In Hong Kong, China insists, the Chief Executive is more equal

February 12, 2019 09:05
In her election manifesto, Carrie Lam had vowed that she would try to resolve constitutional and legal issues aiming at amending the Prevention of Bribery Ordinance, to extend the scope of some sections to cover the Chief Executive. Photo: HKEJ

Ever since Carrie Lam became Chief Executive of Hong Kong on July 1, 2017, she has had virtually absolute support from the Chinese government, including President Xi Jinping himself. This isn’t surprising, since she was Beijing’s hand-picked candidate.

In the intervening 20 or so months, Beijing has offered fulsome praise of Lam’s governance of the former British colony, now known as the Hong Kong Special Administrative Region. The Chief Executive has avoided sensitive issues and focused on livelihood problems, bringing about a lowering of the political temperature.

Ironically, Beijing is now proving a problem for Lam in her attempt to keep a major campaign promise: to legislate so that her office – that of Chief Executive—would be covered by key sections of Hong Kong’s anti-corruption legislation, which currently don’t apply to the city's top leader.

In her election manifesto, Lam promised that she would "resolve as soon as possible those constitutional and legal issues aiming at amending the Prevention of Bribery Ordinance to extend the scope of sections 3 and 8 to cover the Chief Executive."

While “soliciting or accepting an advantage” is a criminal offence for the 160,000 civil servants in Hong Kong, the provision doesn’t extend to the Chief Executive. Similarly, anyone who, while dealing with the government offers an advantage to a “public servant” in the relevant department shall be guilty of an offence – unless, of course, that public servant happens to be the Chief Executive.

But the Chinese government apparently has found an amendment to fix the anomaly unacceptable, according to the South China Morning Post, which cited “a source familiar with the central government’s thinking on the matter.”

“Beijing’s position is that the chief executive is appointed by the central government,” the source reportedly said. “It can’t accept the move to enact local legislation to establish a committee to grant approval for the acceptance of advantages by the chief executive.”

A few months after assuming office in July 2017, the Post reported, Lam “shared her plan with central government officials overseeing Hong Kong” and, subsequently, “she was informed that Beijing was against the idea.”

Momentum to reform the anti-corruption legislation has been building up since 2012, when an independent review committee headed by former Chief Justice Andrew Li concluded that a “fundamental defect” in the existing legislation is that certain sections of the bribery ordinance don’t apply to the Chief Executive.

It recommended the creation of a statutory Independent Committee, consisting of three members appointed jointly by the chief justice and the president of the legislature, which would grant permission for the Chief Executive to solicit or accept any advantage.

But criminalizing behavior of the Chief Executive is highly sensitive because the top official occupies a special constitutional status as defined in the Basic Law, Hong Kong’s mini-constitution adopted by China’s National People’s Congress. According to the Basic Law, the Chief Executive is appointed and removed by the central government and “shall be accountable to the Central People’s Government and the Hong Kong Special Administrative Region.”

Beijing holds that the Chief Executive is not only the head of the government but head of the region. It may well find objectionable a proposal to subject the Chief Executive to a committee appointed by the heads of the legislature and the judiciary.

News of Beijing’s position coincided with the release from prison of former chief executive Donald Tsang in mid-January after having served a 12-month sentence for nondisclosure of a property deal.

It also followed a controversial decision by Hong Kong’s Department of Justice not to prosecute Leung Chun-ying, Lam’s predecessor, over a HK$50 million payment from the Australian engineering firm UGL, which he did not declare.

Justice Secretary Teresa Cheng was sharply criticized by legislators and the Hong Kong Bar Association for not seeking outside legal advice before making the decision, which critics said was contrary to departmental practice in cases involving high officials or prominent individuals to avoid the appearance of bias.

The cases of the two former chief executives have dominated headlines for years, which was why Lam agreed to reform existing legislation so that Hong Kong’s top official would be treated like anyone else where corruption allegations are concerned.

Lam will be pressed to deliver on her election manifesto despite Beijing’s opposition and she will have to find a way. After all, as the Li committee said, “All public officials are servants of the people,” and the Chief Executive “should be regarded as ‘the Chief Servant’ of the people.” He – or she – should not be above the law.

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Frank Ching opened The Wall Street Journal’s Bureau in China in 1979. He is now a Hong Kong-based writer on Chinese affairs.