ELECTORAL AFFAIRS COMMISSION (ELECTORAL PROCEDURE) (ELECTION COMMITTEE) REGULATION
LEGISLATIVE COUNCIL BRIEF
Electoral Affairs Commission Ordinance (Cap. 541)
ELECTORAL AFFAIRS COMMISSION (ELECTORAL PROCEDURE) (ELECTION COMMITTEE) REGULATION
On 8 October 2001, the Electoral Affairs Commission (EAC) made the Electoral Affairs Commission (Electoral Procedure) (Election Committee) Regulation (“the Regulation”) to provide for the detailed arrangements for electoral procedures for the EC subsector ordinary elections and by-elections under section 7 of the EAC Ordinance. The Regulation is set out at Annex A.
2. Arrangements for the elections of the Election Committee subsectors to constitute the Election Committee ("EC") before the Legislative Council ("LegCo") general election in 2000 in accordance with Schedule 2 to the LegCo Ordinance are set out in Schedules 1, 2 and 5 to the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (EAC(EP)(LC)R). The provisions relating to the constitution of the EC in Schedule 2 to the LegCo Ordinance were transplanted, with necessary revisions, to the Schedule to the CEEO, under which:
(a) subsector ordinary elections and nominations (in case of the religious subsector) will be held if a new EC is to be constituted; and
(b) subsector by-elections and/or supplementary nominations (in the case of the religious subsector) will be held to fill vacancies, if any, in the relevant subsectors if the membership of the EC is to be updated before the EC is called upon to elect a Chief Executive (CE) or a Member to fill a vacancy of the six Members of the LegCo returned by the EC for the second term of office of the LegCo.
3. The existing EAC(EP)(LC)R does not provide for the arrangements for subsector by-elections and supplementary nominations required under the Schedule to the CEEO . As a result of this and the enacting of the CEEO, the EAC needs to make a new regulation to provide for the arrangements for EC subsector ordinary elections and by-elections as well as nomination and supplementary nomination of the religious subsector.
4. The Regulation is modeled on Schedules 1, 2 and 5 to the EAC(EP)(LC)R. Apart from incorporating the necessary changes to align with the requirements set out in the CEEO, it also includes the recommendations of the EAC based on its observations of the EC Subsectors Elections and the LegCo Elections held in 2000 and some minor textual amendments to improve some of the old provisions. Details of the major changes are set out in the following paragraphs.
Interpretation and application (ss 1 &2)
5. The interpretations stated in section 1 of Schedule 1 to the EAC(EP)(LC)R have been properly amended and necessary interpretations have been included in the Regulation to tally with the interpretations set out in the CEEO and its Schedule.
6. The existing provisions in Schedule 1 to the EAC(EP)(LC)R only regulate the EC subsector ordinary election for the year 2000, when supplementary nomination for the religious subsector and by-elections for other subsectors were not required. Section 2 stipulates that the Regulation applies to supplementary nomination and by-election as required under section 5(1) of the Schedule to the CEEO.
Nominations (ss 3, 4, 8 & 20-22)
7. The procedures for the Chief Electoral Officer to publish a notice calling for nominations are set out in sections 3 and 4.
8. As the principal residential address of a candidate is not a factor in determining the validity of the nomination, we propose to do away with the requirement of asking candidates to provide their principal residential addresses on the nomination forms. Instead, the candidate is only required to provide an address. Similarly, the requirement of asking subscribers to provide their registered residential address on the nomination form is not essential in determining the eligibility of the subscribers and is not included in the Regulation. These changes will facilitate both the candidates and the Returning Officer in the process of validating the nomination.
9. Sections 20-22 are added to the Regulation to provide for the procedures to be followed in case of death or disqualification of a candidate before the subsector election day. They are added pursuant to sections 23 and 26 of the Schedule to the CEEO. The three new sections are very similar to the corresponding provisions in the EAC(EP)(LC)R for LegCo elections.
Misconduct within a no canvassing or no staying zone (s41)
10. A new subsection (6) is added to clarify what constitutes misconduct within a no canvassing zone or a no staying zone.
Misconduct at a polling station (s46)
11. Similar to section 41, a new subsection (6) is added to clarify what constitutes misconduct at a polling station.
Request for permission to return to cast vote (s55)
12. The EAC considers that the Presiding Officer ("PRO") should be able to return a ballot paper to a voter or authorized representative, if, after having been issued with a ballot paper, the voter or authorized representative:
(a) has to leave the polling station and asks to return to cast his vote later, or
(b) becomes physically incapacitated from voting and leaves the polling station without casting his vote.
Section 55 empowers the PRO to give the originally issued ballot paper back to that person, if he returns to cast his vote later, in the presence of the police officer on duty at the polling station.
How ballot papers are to be marked (s56)
13. In previous EC subsector elections, the voter must mark the ballot paper by shading the oval provided next to the name of the candidates of his choice. It is envisaged that a different method of marking the ballot papers for a by-election may be more appropriate, depending on the number of members to be elected for the subsector. Section 56 provides flexibility for the EAC to decide on the marking method to cater for different situations. In the case of a by-election, the EAC may direct that "" chops be used to mark the ballot paper.
Tendered ballot paper (s58)
14. The conditions under which a tendered ballot paper is issued are more clearly spelt out in section 58 of the Regulation. Under subsection (1), the PRO must issue a tendered ballot paper unless he is certain that the voter is the one who has been issued with a ballot paper earlier. If the PRO is certain, section 53(3) applies, and he must not issue any ballot paper to that person.
Steps to be taken at a polling station at the close of the poll (s61)
15. To expedite the packing process of relevant documents after the close of the poll, we suggest that the PRO can make separate sealed packets for unissued/unused/spoilt subsector ballot papers and marked copies of the subsector final register for all subsectors, instead of for each subsector.
Misconduct at counting station (s68)
16. For the avoidance of doubt, subsection (7) of section 68 clarifies that misconduct includes behaviours that may cause disruption of the counting of votes or disturbance and inconvenience to any person in the counting station. Furthermore, subsection (4) stipulates that if a person conducts himself in such a way that the purpose of his presence is other than that for which such presence is permitted or authorized, he may be ordered to leave the counting station by the Chief Returning Officer or the Returning Officer.
Counting of votes (ss73, 74 & 75)
17. Sections 73 and 74 provide for different modes of counting, either counting by computer or manual counting, as is appropriate for an election. In practice, computer counting will be adopted for an ordinary election, where voters have to choose a large number of candidates, and manual counting will be adopted for a by-election in which voters need only to choose one to two candidates.
18. According to the provisions in Schedule 1 to the EAC(EP)(LC)R, the ballot paper account of a polling station is to be verified before the actual counting of votes. The counting procedure in the Regulation is modified in the case of counting by computer. As the counting of the number of ballot papers from each ballot box and the votes cast for individual candidates are performed simultaneously, the ballot paper accounts can be verified after the counting of votes by checking against the computer results and the number of invalid ballot papers.
19. In the case of manual counting, the ballot paper accounts will continue to be verified before the actual counting of votes.
20. In past elections, the ballot papers from not less than two polling stations were mixed before proceeding to the actual counting of votes. The rationale behind is to preserve vote secrecy, especially for ballot papers from a small electorate. It has however led to the unnecessary lengthening of the counting time. Such a requirement has been dispensed with in the Regulation for the following reasons:
(a) in the case of computer counting where ballot papers for all subsectors from a ballot box are fed into a computer without sorting, it is impossible to identify any particular vote ; and
(b) in the case of manual counting, which will be adopted for by-elections in which voters are allowed to cast their votes in any one of the polling stations linked by a computer network, it will also not be possible to relate a ballot paper to a particular voter.
Death or disqualification before declaring election result (s80)
21. Section 80 sets out the procedures for the death or disqualification of a candidate before declaring the result of a subsector election. It is modeled on the corresponding section of the EAC(EP)(LC)R for LegCo elections.
Consequential amendments (ss102 - 106)
22. As Schedules 1 and 5 to the EAC(EP)(LC)R only applied to the EC subsector elections in 2000, they are now repealed.
Postponement and adjournment (Sch 1)
23. The EAC is empowered under section 7(2) of the EAC Ordinance to make regulation to provide for the postponement or adjournment of a subsector election, the poll and the counting of votes on the grounds that the election, the poll and the counting of votes is likely to be affected by -
(a) a typhoon or other climatic condition of a serious nature;
(b) riot or open violence or any other occurrence of public danger; or
(c) an occurrence which appears to the Commission or any person specified in the regulations to be a material irregularity relating to the election, the poll or the count.
Schedule 1 to the Regulation sets out the procedure for the above postponement or adjournment and the steps to be taken for the safeguarding of election materials in the event of such a postponement or adjournment.
24. There is no need for public consultation because the Regulation is basically modeled on the EAC(EP)(LC)R with necessary amendments to align with the provisions set out in the CEEO.
BASIC LAW IMPLICATIONS
25. The Department of Justice advises that the Regulation does not conflict with those provisions of the Basic Law carrying no human rights implications.
HUMAN RIGHTS IMPLICATIONS
26. The Department of Justice advises that the Regulation is consistent with the human rights provisions of the Basic Law.
FINANCIAL AND STAFFING IMPLICATIONS
27. Any additional resource requirement arising from the Regulation will be met by existing resources of the Registration and Electoral Office.
28. The Regulation will be published in the Gazette on 12 October 2001 and tabled in the LegCo on 17 October 2001.
29. A press release will be issued to announce the publication of the Regulation in the Gazette. A spokesman will be available for answering media enquiries.
Registration and Electoral Office