LC: Speech by SCA in moving the motion for second reading of the Chief Executive Election and Legislative Council Election (Miscellaneous Amendments) Bill 2006
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Following is the speech (English translation) by the Secretary for Constitutional Affairs, Mr Stephen Lam, in moving the motion for second reading of the Chief Executive Election and Legislative Council Election (Miscellaneous Amendments) Bill 2006 at the Legislative Council Meeting this afternoon (March 8):
Madam President,
I move that the Chief Executive Election and Legislative Council Election (Miscellaneous Amendments) Bill 2006 ("the Bill") be read the second time.
The purpose of the Bill is to address, through amending the Chief Executive Election Ordinance, some legal and other issues relating to the Chief Executive (CE) elections to ensure the smooth conduct of the 2007 CE election.
Background and Justifications
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The Chief Executive Election Ordinance is a piece of local legislation that provides the legal framework for conducting the CE election. It needs to be consistent with the relevant provisions of the Basic Law (BL), particularly Annex I of the BL that prescribes the specific method for the selection of the CE.
In October last year, the Constitutional Development Task Force ("the Task Force") put forth a package of proposals for the methods for selecting the CE in 2007 and for forming the Legislative Council (Legco) in 2008. Although the proposed package was supported by the majority of the public and more than half of the Legco Members, in the end it was not endorsed by a two-thirds majority of all Legco Members as required in Annexes I and II of the BL.
As the package was not endorsed by the Legco, in accordance with the Interpretation to the relevant provisions of the BL made by the Standing Committee of the National People's Congress in April, 2004, the current electoral arrangements relating to the two elections will still be applicable. In the circumstances, the 2007 CE election will be held on the basis of the existing arrangements, i.e. the electorate base will remain unchanged.
However, certain amendments still need to be made to the local legislation to address some legal issues identified in the Fifth Report of the Task Force, as well as the situation where only one candidate for a CE election is validly nominated. Further, legislative amendments are necessary to address some other issues relating to the CE election.
Major Provisions of the Bill
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At the Legco Constitutional Affairs Panel meeting on January 16, 2006, I briefed Members on the scope of amendments of the Bill. I would now like to briefly introduce the seven major areas of the Bill and their justifications.
(I) CE By-election
Paragraph 2 of Article 53 of the BL provides that, in the event that the office of the CE becomes vacant, a new CE shall be selected within six months in accordance with the provisions of Article 45 of the BL.
The Bill proposes that if an election for a new term (5-year) CE will be held within six months after a vacancy in the office of the CE has arisen during his term of office, it will not be necessary to hold a by-election. In accordance with Article 53 of the BL, the Acting CE will continue to assume the duties of the CE before the new term CE takes up his office. This arrangement can ensure that the requirement under Article 53 of the BL is fulfilled, and at the same time, avoid holding two CE elections within a short period of time.
(II) Commencement date of the Election Committee
The Bill proposes to provide that the Election Committee (EC) shall be constituted on February 1 in the year in which the term of office of the CE is to expire. Under this proposal, the second EC shall be constituted on February 1, 2007. This arrangement can ensure that the term of the EC will tie in with the 5-year term for the CE and the electoral cycle.
(III) The number of consecutive terms that a new CE returned in a by-election may serve
Article 46 of the BL provides that "[t]he term of office of the CE of the Hong Kong Special Administrative Region shall be five years. He or she may serve for not more than two consecutive terms". The question which arises is whether the remainder term served by a new CE returned in a by-election constitutes a "term" for the purposes of Article 46 of the BL.
Our position is that the BL has clearly restricted the number of terms that a CE may serve to two consecutive terms i.e. not more than 10 years. Therefore, the Bill provides that a new CE returned in a by-election may only serve for one more term after expiry of the remainder term, and that the remaining term is counted as "a term".
(IV) Electoral arrangements in the event that only one CE candidate is validly nominated
According to existing arrangement, if at the close of nominations only one candidate is validly nominated, that candidate shall be declared elected ipso facto as CE. In order to enable members of the EC to fully exercise their voting rights, the Administration has accepted the recommendation of the Task Force that, under the above circumstances, election proceedings shall continue.
The Bill proposes that if only one CE candidate is validly nominated, election proceedings shall continue.
I shall first introduce the relevant electoral arrangements.
(a) When voting, EC members may indicate in the ballot papers either to "support" or "not support" the sole candidate.
(b) The sole candidate shall be returned at the election if the number of "support votes" he obtains constitutes more than half of the total number of valid votes cast.
(c) If the number of "support votes" obtained by the sole candidate falls short of more than half of the total valid votes cast, the candidate shall not be returned at the election, and the election shall be terminated.
(d) Following termination of the election, a new round of nominations and election shall be held within 42 days.
(e) If, at the close of the new round of nominations, there is still only one candidate, election process shall continue. If necessary, the process will be repeated until a candidate is returned.
We understand that there are suggestions that arrangements should be made to ensure finality of the electoral arrangement. After detailed consideration, we consider that such arrangement should not be adopted because of two reasons.
Firstly, the Administration's policy is that if only one candidate is validly nominated, election proceedings shall continue. Any form of arrangement providing "finality" , for example, allowing the sole candidate to be elected ipso facto, will not be consistent with the Administration's policy.
Secondly, with Hong Kong's open and transparent electoral system, if a sole candidate fails to obtain sufficient number of support votes in the first round of polling, it would be reasonable to expect that other aspiring candidates will come forward after the nomination process is re-opened. The chance that there is still only one candidate after the first round of election, or that a sole candidate fails to obtain the required support in the EC in the polling process on successive occasions, should be slim. Hence, we should allow the election to run its course and return a CE through a voting process.
In the unlikely event that there is a need to conduct more than three rounds of polling, election proceedings will take place after July 1. In such a scenario, before a new CE is elected, in accordance with Article 53 of the BL, his duties shall be temporarily assumed by the Chief Secretary for Administration, Financial Secretary or Secretary of Justice in this order of precedence. I have to reiterate that the arrangement under which the duties of a CE will be temporarily assumed by one of the Secretaries is an arrangement made in accordance with the BL. It is not an arrangement whereby the Central Authorities will specially appoint an "Acting CE".
Moreover, the Bill proposes that if the only candidate in an election is determined to be not returned at the election, election petition may be made and judicial review applied for to challenge the determination.
(V) Substantial connection with the District Council, the National Committee of Chinese People's Political Consultative Conference and the Heung Yee Kuk subsectors
In view of the practical difficulties in implementing the "substantial connection" provision and for the avoidance of doubt, the Bill proposes that only individuals who are members of District Councils (DCs), Hong Kong members of the National Committee of the Chinese People's Political Consultative Conference (CPPCC), and the Chairman, a Vice-Chairman or a Councillor of Heung Yee Kuk (HYK) may be members of the relevant EC subsectors.
Individuals who cease to be members of the DCs, or Hong Kong members of the National Committee of the CPPCC, or the Chairman, a Vice-Chairman or a Councillor of HYK will also cease to be EC members. Any such vacancy will be filled following existing statutory arrangements generally applicable for subsector by-elections.
(VI) Technical legislative amendments relating to EC electorate
Although we will not make any changes to the EC electorate base, the Bill proposes to make some technical legislative amendments to reflect changes in the names of the organisations which are eligible to be the electorate of the EC, or the names of umbrella organisations. Organisations and umbrella organisations which have ceased to exist will also be removed.
In addition, the Bill will provide for amendments to reflect changes to the licensing system under the Import and Export Ordinance and changes to the registration system under the Import and Export (General) Regulations for the purpose of delineating the electorate of the Import and Export subsector and the Textiles and Garment subsector respectively.
(VII) Other technical amendments
Other technical amendments include:
Firstly, to provide that the Electoral Registration Officer shall compile and publish an interim register of the members of the EC within 7 days after the results of EC subsector ordinary elections are published, and also a final register of members of the EC on the date when the term of office of the EC commences.
The proposal to compile and publish an interim register will provide a legal basis for appeals to be made against the results of EC subsector ordinary elections, and facilitate aspiring CE candidates to start planning their campaigning activities.
Secondly, to take out all relevant provisions making reference to the first EC, the term of office of which had already expired.
Legislative Timetable
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Madam President, since work for the legislative amendments must tie in with the EC subsector elections to be held in December this year, and the CE election in March next year, the legislative timetable is quite tight. We hope that scrutiny of the Bill can commence early. The Government will work closely with the Bills Committee to facilitate its work.
With these remarks, I hope Members will support the Bill. Thank you, Madam President.
Ends/Wednesday, March 8, 2006
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