ELECTORAL AFFAIRS COMMISSION (REGISTRATION)(ELECTORS FOR FUNCTIONAL CONSTITUENCIES) (VOTERS FOR SUBSECTORS) (MEMBERS OF ELECTION COMMITTEE) (LEGISLATIVE COUNCIL) (AMENDMENT) REGULATION 2001
LEGISLATIVE COUNCIL BRIEF
Electoral Affairs Commission Ordinance (Cap. 541)
ELECTORAL AFFAIRS COMMISSION (REGISTRATION)
(ELECTORS FOR FUNCTIONAL CONSTITUENCIES) (VOTERS FOR SUBSECTORS) (MEMBERS OF ELECTION COMMITTEE) (LEGISLATIVE COUNCIL) (AMENDMENT) REGULATION 2001
On 27 September 2001, the Electoral Affairs Commission (“EAC”) made the EAC (Registration) (Electors for Functional Constituencies) (Voters for Subsectors) (Members of Election Committee) (Legislative Council) (Amendment) Regulation 2001 (“the Amendment Regulation”) which seeks to amend the EAC (Registration) (Electors for Functional Constituencies) (Voters for Subsectors)
(Members of Election Committee) (Legislative Council) Regulation (“the principal Regulation”) to provide for the detailed arrangements for the registration of voters for the subsectors (“SSs”) and members of the Election Committee (“EC”), and for the publication of the registers and omissions lists for the SS and EC to tie in with the provisions of the Chief Executive Election
Ordinance (Cap. 569) (“the Ordinance”). The Amendment Regulation is at Annex A.
2. The principal Regulation provides for the procedural arrangements for the registration of electors for the functional constituencies (“FCs”). It also provides for the registration of members for the EC and voters for its SS for the second Legislative Council (“LegCo”) general election held in 2000 in accordance with the requirements laid down in the LegCo Ordinance (Cap. 542)
(“LCO”). The provisions in the principal Regulation include -
(a) the format of the electoral registers for FCs, SSs and the EC;
(b) procedures for registration by applications or by notification;
(c) procedures for the compilation of the provisional registers (“PRs”) and final registers (“FRs”) and omissions lists;
(d) procedures for appeal; and
(e) offences and penalties.
3. Pursuant to the Ordinance, the current EC constituted on 14 July 2000 will return the second term Chief Executive (“CE”) in addition to being responsible to electing a LegCo Member in a by-election should a vacancy arise among the 6 Members elected by the EC during the second term of the LegCo. The provisions relating to the constitution of the EC, the registration of EC
members and voters for its SS, have been transplanted, with revisions, from Schedule 2 to the LCO to the Schedule of the Ordinance.
4. The Ordinance has introduced a number of changes to the existing arrangements on registration. For example, the Electoral Registration Officer (“ERO”) must compile and publish an EC PR, an omissions list and an FR in respect of the EC under certain circumstances. Appeals to the Revising Officer may be made against the decisions of the ERO.
5. The major amendments made to the principal Regulation as a result of the enactment of the Ordinance, and certain improvements to the existing registration procedures are set out in the following paragraphs. Section numbers in those paragraphs, unless otherwise stated, are those of the principal Regulation.
THE AMENDMENT REGULATION
(A) Amendments consequent upon changes introduced by the Ordinance
Title of the Regulation
6. The title of the principal Regulation is revised to read “EAC (Registration) (Electors for LegCo FCs) (Voters for EC Subsectors) (Members of EC) Regulation”. The new title reflects more accurately the expanded scope of the principal Regulation relating to SS voters and EC members for the purpose of the CE election.
Constitution of EC under the Ordinance
[Sections 2(1), 4(1) and (2), 9(2)(c) and (d), 11(1)(d) and (6), 16(6), 20(7), 22(1)(a)(ii)(B), 31(2), 34(3), 37(1), (2) and (3), 38(6), 39(5), 41(5), and 42(9) and (10)]
7. All references to provisions of the LCO in the principal Regulation regarding the constitution of the EC are replaced by relevant provisions of the Ordinance.
Compilation and publication of SS PR, omissions list and FR
[Sections 15(1)(e), 18(1) and (2), 21(7A), 22(1), (2) and (5), 23(1) and (3), 24(1)(b), (4)(b) and (6), 25(1)(a) and (2)(aa) and (a), 26(2), (3) and (5), 28, 29(1)(c), (3)(ab) and (b) and (6), 33(4)(a)(iv) and (b), (6), (7)(a), 34(1)(a), (b) and (c), (2)(a), 38(1) and (6)]
8. The principal Regulation provides for the procedures for the ERO to compile and publish the SS PR, omissions list and FR only for 2000 but not subsequent years. Under section 14 of the Schedule to the Ordinance, the ERO must compile and publish an SS PR and FR not later than 30 November 2001 and 14 December 2001 respectively. An omissions list will be published together with a
PR. After 2001, an SS PR and its omissions list will be compiled and published on a yearly basis following the existing registration cycle for FCs. The principal Regulation is amended to reflect these arrangements beyond 2000. The statutory deadlines concerned are shown under columns (F) to (H) of items 10 and 16 of the table in Annex B.
9. Section 49 of the Schedule to the Ordinance contains the savings and transitional provisions to roll over the electoral roll of the 2001 FC FR and/or the 2000 SS FR to form the basis of an SS PR for 2001. After 2001, compilation of subsequent SS PRs will be based on the existing SS FR as provided for in section 14(3) of the Schedule to the Ordinance.
10. Sections 15(1)(e) and 18(2) of the principal Regulation have provided for the ERO to register in the 2000 SS register, by means of notification, those FC electors who were yet to be so registered. This was to comply with the requirement of section 8(7) of Schedule 2 to the LCO that a person who was registered as an FC elector must also be registered as a SS voter. This
requirement is now provided under section 12(10) of the Schedule to the Ordinance. With the roll-over arrangements mentioned in paragraph 9 above and the yearly compilation of SS register that follows the existing registration cycle for FCs thereafter, these two provisions become spent and can be repealed. However, in order to deal with a person who has applied for registration as
an FC elector but not as a SS voter, a new section 21(7A) is made to enable the ERO to register such a person in the corresponding SS if the person is eligible for the registration under application.
11. In order to compile an omissions list for SSs not later than 30 November 2001, an inquiry procedure that is to be carried out in the same manner as that for FCs is provided for. The statutory deadlines concerned are shown under columns (F) to (H) of items 5 and 6 of the table in Annex B.
Compilation and publication of EC PR, omissions list and FR
[Sections 24(3A), (4)(c), 25(1)(a) and (2)(aa), 28A, 29(1)(d), (2), (3)(ab), (4) and (7), 37 and 39(1)]
12. Under section 4 of the Schedule to the Ordinance, the ERO is required to compile and publish an EC PR not later than 30 November 2001, and thereafter, within 14 days after the making of a declaration as to the existence of a vacancy in the office of the Chief Executive or among the six Members of the LegCo returned by the EC. Under subsection (4) of that section, the EC PR is
to be compiled by striking out the names and other relevant particulars of the persons whom the ERO is satisfied, on the relevant date, on reasonable grounds as being dead, having resigned, or being deemed to have resigned from the EC, or having ceased to be registered or eligible to be registered as an elector for a geographical constituency. The name and other relevant
particulars of these persons will be entered into an omissions list to be published together with the PR.
13. Provisions to give effect to the above requirements are added to part V of the principal Regulation. The detailed arrangements for the compilation, publication and public inspection of the register and omissions list follow the existing practice for the geographical constituency and FC registers.
ERO may accept applications and notices of appointment of ARs for registration in subsectors
[Sections 19(1)(a) and (6), and 20(2)]
14. Under section 14(4)(c) of the Schedule to the Ordinance, the ERO may add to the SS PR the names and relevant particulars of those persons who have applied for registration since a date to be specified in the EAC Regulation.
15. Since the existing provisions in the principal Regulation only deal with applications or notices of appointment of ARs for registration in a SS which were received on or before 16 March 2000, the principal Regulation is amended to deal with applications and notices of appointments of ARs received after that date. In order to allow sufficient time for compiling a SS PR for
2001, 16 October 2001 is made to be the closing date for receiving applications. In subsequent years, the deadlines regarding registration of voters for SSs would be the same as that for FCs. The arrangement for processing these applications would be the same as that prescribed in the existing regulation. The statutory deadlines concerned are shown under columns (F) to (H) of
items 2 to 6, 8 and 9 of the table in Annex B.
Appeal procedure for SS PR, EC PR and Omissions lists
[Sections 30(1)(b), (2)(ib) and (5), 31(3), (4), (8)(ab) and (b), (9) and (10), 32(2) and 36(5), and 37(1A), (1B), (4) and (5)]
16. The appeal procedure stipulated in the principal Regulation is applicable to the SS PR and omissions list for 2000 only. In the light of section 48 of the Schedule to the Ordinance under which a person is given a right to appeal to the Revising Officer against the decisions of the ERO, the principal Regulation is amended to provide appeal procedures in respect of registration
in the SS and EC registers to be published beyond 2000. The statutory deadlines concerned are shown under columns (K) and (L) of items 11, 12, 14 and 15 of the table in Annex B.
(B) Amendments for general improvements and streamlining procedures
ERO to correct entries in EC registers
[Sections 26(2), (3) and (5), 33(1), (4)(a)(v), (6), (7)(b), and 34(1)(a), (b) and (c) and (2)(a)]
17. Particulars contained in an EC register may become outdated since its publication. The principal Regulation is amended to provide that a member of the EC may make a written request to alter his/her entries in an EC register in the same manner as that for SSs or FCs provided in sections 26, 33 and 34 of the principal Regulation respectively. The statutory deadlines concerned
are shown under columns (K) to (L) of items 8 and 13 of the table in Annex B.
Form of notifications
[Sections 12(3) and (4)]
18. Under section 12(3) of the principal Regulation, a notification must contain the name and identity document number, and also specify the sex of the person to whom it is to be sent. We consider that the information regarding the identity document number and sex of a person are not essential for the purpose of notification, as it is extremely rare that two persons bearing the
same name reside at the same registered address. In order to better protect the personal data of electors in the process of sending notifications by mail, section 12 is amended to dispense with the requirement to include the identity document number and sex of the recipient of the notification.
Deadline for corporate electors to respond to inquiries
[Sections 24(1)(i), (ii) and (iii), (3), (5)(a) and (7)]
19. Under section 24(1)(i)(A) of the principal Regulation, the deadline for a natural person to respond to an inquiry is 16 March. The ERO has been making inquiries to both natural persons and bodies by using the same deadline, though no particular deadline is specified in the regulation for a body to respond to an inquiry sent to it. For the sake of clarity, section 24 is amended
to stipulate the same deadline of 16 March for bodies.
Handling of Notices of Appeal
[Sections 2, 20(10), 31A, 32, 35(1)(b) and (2)(ba), 36(1)(b) and (2)(ba), and 42(1)(i) ]
20. A corporate elector or voter may lodge a notice of appeal against the decision of the ERO not to register its AR appointed as a replacement or substitute. The detailed procedure for handling the notices is currently provided by the Registration of Electors (Appeal) Regulation (Cap. 542, sub. leg.). Unlike the notices of claim or objection, an appellant has to lodge a notice of
appeal to the Revising Officer instead of the ERO. In accordance with that regulation, any notices of appeal received not later than 11 days before the polling date for the FC or the SS concerned will be heard and settled before the election.
21. A new section 31A is introduced to provide for the notices of appeal to be handled in the same manner as that for the notices of claim and objection. Since a notice of appeal may be made by a body throughout the year under the existing regulation, and no Revising Officers will be specially appointed after the appeal period in May, it will be more logical and reasonable for the
notices of appeal, if any, to be submitted to the ERO first. The ERO will then notify the Revising Officer of any appeal received. The deadline for lodging an appeal remains the same.
ERO may require a person to produce identity document for inspection of registers
[Sections 38(4A) and 39(4A)]
22. To tally with the inspection arrangement for a provisional register prescribed in section 29(5) of the principal Regulation, the ERO is empowered to require a person to produce his identity document and complete a form before he is allowed to inspect a copy of FRs for FCs, SSs and the EC.
Clarification of the term of “incapacity” in respect of replacement of Authorized Representatives (“AR”)
23. Under section 20(6) of the principal Regulation, a corporate elector/voter may replace its AR by giving a notice to reach the ERO not later than 3 working days before the polling date if its AR has died or has suffered a serious illness or incapacity.
24. For the sake of clarity, the term “incapacity” in this subsection is limited to mean physical or mental incapacity only.
(C) Other Amendments
Repeal the provisions that are spent
[Sections 15(1)(e), 18(2), 19(1)(ii), 21(6)(b), 23(1)(a), 24(2), 26(5)(ba), 27(a)(i), (c)(i)(AA) and (ii)(AA), 30(2)(c)(ia), 31(8)(aa), 32(2)(aa), 33(4)(a)(iii), 34(2)(a)(iii), 38(1)(aa) and 40A]
25. Some of the provisions and terms used in the principal Regulation are spent and no longer be applicable to the future SS elections. They are repealed in the Amendment Regulation, and where necessary, replaced by appropriate new provisions.
Offences and penalties
[Section 42(1), (9) and (10)]
26. To ensure integrity of an election and to guard against misuse of information contained in an electoral register, the principal Regulation makes it an offence for any person who –
(a) knowingly makes a false statement or provides false information relating to voter registration;
(b) conspires with, incites, compels, induces, coerces, intimidates or persuades another person to make such a false statement or provide such false information;
(c) misuses information contained in the electoral register for a purpose not related to an election.
These offences are prescribed offences under the LCO and District Councils Ordinance (Cap. 547) for disqualifying a person from candidature and from being elected as a member, and where applicable from being registered as an elector or voter at an election. The amendment is to make these offences prescribed offences for similar purposes under the Ordinance.
27. There is no need for public consultation since the proposals in the amendment regulation are largely made to tie in with the changes in the primary legislation.
BASIC LAW IMPLICATIONS
28. The Department of Justice advises that the Amendment Regulation does not conflict with those provisions of the Basic Law carrying no human rights implications.
HUMAN RIGHTS IMPLICATIONS
29. The Department of Justice advises that the Amendment Regulation is consistent with the human rights provisions of the Basic Law.
FINANCIAL AND STAFFING IMPLICATIONS
30. There will be no significant financial and staffing implications. The additional expenses in connection with the registration of voters and publication of electoral registers will be met by existing resources of the Office.
31. The Amendment Regulation will be published in the Gazette on 5 October 2001 and tabled in the LegCo on 10 October 2001.
32. A press release will be issued to announce the publication of the amendment regulation in the Gazette. A spokesman will be available for answering enquiries from the media.
Registration and Electoral Office
3 October 2001