Why public office holders must not put forth 'personal opinions'

July 18, 2018 09:15
Carrie Lam should not have signaled her preference for reclamation as a means to provide new land for housing, at a time when a public consultation exercise was still underway, critics say. Photo: HKEJ

In any mature civil society, it is common for citizens to freely express their views and opinions on social incidents or government policies.

However, there is no such thing as "personal opinions" as far as civil servants and public office holders are concerned.

I am not suggesting that these people should be deprived of their freedom of speech.

Yet what I am trying to say is, given their capacity as public servants or policymakers, their views on any particular subject that are openly expressed would often be seen by the public as an official stance adopted by the government rather than just their “personal views” on that particular matter.

As such, whatever they say in public about anything, they would very often be regarded in the public eye as speaking on behalf of the government.

Given this, I would say it was indeed inappropriate for Chief Executive Carrie Lam Cheng Yuet-ngor to "suddenly" tell the media during a tea break recently that she favors reclamation as a means to provide new land for housing, at a time when the public consultation on land use spearheaded by the Task Force on Land Supply was still underway.

All she did is give the public an impression that the government has already taken a stand on this matter even before the Task Force has submitted its final report.

The CE’s remarks were immediately echoed by Secretary for Transport and Housing Frank Chan Fan, who argued that "as a member of society, everyone can have their own views", in an apparent attempt to rationalize the words of his boss.

However, despite his arguments, a lot of citizens have criticized the government for being disrespectful to the ongoing consultation efforts made by the Task Force.

Worse still, some members of the public have even started having doubts about whether the Task Force is actually putting on a “fake” consultation so as to swing public opinion on land reclamation the way the government wants.

"Fake" public consultations, it must be said, not only go against political ethics, but are also a violation of legal principles.

According to a British Supreme Court ruling in 2014, any public consultation exercise carried out by the government must meet four fundamental principles in order to be considered legally valid.

First, the consultation exercise must be carried out when the related policy initiative is still in the stage of formulation.

Second, authorities must provide substantial grounds for all the options laid down in the consultation paper so as to allow the public to reasonably balance their pros and cons and then make informed judgments.

Third, the government must allow the public sufficient time to consider all the options and then respond.

And fourth, the authorities must take all the public views gathered during the consultation exercise into account before embarking on any particular option.

To be honest, it is fairly common for governments to have a pre-established stance or presupposition when it comes to public consultations, and that doesn’t necessarily render the consultation “fake”.

Take the ongoing “great debate on land use” mounted by the Task Force on Land Supply as an example.

The government has commissioned the Task Force to launch the consultation because it has taken the view in the first place that there is currently an acute shortage of land in Hong Kong that is seriously hindering our housing development. Such a view, in itself, already constitutes a pre-established stance.

Nevertheless, since there is already a consensus among society that the city is in desperate need of a long-term solution to the land shortage issue, nobody would probably consider the ongoing consultation as a “fake” one.

Therefore, what truly determines whether or not a public consultation exercise is “fake” is not whether the government has already taken a stand on the issue beforehand, but rather, whether members of the public are allowed to express their views thoroughly, and whether their views will have tangible implications for future policies.

As a matter of fact, Carrie Lam and her administration are fully justified in trying to come up with a long-term solution to the land shortage.

Unfortunately, the problem is, the entire consultation is likely to backfire if she forgets her capacity as the CE and weighs in at the wrong time.

Imagine this: even if things eventually played out the way the CE wanted and the findings of the consultation indicated that the majority of the public are in favor of land reclamation, the credibility of such a mandate would have been undermined by the leader's inappropriate remarks.

This article appeared in the Hong Kong Economic Journal on Jul 11

Translation by Alan Lee

[Chinese version 中文版]

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Legco member representing the Legal functional constituency (2016-2020) and a founding member of Civic Party