For almost a year, Hong Kong’s MTR Corporation has been mired in scandal. Reports of shoddy work in the US$12.4 billion Shatin-to-Central Link project led to the setting up of a commission of inquiry, followed by the government’s disclosure that it couldn’t guarantee safety because most inspection documents couldn’t be located and apparently had never been submitted.
The saga highlights an administrative culture that plays down the importance of creating and preserving official documents, reflected in Hong Kong’s unique position in the developed world of having no archival law. This led to hardly conceivable problems over the years and examples of disdain for documentation abound.
In 2013, after a ferry collision in which 39 people died, a commission of inquiry discovered that the Marine Department had decided years ago not to implement a law mandating safety features if the vessel had been built before 2008, when the law came into effect.
Officials who inspected ferries annually gave them a pass even though they did not meet legal requirements. The officials told the commission that they were simply carrying out the department’s policy. But they didn’t know who had set the policy, or when. There was no document regarding this issue.
In 2007, Justice Michael Hartmann presided over a judicial review of the government’s decision not to allow four Falun Gong members to enter Hong Kong. When he asked the Immigration Department to produce papers on the case, it responded that they had all been destroyed.
“The reasonable man on the street would probably have difficulty accepting that government would have destroyed all of its records going to why some 80 people were refused entry to Hong Kong,” the judge said.
The police department, too, doesn’t bother to preserve its records. This led to the anomalous situation in which a foreigner, Richard Butt, who had been commended by police for his role in a pickpocketing incident, was threatened with prosecution because an immigration officer believed the commendation to be fraudulent. The police had no record of the commendation.
After Butt proved the commendation was genuine, he received a letter saying the proceedings against him would be dropped because of “insufficient evidence”.
It is odd that Hong Kong doesn’t bother with the preservation of documents. Britain, which governed it for over 150 years, has archival legislation. China itself has an unrivaled history of document preservation, with Beijing’s First Historical Archives boasting 10 million documents from the Ming and Qing dynasties. Modern China enacted an archives law in 1987, which has been praised by supporters of a Hong Kong archives law.
Currently, Hong Kong’s toothless Government Records Service relies on individual bureaus and departments to hand over old files for assessment as to whether they should be preserved. Not many do so regularly.
Legislators, the media, a think tank, the ombudsman, the director of audit and a pressure group led by a retired judge have all called on the government to enact an archives law to replace the current administrative system.
Finally, it appears, things may be changing. Chief Executive Carrie Lam Cheng Yuet-ngor has asked the Law Reform Commission to look into the issue.
In December, a sub-committee issued a consultation paper to seek public views on an archives law. Now, it seems, certain questions have to be decided, such as the law’s scope, that is, whether it should only bind the government or whether it should include public bodies, such as the MTR Corporation, the Hospital Authority, the Housing Authority, and so on.
Another question is penalties for those who violate the law.
The culture of slighting documentation is deeply ingrained in public bodies as well and the law should certainly apply to them. But since there are hundreds of such bodies, it may take a little time to phase in an archives law.
As for penalties, the sub-committee’s chairman, Andrew Liao, has been quoted as saying, “If just a little bit of negligence will lead to criminal liability, this will seriously affect the department’s morale.” On the other hand, if the law can be broken without any penalty, then what is being created is a toothless law.
Finally, the enactment of a good archives law by itself isn’t good enough. It is also necessary to provide public access to official documents. Hong Kong doesn’t have a freedom of information act. It needs such a law.
While it is important for official data to be preserved, it is just as important for the data to be accessible. Preservation and access go together, like love and marriage. You can’t have one without the other.
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