Legislative Council
LC Paper No. CB(3)1284/98-99(02)
Ref: CB(3)/C/1(II)
Paper for the Committee on Members' Interests' meeting
on 14 April 1999
Procedure for handling complaints about the registration and declaration of Members' interests or a failure to do so
Purpose
This paper seeks members' views on the procedure to be adopted by the Committee for handling complaints made in relation to the registration and declaration of Members' interests or a failure to do so.
Background
2. At the meeting of the Committee on Members' Interests held on 15 December 1998, members were briefed on the practices in the legislatures of four overseas countries in handling complaints about a Member's misconduct or other forms of irregularity, as set out in the paper referenced CB(3)881/98-00(02). Members were also briefed on the procedure for handling complaints adopted by the former Committee on Members' Interests in 1992, as set out in the paper referenced CB(3)881/98-99(001).
3. After discussion, members considered that the Committee should work out a new procedure, which should include more details such as when to start an investigation, how to conduct an investigation, and whether meetings held for the purpose of an enquiry should be held in public or in camera. Members of the Committee have agreed that the procedure should be fair to the Member under complaint and the complainant, should be able to cope with the most antagonistic situation and should guard against abuse or favoritism by a dominant party.
The draft procedure
4. In accordance with the Committee's instructions, the Secretariat has drawn up the draft procedure, at the Annex for members' consideration. In drawing up the draft procedure, the Secretariat has made reference to the procedure for handling complaints about Members in the legislatures in some overseas countries and the procedure adopted by the former Committee on Members' Interests. The Secretariat has also made reference to the proposed arrangements for implementing the provisions in Article 79(7) of the Basic Law, on which the Committee on Rules of Procedure is now seeking views from Members.
5. The proposed procedure starts with the receipt of a complaint. The complainant must be identifiable, so as to ensure that the Committee will not spend time on complaints that cannot be investigated. However, if a member considered that a complaint, though anonymous, contains substantiated information, it will be for the Member to consider whether he/she will take up the case and to lodge a formal complaint to the Committee.
6. Steps 2 to 5 will provide an opportunity for other members of the Committee to review the decision of the Chairman not to hold any meeting to consider a written complaint.
7. Members are invited to consider whether to include step 8 in the procedure, which allows the complainant and the Member under complaint to be invited to attend meetings of the Committee to provide supplementary information to the Committee to assist it in deciding whether a formal enquiry should be conducted.
8. Since the Committee is empowered to investigate into complaints about registration and declaration of Members' interests under Rule 73(1)(c), the Committee shall proceed with the investigation as soon as it is satisfied that the complaint is related to registration and declaration of Members' interests, and is not based on speculations, inferences or unfounded judgement. Unless requested by the Member under complaint, the meetings/hearings should be held in camera. The Council will only be informed of the misconduct of a Member if the complaint is found to be justified by the Committee. The proposed procedure outlined at the Annex is in line with arrangement for implementing the provisions in Article 79(7) of the Basic Law, proposed by the Committee on Rules of Procedure.
Advice sought
9. Members are invited to give views on the proposed procedure as set out in the Annex and the way forward.
Legislative Council Secretariat
29 March 1999
Annex
THE PROCEDURE OF
THE COMMITTEE ON MEMBERS' INTERESTS
FOR HANDLING COMPLAINTS RECEIVED
IN RELATION TO THE REGISTRATION AND DECLARATION
OF MEMBERS' INTERESTS
The procedure of the Committee on Members' Interests
for handling complaints received
in relation to the registration and declaration of Members' interests
| Convening the first meeting
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| (1) | Upon receipt of a written complaint by the Committee on Members' Interests (the Committee) from a Member or a member of the public (thereafter referred to as "the complainant), who is identifiable, about the registration or declaration of interests of a Member (thereafter referred to as "the Member under complaint"), the Clerk to the Committee (the Clerk) shall forthwith distribute the complaint in the form of a confidential document to members of the Committee (the members) and he shall ask the Chairman of the Committee (the Chairman) to decide within two working days whether a meeting on the matter should be held (in the event of the absence of the Chairman from Hong Kong or the Member under complaint being the Chairman, the Clerk shall seek instruction from the Deputy Chairman; the same principle shall apply in subsequent paragraphs). If the Chairman or the Clerk receives an anonymous complaint, the Chairman shall instruct the Clerk to circulate the complaint to other members in the form of a confidential document for information. However, the Committee will not consider the anonymous complaint.
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| (2) | In deciding whether a meeting should be held to consider the complaint received, the Chairman may decide not to hold such a meeting for the following reasons:(a) the complaint is not related to the registration and declaration of Members' interests;(b) the complaint is merely based on speculations, inferences or unfounded judgements; or (c) other reasons he deems appropriate.
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| (3) | If the Chairman decides that the Committee should meet, he shall instruct the Clerk to arrange for the first meeting to be held within the next seven working days to consider the complaint.
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| (4) | If the Chairman decides not to hold such a meeting and conveys to the Clerk his decision as well his reasons for making such a decision, the Clerk shall inform other members of the Chairman's decision and his reasons. If any member indicates disagreement with the decision in writing, the Clerk shall, by way of a circular, ask the members to forward replies to him within three working days on whether a meeting should be held to consider the complaint. In the event that the Clerk receives replies in which the majority of members indicate their support for holding a meeting, he shall ask the Chairman to fix the date, the time and the venue for the meeting. The first meeting shall be held within the next seven working days.
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| (5) | If the Chairman makes a decision of not holding a meeting and the Clerk does not receive replies from a majority of members indicating disagreement with this decision after the expiry of the three-day deadline since the issue of the circular, the Committee will not take any further action on the complaint.
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| Preliminary consideration
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| (6) | The Committee may hold a meeting or a series of meetings to consider the complaint.
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| (7) | The purposes of such meetings are:
(i) To ascertain the subject of the complaint and the provisions of the Rules of Procedure relevant to the allegations in question; and
(ii) To gather information relevant to the complaint and the allegations in question, such as the dates, amounts of money (if any), persons involved, etc. Such information should not include media reports, information provided by anonymous persons and speculations, inferences or judgements made by individuals.
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| [(8) | The Committee may invite the complainant to attend a meeting to provide information. The Committee may also invite the Member under complaint to attend the meeting to make clarification and to provide information. If the Member under complaint admits all the allegations at this stage, and the Committee is of the opinion that it is able to determine whether the complaint is substantiated and decides that an enquiry is not necessary, the Committee shall report to the Council and make a recommendation as to a sanction to be imposed on the Member under complaint.]
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| (9) | The Committee may decide not to proceed with an investigation if it is of the opinion that the complaint is not substantiated.
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| Investigation
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| (10) | If the Committee decides to conduct an investigation into the complaint, the Committee shall instruct the Clerk to convey the decision to the complainant and the Member under complaint and to provide the Member under complaint with information received in relation to the complaint.
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| (11) | In the course of conducting an enquiry, the Committee may, in accordance with section 9(1) of the Legislative Council (Powers and Privileges) Ordinance (Cap. 382), order any person to attend before the Committee and to give evidence or to produce any paper, book, record or document in the possession or under the control of such person. The Committee may cause witnesses to be examined at a meeting upon oath. The Committee may ask the complainant, the Member under complaint and other persons to confirm upon oath the information and statements they have provided at previous meetings.(12) The Member under complaint shall have the right to give explanation, make clarification and provide information on the subject of the complaints and the related matters.
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The Committee's decision as to whether a complaint is substantiated
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| (13) | If the Committee decides that there is sufficient evidence to show and substantiate that the Member under complaint has provided false information in registering and declaring interests or has failed to register or declare registrable or declarable interests, it shall inform the complainant and the Member under complaint of its decision that the complaint is substantiated.
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| (14) | Upon receipt of the Committee's notification of its decision that the complaint is substantiated, the Member under complaint may make a request in writing to the Committee for a review of the decision within the next seven working days, and he may submit written statements and provide any other information which is unavailable at hearings held earlier. Upon receipt of the written request for a review of the Committee's decision from the Member under complaint, the Chairman shall instruct the Clerk to arrange for a meeting to be held for such purpose within the next seven working days to hear the explanation made by the Member under complaint and to review its earlier decision.
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| (15) | If the Committee is of the opinion that the complaint is substantiated, or it is still of the opinion after the review that the complaint is substantiated, the Committee shall present a report to the Council on the complaint, in which the evidence and its opinion should be set out. The Committee may also make a recommendation to the Council as to a sanction to be imposed on the Member concerned under Rule 85 of the Rules of Procedure.
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| (16) | If the Committee is of the opinion that the complaint is not substantiated, it shall convey the decision to the complainant and the Member under complaint. The Committee may decide whether it should submit a report on this to the Council.
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| Confidentiality Requirement
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| (17) | The evidence taken before the Committee and documents presented to it, or its deliberations and decisions, shall not, except in the case of meetings of the Committee held in public, be disclosed by a member or by any other person before the Committee has presented its investigation report to the Council. Any member who fails to comply with this requirement may be admonished or reprimanded by the Council on a motion to that effect.
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| (18) | Meetings of the Committee, including those at which hearings are conducted, shall be held in camera. However, hearings shall be conducted at meetings held in public if the Member under complaint makes such a request.
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| (19) | The transcript of evidence taken at such hearings shall be published in full and form part of the report of the Committee.
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| Participation of members in the deliberations of the Committee
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| (20) | No member of the Committee shall participate as a member of the Committee in the handling of a complaint or in the meetings of the Committee to deliberate on or inquire into a complaint where the complaint was made by or against him.
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