2) 7
I. Clause by clause examination of the Bill
Clause 16 (section 25) - Eligible electors of Functional Constituencies (FCs)
On the composition of Heung Yee Kuk, members noted that the subject had been discussed at a previous meeting and was covered in the Adminstration's reply (LC Paper CB(2) 1658/98-99(03)).
2. In response to Ms Emily LAU, Deputy Secretary for Constitutional Affairs (DS for CA) said that the Home Affairs Bureau had formed a working group to study rural elections. Subject to the recommendations of the study which was expected to be completed within six months' time, the Heung Yee Kuk Ordinance (Cap. 1097) would be amended where necessary. The Administration would advise members if consequential amendments to the Legislative Council Ordinance (LCO) were required.
Clauses 17 and 18 (sections 29(b) and 32(1)) - Publication of Final Registers
3. DS for CA said that clause 17 sought to specify that a person would be qualified as an elector for the 2000 LegCo election if he had reached the age of 18 on or before 25 May 2000, the deadline for publishing the Final Registers of geographical constituencies (GCs) and FCs specified under clause 18. The Chairman opined that the date on which a person would be qualified as an elector should be the date of election, instead of the deadline for the publication of the Final Registers. He also urged the Administration to consider implementing automatic voter registration expeditiously to facilitate such an arrangement in future.
4. Mr CHAN Kam-lam asked whether there were any criteria in determining the deadline for publishing the Final Registers, and if not, he suggested the Administration to formulate a set of criteria for future elections to follow. Miss Cyd HO said that for the 1998 LegCo election, there were only 54 days between the publication of Final Register on 31 March 1998 and the election day on 24 May 1998. If the Bill was passed as proposed, there were more than three months between the publication of the Final Register on 25 May 2000 and the election day in mid-September 2000. She enquired about the reasons for advancing the deadline of publication of the Final Registers for the 2000 LegCo election. Ms Emily LAU said that the deadline for voter registration should be scheduled as near to the election day as possible, so as to maintain the interest of the public in voting. Mr Andrew WONG expressed concern over the duration of the nomination period for the LegCo election. He pointed out that the longer the period, the higher the election expenses to be incurred by candidates.
5. DS for CA and Principal Assistant Secretary for Constitutional Affairs (4) (PAS for CA(4)) responded as follows -
- The timetable for LegCo election was usually working backward, i.e. after the polling day was set, the Administration would list out the steps of preparatory work and the time required for these steps;
- For the 1998 LegCo election, the deadline for the publication of the Final Register was 15 March instead of 31 March;
- The various arrangements for the 1998 LegCo election had been made under a very tight timetable. There had been comments that there had not been adequate time for nomination of candidates, electioneering activities and voter registration, etc. The Administration hoped to improve the electoral arrangements in the coming 2000 LegCo election by allowing adequate time for each of the steps;
- Since six Members would be returned by the Election Committee (EC) in the second term LegCo election, EC subsector elections must be conducted before holding the LegCo election in mid-September 2000. Starting from the third term LegCo, there was no need to conduct EC subsector elections. The Administration would consider putting back the deadline for the publication of the register to a date nearer the election day as far as practicable;
- A number of activities would be carried out after the publication of the Provisional Registers on 15 April 2000 and before the election day in mid-September 2000. These included receiving and hearing objections cases concerning voter registration by the Revising Officers, publication of the Final Registers, nomination and canvassing for the EC subsector elections, EC subsector elections, publication of register of the EC, nomination and canvassing for the LegCo election and advance polling; and
- Nomination and canvassing for the EC subsector elections and LegCo election were proposed to be held in early June to mid July and early August to mid September respectively. Nomination of candidates and electioneering would last two weeks and four weeks respectively. Advance polling would take place in early September.
| 6. Ms Emily LAU suggested that that the proposed date of 25 May 2000 for publication of the Final Registers should be deferred so that more time would be allowed for voter registration. While DS for CA responded that the Administration had taken into account all relevant factors in deciding on the date of 25 May 2000, he agreed to give further consideration to Ms LAU's suggestion.
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| 7. Mr Howard YOUNG recalled that the 1991 and 1995 Final Registers were also published about four months prior to the general election, similar to the arrangement proposed for the 2000 LegCo election. DS for CA replied that unlike the 1991 and 1995 LegCo elections, it was necessary to conduct EC subsector elections before the 2000 LegCo general election. Therefore, the deadline for the publication of the 2000 Final Registers could have been set earlier than those in 1991 and 1995. In response to Mr LEE Wing-tat, DS for CA undertook to provide a comparison between the proposed arrangements for the 2000 LegCo election and past arrangements.
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| 8. In response to Miss Cyd HO, DS for CA undertook to provide information on the number of objections and claims received in the 1998 voter registration exercise.
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Clauses 19 and 20 (sections 35(2) and 36(1)) -Vacancy in membership of Legislative Council
9. DS for CA and PAS for CA(5) explained the existing and proposed arrangements for termination of election proceedings as follows -
- Under the existing LCO, if a validly nominated candidate died or had become disqualified after the close of nomination but before close of polling, the Returning Officer (RO) must terminate the election proceedings. If the candidate died after the close of polling but before declaration of result, the Clerk to LegCo would declare a vacancy in LegCo if the candidate was successful;
- To minimise the risk of disruption to the electoral process, the Bill proposed to allow the RO to vary his decision regarding the qualification of a candidate to enable the election proceedings to continue if, before the election day, the RO came to know that the candidate had died or was disqualified. In case the RO only came to know such information on or after the election day, he should take actions as follows :
- before the close of polling - the RO would terminate the election proceedings concerned and a by-election would be conducted; or
- after the close of polling but before the declaration of results - counting of votes will continue. If the candidate concerned lost the election, the RO should proceed with declaration of the election results; or if the candidate concerned won the election, the RO would declare the election to have failed and a by-election would be conducted in case of a single-seat constituency. In case of a multi-seat constituency, the RO would proceed with declaration of the election results in respect of the other successful candidates and a by-election would be conducted to fill the seat left unfilled by the candidate concerned. However, there was one exceptional circumstance. If the candidate concerned was contesting in a GC, his seat was to be taken up by a candidate ranked below him in the same list, in which case no by-election would be required;
- Clause 19 sought to repeal section 35(2) which empowered the Clerk to the LegCo to declare the existence of a vacancy in the membership of LegCo within 21 days after becoming aware of the vacancy; and
- Clause 25 (new section 42A) sought to empower the RO to make necessary electoral arrangements if, after a candidate was validly nominated but before the general polling day, he came to know that the candidate had died or was disqualified. Clause 30 (new section 46A) applied in case the RO only came to know such information on the polling day but before the declaration of results.
Vacancy in memebership of LegCo
10. Miss Margaret NG asked for the reasons for repealing section 35(2). Deputy Solicitor General (DSG) explained that section 35(1) placed a specific duty onto the Clerk to LegCo to declare the existence of a vacancy in the membership of LegCo. The deletion of section 35(2) was a technical amendment. It was tied to the existing section 45 which was repealed by clause 28. New alternative provisions for the termination of election proceedings had been made under clause 30 (new section 46A) which set out the conditions under which the RO would declare the existence of a vacancy at an election. Miss Margaret NG supported the proposed arrangements, as section 35(2) was part of the electoral process in which the Clerk to LegCo should not play a role. She opined that the Clerk to LegCo should only be involved in matters relating to Members of LegCo. Mr LEE Wing-tat also agreed that before a candidate was declared to be elected as a Member at an election, it should be the responsibility of the RO to declare the existence of a vacancy if the candidate had died or was disqualified.
11. Members then had a discussion on when a successful candidate was regarded as a Member of LegCo i.e. before a notice was published in the Gazette declaring him to be duly elected, or after such notice was gazetted but before he swore in. DSG replied that under section 46 of LCO, the RO would publicly declare a successful candidate to be duly elected as a Member. In other words, when a public declaration was made at the end of the counting of votes, that would be the point of time that a candidate became a Member. If a person who had been declared as duly elected as a Member and who had subsequently died, section 35(1) would apply. The Clerk to LegCo must, by notice in the Gazette, declare the existence of a vacancy in the membership of LegCo within 21 days after becoming aware of the vacancy.
12. In response to the Chairman, DSG explained that the reason for allowing 21 days under section 35(1) had taken into account all the circumstances including the situation where a Member was overseas when he died. PAS for CA(5) supplemented that the Bills Committee had earlier proposed to change the requirement from 21 days to 14 days. The Electoral Affairs Commission was consulted and did not have any comment on the proposal.
Termination of election proceedings
13. The Chairman commented that the proposed arrangements for termination of election proceedings were cumbersome. He considered that a line should only be drawn before and after the close of polling. Should the RO come to know that a candidate had died or was disqualified before the close of polling, election proceedings should be terminated. If he came to know such information after the close of polling, counting of votes should continue. PAS for CA (5) explained that it would minimize disruption to the electoral process if the election process was allowed to continue in case of death or disqualification of a candidate before the election day. However, on the election day but before the close of polling, the election proceedings should be terminated as some electors had already cast their votes.
14. The Chairman asked about the situation where there was only one candidate contesting in an FC. PAS for CA(5) explained that if, after the close of nomination of candidates for an FC election, only one candidate had been validly nominated, the RO must publish in the Gazette within 14 days a notice declaring the candidate to be duly elected as a Member for the FC concerned. If the RO came to know that the candidate had died or was disqualified both before and after the declaration of results, a by-election would be conducted.
| 15. Referring to the incident in the 1998 LegCo GC election where two candidates hand been found to be disqualified before they were declared validly nominated, Ms Emily LAU asked how the situation would have been dealt with under the existing law and the Bill had they been found to be disqualified before they were declared validly nominated. PAS for CA(5) replied that the election proceedings would have been terminated under the existing provisions. On the other hand, the RO was empowered to revise the list of validly nominated candidates and allow the election proceedings to continue under the Bill. In response to Ms LAU, the Administration undertook to prepare a chart on the comparison between the proposed arrangements under the new sections 42A and 46A and the existing arrangements under the LCO.
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Nomination lists for GCs
16. On the proposal to empower the RO of a GC to revise the list of validly nominated candidates, DSG explained that existing section 38 of the LCO allowed for the submission of a nomination list which contained the names of nominees more than the number of Members to be returned for a constituency. There was a procedure for striking out the names of the surplus nominees so that the number of nominees that eventually appeared on a GC list would correspond to the number of Members to be returned for the constituency. The Bill proposed that where a validly nominated candidate on a nomination list had either died or become disqualified, he could be replaced by a surplus nominee on the original nomination list, if any. The newly added name would be ranked in the order of priority of the group for which the nomination list was submitted.
| 17. Mr LEE Wing-tat supported the new arrangement which would allow election proceedings to continue, instead of being terminated as a result of the death or disqualification of one or two candidates. The Chairman pointed out that under the new arrangement, political parties would incline to submit a long list of nominees for GCs. Mr Andrew WONG said that there was merit in the existing arrangement. There were reasons for termination of election proceedings after a candidate had died, e.g. what if political murder was involved. He said that the new arrangement had the effect of encouraging people to join political parties and was discriminatory against independent candidates. He also opined that a RO of a GC should not be allowed to add names of surplus nominees to the relevant list of candidates in case a candidate on the list had died or was disqualified. He asked about the rationale for proposing the new arrangement. Mr CHAN Kam-lam expressed concern over the possibility of surplus nominees carrying out electioneering activities as if they were prospective candidates. DS for CA replied that the new arrangement did not pay regard to the political background of a candidate. The purpose was to minimise the risk of disruption to the electoral process in the interests of the electors as well as the candidates. Having regard to the views expressed by members, the Chairman requested the Administration to reconsider the proposal.
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(Post-meeting note - The Administration's response to concerns raised by the Bills Committee at this meeting was circulated to members vide LC Paper No. CB(2) 1854/98-99(03))
II. Dates of next meetings
18. Members agreed that the next two meetings would be held on 7 May 1999 at 10:45 am and 12 May 1999 at 8:30 am.
19. The meeting ended at 12:50 pm.
Legislative Council Secretariat
12 August 1999
