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SCMA speaks on arrangements for filling vacancies in the Legislative Council

     Following is the transcript of remarks made by the Secretary for Constitutional and Mainland Affairs, Mr Stephen Lam, at a media session at the Central Government Offices this afternoon (May 17) to introduce the proposal on the arrangements for filling vacancies in the Legislative Council (LegCo):

     We all recalled that in January 2010, five Members who were directly elected in the LegCo geographical constituencies resigned to trigger by-elections so as to instigate a so-called "referendum".

     We all experienced in May last year that the voter turnout rate was a record low, despite the fact that all five legislators were returned in the by-elections.

     The record low voter turnout rate indicated several aspects worthy of mention.

     Firstly, most Hong Kong people did not accept that legislators could resign at will to instigate the so-called "referendum".

     Secondly, LegCo members were expected, having won in the general election, to serve the community for a full term of four years and should not resign at will mid-term.

     Thirdly, there were also clear views suggesting that the unnecessary by-elections were a waste of public resources. In the event, we have to expend over $120 million to organise these by-elections when these public resources could have been put to better use.

     The HKSAR Government clearly recognises that this loophole should be plugged, and that legislators henceforth should not be able to resign at will.

     The Government proposes that with effect from the fifth term LegCo commencing in October 2012, where vacancies arise in future in the geographical constituencies, and the District Council (second) functional constituency, we will fill these vacancies by referring to candidates who have attained the largest remainder number of votes in the previous general election. No by-elections would be held, and such candidates having the largest remainder of votes will be able to fill these vacancies.

     According to our understanding, a similar replacement mechanism which refers to lists of candidates taking part in the general election is also applied in overseas jurisdictions.

     The Government considers that the adoption of the proposed replacement mechanism will be able to reflect the overall will of electors as expressed in the previous general election.

     The key elements of this proposed mechanism involves the following aspects.

     Firstly, the candidate to fill the vacancy will be the first candidate who has not yet been elected in the list with the largest remainder number of votes in the previous general election. This arrangement will be consistent with the proportional representation electoral system. It will also reflect the overall will of the electorate as expressed through the general election.

     Secondly, the replacement mechanism will be applied to all situations under Section 15 of the Legislative Council Ordinance and Article 79 of the Basic Law. These circumstances will involve, for example, the resignation, the death of legislators, or alternatively, in situations where they are declared no longer to have the capacity to continue to fill the office of a LegCo Member. This replacement mechanism will then be consistently applied, henceforth, in situations whereby vacancies in these constituencies arise mid-term of a LegCo.

     Thirdly, the replacement mechanism will not be applied to the 28 traditional functional constituencies. These functional constituencies do not adopt a proportional representation electoral system. Therefore, in future, if vacancies arise, we will continue to organise by-elections to fill such vacancies.

     We hope to amend the Legislative Council Ordinance as soon as possible. I have written to the Chairman of the Constitutional Affairs Panel to propose that a special meeting be held to discuss this proposal.

Reporter: How can the Government ensure that the system reflects public views in the light of potential problems like a time lag, and also the number of remainder votes being too low? Also, is the Government prepared for any legal challenges that may follow these changes, as it has been suggested that these changes are against the Basic Law?

Secretary for Constitutional and Mainland Affairs: First and foremost, if you go back to the electoral results of the LegCo elections in September 2008, you will find that in all five geographical constituencies, the list of candidates who were not elected all have a substantial number of votes. For example, these lists, in my recollection, would have 10-20,000 votes still remaining to qualify them for future vacancies. Therefore, I think the replacement mechanism will have a respectable number of votes to support any candidates to fill these vacancies.

     Secondly, we believe that these proposals comply with the Basic Law. The Basic Law stipulates that the Legislative Council of Hong Kong shall be constituted by election, and we are relying on the general election results to fill such vacancies in future.

(Please also refer to the Chinese portion of the transcript.)

Ends/Tuesday, May 17, 2011

Arrangements for filling vacancies in the Legislative Council