Legislative Council

LC Paper No. CB(2)2308/98-99
(These minutes have been
seen by the Administration)

Ref : CB2/PL/CA

Legislative Council
Panel on Constitutional Affairs

Members Present :

Hon Andrew WONG Wang-fat, JP (Chairman)
Hon Emily LAU Wai-hing, JP (Deputy Chairman)
Hon Margaret NG
Hon Ronald ARCULLI, JP
Hon CHEUNG Man-kwong
Hon Ambrose CHEUNG Wing-sum, JP
Hon Christine LOH
Hon LEE Wing-tat
Hon Gary CHENG Kai-nam
Hon Jasper TSANG Yok-sing, JP
Hon Howard YOUNG, JP
Dr Hon YEUNG Sum
Hon Ambrose LAU Hon-chuen, JP
Hon SZETO Wah

Members Absent :

Hon Martin LEE Chu-ming, SC, JP

Members Attending :

Hon Cyd HO Sau-lan
Hon CHAN Yuen-han
Hon NG Leung-sing

Public Officers Attending :

Item II

Mr Robin IP

Deputy Secretary for Constitutional Affairs (2)

Miss Shirley YUNG

Principal Assistant Secretary for Constitutional Affairs (4)

Mr Bassanio SO

Principal Assistant Secretary for Constitutional Affairs (5)

Mr LI Wing

Chief Electoral Officer, Registration and Electoral Office

Item III & IV

Mr Robin IP

Deputy Secretary for Constitutional Affairs (2)

Miss Shirley YUNG

Principal Assistant Secretary for Constitutional Affairs (4)

Mr Bassanio SO

Principal Assistant Secretary for Constitutional Affairs (5)

Clerk in Attendance :

Mrs Percy MA

Chief Assistant Secretary (2)3

Staff in Attendance :

Mr Jimmy MA

Legal Adviser

Mrs Eleanor CHOW

Senior Assistant Secretary (2)7

I. Items for discussion at the next meeting on 17 May 1999
(LC Paper No. CB(2) 1705/98-99(01))

The Chairman suggested and members agreed that the following two items would be discussed at the next Panel meeting to be held on 17 May 1999 -

1. Mechanism for amending the Basic Law; and
   
   
2. Progress of Year 2000 compliance exercise in Government, Government-funded and Government-regulated organisations.

2. The Chairman advised that the House Committee had referred two subjects to this Panel for follow up. Members noted that they had been included in the outstanding list -

1. Designation of Officials to attend LegCo meetings; and
   
   
2. Arrangement arising from Articles 50 and 51 of the Basic Law.

II. Electoral Affairs Commission's proposed Guidelines for 1999 District Councils Election (the 1999 Guidelines)
(LC Paper No. CB(2) 1705/98-99(02))

Limitation on media exposure

3. Mr CHEUNG Man-kwong declared interest as a regular contributor to newspapers. Referring to paragraphs 8.8 and 8.11 of the 1999 Guidelines which proposed to prohibit presenters or regular contributors and columnists who were candidates or members of a political party or organisation whose other members were candidates from appearing in programmes or contributing articles in the print media once the nomination period began, he criticised that such guidelines were unreasonable and would infringe the freedom of expression as provided for under Article 27 of the Basic Law. The guidelines would also be in breach of the spirit of common law by making assumptions that presenters and columnists would give unfair and unequal treatment to candidates or political parties. He considered that prohibition, if any, should be imposed on candidates only.

4. Ms Emily LAU held the view that such prohibition on candidates was acceptable, given that there would likely be role conflict. However, for non-candidates who were affiliated with political parties, consideration should be given to whether the person's livelihood would be affected and whether measures could be taken to prevent the person from promoting a particular party or candidate. Similarly, it was important to have a mechanism to ensure that the media would not promote or prejudice a candidate or a political party. She further said that the timing of prohibition should also be considered.

5. Mr TSANG Yok-sing said that it would be unfair if the guidelines were to apply to non-candidates affiliated with political parties, but not those without political background who could continue to comment favourably on or write in support of a political party or a candidate. He believed that a line should be drawn between candidates and non-candidates regardless of their political links. For non-candidates, the prime consideration should be their right to express views. As regards candidates, different rules should apply to those who were regular columnists or causal contributors. It would be unfair to ask a candidate who relied on the job for income to stop work during the election period.

6. Mr SZETO Wah held the view that the guidelines should apply to the content of an article rather than the background of a columnist. He said that there was no point of punishing someone who only wrote about cooking because he was a member of a political party.

7. The Chairman suggested that alternatively, the guidelines could specify the types of persons to be prohibited from being presenters or columnists during the election period, e.g. candidates, ex-candidates, well-known political figures, office bearers of a political party, etc. Mr LEE Wing-tat saw no reason why any of these persons should be deprived of the right to express their views just because they had participated in politics. He pointed out that there was no evidence indicating that the media had been providing unfair and unequal treatment to candidates and political parties for the LegCo elections in 1991, 1995 and 1998. He said that the EAC had been over-reacting in setting such strict guidelines. He considered that a gag during election should only be imposed on candidates. Miss Christine LOH and Miss Margaret NG did not support the Chairman's proposal either. Miss NG commented that the proposal was not clear and objective. She shared the view of Mr CHEUNG Man-kwong that to restrict freedom of speech during a certain period would contravene the Basic Law.

8. The Chairman concluded that members were of the consensus view that media gag should only apply to candidates. Some members further suggested that any prohibition imposed should have regard to the content of the programmes or articles and take into consideration the occupation of a candidate. Members' major concern was that the guidelines should ensure fair and equal treatment to all candidates and political parties.

9. In response to members, Chief Electoral Officer of the Registration and Electoral Office (CEO/REO) explained that the purpose of the guidelines was to avoid unfair publicity for certain candidates. He welcomed members' comments and undertook to reflect them to the Electoral Affairs Commission (EAC). He assured members that the EAC had no intention to restrict freedom of expression. He informed members that Justice WOO Kwok-hing, Chairman of the EAC, would host a forum in Shatin Town Hall at 2:00 pm - 5:30 pm on 3 May 1999 to listen to public views. The EAC would take into account views of the public and Members before finalising the 1999 Guidelines.

REO

10. Miss Christine LOH asked about the basis for imposing such restrictions on candidates and political parties. CEO/REO responded that the proposal had made reference to the practice in the UK which imposed similar restriction on candidates, though not political parties. In response to a further question from Miss LOH, CEO/REO explained that the reason for extending the restriction to political parties was to ensure fairness. He said that the EAC welcomed comments.

11. Referring to paragraph 8.8 of the Guidelines concerning presenters or regular contributors who were members of a political party or "organisation", Miss Margaret NG pointed out that the meaning of "organisation" was too broad. In reply, CEO/REO said that the word "organisation" in this context should mean political organisations. He would consider to improve the wording. Use of loudspeakers	REO

12. Mr LEE Wing-tat asked why candidates were prohibited from using loudspeakers in electioneering between 7 pm and 9 am. He pointed out that candidates usually finished their electioneering at 10:00 pm. Since some concerts and entertainment programmes were also scheduled in the evening, he held the view that electioneering activities should not be discriminated against. The Chairman added that the use of loudspeakers would create a better atmosphere during electioneering. He asked whether the arrangement would be prescribed in the subsidiary legislation to be made by the EAC.

13. CEO/REO explained that the measure was introduced to minimise noise nuisance to electors, as there were a large number of complaints received during the 1998 LegCo election. He replied negative to the Chairman's question.

Displaying election advertisements in private premises

14. Ms Emily LAU said that Owners Corporations (OC) or management companies (MC) of private buildings did not quite understand their role on the issue. She noted that some of them might not consult the residents on electioneering activities, and might allow some but not all candidates to display election advertisements in the building. She asked how the EAC could ensure that the guidelines for allocating spots for displaying election advertisements in private premises on an equitable basis would be complied with. The Chairman said that in order to be fair to all candidates, OCs and MCs should not allow candidates to post advertisements in their buildings on a selective basis.

15. CEO/REO replied that in the past, EAC had not issued any guidelines on how OCs and MCs should allocate spots for election advertisements. Paragraph 7.18 of the 1999 Guidelines now proposed that OCs and MCs should ascertain all the available spots in the common areas of the building, divide all the available spaces evenly to ensure the candidates would get an equal portion, and allow a candidate to draw lots to obtain a portion of the spots still available at the time of his application. The new procedure would reinforce the fair and equal principle by avoiding unfairness that might be created if the first come first served rule was adopted. However, these guidelines were not legally binding.

16. Ms Emily LAU asked how the EAC would make known the guidelines to the OCs and MCs; whether there was sufficient time to promote their understanding of the guidelines; and if they refused to follow the guidelines, whether there was any channel for them to reflect their views. In reply, CEO/REO said that paragraphs 7.15 - 7.21 of the 1999 Guidelines set out the detailed arrangements in this respect. The Registration and Electoral Office (REO) and the Home Affairs Department (HAD) would organise a series of briefings to familiarise OCs with the relevant guidelines. The Independent Commission Against Corruption would also take part in the briefings. Since the election would take place in November 1999, there should be adequale time to convey the message to OCs. In fact, the HAD had arranged briefings to building management companies and OCs last year and it would continue to do so this year.

17. Miss Margaret NG asked whether there was legal basis for the EAC to require private buildings to comply with the guidelines of allocation of equal slots for election advertisements to candidates, given that an OC, which represented all owners of a building, was at liberty to make decisions on the management and control of the common parts of buildings under the Building Management Ordinance (Cap 344) (BMO). Dr YEUNG Sum and Mr TSANG Yok-sing shared her view.

18. Mr LEE Wing-tat pointed out that resolutions passed by OCs were legally binding, as provided under the BMO. If an OC had passed a resolution to allow posting of election advertisements of certain candidates, he asked whether the relevant guidelines could overide the resolution.

19. In response to members, CEO/REO said that the EAC could only appeal to all OCs and MCs of private buildings to provide equal opportunity to all candidates competing in the same constituency for the purposes of electioneering. If the EAC received a complaint of unfair or unequal treatment of a candidate by an OC or MC, and was satisfied that the complaint was justified, it might publish a reprimand or censure which might include the name of the candidates being treated favourably or unfavourably.

20. Mr LEE Wing-tat said that it would be unfair to reprimand or censure an OC which acted in accordance with resolution. Mr TSANG Yok-sing supported his view. The Chairman said that since the guidelines were not legally binding, he doubted whether the EAC should censure the OC at all. In response to members, Legal Adviser (LA) said that section 6(1) and (3) of the EAC Ordinance (Cap. 541) (EACO) empowered the EAC to issue guidelines on election-related activities and to reprimand or censure any person if it concluded after an investigation that the complaint was genuine.

21. Mr LEE Wing-tat felt that OCs had the right to decide on who should be allowed or disallowed for posting an advertisement in the building, albeit such decision might not be fair. The Chairman commented that this would politicise the role of OCs. Ms Emily LAU said that any resolution passed by an OC should be fair to all candidates. Mr LEE responded that he only wanted to point out that if owners of a building had a strong preference for a candidate, nothing could stop them from making a decision in favour of the candidate. Mr TSANG Yok-sing said that from his experience, most OCs adopted a fair principle, i.e. all or none of the candidates would be allowed electioneering in the building.

22. Miss Margaret NG said that although the guidelines were not legally binding, it had a practical effect on the persons concerned. Reprimand or censure issued by the EAC to any person for not complying with the guidelines would have the consequence of harming the person's reputation. She expressed concern over such an effect and asked whether there was any avenue for redress.

23. In response, LA said that section 14(1) of the EACO provided immunity to the EAC as long as it exercised its authority in good faith. Section 14(2) further provided that for the purpose of the law of defamation, the publication of any matter relating to a complaint made under section 6(3) regarding a reprimand or censure by the EAC should be absolutely privileged. Addressing the question on redress, LA said that section 6(4) required that before the EAC reprimanded or censured any person, it should make a reasonable effort to contact that person and give a reasonable opportunity for that person to make representations to the EAC as to why the reprimand or censure should not be issued. From a legal point of view, since the EAC was exercising its powers conferred by law, its decision could be subject to judicial review.

24. Mr Ambrose CHEUNG was of the view that the guidelines for allocation of spots in private premises were unenforceable and unfair. Unenforceable because decisions of OCs on posting of election advertisements, even if contrary to the guidelines, were made in accordance with the BMO. Unfair because the guidelines deprived the right of OCs to choose and OCs might be reprimanded or censured by the EAC for implementing a decision made under the BMO. Miss Margaret NG said that under the principle of rule of law, the EAC must have legal basis for interfering in the decisions of OCs.

25. In response, CEO/REO said that the EAC would only take action after a complaint was received. As mentioned by LA earlier, the EAC would investigate the complaint and invite the parties concerned to explain their position prior to deciding whether to censure or reprimand the persons concerned.

26. Dr YEUNG Sum said that he believed that the EAC would only appeal to OCs to provide equal opportunity to all candidates, and that the power to reprimand or censure someone would only be invoked on justifiable grounds.

Electioneering in private premises

27. REO/CEO said that paragraph 10.10 of the 1999 Guidelines sought to clarify that within a no canvassing zone, door-to-door canvassing in residential blocks was permitted so long as it did not pose any obstruction to electors and no amplifying device was used.

28. The Chairman asked whether candidates would be accorded equitable treatment in terms of access to a residential building. Miss Margaret NG said that door-to-door visit and allocation of spots for election advertisements were two different issues. The latter involved the use of common areas in a building which was a joint decision of the owners. As for door-to-door canvassing, the decision of whether or not to allow canvassing should rest with individual occupiers and not OCs.

29. The Chairman said that as far as he knew, many OCs would not allow door-to-door canvassing. A person would be allowed access unless he could prove that he was a bona fide visitor. Miss Margaret NG said that an occupier's right to invite visitors to his own flat could not be lawfully restrained by any decision made by the OC. Mr TSANG Yok-sing disagreed and said that it was only practical for OCs to reach a decision on the matter. Otherwise OCs might receive a lot of complaints from occupiers.

30. Dr YEUNG Sum pointed out that despite Miss NG's view, such a practice was adopted by many OCs and MCs. The question was what measures were in place to prevent unequal treatment to candidates in a private building, and how complaints, if any, would be handled.

31. CEO/REO referred members to paragraphs 7.11 - 7.14 of the 1999 Guidelines and said that it was advisable for owners and OCs to invite all the tenants to attend a meeting so that tenants views' would be heard before any decision to allow or deny electioneering activities in the building was taken. Should the EAC receive complaints on unfair and unequal treatment, investigation would be conducted.

32. Ms Emily LAU said that the simplest way was for the OCs to pass a resolution on whether or not to allow electioneering in the building at the beginning of the election period . Mr Ambrose CHEUNG doubted whether such a resolution was legally enforceable, given that OCs could not decide on behalf of a tenant as to whether to receive a visitor, irrespective of whether the nature of the visit was political or personal. He said that a general guideline would not serve any useful purpose. A more practical approach was for OCs to pass a resolution on electioneering by candidates, and to invite tenants who did not support the resolution to notify the OCs so that appropriate arrangement could be made. In response, CEO/REO said that it would be difficult to monitor the activities of a candidate once he was inside a building.

33. Dr YEUNG Sum agreed with Mr Ambrose CHEUNG that a broad brush approach would create problem. He recalled that at the last election, the District offices had provided information on buildings which allowed electioneering. Mr LEE Wing-tat supplemented that some OCs and MCs of buildings which he visited had provided a list of flats that did not want to entertain any approaches by candidates. CEO/REO replied that paragraph 7.30 of the 1999 Guidelines had set out the procedure for OCs and MCs to notify the Returning officers of their decision regarding electioneering activities in the building by candidates. Enquiries might be made with the District Office or sub-offices of the district in which buildings allowing electioneering were located.

34. Ms Emily LAU commented that the guidelines laid down in paragraphs 7.11 and 7.12 regarding decision to be made at a meeting with tenants were too general. She asked whether there were any procedures such as the requirement of a quorum which would ensure that a decision made at the meeting was legally binding. She found paragraph 7.12 confusing. She pointed out that only owners of a building had the right to vote on a resolution. However, paragraph 7.12 indicated that owners and OCs should allow occupiers who were not owners to vote on a motion.

35. CEO/REO replied that individual OCs had their own set of procedures governing the making of a decision at a meeting. The EAC was of the view that as a motion relating to electioneering concerned the rights of tenants and occupiers other than those of owners, it was advisable for them to be allowed to vote. He assured members that the REO and the HAD would brief and consult the OCs and MCs on the arrangements.

36. Ms Emily LAU asked whether OCs and MCs had been consulted on the procedure prior to the drafting of the 1999 Guidelines and whether changes could be made to it. On the first question, CEO/REO replied in the negative as the procedure had been in place for some years. On the second question, CEO/REO said that the 1999 Guidelines served to provide general principles for the public to follow, and he expected that no substantive changes would be made to it after consultation. Ms LAU commented that it would appear that the EAC would not pay much regard to public views.

Amendments to the EAC Guidelines

37. In response to Mr LEE Wing-tat on whether the EAC Guidelines was subject to amendments by the LegCo, LA advised that no procedure was provided in law to allow the LegCo to amend the EAC Guidelines. However, procedures governing electoral arrangements made under section 7 of the EACO were subsidiary legislation. The EAC Guidelines had to comply with the relevant provisions of the principal Ordinance and its subsidiary legislation.

38. In response to the example quoted by Mr LEE about the size of an envelope for election advertisement, CEO/REO said that there would be a regulation setting out the specification of an envelope. It was possible for the LegCo to amend the regulation if it did not agree to the specification. After the amended regulation was passed, the EAC would amend the relevant guidelines accordingly. He advised that the EAC would soon formulate a set of procedural regulations for the election of the District Councils.

39. Mr CHEUNG Man-kwong said that some guidelines were binding and some were not. For instance, free postal service would not be made available to candidates whose envelope did not conform to the specification. He asked whether it was possible to amend section 6 of the EACO to the effect that the EAC Guidelines should be passed as subsidiary legislation. Under the circumstances, all the guidelines for election-related activities would require the scrutiny of the LegCo. LA responded that section 6 could only be amended to that effect by way of an amendment bill.

40. Dr YEUNG Sum acknowledged that Members and political parties might have different views on some guidelines which were controversial. He pointed out that the original intention was that election-related guidelines should be prepared by an independent body to ensure that there was fair and equal treatment to all candidates. Against this background, the EAC, an independent statutory body chaired by a Judge of the High Court, was established to supervise election activities. He considered it undesirable for the Guidelines to be subject to scrutiny of the LegCo. The Chairman agreed that it would be unwise to interfere in the affairs of the EAC.

41. Mr CHEUNG Man-kwong said that there were limits as to what should be interfered and what not. If the EAC Guidelines contravened the Basic Law, he saw no reason why it should be accepted.

Demand notes

42. Ms Emily LAU was pleased to note that demand notes for the removal costs of election advertisements would be issued by relevant authorities to the candidates concerned within 21 days after the election results had been published in the Gazette.

Use of a chop on ballot papers

43. Referring to paragraph 3.61 of the 1999 Guidelines which required electors to mark ballot papers with a chop bearing a tick, majority of the members present at the meeting considered that the new measure was too strict. They pointed out that electors were already accustomed to writing a tick, and discounting ballot papers with a hand-written tick which clearly indicated the preference of electors was unfair. They did not agree that the proposal would help reduce the amount of questionable ballot papers, given that some electors might place the chop on an inappropriate space or apply the chop several times on the ballot paper.

44. CEO/REO assured members that there would be wide publicity to promote the use of a chop. The EAC was confident that the amount of invalid ballot papers would be reduced as electors would be given clear instruction.

III. 1999 District Councils election : election expenses limit
(LC Paper No. CB(2) 1705/98-99(03))

45. DS for CA advised that the new election expenses limit was proposed at $45,000, the same level for the 1994 District Board elections. The limit did not restrict the way in which a candidate ran his campaign. Candidates were free to spend as much or as little as they liked on any items they wanted, provided the overall election expenses stayed within the prescribed limit. A sample calculation on the detailed breakdown of expenses was provided in Annex to the paper.

46. In response to Ms Emily LAU, DS for CA said that candidates of the 1994 District Board elections generally considered that the expenses limit was acceptable.

47. Referring to the Annex, Mr Ambrose CHEUNG questioned whether the figures used were realistic. He pointed out that Wo Che Estate had a population of about 23 000, but the number of handbills, sample ballot papers and pamphlets under items 4-6 (i.e. 4 900, 4 900 and 19 600 respectively) was not enough to reach each and every electors, not to mention that these promotional leaflets would have to be distributed again on the election day.

48. DS for CA said that since the population size of constituencies for the coming election was similar to that for the 1994 District Board election, the list of expenditure items used in 1994 was updated to arrive at an estimate for the 1999 District Council election. Wo Che Estate was the largest constituency according to the EAC's provisional recommendations on the 1999 District Council boundaries. Given that the population size of a constituency would normally be larger than the actual number of registered electors, the quantity of handbills and pamphlets should be adequate for one round of posting and distribution on the election day. As for sample ballot papers, they would be distributed on the election day only. He reiterated that the list of expenditure items in Annex to the paper were drawn up with reference to those used in the 1994 District Board elections.

IV. 1999 District Councils election : subscribers and election deposit for nominations
(LC Paper No. CB(2) 1705/98-99(04))

49. DS for CA briefed members on preliminary proposals for the 1999 District Council elections as follows -

1. 10 subscribers would be required for a nomination;
   
   
2. A subscriber must be a registered elector in respect of the constituency which the candidate was contesting, and he would be allowed to subscribe to only one nomination paper;
   
   
3. The amount of election deposit required for nomination was $3,000; and
   
   
4. The threshold for forfeiture of election deposit was 5% of the valid votes in the relevant constituency.

50. In response to Ms Emily LAU, DS for CA said that there were a total of 757 valid nominations in the 1994 District Board elections. The election deposits of 15 candidates were forfeited, which represented only 2% of the total number of candidates.

51. The meeting ended at 4:35 pm.


Legislative Council Secrtariat
16 June 1999