Submission on the Proposed Electoral Guidelines
for 1999 District Councils Election

May 1999


Human Rights Monitor would like to submit several points with reference to the public consultation on the "Proposed Electoral Guidelines for 1999 District Councils Election). During the May 24th elections, Human Rights Monitor had made several recommendations on areas of possible improvements, which do not seem to have been adopted in the new proposed guidelines for the District Councils Election.

We support the EAC to lay down rules for the purpose of ensuring that elections are conducted openly, honestly and fairly though such rules should be kept to a minimum and should as far as possible not restrict the freedoms of the candidates and political parties as well as other individuals and groups but only when demonstrably necessary in a free and democratic society.

The Poll

Although a large "no canvassing zone" will be designated to ensure the "free and safe passage of electors into the polling station." From Human Rights Monitor's experience from the last May 24th elections, these "no canvassing zones" are only effective if the offenders are reprimanded.

During the last May 24th elections, serious irregularities were witnessed at the polling station at Kam Tin in the New Territories North West Constituency, involving intimidatory canvassing within the precincts of the polling station. The polling station was within a school, and the school playground and the area of the adjacent road were designed as a "no canvassing" area within which canvassing was not permitted. The area so designated was marked on a map displayed at the entrance to the playground. The observers saw some 7 or 8 supporters of the Rural Alliance candidate, Lam Wai Keung, in defiance of this prohibition of canvassing, standing across the entrance to the playground, in the restricted area, to canvass voters. Most of these canvassers were wearing armbands or other emblems which clearly identified their affiliation, as recommended in the official guidelines issued by the Electoral Affairs Commission. One of them however, who was not wearing anything to identify her, was not merely standing in the entrance to the playground, but was accosting each voter who appeared and then walking with the voter across the length of the playground up to the door of the room in which voting took place, arguing with them. A policeman was present watching this activity but taking no action. When Human Rights Monitor observers tested the complaint system by reporting this to the policeman and ask him to discharge his duty, he refused to take action to prevent this interference with the poll, and so refused to give any reason for his refusal. Members of the Monitor then asked to see the Presiding Officer and explained the position to him. The Presiding Officer then spoke to the policeman who detained the woman concerned. As Monitor and international observers left in a mini-bus the woman broke away and tried to break a window of the mini-bus with her umbrella. These intimidatory tactics may have influenced voter turnout or possibly even voter preference in the Kam Tin area. It is extremely important that the Electoral Affairs Commission ensures that its staff members are not "scared" to bring the perpetrators to justice. This is imperative if there should be a fair election.

Use of Sound and Amplifying Device and Broadcasting Vans

It was proposed in this section that candidates are required not to use amplifying device in electioneering between 7 p.m. and 9 am. The justification provided was to reduce nuisance. No justification as to why it is within such hours has been spelt out.

Most people in Hong Kong will only be free for such meetings during the evening. It is difficult to image how a candidate could hold public meetings on certain issues of concern in the evening in, say, an open playground in a public estate can properly conducted without the use of amplifying devices.

It would certainly be unjustifiable not to allow loud-hailers to be used for election purposes, when these same loud hailers would have been allowed for fund-raising and other purposes. In any case, the Noise Ordinance has required that the volume level should not amount to a nuisance.

The EAC's suggestion is to be a substantial widening of what are prohibited under the Noise Control Ordinance which was enacted precisely to achieve "the prevention, minimizing and abatement of noise" . Section 5 of the Ordinance prohibits all the time excessive noise which is a source of annoyance to any person. Section 4 of the Ordinance specifically prohibits such source of annoyance from 11 p.m. to 7 a.m. (and all the time during a general holiday). Our legislature seems to be a more equipped body to decide on behalf of the community to reduce and control nuisance than the EAC.

We consider the proposal an unjustified restriction on the freedoms of assembly and expression. This is particularly true in LegCo elections when the size of the geographical constituencies are huge.

We therefore should strongly oppose the EAC to impose more stringent control on issues already dealt with by our legislation.

If the EAC considers the Ordinance to be defective, it should have raised this with the Government and the Legislative Council well before this consultation rather than imposing its restriction through its own rules at this moment.

Election Broadcasting, Media Reporting and Election Fora

The proposal that broadcasters and regular contributors standing for election - stop appearing in programmes even in their normal program role and contributing articles respectively during election campaigns to avoid unfair publicity. The justification is to avoid unfair extra publicity for them at the critical time. Even those whose political parties have members running are prohibited. Publishers have to guard against offering "unfair advantage" to such columnists running for elections. The justification is "to avoid any intentional, or unwittingly allowing any unfair publicity for the candidates who belong to the same political party or organization."

The same justification for avoiding unfair publicity would probably have required all candidates who are Legislative Councillors, ExCo Members, and District Board Members, public relation manager of public utilities, performance artists, prominent athletes, film stars and perhaps film directors, to stop their performing their duties and avoid showing their work. Managers of cinema, stadium, and company director should also be required to stop such candidates from having public exposure on their screen, tracks or company shows.

Since members of the same organisation are also affected. Members of the Hong Kong Journalists Association, who depend on their articles for a living, will then have difficulties to publish their articles. Margaret Ng should therefore stop her columns in the papers even if she does not run in an election if Martin Lee is a candidate because they belong to the Bar Association. Members of the Youth Hostel Association (YHA) would better stop being contributing articles as they may have no means to know that there are members from the YHA running for elections.

Even if the definition of organisation were to narrow down to include political parties only, party leaders and spokesperson should not contribute articles at a time when the public are particularly in need to be informed of the views and activities of the parties.

It should also be noted that some newspapers in Hong Kong have clear "political" stances and even their editorial could indicate a preference for certain candidates. In a way, some of the newspaper may even be more loyal to certain political than some of the party members. Thus if such a "fair" election is sought after by the Electoral Affairs Commission, there would either have to be a selective media shutdown or partial suspension of freedom of the press. Such a blanket gag on all broadcasters and columnists involved with political parties would seriously restrict the freedom of those who are not even expressing views on the election.

It is our view that this is an unnecessary restriction on the freedom of speech , the freedom of association and the freedom of choice of occupation which are recognized in the Basic Law. It is also an unnecessary restriction on the right of journalists and columnists to participate in public life . We oppose strongly such restrictions.

Logos and Team Names

The Electoral Affairs Commission does not seem to have amended the ballot papers to allow logos and team names from the ballot paper this time even though this suggestion was put to Justice Woo at our last meeting during the May 24th election period. The Commission's reasoning for banning logos and team names is set out in its report to the Chief Executive:

"If team names on the ballot paper are allowed there could not be any justifiable reason to deny independent candidates describing themselves as "independent". If there are more than one independent candidate contesting the same constituency, allowing all such candidates to describe themselves on the ballot paper similarly as "independent" would confuse the electors."

If the EAC considers that the description may be confusing, it should rather has its own campaign to educate those voters who may have a problem.

Though the Commission appeared to recognise the weakness of this argument as it recommended that the issue should be reconsidered for the 2000 election, we suggest that this unnecessary ban be lifted for the District Councils election.

International Observers banned from polling stations

Allowing election observers to enter polling stations to observe casting of votes is a norm in international electoral. Not only do foreign observers frequently attend the elections in well-established democracies such as the United States and the United Kingdom, and in less well-established democracies such as South Africa. Such observers are also usually permitted even in countries where the election itself does not meet international standards of freedom and fairness, as hitherto in Indonesia and in Nigeria. To exclude foreign observers from the polls would normally be associated with the most extreme forms of election rigging and /or intimidation.

The EAC has taken the very unusual step of banning foreign observers from visiting polling stations in the 1988 Legislative Council elections. Such a position has not been reconsidered in the current consultation document. In fact nothing the document is silent on such a decision.

This ban was announced by the EAC in February 1998. Human Rights Monitor formally requested Mr. Justice Woo to reconsider his decision at a meeting on 20 April 1998. Mr. Justice Woo refused to do so, stating that other countries did not allow such observers, and citing as an alleged example New Zealand. Human Rights Monitor made inquiries in New Zealand and received a letter from the Chief Electoral Commissioner of New Zealand (Mr. Justice Woo's opposite number there) stating that international observers are permitted to enter polling stations in New Zealand), and that a number had attended the last New Zealand elections and that this had presented no problems and "was a common event throughout the world" (copy letter at Appendix6). Unfortunately this letter was only received in time to put it before Mr. Justice Woo the day before the poll, when it was too late to reverse the whole Commission's decision, and the ban on foreign observers entering the polling stations was maintained.

In the event, as expected, there was no evidence of polling or counting impropriety in the Hong Kong elections. There was limited evidence of intimidation in rural areas ( see previous section) but no evidence that it was in any way organised by the Government, which we consider utterly unlikely. In these circumstances the attitude of the Government and of the Electoral Affairs Commission is bizarre, and has done wholly unnecessary damage to Hong Kong's reputation as a free society.

The Commission appears in its post-election report appears to be obsessed with the idea that the sight of international observers could be interpreted by the public as meaning that the observers were there to interfere with the election, and it takes the view that this danger outweighs the danger of giving the impression of having something to hide by not letting observers in. Such a worry has already been addressed by the current law to prevent any corrupt and illegal practices to guarantee the free expression of views by the voters.

It is hoped that the Electoral Affairs Commission would consider allowing the presence of international observers in the District Councils elections to avoid unnecessarily tarnishing the image of the election.

During the early stages of election campaigning last year, the Chief Executive had stated his opposition to observation of the Hong Kong election by outsiders. Although the Electoral Affairs Commission claimed to act wholly independently, it followed Mr. Tung's lead in taking

Conclusion

Although the existing electoral system leaves a lot to be desired in terms of democratic progress, it is our view that the Electoral Affairs Commission could further "open up" the electoral process by striking down the barriers.

Advertising through the media is a very acceptable form of advertising in many countries. The presence of international observers would also help to "promote" the image that Hong Kong's election system are indeed open and fair, since we supposedly have nothing to hide. It is also hoped that the Electoral Affairs Commission would accept our suggestions, since they only aid in making the election more "open" and accessible to all.


1999 (c) Hong Kong Human Rights Monitor