26 October 2016
Calls to apply anti-bribery clauses to the top leader have fallen on deaf ears. Many believe Leung Chun-ying's acceptance of fat payments from an Australian firm is the real reason for the administration's nonfeasance. Photo: Xinhua
Calls to apply anti-bribery clauses to the top leader have fallen on deaf ears. Many believe Leung Chun-ying's acceptance of fat payments from an Australian firm is the real reason for the administration's nonfeasance. Photo: Xinhua

A practicable way to apply anti-bribery law to the CE

The chief executive is immune from prosecution for violation of some clauses of the anti-bribery law.

Section three of the Prevention of Bribery Ordinance criminalizes any politically appointed official or civil servant who solicits or accepts an advantage without the chief executive’s permission. For any offense, the maximum penalty is a fine of HK$100,000 and one-year imprisonment.

The city’s top leader and cabinet members are not covered by this provision.

In February 2012, growing public clamor prompted then chief executive Donald Tsang Yam-kuen to set up an independent review committee following reports about his acceptance of concessions and perceived conflict of interest.

The panel, headed by the former chief justice Andrew Li Kwok-nang, looked at issues concerning the prevention and handling of potential conflicts of interests and put forth a set of recommendations in its May report.

In order to command public confidence, according to the panel, “the chief executive should observe rules that are at least as stringent as those applicable to officials and the civil service which he leads”.

It noted that this is “essential for upholding the dignity and honor of the office of the chief executive, and maintaining public trust in the integrity and probity of the system”.

In a nutshell, the panel recommended section three of the ordinance be made applicable to the chief executive.

The chief executive, as the ultimate approval authority under the section three regime, has the right to grant general and special permission to officials with regard to advantages, it said.

So when the chief executive is bound by the section, who else can grant permission to the top leader?

The panel’s solution was the creation of an independent committee consisting of the chief justice and the president of the Legislative Council to “give general permission to the chief executive to solicit or accept advantages in certain defined circumstances”.

The reason why the government has so far kept the recommendation in abeyance is that, as it claims, such a committee to supervise the chief executive runs counter to his “unique constitutional status”.

He is not only the head of the SAR government but also represents the entire SAR, as Chief Secretary for Administration Carrie Lam Cheng Yuet-ngor told lawmakers last week.

Once again, she reiterated what the authorities have been saying in the past three years: the many complexities arising from related constitutional and legal concepts have yet to be clarified.

Now let me say what the government meant in plain words: the chief executive is the head of the SAR and overrides the judiciary and the legislature and thus he must not be held back by the chief justice or Legco president as the two are but his “subordinates” in the hierarchy.

Such “constitutional conflict” that the government has been citing is entirely unfounded. All Hong Kong residents are equal before the law, as stipulated in the Basic Law.

The grim reality is that the current administration is very unlikely to adopt the recommendation before the end of its term and perhaps Beijing also endorses the notion of “a unique constitutional status”.

However, there is a way to bypass this constitutional barrier.

As the former Secretary for the Civil Service, I processed numerous applications for accepting advantages before my retirement.

To help cushion the impact of Section Three on the private lives of civil servants and to avoid unwitting breaches, the Acceptance of Advantages (Chief Executive’s Permission) Notice has been put in place, which gives general or special permission to accept advantages with prescribed conditions about categories and occasions.

The permission is specified by a government gazette in 2010 which laid out that accepting certain advantages from relations and close personal friends — like birthday gifts with a value of less than HK$3,000 — can be exempted.

The notice is updated on a regular basis.

Over the years the Civil Service Bureau has had a large archive of such general and special permissions from the chief executive or his authorized officials.

Thus, my proposal is to add an extra clause to Section Three: The chief executive shall be guilty of an offense for soliciting or accepting any advantage except on prescribed occasions.

Then, include in an open appendix the scope of the general permission currently applicable to all civil servants to define “prescribed occasions”, and add a special permission to accept certain advantages after taking into consideration the chief executive’s status and his justified needs to discharge his duties.

The appendix can be reviewed and updated regularly.

In the event when the chief executive is entitled to some advantages that fall out of the scope defined by the appendix, he can choose not to accept them.

If the government is sincere in its statement that it agrees with the recommendation in principle and will study implementation measures, I see no reason for it not to consider my proposal which is free of any constitutional sensitivities.

This article appeared in the Hong Kong Economic Journal on Nov. 18.

Translation by Frank Chen

[Chinese version 中文版]

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Former Secretary for the Civil Service of the Hong Kong Government

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