LC Paper No. CB(2)1197/98-99
(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 Martin LEE Chu-ming, SC, JP
Hon LEE Wing-tat
Hon Christine LOH
Hon Gary CHENG Kai-nam
Hon Ambrose CHEUNG Wing-sum, JP
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 Emily LAU Wai-hing, JP (Deputy Chairman)
Hon Margaret NG
Hon Ronald ARCULLI, JP
Hon CHEUNG Man-kwong

Members Attending :

Hon Cyd HO Sau-lan
Hon LEE Kai-ming, JP
Hon NG Ching-fai
Hon MA Fung-kwok
Hon CHAN Kam-lam
Hon LEUNG Yiu-chung
Dr Hon TANG Siu-tong

Public Officers Attending :

Item II

Mr Michael SUEN, JP

Secretary for Constitutional Affairs

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)

Item III

Mr Michael SUEN, JP

Secretary for Constitutional Affairs

Mr Robin IP

Deputy Secretary for Constitutional Affairs (2)

Mr Bassanio SO

Principal Assistant Secretary for Constitutional Affairs (5)

Mr James O'NEIL

Principal Government Counsel (Election)

Item IV

Mr Michael SUEN, JP

Secretary for Constitutional Affairs

Mr Clement MAK

Deputy Secretary for Constitutional Affairs (1)

Ms Carol YIP

Principal Assistant Secretary for Constitutional Affairs(3)

Clerk in Attendance :

Mrs Percy MA

Chief Assistant Secretary (2)3

Staff in Attendance :

Mr Jimmy MA

Legal Adviser

Ms Mariana LEUNG

Senior Assistant Secretary (2)7

I. Confirmation of minutes of meetings on 9 and 16 November 1998
(LC Paper Nos.CB(2) 885 and 886/98-99)

The minutes of the meetings held on 9 and 16 November 1998 were confirmed.

II. Electoral arrangements for the 2000 Legislative Council election
(LC Paper No.CB(2)889/98-99(02))

Introduction

2. At the invitation of the Chairman, the Secretary for Constitutional Affairs (SCA) briefed members on the preliminary proposals on the electoral arrangements for the election of the second term Legislative Council (LegCo) in 2000 as set out in the Annex to the Administration's paper. It was proposed that improvements were to be made where necessary, whereas arrangements which had worked reasonably well in the 1998 LegCo election were to be maintained. The proposed new arrangements would be finalised after considering views received from Members and the public.

3. SCA drew members' attention to two proposed new arrangements, namely advance polling and paid election advertisements on TV and radio. He said that a pilot scheme was proposed for setting up of an advance polling station to allow electors who were not able to cast their votes on the general polling day to do so on the advance polling day(s). Prior application for advance polling with justifications was necessary.

4. SCA said that a regulated scheme to allow paid election advertisements by LegCo candidates to be broadcast on TV and radio during a specified period before the election was proposed to be introduced. The broadcasting period was to start from the day immediately after the close of nomination and end before the polling day. SCA explained that paid advertisements through electronic media was not allowed in the past. The proposal was made in response to previous calls for flexibility in the arrangement in view of the need for candidates to reach out to a much larger electorate in the 1998 LegCo election. The preliminary idea was that during the electioneering period, air time for TV and radio advertisements could be bought by candidates and the expenses incurred be construed as election expenses.

5. SCA supplemented that the Administration's initial inclination was to maintain the 1998 election expenses limit for the 2000 LegCo election. The limits were considered adequate to cover any expenses on election advertisements because of the 34 GC lists for the 1998 LegCo election, 8 spent 25% or less than the limit, 10 spent 26% to 50%, 14 spent 51% to 75%, and only 2 spent more than 75%. SCA added that election expenses limits were a matter to be dealt with by way of election-related subsidiary legislation to be introduced into the LegCo in due course.

6. On behalf of the Deputy Chairman who could not attend the meeting, the Chairman requested the Administration to provide information on the declared election expenses of individual lists of candidates in the 1998 LegCo GC elections.

(Post-meeting note: The information provided by the Administration was circulated to members on 24 December 1998 vide LC Paper No. CB(2)939/98-99.)

Term of office of Members

7. Mr CHAN Kam-lam sought clarification on the status of incumbent LegCo Members during the period between the dissolution of the Council on 1 July 2000 and the commencement of the second term of the LegCo in October 2000 if they were required to attend emergency sessions of the LegCo. SCA advised that for emergency sessions convened during the said period, section 11(2) of the Legislative Council Ordinance (Cap. 542) stipulated that "the persons holding office as Members of the Legislative Council during the term of office of the Legislative Council which immediately precedes the beginning of the emergency session shall be deemed to be Members of the Legislative Council".

Paid election advertisements and election expenses limit

8. Some members present expressed concern about the implications of the proposal to allow paid election advertisements by LegCo candidates and the election expenses limits for GC elections. A few members warned of the danger of money politics.

9. Dr YEUNG Sum said that it was important that candidates should be accorded equitable treatment which should not be affected by their financial position. Members of the Democratic Party opposed to the proposal. Mr LEE Wing-tat was of the view that if the proposal was implemented, election expenses would be increased drastically in the long run. He pointed out that the election expenses limit for a single-seat GC was increased from $200,000 in 1995 to $500,000 in 1998. For a 5-seat GC, e.g. the NT West GC, the increase from $200,000 to $2.5 million was already ten-fold. He said that the fact that the majority of the lists of candidates for the 1998 LegCo GC elections spent less than 75% of the election expenses limit implied that the limit was too high. The Administration should consider lowering it. Ms Cyd HO Sau-lan echoed the view that the proposal would put candidates under pressure to spend more. She pointed out that for the 2000 LegCo election, the election expenses limits for GCs which would be allocated an additional seat would automatically be adjusted upward. She considered that $300,000 to be an adequate limit for election expenses for a single GC seat, having regard to SCA's earlier advice that 18 out of 34 lists spent less than 50% of the limit in the 1998 LegCo election. She also expressed concern that candidates might receive different treatment. She pointed out that those with greater financial resources could place more advertisements in the media and might receive discounts and get better air time, but candidates who were less better off might not have such an advantage. Mr LEUNG Yiu-chung expressed concern that the proposal would put independent candidates or political parties with less financial resources at an disadvantage. He also considered that the limit of election expenses should be lowered to encourage more people to participate in the election.

10. In response, SCA clarified that the Administration had no intention to encourage money politics. He said that the Administration's proposal was to maintain the election expenses limits at the same level as those for the 1998 LegCo election. The limits were only meant to be a maximum limit and it was for individual candidates to decide how much he should spend. The proposal of paid election advertisements was put forward with a view to providing greater flexibility for candidates in election campaign under the existing ceiling on election expenses.

11. Mr Ambrose CHEUNG Wing-sum said that while consideration could be given to the Administration's proposal to allow for paid advertisements on TV and radio, it should be considered in the context of a more detailed package including guidelines for candidates as well as broadcasting companies, so as to ensure the effectiveness and equity of the proposed scheme. He suggested the Administration to consider firstly, to set a limit of election expenses which a candidate could spend on TV and radio advertisements; and secondly, to specify a time span within a day during which advertisements relating to electioneering activities would be allowed to be broadcast. This view was echoed by Miss Christine LOH who supplemented that the Administration should consider ways of implementing the proposal in a fair and acceptable way.

12. A few members suggested that the Administration should buy air time collectively and then distribute it equally among independent candidates and political parties at equal prices. Mr CHENG Kai-nam opined that the Government should provide more free air time on TV and radio for candidates to promote themselves during the electioneering period. Mr LEE Wing-tat suggested that the air time assigned to the Government should be used up first. If further air time would need to be bought using public money, the public could be consulted on the matter.

13. SCA explained that paid election advertisements on TV and radio were not meant to replace the Government's assistance to candidates in their election campaign. As in previous elections, the Government would continue to provide two rounds of free mail postage of election material and to organise forums during Government air time on TV and radio for candidates. On some members' worry concerning broadcasting companies' possible differential treatment towards candidates, SCA said that clear guidelines would be issued to candidates as well as broadcasting companies to safeguard against favourable or discriminatory treatment towards individual candidates or political parties. A few members pointed out that advertisements through electronic media, being commercial activities, might not be subject to the monitoring of the Government.

14. Mr SZETO Wah asked how many seconds of advertisements could the amount of $500,000 buy. DS for CA(2) said that the Administration had done some initial survey on the charges of advertisements on TV and radio, and cited for members' reference some advertising rates offered by broadcasting companies during different times of a day. For production and broadcasting of a 10 second shot with 20-30 appearances within a specified period (e.g 30 days) on TV, the peak-hour rate was around $130,000 to $140,000 and non-peak-hour rate $20,000 to $30,000. For radio advertisements, a 30 second production with 20-30 broadcasting time slots within a specified period, the peak-hour rate varied from $20,000 to $ 50,000, and non-peak hour rate at a few thousand dollars. However, in response to the request of the Chairman to provide the information in writing, DS for CA (2) stressed that the figures were for reference only. He further clarified that the Administration could not guarantee that "across the board" prices could be negotiated with broadcasting companies which had autonomy in making such commercial decisions.

15. Mr Martin LEE suggested that, apart from providing free production of standard advertisements for candidates on Government's air time, the Government should also consider allowing candidates to make non-standard productions by themselves and the expenses incurred could be counted towards election expenses. SCA replied that he would consider the suggestion. Adm 16. SCA said that the Administration was merely consulting members on the principle of the proposal and would work out detailed arrangements if the proposal was put into implementation. The Administration would consider members' views expressed at the meeting before finalising its proposals. In response to Mr LEUNG Yiu-chung's question, SCA said that depending on whether the proposal would be implemented, the Administration would consider members' views on election expenses limit.

Adm

Functional Constitutencies (FC) for Urban Council (UC) and Regional Council (RC)

17. Noting the Administration's proposal to replace the UC FC and RC FC by one new FC for the 18 District Councils (DC) and one for the catering sector in the electoral bill for the 2000 LegCo election, Dr YEUNG Sum asked about the timetable for introducing the electoral bill and the bill to abolish the two Municpal Councils (MCs). SCA advised that the former would be introduced in February or March 1999, whereas the latter would be introduced in around April 1999. Dr YEUNG and a few members expressed reservations and concern about the untidy arrangement. Mr SZETO Wah said that procedure-wise, replacement of the UC and RC seats should only be considered after passage of the bill to abolish the MCs.

18. SCA replied that although the bill for the LegCo election 2000 would be introduced ahead of the bill to transfer the authority and functions of the MCs, there would be an overlapping period during which both bills could be scrutinised by Members.

19. On Mr Ambrose CHEUNG Wing-sum's comment that the bill relating to the transfer of authority and functions of the MCs could be dealt with first, while the bill for the 2000 LegCo election could be deferred for passage until the end of 1999, SCA clarified that to allow adequate time for other practical arrangements for the LegCo election to be implemented, the bill would have to be passed before LegCo's summer recess in July 1999.

20. Mr SZETO Wah said that SCA had always assured Members that he had heard and would consider their views, however, the outcome of many past incidents had indicated that the views were always not accepted. SCA explained that it was his responsibility to reflect Members' views to the Executive Council. The Executive Council would take into account the views expressed by Members and other parties concerned before reaching a decision on a matter. He would then explain to Members the decision on behalf of the Government, and put the policy decision into implementation. He added that the Administration had adopted the practice of briefing the Panel on preliminary proposals so that Members' views could be considered at an early stage. Furthermore, in the case of a proposal being implemented by way of legislation, it would require the approval of LegCo.

21. Mr Martin LEE asked, in the event that the bill giving effect to the abolition of the UC and RC could not be passed by the LegCo, whether the Administration would consider retaining one LegCo seat for the two MCs while allocating the remaining seat to the 18 DCs. SCA said that the Administration had not considered this option, but would do so in future if necessary.

22. Miss Christine LOH said that the proposed replacement of the two MC seats by one new FC for the 18 DCs and one for the catering sector was not considered to be a step towards democracy. In view of the broad representation of the DCs, both seats should be allocated to the new FC for the 18 DCs. Dr TANG Siu-tong also questioned the rationale for allocating one LegCo seat for the catering sector. SCA explained that the catering industry had made significant contribution to HK's economy. There are more than 9,000 catering establishments in HK, employing about 200,000 people. It is therefore appropriate to establish a new FC to the catering sector. In response to Mr Ambrose CHEUNG Wing-sum's enquiry, SCA said that in considering the electorate delineation of this FC, reference would be made to the constituents of the Catering Subsector of the Election Committee specified in Table 5 of Schedule II to the LegCo Ordinance. The potential electorate was about 4,800.

23. Referring to the Administration's proposal that the formation method of the Election Committee (EC) was to be the same as that adopted for the first SAR LegCo election in 1998 and the fact that members of the Provisional District Boards were members of the EC in the 1998 LegCo election, Mr Ambrose CHEUNG Wing-sum asked whether members of the DCs would be included as members of the EC for the 2000 LegCo election, given that a new FC had now been proposed for the DCs. SCA replied in the affirmative and explained that the situation was not unique to the DCs. The Chairman asked why members of the Provisional UC and RC were then not included in the EC subsector. Principal Assistant Secretary for Constitutional Affairs (4) explained that the Legislative Council Ordinance had provided that where a person was eligible for both an FC and EC vote, he must cast his vote in the EC. The exception was that voters from the two smallest FCs (i.e UC and RC) must vote in their respective FCs but not in the EC election. Mr CHEUNG asked the Administration to reconsider the arrangement. Advance polling

Adm

24. Mr CHAN Kam-lam expressed concern that if advance polling was allowed to be conducted prior to the general election, results of any polling surveys or mocked polls conducted on the former might affect the outcome of the latter. SCA stressed that it would be against the law to require anyone to disclose which candidate one had voted for. Moreover, opinion survey results would usually be disclosed after the election. Even if such results were disclosed before the polling day, they could be different from the actual election results because an answer indicating vote preference at survey time might differ from the actual vote cast on the polling day.

Voting system

25. Mr LEE Wing-tat questioned how the Administration had arrived at the conclusion that the List Voting System using the Largest Remainder Formula was the fairest and most acceptable among all other voting systems, such as the "multiple seats, multiple votes" and "single seat, single vote" systems. He asked the Administration to provide an analysis and comparison on the mean scores of votes under the different voting systems adopted in past elections. SCA said that he was not so certain about the member's request. In any case, the data relating to previous elections were public information. Interested parties were at liberty to do any analysis on the basis of the information available.

Other related arrangements

26. Mr CHAN Kam-lam asked whether the Administration had studied the feasibility of counting votes immediately after the close of election at polling stations, so as to shorten the time for counting. SCA replied that it would be difficult to monitor vote-counting at about 500 polling stations. The time taken for counting votes at the central counting station might appear to be long, but according to past experience, the results would be ready on the day following the election. In addition, the vote-counting arrangements would be reviewed and improved in the light of practical experience.

Adm

27. Mr Martin LEE raised a number of issues. SCA responded as follows -

On the proposal that the Government should subsidise election expenses incurred by candidates who had secured votes up to a prescribed threshold, SCA said that the Administration had previously considered the proposal inappropriate. However, he agreed that the Administration might reconsider the matter; With respect to automatic registration of voters, SCA said that the Administration had conducted a detailed study. One of the problems identified was that Hong Kong residents had been quite reluctant to report any change of address to relevant government departments, albeit this was a requirement of law. Any automatic registration system would be rendered ineffective if the address of the voter as recorded was not up to date which would result in, among other things, a wrong polling station being assigned. The Administration was considering how to streamline the procedures for the public to report on change of address to the Government for various purposes. In response to the Chairman's comment that the issue had been raised since 1991, SCA assured members that the matter was being actively pursued. The Administration would report any progress made to the Panel in due course;

Adm Adm

3. On the rationale for the allocation of the quota of 12 "foreign national" seats in LegCo to the existing 12 designated FCs (e.g. why the Medical FC was not included), SCA explained that the 12 FCs were selected on the basis that it was likely that they had a larger proportion of foreign nationals than the other FCs. In view of the quota, the Administration was bound to make a choice among the FCs;
   
   
4. On whether the polling time from 7:30 am to 10:30 pm should be shortened following implementation of the advance polling proposal, SCA said that the hourly turnout rates of the 1998 LegCo election had indicated that a longer polling time was appropriate and should therefore be maintained; and

On the proposal that the election day and the day before the election day should be "no canvassing days", SCA agreed to reconsider the desirability of the proposal.	Adm

28. The Chairman concluded that the implications of allowing paid election advertisements through electronic media could be very great. Other than members' views expressed earlier at the meeting, questions such as whether election advertisements could be broadcast jointly by candidates belonging to the same political party but of different GCs or by candidates of different FCs would also need to be addressed. He would also like the Administration to provide more details on the changes proposed to the Corrupt and Illegal Practices Ordinance as stated in paragraph 18 of the Annex to the Administration's paper when the electoral bills were introduced into LegCo.

Adm

III. Review of Sections 15(3) and 40(1)(b)(iii) of the Legislative Council Ordinance
(LC Paper No. CB(2)889/98-99(03))

29. Aftering introducing the paper, DS for CA(2) said that paragraph 8 of the paper proposed to amend section 40(1)(b)(iii) of the Legislative Council (LegCo) Ordinance by deleting the words "would result" and replacing them with "results" in the English text, and deleting from the Chinese text. Subject to members' agreement, the proposed amendment would be incorporated into the electoral bill for the 2000 LegCo election.

30. The Chairman said that apart from the Administration's proposal, another alternative was to delete sections 15(3) and 40(1)(b)(iii) of the LegCo Ordinance which were considered unnecessary. Mr Martin LEE echoed the view of the Chairman and added that the oath taken by a LegCo Member to uphold the Basic Law and to swear allegiance to the Hong Kong Special Administrative Region of the People's Republic of China under BL 104 when assuming office had the same effect as the promissory oath under section 40(1)(b)(iii) of the LegCo Ordinance.

31. DS for CA (2) explained the background of the case. He said that the two sections were added to the Ordinance by way of committee stage amendments to the LegCo Bill put forward by the Administration in response to the request made by the relevant Bills Committee of then Provisional Legislative Council (PLC). The rationale for the amendments was that, within the parameters of the Basic Law, disqualifying conditions which apply to LegCo candidates and to serving Members of the Council should be the same as far as possible.

32. The Chairman said that under the previous electoral laws, the same set of disqualification conditions applied to a LegCo candidate or a serving Member. As some of these provisions were not provided in BL 79, amendments were therefore made to the Bill to ensure their continued application. But he doubted whether the decision made at that time was appropriate.

33. Mr Martin LEE said that the matter had been discussed by the Committee on Rules of Procedure and suggested that the minutes of the relevant meeting(s) be provided for members' reference. The Legal Adviser (LA) advised that the Committee had discussed the broad principles for implementing BL 79(7), but not the policy implications of section 15(3) which was outside its terms of reference.

34. LA said that the LegCo Bill originally introduced by the Administration only specified the circumstances described in BL 79 under which a Member was no longer qualified to hold office. The two sections in question were added to the Bill to address the concern of the Bills Committee. Mr Martin LEE said that he would tend to agree with the original position of the Administration.

35. The Chairman said that the issue would be further considered when the bill providing for the election of the LegCo in 2000 was introduced into the LegCo. He asked the Administration to reconsider the views expressed by members at the meeting.	Adm

IV. Mechanism for amending the Basic Law
(LC Paper Nos. CB(2)889/98-99(04) and (05))

36. The Chairman referred members to Mr LEUNG Yiu-chung's two papers submitted to the House Committee and the relevant extract of minutes of the House Committee meeting held on 20 November 1998.

37. At the invitation of the Chairman, Mr LEUNG Yiu-chung briefed members on the papers. He expressed concern that a mechanism for amending the Basic Law was still not in place even though the Hong Kong Special Administrative Region (HKSAR) had been established for more than a year. Mr LEUNG expressed dissatisfaction that the Administration had not provided any paper on the subject for members' discussion at this meeting.

38. SCA agreed with Mr LEUNG that BL 159 did not specify the detailed mechanism and procedure for proposing an amendment to the Basic Law. He said that the Administration considered that any proposal to amend the Basic Law was a matter of constitutional importance and should be handled with prudence and care. The preliminary study conducted by the Administration revealed that a number of complicated issues had to be fully studied and considered by the parties concerned. He would like to give a verbal report and exchange views with members on the matter at this meeting before proceeding further. SCA advised members that the relevant issues to be studied included -

1. Who or which organisations within the SAR might initiate the process to amend the Basic Law?
   
   
2. How to trigger the process?
   
   
3. What form should the amendment proposal take?
   
   
4. What should be the sequence and timeframe of deliberation by the three concerned parties?
   
   
5. What should be the mechanism for amending an amendment proposal?
   
   
6. How to ensure that the amendment proposal did not contravene the established basic policies of the People's Republic of China regarding Hong Kong?
   
   
7. Should the public be consulted on the amendment proposal?
   
   
8. Was there a need to underpin the process by local legislation? Was it appropriate to regulate by local legislation the manner in which LegCo Members and local deputies to the National People's Congress (NPC) discharge their constitutional duties and responsibilities?

39. Mr LEUNG Yiu-chung expressed concern as to whether the Administration had a timetable in completing the study. Miss Christine LOH said that as the Basic Law had been in force for almost two years, it was high time for a Basic Law amendment mechanism to be worked out.

40. In view of time constraints, the Chairman suggested that the Panel could conduct special meetings to further discuss the subject. Dr YEUNG Sum proposed that a subcommittee under the Panel be set up to follow up on the matter and to solicit views from the academics, legal profession and local deputies of NPC. Members agreed. SCA stressed that apart from the Administration and the LegCo, the views of the local deputies of NPC should also be taken into account by the subcommittee in considering the matter.

41. In response to Mr LEE Wing-tat's request, SCA agreed to set out the salient points made by him earlier at the meeting in writing for further discussion by the subcommittee.

(Post-meeting note: The information was issued to members vide LC Paper No. 954/98-99(02))

42. The Chairman said that a circular would be issued by the Secretariat to invite members to join the subcommittee. The matter would be further discussed at the next Panel meeting.

(Post-meeting note: The Subcommittee held its first meeting on 7 January 1999.)

V. Items for discussion at the next meeting
(LC Paper No. CB(2)889/98-99(01))

43. Members agreed that the following items be discussed at the next meeting to be held on 18 January 1999 -

1. Hon Christine LOH's paper entitled "An open process for community discussion - Background paper on Constitutional Conventions";
   
   
2. Mechanism for amending the Basic Law; and
   
   
3. Relationship between the Executive and the Legislature.

44. At the invitation of the Chairman, Mr Ambrose CHEUNG Wing-sum elaborated on his proposal on item (c) and requested the Administration to provide a paper on the measures taken and to be taken to improve the relationship between the Executive and the Legislature. The Chairman said that during the motion debate on the same subject at the Council meeting on 23 September 1998, the subject of ministerial system of government was also raised. The Administration might as well inform members of its views on the issue.

45. SCA said that the Administration had made continuous efforts in improving the relationship between the Executive and the Legislature. However, the Administration would not consider implementing ministerial system of government in the near future, as stated by the Chief Executive and the Chief Secretary for Administration on many occasions. Mr SZETO Wah requested the Administration to explain "constructive tension", a term which had been used by the Chief Secretary for Administration in describing the relationship between the Executive and the Legislature in the paper to be prepared for the Panel. SCA said that the Administration would try to address this point.

Adm

46. There being no other business, the meeting ended at 4:55 pm.


Legislative Council Secretariat
4 February 1999