Accountability and Open Government Cheung, Chor-yung Essays

Accountability and Open Government Cheung, Chor-yung Essays Accountability and Open Government Cheung, Chor-yung Essay Accountability and Open Government Cheung, Chor-yung Essay In a civilized society, the use of political power is a profound responsibility. Holders of public offices can only exercise their authority legitimately if they do so in accordance with principles, rules, and procedures agreed by or acceptable to the society at large, and it is incumbent upon the public officials to justify their decisions with good reasons if challenged. Failure to do so will likely render their exercise of political power unacceptable. Legitimate power, in other words, must be subject to public scrutiny. Power holders who fail the test of public scrutiny will be held responsible, and they will have to step down from their offices if those failures are regarded as sufficiently serious. In the parlance of modern political studies, we call such a system an accountability system. Since accountability in this context comprises both the meaning of giving an account to explain and justify a government decision and of being responsible for its consequences, accountability also implies open government to facilitate public scrutiny of acts of government. Accountability and the Basic Law Accountability is a central but complicated concept in the Basic Law, the mini-constitution of the Hong Kong Special Administrative Region (HKSAR). A careful reading of the chapter on the political structure of the Basic Law shows that at least four different kinds of accountability can be identified in this constitutional document; they are legal, administrative, deliberative, and political accountability respectively. a) Legal Accountability Paragraph two of Article 43 of the Basic Law stipulates that the Chief Executive of the HKSAR is accountable to the Central Peoples Government (CPG) and the HKSAR in accordance with the provisions of the Basic Law. More specifically, Article 64 provides that the HKSAR government (HKSARG) must abide by the law and be accountable to the HKSAR Legislative Council (Legco) and shall implement laws passed by the Legco and already in force. In other words, the Chief Executive must abide by the Basic Law to discharge his duties to implement the CPGs one country, two systems policy over the HKSAR and to act for the best interest of it. The Chief Executive (as the head of the HKSARG) and the executive authorities also have the legal obligation to observe the laws and to implement them as and when required in accordance with the due process. Failure to do so will make the Chief Executive and his officials legally accountable, and Article 73(9) also empowers the Legco to initiate impeachment pro ceedings against the Chief Executive if no less than one-fourth of all Legco members charge him with serious breach of law or dereliction of duties. b) Administrative Accountability As the Chief Executive is appointed by (Article 45) and accountable to the CPG, he is administratively a subordinate of the Premier of the State Council, who represents the CPG to make the appointment. The Chief Executive therefore should be held accountable to the Premier for the good administration of the HKSAR. Articles 57 and 58 of the Basic Law also prescribe that the Commission Against Corruption and the Commission of Audit, the heads of which are both principal officials nominated by the Chief Executive, shall work independently and be solely accountable to the Chief Executive in discharging their administrative duties to fight corruption and to audit public expenditure within the HKSAR respectively. Article 99 of the Basic Law provides that all civil servants shall be responsible to the government, which effectively means that they are all, via their respective line managers, accountable to the Chief Executive for the good administration and implementation of government policy. Since the introduction of the Principal Officials Accountability System (POAS) in July 2002, all principal officials with policy portfolios are all made directly accountable to the Chief Executive for the outcome of their respective policy portfolio (more on this in the next section). However, for principal officials from the disciplinary forces other than the Commissioner of the Commission Against Corruption (i.e. Commissioner of Police, Director of Immigration, and Commissioner of Customs and Excise) who are not responsible for policy making, administratively they are directly accountable to the Secretary for Security (herself also a principal official) as their departments fall within the ambit of the latters policy portfolio. c) Deliberative Accountability Article 64 of the Basic Law specifically prescribes that the HKSARs 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. d) 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, Legcos 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 Kongs 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.1 It is also important to note that, unlike the common practice in a parliam entary 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 t enure 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 Executives 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 min isters 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 Legcos 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 enhanc e 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 governments 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 Leg co 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.