Questions and answers about Chief Executive election guidelines –
Issue No. 1 dated Thursday, January 3, 2002
The Electoral Affairs Commission has received enquiries from candidates about the interpretation and operation of the Guidelines on Election-related Activities in respect of the 2002 Chief Executive Election (“the Guidelines”). The questions and the Commission’s replies to the candidates are now published so that members of the public may have a better understanding of the Guidelines:
Question 1: Would the Commission clarify the ambit of paragraph 15.6 of the Guidelines? Will the use of the incumbent Chief Executive’s office at the Central Government Offices be considered to be use of public resources and the expenses involved be counted as election expenses?
Answer to Question 1:
(a) The four examples given in paragraph 15.6 of the Guidelines, namely, security, transportation, secretarial and living quarters, that are not considered to be public resources, are intended to be illustrative rather than exhaustive.
(b) The Electoral Affairs Commission also understands that it would be impracticable for the incumbent Chief Executive not to deal with matters concerning his election from his office at the Central Government Offices as his election agents and staff might from time to time attend his office and brief him on matters concerning the election. While we accept that such contacts at his office are neither election meetings nor election forums, and we consider that using the office is not a use or misuse of public resources in the context of the Guidelines, we are of the view that a certain proportion of the office rental should be accounted for as election expenses. The method to compile the account in this respect, we suggest, is to assess the rental for the office at which the contacts are made at a reasonable rate, such as how many dollars per square foot per month, and make a record of the time spent in the office for the election-related matters. The election expenses would be the amount of time used for such matters multiplied by the monthly rental and divided by the number of hours for which the office is normally used.
(c) The interpretation of election expenses and their ambit is within the exclusive function of the Independent Commission Against Corruption and the Department of Justice, and our view must be deferred to theirs.
Two questions were raised about the interpretation and operation of Part I of Chapter 3 of the Guidelines on eligibility for nomination as a candidate at the election.
Question 2: Given that a person has spent a number of years studying and living overseas, does he satisfy the 20-year residence requirement under section 13(d)(i)(B) of the Chief Executive Election Ordinance (Cap. 569) (“CEEO”)?
Answer to Question 2:
(a) Section 13(d)(i)(B) of the CEEO provides that a person is eligible to be nominated as a candidate at the election if he will have “ordinarily resided in Hong Kong for a continuous period of not less than 20 years” before 1 July 2002.
(b) As explained in paragraph 3.2 of the Guidelines, a person is considered to have ordinarily resided in Hong Kong when he has habitually and normally lived in Hong Kong lawfully for a settled purpose, apart from temporary and occasional absence such as holidays and absence abroad for business or studying purposes. Each case has to be examined upon its own facts. Matters like the length of the person’s absence, the reason for his absence, the location of the home of him, his spouse, children and parents and his maintenance of connections with Hong Kong are all relevant factors. In case of doubt, candidates are advised to consult their legal adviser.
(c) As a matter of fact, whether a candidate satisfies the residence requirement is to be determined by the Returning Officer under section 17 of the CEEO and such determination may be challenged by an election petition (see paragraphs 3.9 and 6.1 of the Guidelines). It is not appropriate for the Electoral Affairs Commission to form a view on the matter.
Question 3: What should a candidate do as a holder of a foreign passport to meet the requirement under section 13(c) of the CEEO that a candidate must not have a right of abode in a foreign country?
Answer to Question 3:
The interpretation of section 13(c) of the CEEO is that a candidate must have no right of abode in any country other than the People’s Republic of China at the time when a nomination form nominating him is delivered to the Returning Officer. Again, a candidate is advised to consult his own lawyer on whether he has, or will at the time when he submits the nomination form has, the right of abode in the foreign country concerned; and if so, what steps he should take to meet the requirement of section 13(c) of the CEEO.
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