SCMP Saturday, May 12, 2001
Loyalty is no substitute for accountability
The Chief Executive and the Legislative Council represent two branches of government divided by a common call for a system of accountability. Within days of his assumption of office last week as Chief Secretary for Administration, Donald Tsang Yam-kuen announced his intention to pursue Tung Chee-hwa's plan to establish a more accountable public service. It will be interesting to see what system of accountability he intends to introduce.
The system of accountability sought by Legco is a system whereby officials will be held responsible to the public through the legislature for serious failures of administration. The need has arisen from widespread discontent of the public with the Government over a series of scandals: in the administration of justice when Secretary for Justice Elsie Leung Oi-sie failed to prosecute former newspaper tycoon Sally Aw Sian in 1998 over her alleged role in a circulation scandal, and last year over both the short-piling scandal of sub-standard construction on public housing projects and when Andrew Lo Cheung-on, Mr Tung's senior special assistant, was accused of interfering with academic freedom by pressing for University of Hong Kong pollster Robert Chung Ting-yiu to conduct fewer popularity surveys.
The public's demand is clear. It wants a stronger system of accountability, and one which focuses on the resignation of the official in charge of an area in which a scandal occurs as the ultimate gesture of accepting responsibility. If the official failed to resign unprompted, then, as the elected representatives of the people, Legco must take up the duty and press for the official's resignation. A vote of no confidence against the official is an obvious way of doing so.
The checks and balances between the executive and the legislature are always a complex business. But such a system - at least the mechanics of such a system - is achievable without any of the highly questionable mental flirtations with a "ministerial system" for Hong Kong.
It is not a novel idea to appoint a principal official or "policy secretary" on contract, either from among the civil service or from outside. Both Miss Leung and the new Financial Secretary, Antony Leung Kam-chung, are two such examples of outside appointments. It is certainly possible to include as a term of the contract, upon which such outsiders are appointed, conditions under which he or she may be required to resign. Serious failure in his or her area of responsibility could be made an event which can lead to resignation.
Though Legco has no power to require officials to resign, there is no reason why the Chief Executive should not, by convention, seriously consider asking an official to resign when the council has passed a vote of no confidence. The decision would still remain with the Chief Executive whether to actually ask the official to resign. It would depend on the circumstances of each case, but would greatly strengthen accountability if it is implicitly accepted that once a no-confidence vote is passed, resignation has to be seriously considered.
Such a system does not violate either the letter or spirit of the Basic Law, Article 64 of which explicitly provides that the Government must abide by the law and be accountable to Legco.
The Basic Law also provides for principal government officials to be nominated by the Chief Executive for appointment by Beijing, and their removal is also by his recommendation. As Mr Tsang has correctly pointed out, policies are made by the Chief Executive on the advice of the Executive Council, which is appointed by the Chief Executive from among principal officials, public figures and Legco members. Thus, principal officials directly participate in the formulation of policies. Traditionally, public figures are included to provide input and support from various key interest sectors of the community.
In the Basic Law, a subtle line is discernible between the principal officials on the one hand and the general body of the public service. This line could be made more definitive and a clear distinction drawn. Principal officials who directly participate in the formulation of policies could be given the "political" role of promoting those policies and be subject to resignation clauses in their contracts of appointment. Then there would be the general body of the civil service upon whom falls the duty of implementing such policies as Exco sees fit to approve. Included in the latter would be department heads and directors who also have the duty to give their professional advice to the principal officials and Exco. Once they have given their frank and honest advice, it is for Exco to accept or reject it. Whatever policy is decided upon, whether it be for or against their advice, it would be their duty to implement it to the best of their ability.
In the Basic Law scheme of things, the executive authorities are accountable to Legco. This accountability can be on a number of levels and through a range of mechanisms. But insofar as officials are involved in the process, the line described above should always be understood. Only principal officials of policy-secretary rank promote and are politically responsible for the policies concerned. Any other official called upon to appear in any Legco proceedings may assist only by way of explanation or providing information. His neutrality is protected and should be respected by the legislature. He should be allowed to keep to himself any opinion he may have of any Legco member or principal official.
What system Mr Tung may have in mind is still a secret. But some extravagant suggestions have been mooted: a new layer of super officials of psuedo-minister type paid at several times the present salaries of policy secretaries; Exco to become the "cabinet" consisting of these super officials, and so on. It will be interesting to see how far such suggestions turn out to be true. What really causes concern is what Mr Tung perceives as the need for the new system.
It is said Mr Tung has long been unhappy with the present system. He believes his policies have failed in the past largely due to the uncooperative attitude of civil servants who cling to the past and who are protected by their security of tenure. So it is necessary to change the system to make top officials more directly accountable to him by placing their hiring and firing more clearly within his control. The new system is expected to bring about greater loyalty to the Chief Executive and greater solidarity.
If so, then his scheme will be constructed on an irrational basis. As pointed out, he already has the power to nominate for appointment and to recommend for removal with respect to all principal officials. He cannot on his own hire or fire them because under the Basic Law the power of appointment and removal belongs to Beijing. But if any principal official is obstructing his policies or is refusing to give them the required support, he already has all the power he needs to transfer him and promote others in his place.
Having a ring of loyal officials around the Chief Executive gives no assurance of success of any policy, since a policy, to be successful, has to be formulated on sound and impartial advice in the first place. It then has to be implemented effectively. This does not come from the top officials being unquestioningly loyal to the Chief Executive. It depends on good channels of communication between those who formulate the policy and those who have to implement it. It also depends on the Chief Executive's capacity to take independent advice which may be unpalatable. If the system is designed to filter out critical views, then failure will deepen, not diminish. It is obvious that there are huge communication gaps at present.
What is known of the scheme up to now sounds much more like some delusion of grandeur of rule by a new elite. The delusion will be all the more inevitable if the chief qualification for membership is uncritical loyalty for the Chief Executive and his grand visions.
Margaret Ng Ngoi-yee is a legislator representing the legal profession. James Tien's Party Politics column will appear tomorrow.