Speech by the Secretary for Constitutional Affairs on the Resumption of the Second Reading Debate of the Chief Executive Election Bill in the Legislative Council held on 11 July 2001
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LC: Resumption of second reading debate of the Chief Executive Election Bill
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Following is the speech by the Secretary for Constitutional Affairs, Mr Michael Suen delivered at the resumption of the second reading debate of the Chief Executive Election Bill in the Legislative Council on 11 July 2001.
Madam President,
The Administration owes the resumption of the second reading debate of the Chief Executive Election Bill today entirely to the support and cooperation of Members of this Council. A Bills Committee was immediately set up in the Legislative Council (LegCo) to consider the Bill after the Administration submitted it to the LegCo on March 14. May I express my deepest gratitude for the 30-odd members who have joined the Bills Committee, without whose efforts the examination of the Bill would not have been completed successfully.
A total of 15 Bills Committee meetings were held, of which 13 were held to examine the contents of the Bill, while two were held to collect public opinion. The Bills Committee has put forth a lot of valuable advice when examining the Bill. We have adopted most of the proposals in order to improve the Bill. As regards the collection of public opinion, a total of 80 organizations or individuals have put forth to the Bills Committee their views, most of which are in favour of the proposals in the Bill.
I would like to conclude and respond to several major topics which have been discussed by the Bills Committee.
(I) Election Committee (EC)
Annex I to the Basic Law provides that the Chief Executive shall be elected by a broadly representative EC. Annex II to the Basic Law clearly provides that the EC, which is responsible for returning 6 members of the Second Legislative Council (LegCo), refers to the one provided for in Annex I of the Basic Law. The meaning of the Basic Law is clear and unambiguous. The Bill thus provides that the EC formed on 14 July 2000, which is responsible for returning 6 members of the Second LegCo in September 2000, will also be responsible for electing the Chief Executive (CE) in 2002. Therefore, disregarding those members who have died, resigned or have been disqualified for registration as voters of LegCo Geographical Constituencies (LegCo GC), all serving members are members of the EC formed for the first time under the Bill.
According to the original proposal under the Bill, if a member of the EC first acquires his EC membership through election by the relevant subsector or nomination by the religious subsector, and subsequently becomes an ex-officio member by virtue of other relevant elections, he may choose to give up his elected or nominated EC membership by tendering a resignation to the Electoral Registration Officer (ERO) under clause 3 of the Schedule to the Bill. Pursuant to the arrangement under clause 5 of the Schedule, the Electoral Affairs Commission will arrange for a subsector by-election or supplementary nomination to fill the vacancy. Under our proposed arrangement, the onus is put on the EC member himself, leaving it to him to decide whether or not to relinquish his elected or nominated membership.
However, we have decided to accept the suggestion of the Bills Committee after careful examination. Relevant EC members will be required to give up his elected or nominated membership and the vacancy arising therefrom will be filled by election or nomination.
I will therefore later move an Administration CSA to propose that once an elected or nominated EC member becomes an ex-officio member, he will be deemed to have resigned from his membership in the relevant subsector.
(II) Polling Date
As originally proposed in the Bill, if the term of the serving CE expires, the CE shall appoint a date within six months before the expiry of his term as the polling date. In the event that the office of the CE becomes vacant, the Acting CE shall appoint a date within six months after the vacancy arises as the polling date. If the CE election fails, the Electoral Affairs Commission shall be authorized to appoint another polling date. If the CE elect cannot assume office, the CE or the Acting CE shall appoint another polling date.
In scrutinizing the Bill, the Bills Committee was of the view that the appointment of the polling date for the CE election should not involve any discretion. In addition, the polling date should preferably be a Sunday to facilitate voters. We consider that the views of the Bills Committee are acceptable. After much discussion, we have reached a consensus with the Bills Committee and agreed that a consistent method would be adopted to appoint the polling date for the CE election under all circumstances. I will put forward amendments during the Committee Stage later and fully explain the details of the amendment.
(III) Vacancy in the Office of the CE
Before expounding on this matter, I would like to take this opportunity to respond to one or two questions raised by the Hon. Martin Lee and the Hon. Cheung Man-kwong just now with respect to this matter. Yesterday, the Hon. Martin Lee sent me a letter. I have responded to the points raised in his letter and I do not intend to make any further remarks here as I believe I have made myself very clear in my response. As to the question raised by the Hon. Martin Lee and the Hon. Cheung Man-kwong on whether I have exchanged views with or consulted the CPG with regard to the matter of a vacancy in office, my answer to that question is simple and clear -- I haven't.
The purpose of Clause 4 of the Bill is to reflect all circumstances under which the office of the CE becomes vacant so that steps can be taken by the Acting CE to activate the mechanism stipulated in Clause 5 of the Bill for the election of a new CE. It was originally provided in Clause 4(c) of the Bill that the office of the CE becomes vacant if the CPG revokes the appointment of the CE. While scrutinizing the Bill, the Bills Committee was of the view that the Administration should spell out under Clause 4(c) the circumstances under which the CPG could remove the CE from office (by virtue of powers conferred on it under the Basic Law), thus rendering the office of the CE vacant. The Bills Committee has considered the issue in detail and openly consulted the opinion of the legal profession.
At the meetings of the Bills Committee, I have emphasized time and again that clause 4 of the Bill is not an enabling provision. It neither confers, nor is it empowered to confer, additional powers on the CPG to remove the CE from office. The purpose of clause 4 of the Bill is ensuring that all circumstances under which the office of the CE will become vacant are covered rather than setting out chapter and verse each of these circumstances. Therefore, the original clause 4(c) of the Bill made no attempt to set out all the circumstances.
Here I would like to reiterate that clause 4 of the Bill does not touch on the source and scope of the CPG's power to remove the CE from office. However, as quite a number of Members mentioned this point when they spoke, I would like to take this opportunity to put the Administration's position on record.
As I have said repeatedly at the meetings of the Bills Committee, the CPG's power to remove the CE from office flows from the Basic Law. Although no such expression as "the removal of the CE by the CPG" appears in Articles 52 and 73(9) of the Basic Law, Article 73(9) of the Basic Law does mention "report it to the CPG for decision". In this regard, the Bills Committee accepts the Administration's view. It agrees that under this provision, it can be reasonably deduced that the CPG could remove the CE from office in accordance with certain provisions of the Basic Law.
Members may recall that when the Bill was scrutinized, the Administration was of the view that apart from Articles 52 and 73(9) of the Basic Law, the CPG could remove the CE from office under other circumstances in accordance with the Basic Law. As regards this issue, the Bills Committee requested the Administration to set out in detail all the circumstances under which the CPG could remove the CE from office in accordance with the Basic Law.
At that time, we cited the two examples of the CE becoming physically or mentally incapable of carrying out his duties but the very impairment renders him/her incapable of resigning and the situation in which his/her whereabouts could not be ascertained to illustrate that the CPG could remove the CE from office in circumstances other than those prescribed in BL 52 and 73(9). We believed that under such circumstances, the CE would be incapable of resigning and that the LegCo would not have the basis to impeach the CE. The views of the Administration were accepted by the Bills Committee and the Committee also agreed with us that consideration should be given as how to Clause 4(c) should be amended so as to cater for all possible circumstances.
Later, the Administration and certain members of this Council held distinctly different views when further considering the issue. The main reason was that we believed there were other unforeseeable circumstances that might lead to a vacancy in office. Therefore, it was necessary to incorporate a catch-all provision in Clause 4 of the Bill to ensure that the Bill will work under all circumstances and is able to cater for all possibilities. However, the proposal of the Administration was criticized by members of this Council and aroused a host of questions relating to the CPG's power to remove the CE from office. Some members even linked the controversies with HK's high degree of autonomy.
Madam President, I have to stress that these worries concerning "a high degree of autonomy" are totally unfounded. "One country, two systems; a high degree of autonomy" are the basic policies of the People's Republic of China regarding Hong Kong. In the Sino-British Joint Declaration, the CPG clearly states that the Hong Kong Special Administrative Region enjoys a high degree of autonomy, and that the Hong Kong Special Administrative Region will be vested with executive, legislative and independent judicial power, including that of final adjudication, except in foreign and defence affairs which are the responsibilities of the Central People's Government. The Basic Law also expressly provides that the HKSAR enjoys a high degree of autonomy. The Central People's Government clearly states in the Preamble of the Basic Law that it will implement the principle of "one country, two systems". Article 2 of the Basic Law provides that the Hong Kong Special Administrative Region exercises a high degree of autonomy and enjoys executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of the Basic Law. Article 12 of the Basic Law also provides that the Hong Kong Special Administrative Region shall be a local administrative region, which shall enjoy a high degree of autonomy. Therefore, a high degree of autonomy is expressly safeguarded by the Basic Law. It is impossible, allow me to repeat, impossible for any provisions of the Chief Executive Election Bill to have any impact on the high degree of autonomy of Hong Kong. Nor will any of these provisions affect the high degree of autonomy of Hong Kong in the slightest degree. In these four years after the reunification, the CPG has steadfastly implemented "one country, two systems", which is a fact obvious to all. We need not and should not be affected by these disputes over unfounded matters.
We understand that the wording of the amendments we proposed in the Committee stage might, out of context, give Members a wrong impression that the Bill is attempting to deal with an issue that needs not be tackled at present.
We have therefore considered over and over again how different requirements of Members could be met satisfactorily. During this period, we have also repeatedly studied several amendment proposals put forth by Members and the various sectors.
Having carefully considered all the viewpoints, we agree with the views of the majority, i.e. it is unnecessary for the Bill to deal with the issue of the circumstances under which the CPG has the power to remove the CE from office. The dispute is unnecessary under the existing circumstances. As Clause 4 of the Bill is only of a declaratory nature and not an enabling provision, it will not, in the slightest degree, affect the power of the CPG to remove the CE from office under the Basic Law irrespective of its way of expression. Therefore, we conclude that it is not necessary to list out in the Bill the circumstances under which the CPG removes the CE from office. As such, we have now decided to propose another amendment. I would put forward our amendment in the Committee Stage later on and would expound in detail the significance of our amendment and the reasons why we disagree with the two amendments proposed by Members.
(IV) Eligibility criteria for running in the CE election
The CE Election Bill proposes to allow members of political parties to run in the CE election, but such candidates have to declare that they stand in their individual capacities. Only when a member of a political party is elected will he be required to make a statutory declaration in public within seven working days after he is elected that he will no longer be a member of any political party, and undertake in writing that he will not become a member of any political party or be bound by the discipline of any political party during his term of office. As I expounded in moving the second reading of the Bill on 14 March 2001, this is to ensure that the CE must be impartial and always act in the overall interests of Hong Kong. It is necessary and appropriate to require the CE to resign from his political party in the light of the current stage of our political development. The legal advice which we have obtained confirms that the proposal is in compliance with the freedom of association guaranteed by BL 27 and article 22 of the International Covenant on Civil and Political Rights.
We will also move an amendment during the Committee Stage to specify that a person is disqualified from being nominated as a candidate forever, instead of for a period of five years as proposed in the Bill, if he is or has been convicted of treason or sentenced to death.
(V) Nomination
As proposed in the Bill, within seven days after the close of nominations, the Returning Officer shall declare by notice in the Gazette the names of the validly nominated candidates and, for each of these candidates, the names of the EC members subscribing to his nomination form. Some Members were worried that making public the names of subscribers might exert pressure on some EC members and thus proposed that the Government should re-consider the arrangement concerned. Although we appreciate the Members' worries, it has been a well-established feature of our local elections that the names of the subscribers to candidates are made available for public inspection and this has been widely accepted by the public. Taking the organizations and individuals putting forward their views to the Bills Committee as examples, most of them support making public the names of subscribers. In view of the need to maintain transparency and the importance of the CE election, it is proposed that, in addition to public inspection, the Returning Officer should also publish the subscribers' names in the Gazette.
(VI) Withdrawal of Candidature
As originally proposed in the Bill, a candidate is allowed to withdraw his candidature on or before the last working day before the polling date. The Bills Committee considered that the proposal was unnecessary and might lead to problems. As such, the Committee suggested that CE election candidates shall be forbidden to withdraw after the close of the nominations, i.e. a candidature can only be withdrawn before the close of the nominations. We are agreeable to the suggestion made by the Bills Committee and will submit the Committee Stage Amendments later.
(VII) Death or disqualification of candidate
It is originally proposed in the Bill that even if a candidate has died or is disqualified after the nomination period, the election shall proceed with the remaining candidates. If there is only one remaining candidate, he/she shall be elected ipso facto. The Bills Committee opined that such an arrangement might be unfair under certain circumstances. Having taken into account the views of the Committee and after detailed studies, we are going to move a Committee Stage Amendment later to propose that, if any candidate has died or is disqualified after the close of nominations but before the declaration of election result, the CE Election will be terminated. The Administration will re-open nomination immediately and a new round of voting will be conducted on the first Sunday 42 days thereafter.
(VIII) Maximum Scale of Election Expenses
Although the Bill does not provide for the maximum amount of election expenses, the Bills Committee considers that the issue of election expenses is an important part of the CE election and has therefore held a discussion on it.
At present, the Elections (Corrupt and Illegal Conduct) Ordinance authorizes that regulations on the various levels of elections in Hong Kong, including the CE election, can be made by the CE-in-Council to specify the maximum amount of election expenses. These regulations have to be introduced to the Legislative Council for deliberation by the negative vetting procedure. In consultation with and with the approval of the Bills Committee, we propose that the same approach be adopted so that, pending the approval of the Bill, the relevant regulations will be introduced to the Legislative Council for deliberation as soon as possible in order to set a maximum amount of election expenses for the CE election.
Finally, I would like to reiterate that the purpose of the Bill is to provide, through local legislation, for the CE election and for matters relating to or consequential upon such election. In drafting the Bill, we have relied on the provisions and principles of the Basic Law and made reference to the rules governing the first CE election as well as the well-established practices in the Legislative Council and District Councils elections. In addition, on completion of the scrutiny of the Bill by the Bills Committee, we will propose Committee Stage Amendments to further modify the provisions. As such, we firmly believe that the Bill will be consistent with the provisions of the Basic Law and in line with Hong Kong's actual circumstances, thus laying a firm foundation, insofar as local legislation is concerned, for the CE election.
Madam President, I appeal to Members to support the second reading of the Chief Executive Election Bill. Thank you.
End/Wednesday, July 11, 2001
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