Following is the speech (English translation) by the Secretary for Constitutional and Mainland Affairs, Mr Raymond Tam, in moving the Second Reading of the Legislative Council (Amendment) Bill 2012 in the Legislative Council meeting today (February 8):
Acting Madam President,
I move the Second Reading of the Legislative Council (Amendment) Bill 2012 (the Bill).
In January 2010, five Legislative Council (LegCo) Members returned by geographical constituencies (GCs) resigned and stood in the by-elections. The incident led to considerable concern in the community. Although some expressed the view that there was nothing inappropriate for Members to resign in order to trigger by-elections in which they stood, such act was considered by many members of the public and political parties as an abuse of the electoral process and a significant drain on public resources. Moreover, it was of greater concern that if similar abuses continued to occur, the operation of the LegCo and the credibility of the electoral process would be adversely affected.
Following that incident, there was a large body of public opinion that the Government should examine ways to plug the loophole in order to prevent Members from resigning to trigger by-elections in which they seek to stand and be re-elected.
Against the above background, in May 2011 the Government proposed a replacement arrangement to fill any vacancy of a LegCo GC and the new District Council (second) functional constituency (DC (second) FC), and subsequently introduced the Legislative Council (Amendment) Bill 2011.
In examining that Bill, there was a large body of opinion that the Government should conduct a comprehensive public consultation on this important issue. The Bills Committee was also of the view that the Administration should provide more time to consider suggestions of the Members. In response to the above, the Government published the Consultation Paper on Arrangements for Filling Vacancies in the Legislative Council on July 22, 2011 and conducted a public consultation for two months. The Consultation Paper reviewed the arrangements for filling vacancies in the LegCo, set out four options to fill mid-term vacancies in the LegCo, and invited public views. During the public consultation period, we received about 31 120 written submissions, organised two public forums, and attended 11 forums and discussion sessions organised by different organisations.
The Government published the Consultation Report on Arrangements for Filling Vacancies in the Legislative Council on January 20, 2012, which provides a summary of the views received during the public consultation period. In brief:
(a) the results of the various polls indicate that over 50 per cent or close to 50 per cent of the respondents consider that the Government needs to plug the loophole in the existing legislation by way of legislative amendments. The loophole is that Members may resign at will to trigger by-elections in which they seek to stand and be re-elected; and
(b) around 70 per cent of the written submissions received support plugging the loophole by way of legislative amendments and Option 1 set out in the Consultation Paper (i.e. restricting resigning Members from participating in any by-election within the same LegCo term) commands more support than the other three options.
In short, the written submissions received and various opinion polls indicate that relatively more members of the public consider that the Government should plug the loophole by way of legislation, although some organisations and individuals hold different views. At the same time, many members of the public and organisations have, through different channels and means, expressed their views that by-elections should continue to be held as a means to fill a mid-term vacancy.
Having considered the views above, we propose to put forth a latest proposal. A vacancy arising mid-term in a GC, the DC (second) FC or any other functional constituency (FC) under section 15 or section 72 of the Legislative Council Ordinance (LCO) or Article 79 of the Basic Law would continue to be filled by a by-election. Electors could continue to exercise their right to vote. A Member returned by a GC, the DC (second) FC or any other FC who has voluntarily resigned from office under section 13 or section 14 of the LCO would be prohibited from standing in any by-elections in all GCs, the DC (second) FC and other FCs in the same LegCo term within six months of his resignation. The restriction would not apply to general elections. If the six-month prohibition spans over a current LegCo term and the following LegCo term, the prohibition will not be applicable to the by-elections in the following LegCo term.
This is a comparatively more focused approach to address the mischief arising from Members resigning at will in order to trigger by-elections, as the only persons affected are the resigning Members. The change to the existing electoral system will also be kept to the minimum. We have sought legal advice on the proposal from the Department of Justice and Lord Pannick QC and they confirm that the proposal is constitutional.
We now introduce into the LegCo the Legislative Council (Amendment) Bill 2012 to implement the above latest proposal. The Bill amends section 39 of the LCO to impose a restriction on the nomination of candidates at a by-election of the LegCo to prohibit a Member who has resigned from office from standing in any by-elections in the same LegCo term within six months of his resignation.
We recommend the Bill to commence operation from the fifth term of office of the LegCo. Therefore, I hope that the LegCo could examine the Bill as soon as possible and complete the legislative process within the current term so that electors and candidates could be aware of the new restriction as early as possible. As we have a new proposal for addressing the issue of filling a mid-term vacancy in the LegCo, we will withdraw the original Legislative Council (Amendment) Bill 2011 in accordance with the relevant procedures.
I hope the community could understand that the proposal has taken into account the views received during the public consultation, and is put forth after considering the following important principles and their balance: upholding the electors' right to vote and the public's right to stand for election, and safeguarding the dignity and credibility of the electoral system. It is the most moderate, least restrictive, and the most targeted proposal. It fully protects the public's right to vote while the restriction on the right to stand for election is necessary, reasonable, and proportionate. It is also a focused response to the mischief. Our policy objective is to prevent a similar incident from recurring. Therefore, I hope that the Bill could gain the support of Members, and the understanding and acceptance of the members of the public.
Thank you, Acting Madam President.
Ends/Wednesday, February 8, 2012