- Deliberative Accountability
Article 64 of the Basic Law specifically prescribes that the HKSAR’s executive authorities shall be accountable to the Legco, in which two of the requirements (i.e., presenting regular policy addresses and answering Legco questions) are clearly related to providing information to and explaining and justifying government decisions in the legislature. I think it is reasonable to call this kind of requirements deliberative accountability, as they are meant to make the government accountable in providing regular information to the Legco to promote public debate and scrutiny of government action.
- Political Accountability
It can be argued that the Basic Law also prescribes some form of political accountability between the executive and the legislature, in which the Chief Executive is required to resign in the event that his major policy fails to inspire confidence and support. However, the arrangements in the Basic Law in this respect are both unique and complicated.
Similar to the parliamentary system in western democracies, Article 64 of the Basic Law stipulates that the HKSARG is accountable to the legislature for matters relating to taxation and public expenditure. It also requires that if the executive ultimately (cf Article 52) losses the confidence of the legislature in these matters or matters relating to major government legislation, the Chief Executive has to resign. However, Legco’s initial refusal to approve a budget or a major government bill will not lead to the dismissal of the government of the day; instead, in Hong Kong’s so-called executive-led system, the Chief Executive is given the advantage at this stage to dissolve the Legco (Article 50). Only when the new Legco again shows its lack of confidence in the government at a subsequent stage by refusing to pass the same bill that the Chief Executive is held politically accountable and is required to resign. It is also important to note that, unlike the common practice in a parliamentary democracy, the passage of a vote of no confidence against the executive in the Legco will not automatically lead to the fall of the government or any ministerial dismissal.
While the arrangements in the Basic Law in this regard are rather uncommon, it is still reasonable to think that when it comes to political accountability, the executive is responsible for getting the support of the legislature in matters relating to taxation, public spending, and important government legislation, though it requires two consecutive legislatures’ no confidence in these matters to trigger the removal of a Chief Executive, which gives considerable leverage to the executive in manipulating the first legislature to succumb to its wishes.
The Principal Officials Accountability System and Its Problems
In July 2002, the second Tung Chee-hwa administration of the HKSAR introduced the POAS to the government, in which all policy making principal officials, comprising the Chief Secretary for Administration, the Financial Secretary, the Secretary for Justice, and 11 other policy secretaries, are no longer manned by civil servants. Instead, they have all become political appointees with direct policy responsibility to the Chief Executive. The Chief Executive admits that since 1997, government policy and operation have been subject to increasing critical scrutiny by the public, the media, and the Legco. The government acknowledges that in a sense, the introduction of the POAS was a response to calls for resignations of senior officials to take responsibility for serious policy failures since the changeover of sovereignty. For example, in March 1999, after having heavily lobbied the pro-government legislators, the government managed to just overcome a no confidence motion in the Legco against the Secretary for Justice for her alleged failure to defend the rule of law by disallowing the prosecution to proceed against a newspaper proprietor Sally Aw who was well connected to the Chief Executive on corruption charges. In June 2000, a motion of no confidence against the Chairperson of the Housing Authority and the Director of Housing was carried in Legco, for legislators had lost confidence in the two officials in their ability to reform the public housing sector and found them politically responsible for the “short-piling” scandal, in which corrupt officials allowed substandard piles to be built in government housing estates. Although the non-civil servant Chairperson, Ms Rosanna Wong, resigned voluntarily just before the passage of the vote, the Director of Housing, being a civil servant with security of tenure for his job, did not step down to take policy responsibility.
In essence, properly understood, the POAS is a form of individual ministerial responsibility in which individual policy maker, unlike in the past, is required to shoulder the consequences of policy failures. There are, however, two fundamental problems with the POAS. First, as the Chief Executive is not popularly elected and the politically appointed principal officials are not responsible to the public or to the elected Legco, the POAS will only enhance the Chief Executive’s power to fire and hire principal officials if he finds their performance not to his liking instead of promoting democratic accountability.
Second, since Hong Kong has yet to develop constitutional conventions governing the operation of individual ministerial responsibility, it is far from certain that the introduction of the POAS will enhance principal officials’ accountability. A case in hand to illustrate this is the “penny stocks fiasco”. The fiasco erupted less than one month after the introduction of the POAS, in which the local stock market lost HK$10 billion in stock value in one day caused by the ill-conceived proposal of the Hong Kong Exchanges and Clearing (HKEx) to de-list stocks trading in the local market below 50 Hong Kong cents for 30 consecutive days without consolidating their shares. While both the Financial Secretary and the Secretary for the Financial Services and Treasury (SFST) are responsible for this policy area, they both refused to take responsibility, arguing that the HKEx was not a government department and the proposal was not initiated by the government, though the SFST subsequently admitted in Legco that he was sent a copy of the summary of the HKEx proposals in advance but failed to have read them before their public release. Although the Financial Secretary appointed an inquiry to look into the fiasco, there still have no signs of seeing the development and acceptance of constitutional conventions determining when and under what conditions a minister should be held responsible for indirect departmental faults (or the so-called vicarious responsibility of a minister). Likewise, before there are well established conventions governing the resignation and censure of responsible officials and regulating the relationship between politically appointed ministers and politically neutral civil servants, it remains to be seen if the POAS can really promote accountability and nurture a culture of responsible governance in the HKSAR.
Accountability and Democracy
Hong Kong is no democracy at the moment, with the Chief Executive being selected only by 800 privileged people and at least half of the seats in the legislature not returned by universal suffrage before 2007. Without democracy, no accountability system is secured, for not being responsible to the people, power holders will have no incentives to make the decision making process transparent, will explain and justify their decisions only at their discretions, and will not be held accountable even if their policies have already lost the confidence of the people.
The POAS, as mentioned in the previous section, is flawed because principal officials are not even held responsible to the semi-democratic Legco, not to say to the people for policy failures. There is no institutional guarantee that the non-popularly elected Chief Executive will respect the judgment of the Legco and the people in issues related to the accountability of the principal officials.
While it is true that the Basic Law has provisions providing for a system of accountability covering the legal, administrative, deliberative, and the political aspects, given the undemocratic nature of the present political system in the HKSAR, each and every one of this aspect needs to be reformed or strengthened if we take accountability seriously.
In the case of legal accountability, while the Chief Executive is required to be accountable to the HKSAR, meaning that he shall discharge his constitutional and legal duties in the best public interest, it is far from secure that his perception of public interest will not be more in line with the 800 people whom have the power to select him than with the general public. We must also remember that Legco’s power to impeach the Chief Executive in case of serious breach of law or dereliction of duties is not final, for even if the impeachment motion is carried with the support of two-third of the members, it is still up to the CPG to make the final decision to remove the Chief Executive.
As regards administrative accountability, since the Commission Against Corruption and the Commission of Audit are there to check the executive authorities against corruption and inappropriate use of public expenditure, accountability will be enhanced if both Commissions are made accountable to the Legco instead of to the Chief Executive, as the latter, being the head of the HKSARG, is still part of the executive authorities whose performance and behaviour are required to be scrutinised by the Commissions concerned. Likewise, some other offices for the enhancement of administrative accountability not provided for in the Basic Law, such as the Office of the Ombudsman, should be made accountable to the Legco than to the Chief Executive.
Deliberative accountability is one area in which the lack of democracy will make it highly ineffective. While the Basic Law requires the Chief Executive to present policy addresses to the Legco, the current Chief Executive Mr Tung Chee-hwa is, to say the least, most reluctant to appear before the Legco to answer questions, and his refusal to meet the public after the delivery of his Policy Address 2003 demonstrated that public deliberation of government policy will not be taken seriously without democratic accountability. Further, we must also remember that quality deliberation requires free access to relevant information. In this respect, the lack of legislation for free access to public information is a major handicap for the promotion of deliberative accountability, and a right balance must be struck in the protection of legitimate state secrets and the right of the media and the public to know about important and even sensitive official information. In addition, to further enhance the quality of deliberation in the Legco, Legco members and their political parties should be given more public funding to enhance their policy research capacity so that quality alternative policy proposals could be produced to compete with the government’s proposals.
Political accountability, in its full sense, cannot exit without full democracy, for policy makers can only legitimately exercise their political powers so long as they still have the confidence of the people. In this strict sense, the HKSAR will only have genuine political accountability the day when full democracy is introduced. This applies both to the election of the Chief Executive and of the Legco. If either one losses the mandate of the people, they have to step down from office. Under the present arrangements of a semi-democratic Legco and a Chief Executive returned by only 800 people, political accountability, at most, only applies to those Legco members who are elected by universal suffrage. This is a highly unsatisfactory situation and shows that the exercise of political power in the HKSAR falls far short of the civilised requirements of responsible government.
The Basic Law nevertheless stipulates that the Executive Authorities and the Chief Executive are accountable to the Legco. They also need to get the support of the latter in matters relating to taxation and important government legislation. However, the Basic Law also gives the advantage to the Chief Executive to dissolve the Legco in case such a support is lacking in the first instance. Under the present circumstances, this executive-led feature of the political system will further undermine the ethos of accountability, for the hurdle for an elected Legco to climb in order to remove a non-popularly elected Chief Executive who has lost the confidence of the legislature is unreasonably high. Also, owing to the mixed composition of the Legco, with members returning both from indirect elections in small-sized functional/electoral constituencies and from direct elections under the proportional representative system, together with the requirement of split voting among Legco members in Legco initiated proposals, the legislature is fragmented, making it almost impossible to form a coherent and effective alternative to the executive. The political accountability of the government to the legislature is therefore at best ineffective, at worst non-existent.
The Need for Political Reform
The Basic Law stipulates that the ultimate aim both for the election of the Chief Executive and for the election of all members of the Legco is by universal suffrage (Articles 45 & 68). It also stipulates that we should conduct a constitutional review to determine whether and, if so, how to further democratise the election methods for the Chief Executive and the Legco by 2007. In the light of the analysis above, it is reasonable to conclude that the only way to redeem the shortfall of accountability in our political system is to introduce full democracy to the HKSAR as soon as possible.
As the spirit of accountability does not only comprised of sanctioning incompetent officials but also of promoting public deliberation of major social and political issues, we think that civil society organisations and the government alike should initiate public discussions on the further democratisation of our political system as soon as possible. They should motivate as many people to participate as possible. The government and the mass media could play a coordinating role in this undertaking, and the more substantive contributions on the ways to enhance accountability and democracy made by the civil society organisations, the better.
Apart from deliberations on the democratic principles and methods of electing the Chief Executive and the Legco, we should also look into areas like enhancement of the check and balance functions between the executive and the legislature, the Legco’s role in holding the executive administratively accountable, development of constitutional conventions for ministerial responsibility, legal and administrative measures to protect the political neutrality of the civil service, legislation for more transparent governance involving freer access to official information, greater and more independent power of investigation against maladministration, enhancement of policy research capacity in the Legco, in political parties, and in independent non-affiliated think tanks or research centres for better policy deliberation, and the opening up of more channels for public participation for policy consultations and discussions.
While the above list of areas of deliberation for political reform is far from exhaustive, a culture nurturing accountability and a political system embodying the principle of democracy are the two main pillars to ensure that political powers will be exercised responsibly. Active and vigilant participation by the society at large is what makes these two pillars strong and sustainable. (January 2003)
Similar provisions are in place for Legco initiated legislation. See Articles 49 and 52(2).
