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LCQ14: Legislative Council by-elections

     Following is a question by the Hon Starry Lee and a written reply by the Secretary for Constitutional and Mainland Affairs, Mr Stephen Lam, in the Legislative Council today (February 24):


     Regarding some Legislative Council (LegCo) Members of individual political parties in Hong Kong launching the so-called "five geographical constituencies referendum campaign" by way of resigning from offices and then standing for the by-elections, the Hong Kong and Macao Affairs Office of the State Council released a statement on January 15 this year, pointing out that the Basic Law of the Hong Kong Special Administrative Region (HKSAR) does not provide for a "referendum" mechanism, and HKSAR does not have the authority to create such. It stressed that conducting such so-called "referendum" does not conform with the legal status of HKSAR. It is a fundamental contravention of the Basic Law and the relevant decision of the Standing Committee of the National People's Congress. At the Question and Answer Session of this Council on January 14, the Chief Executive (CE) also said that conducting any form of so-called "referendum" in Hong Kong would have no legal basis or effect whatsoever and would not be recognised by the SAR Government. As the Members concerned have formally resigned from offices, will the Government inform this Council:

(a) of the contingency measures the Government has put in place to handle the situation of LegCo voting down the application for funds needed for the by-elections;

(b) whether the SAR Government will review the publicity arrangements for the by-elections so as to prevent members of the public from mistaking that the SAR Government endorses the statement that the by-elections are a "referendum"; if it will, of the details; if not, the reasons for that; whether it will consider not to make any arrangement for senior officials to vote and call on electors to vote before the media on the polling day; and

(c) whether the authorities will consider amending the law to impose certain restrictions on Members who resign from offices and then stand for the by-elections; if it will, of the details; if not, the reasons for that?



(a) According to section 36(1)(a) of the Legislative Council Ordinance (Cap.542), the Electoral Affairs Commission (EAC) must arrange for a by-election to be held when the Clerk to LegCo makes a declaration as to the existence of a vacancy in the membership of the LegCo. Section 12 of the Electoral Affairs Commission Ordinance (Cap. 541) specifies that all expenses properly incurred by the Commission, a member of the Commission or the Chief Electoral Officer in the performance of any function under that or any other Ordinance shall be payable out of the general revenue. We believe that Members understand that the Administration is obliged to discharge this statutory responsibility.

(b) The HKSAR Government emphasises that the LegCo by-election for the five geographical constituencies (GCs) is aimed at filling the vacancies in the membership of the LegCo. The Basic Law does not provide for any referendum mechanism. Conducting any form of so-called "referendum" in Hong Kong will have no legal basis or effect under the Basic Law and the legislation of Hong Kong, and will not be recognised by the Government. The position of the HKSAR Government in this respect is very clear.

     We will organise the forthcoming LegCo by-election in accordance with the law and plan to allocate $3 million for publicity work in order to inform electors of the arrangements for the by-election. The publicity expenses for the LegCo by-election for one GC in 2007 was around $0.7 million. Given that part of the publicity work (e.g. production and publication of advertisement) may apply to all five GCs and does not require separate arrangements for individual GCs, we anticipate that the provision of $3 million will be able to cover the publicity work for the five GCs.

     The CE and his team of Principal Officials will decide on their own at a later stage on matters relating to voting in the by-election. All registered electors, including civil servants, will decide on their own with regard to the issue of voting in the by-election.

(c) We note that there are views in the community which do not endorse the resignation of several Members in order to initiate the so-called "referendum campaign" via the by-election. There are views that the local legislation should be amended to avoid the recurrence of similar situations. The HKSAR Government has just completed the public consultation exercise on the two electoral methods for 2012 and is carefully examining views received during the consultation exercise. There are views that restrictions should be imposed on Members who resign from their office and then stand for the by-elections. We would analyse these proposals carefully when considering amendments to the relevant local legislation. Consideration would be given as to whether these proposals comply with the Basic Law; whether the proposed restrictions are reasonable restrictions from the legal point of view; and whether those restrictions are practicable.

Ends/Wednesday, February 24, 2010