ELECTORAL PROCEDURE (CHIEF EXECUTIVE ELECTION) REGULATION
File ref: REO 14/36/6 (CR)
LEGISLATIVE COUNCIL BRIEF
Electoral Affairs Commission Ordinance (Cap. 541)
ELECTORAL PROCEDURE (CHIEF EXECUTIVE ELECTION) REGULATION
On 2 November 2001, the Electoral Affairs Commission (“EAC”) made the Electoral Procedure (Chief Executive Election) Regulation under section 7 of the EAC Ordinance (Cap. 541) to provide detailed electoral procedure for conducting the Chief Executive Election (“the Election”). The Regulation is set out at Annex A.
2. The Chief Executive Election Ordinance (Cap. 569) (“CEEO”) provides for the election of the Chief Executive in accordance with the Basic Law of the Hong Kong Special Administrative Region. Among other things, it has amended the EAC Ordinance to empower the EAC to supervise the Election, including the making of regulation to govern the conduct of the Election.
3. The term of the office of the current CE will expire on 30 June 2002. In accordance with sections 6 and 10 of the CEEO, an election will be held on 24 March 2002 to return a candidate for appointment by the Central People’s Government to fill the vacancy for the office of the CE that will arise on l July 2002.
4. The CEEO lays down the fundamental principles and procedures governing the Election. On the basis of these principles and procedures, the EAC has made a new Electoral Procedure (Chief Executive Election) Regulation (“the Regulation”) under section 7(1)(b) of the EAC Ordinance, providing for the detailed electoral procedures that should be followed for the Election to ensure openness, fairness and transparency.
5. In drafting the Regulation, the EAC has made reference to the practices and arrangements of the Legislative Council (“LegCo”) elections. The procedures for various aspects of the Election are, where applicable, modelled on those of the LegCo elections, subject to necessary modifications to cater for the differences in nature between the Election and the LegCo elections. The EAC has also taken the opportunity to critically examine these practices and arrangements and, where appropriate, made improvements accordingly.
6. Efforts have been made in drafting the Regulation to streamline its provisions as far as possible so that it is more compact and more reader-friendly. Its key provisions are highlighted in the following section.
(I) Nomination and withdrawal of candidature (sections 3 to 11)
7. The Chief Electoral Officer (“CEO”) will publish a notice in the Gazette, stating, among other things, the nomination period and the address of the Returning Officer (“RO”) at which nomination forms must be delivered. A prospective candidate, after completing the nomination form, securing the subscription of not less than 100 members of the Election Committee (“EC”) and making all the necessary declarations required under the Regulation and the CEEO, shall submit his nomination in person or in other manner as authorized by the RO.
8. The RO will inform the person who has been nominated as well as each validly nominated candidate, after determining on the validity of a nomination. Where he determines that a person is not validly nominated, he shall endorse on the nomination form and give reasons for reaching such a decision. All nomination forms received by the RO will be made available for public inspection.
9. The Regulation does not require candidates for the Election to lodge any election deposit in the light of the requirement for a candidate to obtain not less than 100 EC members as his subscribers. There is no need for a Nominations Advisory Committee because of the appointment of a judge of the High Court or above as the RO.
10. In accordance with section 19 of the CEEO, a person may only withdraw his candidature before the close of nominations, by completing a withdrawal notice and delivering it, either in person or by his election agent, to the RO before the deadline.
(II) Election agents and election expense agents (sections 12 to 16)
11. A candidate may appoint one election agent and any number of election expense agents. All appointments and revocation of appointments must be made through written notice addressed to the RO. These agents must be aged 18 or above and, for election agents, they must be holders of the Hong Kong Identity Card.
(III) Polling arrangement (sections 17 to 27)
12. The CEO will appoint the polling hours for the first three rounds of the voting on the polling day. He will also designate a place as the polling station and another as the counting station. Electors will be informed of the polling hours, the voting instructions, the location of the polling station and the polling and counting procedures by a polling notice, which shall be sent at least ten days before the polling date.
13. Where no candidate is elected after the first three rounds of voting, the fourth and subsequent rounds (if any) of voting will be held on the day immediately following the polling date (i.e. 25 March 2002 in the case of the coming Election). To allow electors sufficient time to cast their votes, the Regulation provides that not more than three rounds of voting shall be conducted on each day. The CEO will appoint the polling hours for the fourth and subsequent rounds. For these rounds of voting, the CEO may dispense with the polling notice and announce the polling hours through radio or television broadcast.
14. The CEO will appoint a Presiding Officer (“PRO”) to preside at the polling station and a number of polling officers to assist the PRO. As for the RO, he will designate an area outside the polling station as no canvassing zone and an area within the no canvassing zone as no staying zone. Within the no canvassing zone, no person shall canvass for votes, use an amplifying system or device without lawful authority or display propaganda materials relating to the Election or any candidate without reasonable excuse. These provisions are similar to those adopted for the LegCo elections.
15. A candidate may appoint not more than three persons aged 18 or above as his polling agents. Inside the polling station, no person shall communicate with an elector or use mobile phones or other communication devices during the polling hours unless otherwise authorized by the EAC or the CEO. Filming, photographing and audio or video recording are also prohibited inside the polling station on the polling day except with the express permission of the EAC, RO or the PRO. Furthermore, no person shall disrupt the poll, misconduct himself or disturb or cause inconvenience to any person in the polling station. These provisions are similar to those adopted for the LegCo elections.
(IV) Ballot box, ballot papers and voting procedure (sections 28 to 42)
16. The design of the ballot box and how it is to be sealed are similar to those adopted for the LegCo elections. The order of the names of the candidates on the ballot paper will be determined by drawing of lots.
17. Similar to the LegCo elections, electors shall cast their votes by using a chop with a “√”. Appropriate procedures have been laid down to help incapacitated electors to vote. A provision is also made to enable the PRO to return a ballot paper to an elector if, after having been issued with a ballot paper, the elector –
(a) has to leave the polling station and asks to return to cast his vote before the close of the relevant round of voting; or
(b) becomes physically incapacitated from voting and leaves the polling station without casting his vote.
18. The established practices of marking a ballot paper as “TENDERED”, “UNUSED” and “SPOILT” are applicable to the Election as they are in the case of the LegCo elections.
(V) Counting of votes (sections 43 to 55)
19. Votes will be counted manually. Questionable ballot papers will be forwarded to the RO for determination, in a way similar to the arrangements adopted for the LegCo elections. The CEO will appoint counting officers to assist the RO.
20. A candidate may appoint not more than two persons as his counting agents. Candidates, counting agents and electors may enter and stay in the counting station. Members of the public will also be allowed entry into the counting station to observe the counting of votes within a designated area so long as the counting is not disrupted or disturbed by their presence.
21. If no candidate obtains an absolute majority of votes, there will be a new round of voting after the counting of votes. Propaganda materials relating to the Election or any candidate are not allowed to be displayed inside the counting station without reasonable excuse and no amplifying system or device shall be used without lawful authority. Moreover, the RO may order a person to leave the counting station if that person misconducts himself, disrupts the counting of votes or disturbs or causes inconvenience to other persons. The RO may also do so if he reasonably considers that, having regard to the conduct of a person, the person’s presence at the counting station is for a purpose other than that for which such presence is permitted or authorized. These provisions are similar to those adopted for the Regulation recently submitted to the LegCo for negative vetting in respect of the EC Subsector elections.
(VI) Disposal of documents (sections 56 to 59)
22. The provisions are similar to those adopted for the LegCo elections.
(VII) Termination, postponement or adjournment of proceedings (sections 60 to 65)
23. Under section 22 of the CEEO, the RO shall terminate the election proceedings if a candidate dies or is disqualified from being elected after the close of nominations but before the declaration of election result. Similar to the arrangements adopted for the LegCo elections for postponement or adjournment of elections proceedings, the EAC may postpone or adjourn the polling or counting as the case may be, in the event of public danger, inclement weather or material irregularity.
24. The Regulation provides for how the ballot box, ballot papers and other materials are to be handled, the procedures of announcement and when the polling or counting should resume under different circumstances.
(VIII) Miscellaneous and supplemental provisions (sections 66 to 85)
25. These provisions cover a number of ancillary issues such as the declaration of secrecy, election documents not be affected by misnomer or inaccuracy, election not to be affected by defect in the appointment of electoral officers, the limit on the RO to delegate his power, the functions, powers and duties of the CEO, how election advertisements are to be published, what constitutes an offence under the Regulation, restrictions on the use of free postage etc.
26. The public has been consulted on the EAC’s “Proposed Guidelines on Election-related Activities in respect of the 2002 Chief Executive Election” from 21 September to 4 October 2001. The EAC has considered the public views before making the Regulation.
BASIC LAW IMPLICATIONS
27. 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
28. The Department of Justice advises that the Regulation is consistent with the human rights provisions of the Basic Law.
BINDING EFFECT OF THE LEGISLATION
29. The Regulation does not affect the current binding effect of the CEEO and the EAC Ordinance.
FINANCIAL AND STAFFING IMPLICATIONS
30. Any additional resource requirement arising from the Regulation will be met by the funds earmarked for conducting the Election.
31. The Regulation will be published in the Gazette on 9 November 2001 and tabled in the LegCo on 14 November 2001.
32. 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