THE QUEST FOR GOOD GOVERNANCE

The Quest for Good Governance: Hong Kong’s Principal Officials Accountability System
CHEUNG Chor-yung

The second Tung Chee-hwa Administration in Hong Kong introduced the Principal Officials Accountability System (POAS) in July 2002 to enhance the quality of governance and accountability of its principal officials. A team of politically appointed principal officials replaced senior career civil servants as final decision-makers in the government. The co-option of two political party chairmen into the cabinet heralds the beginning of coalition politics, whereby the executive branch attempts to forge an alliance with some political parties in the legislature. However, owing to the undemocratic nature of the POAS, in which principal officials are responsible to the Chief Executive, not the public, it is doubtful if the POAS will improve the quality of governance in Hong Kong’s open and pluralistic society.

government of the Hong Kong Special Administrative Region (HKSAR), in the name of enhancing the quality of governance, implemented a new Principal Officials Accountability System (POAS) on 1 July 2002, the very day Tung Chee-hwa commenced his second five-year term as Chief Executive of the HKSAR. Under the
ABOUT THE AUTHOR

The

Cheung Chor-yung (SCCCY@cityu.edu.hk) is a senior lecturer in the Division of Social Studies at the City University of Hong Kong. He is currently registered in a PhD programme at the University of Hull, UK. His thesis is on politics and the idea of civil association. His major research areas are Hong Kong politics and modern political theory.

© CHINA: AN INTERNATIONAL JOURNAL 1, 2 (SEP. 2003): 249 – 272

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CHEUNG CHOR-YUNG

POAS, all principal official positions of department secretaries and bureau directors are no longer employed on civil service terms. Rather, they are regarded as political appointees nominated by the Chief Executive and appointed by the Central People’s Government on non-civil service contractual terms. They are responsible for the policy outcomes of their respective policy portfolios.1 According to this new system, the Chief Executive can nominate candidates from both inside and outside the civil service for appointment to these principal official positions. In the end, three department secretaries and 11 bureau directorships were created under the POAS, of which six directors were selected from the civil service and five from other sectors.2 The government explicitly stipulates that all principal officials under the POAS may be forced to step down in the event of serious policy failures or grave personal misconduct. However, it has not defined precisely what constitutes “serious” failures and has maintained that the legislature’s vote of no confidence against a principal official has no constitutional binding authority to sack the official concerned. Moreover, according to Article 48(5) of the Basic Law, the HKSAR’s mini constitution, only the Chief Executive has the constitutional power to nominate the principal officials for appointment or removal. In this paper, I argue that this provision is inadequate and less than persuasive. The POAS also brings major changes to the Executive Council (Exco), Hong Kong’s final decision-making body, and to the higher civil service. All principal officials under the POAS are now appointed to the Exco, and the Exco Secretariat is absorbed by the Chief Executive’s Office, which is headed by a directorate grade level eight (D8) political appointee holding the title of Director of the Chief Executive’s Office who, in effect, is the Secretary to the
1

2

According to Article 48(5) of the Basic Law, the principal officials of the HKSAR government are the Secretaries and Deputy Secretaries of Departments, Directors of Bureaux, Commissioner Against Corruption, Director of Audit, Commissioner of Police, Director of Immigration, and Commissioner of Customs and Excise. The POAS applies only to secretaries of departments and directors of bureaux who are policy makers under the leadership of the Chief Executive. The other principal officials are still manned by civil servants whose offices fall outside the ambit of the POAS. For details of the government’s proposal, see “Legislative Council Paper: Accountability System for Principal Officials”, Constitutional Affairs Bureau, 17 Apr. 2002.

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there is a political leadership team manned by full-time politicians who share the same political platform. the D8 rank) of the civil service posts in the bureau are now designated as permanent secretaries. and administration of the government agencies concerned. No longer will senior civil servants be required to wear simultaneously the hats of policy makers and policy administrators. it heralded the end of Hong Kong’s rule by senior civil servants. and Jasper Tsang Yok-shing. in fact. allows local party chairmen to be its members. Under the POAS. The government also reiterates its commitment to a permanent. with the political appointments of the most senior policy makers to the Hong Kong government. First.4 local parties in the past could only exert their formal influence in the 3 4 In the past.e. 251 . The Political Implications of the Principal Officials Accountability System While the introduction of the POAS does not require any amendments to the Basic Law. and politically neutral civil service. it has. the new Exco has only five unofficial members amidst 14 official members. apart from the Chief Executive as the chair.3 The newly-revamped Exco. brought some fundamental changes to the political system of Hong Kong. implementation. They are tasked with assisting the bureau directors in policy formulation. With respect to the higher civil service. Section 31 of the “Chief Executive Election Ordinance” (Cap. transforming it from a largely advisory and amateur body into a cabinet type decision-making body no longer dominated by part-time unofficial members.THE QUEST FOR GOOD GOVERNANCE Exco and is responsible for the running of the Chief Executive’s Office and government secretariat’s public relations activities. all policy-making principal officials are appointed to the Exco. Chairman of the probusiness Liberal Party. also for the first time. Chairman of the pro-Beijing Democratic Alliance for the Betterment of Hong Kong (DAB). are now unofficial members of the Exco. In Hong Kong’s so called executiveled government system. meritocratic. those in the most senior rank (i. apart from the Chief Executive. Instead. A corollary of this is that for the first time in Hong Kong’s modern history.. only the three secretaries of departments were Exco members along with 11 or 12 unofficial members. James Tien Pei-chun. 569 of Laws of Hong Kong). in which the power to initiate policy is concentrated in the hands of the Chief Executive who by law cannot come from any political party.

ch. In fact. The co-option of Tien and Tsang to Exco is the clearest sign so far that Hong Kong is moving towards coalition politics by allowing pro-government local political parties to share the power of the executive. For a good discussion of this. another Liberal Party member. While it is still too early to say whether such a development is a harbinger of the emergence of a ruling party in the HKSAR.CHEUNG CHOR-YUNG fragmented legislature. and Technology. in Power Transfer and Electoral Politics: The First Legislative Election in the Hong Kong Special Administrative Region. see Kuan Hsin-chi. this coalition politics will certainly encourage a clearer distinction between antigovernment parties like the most popular Democratic Party and the Frontier. thus making it obligatory for them to vote for the government in the Legco once the Exco has taken a decision. 1999). 10. 252 . Kuan Hsin-chi. Together their parties command 18 votes (10 for the DAB and 8 for the liberals) out of 60 in Legco and form the largest voting bloc in the legislature. and the pro-government parties like the DAB and Liberal Party. like the DAB’s former Vice Chairman Tam Yiu-chung. party members. ed. like the inability of members of the legislature to move a private member’s bill of any significance. and the adoption of the proportional representation system in the geographical constituency elections. the split voting arrangement between the directly-elected members and functional constituency members on members’ initiated proposals. making the Liberal Party the first party in Hong Kong to have a member holding executive power in the government. “Election without Political Clout”. Industry. However.5 Before the introduction of the POAS. Lau Siu-kai. the situation has fundamentally changed.6 In the 5 6 Owing to a number of constitutional and institutional constraints. Hong Kong’s legislature is highly fragmented with no dominant party. appointed to the Exco had to give up their leadership position in their political parties and join the Exco in their personal capacity. Henry Tong Ying-yen. and Timothy Ka-ying Wong (Hong Kong: Chinese University of Hong Kong Press. The Democratic Party has 12 legislators and is the largest party in the HKSAR in terms of electoral support and number of seats held in the Legco. with the appointment of the two political party chiefs to the Exco. Louie Kin-sheun. the absence of a legislative committee system similar to that of the US. has become the Secretary for Commerce. Both Tien and Tsang are members of the Legislative Council (Legco) and are bound by the Exco’s principle of collective responsibility.

The six remaining seats were returned by the 800-member Election Committee. Before the introduction of the POAS. 253 . 9 There is a clear intention to demarcate policy from administration with a view to restricting political responsibilities in policy making to the secretaries of departments and bureau directors. in which universal suffrage was adopted by using the proportional representation system. in which only members (mostly corporate members) of those constituencies had the right to vote. the holders of which normally filled the policy secretary (i. 2002. Most of these constituencies came from the business and professional sectors and their political stances are more conservative than liberal. even the rare cooperation between pro-government parties and anti-government parties on some livelihood issues is now replaced by a clear adversarial relationship between the two sides.8 The creation of 14 politically-appointed top policy makers (who are in effect Hong Kong-style ministers) in the POAS is followed by a parallel development in the civil service: the creation of the D8 rank permanent secretaries in the policy bureaux to assist in policy making and implementation. in order to ensure the integrity of a meritocratic and 7 8 9 In an editorial after the introduction of the POAS. Only 24 seats belonged to the geographical constituencies.” In the 2000 Legco elections. half of the seats (i. 30) in the HKSAR’s Legco were returned by functional constituencies.. and in administering the respective government departments and agencies.THE QUEST FOR GOOD GOVERNANCE Legco. it equally requires the civil service to nurture a clear concept and practice of political neutrality. director of bureau) positions. with the government enjoying more secure support by the pro-government parties7 as well as the pro-business sectors’ members of the Legco who are returned by the functional constituencies. p.. which was boycotted by the democrats who support universal suffrage for all Legco seats as soon as possible. South China Morning Post (16 Jul. one on cutting civil service pay and one on anti-terrorism…What has changed is that legislators whose chiefs have been co-opted by Mr Tung have made a more concerted effort to defend the government. These permanent secretaries are to be informed and advised by the most senior civil servants who will remain politically neutral. and maintain the political neutrality and meritocratic tradition of the civil service.e. while those from other parties have taken on a clearer role of being the opposition. 1. Such a demarcation not only necessitates the development of political accountability among the principal officials.e. therefore. the D8 rank in the civil service was the most senior administrative officer rank. 15) made the following observation: “Since the new arrangements took shape on Jul. two major bills have been passed.

Reis (London: MacMillan Press and New York: St. as the principal officials under the POAS are not elected by the people and are not responsible to the elected Legco. conceptually as well as institutionally. with its manifested principles of accountability and political neutrality. 254 .” See his article “Civil Service Neutrality in Hong Kong”. a member of the Frontier. or whether there are better or additional institutional arrangements to fulfil these requirements. Haile K.CHEUNG CHOR-YUNG permanent civil service. and use so-called public opinion pressure to bring the elected Legco to heel rather than pursue genuine political accountability. “Why We Won’t Get Accountability”. 2001): 2. not the political accountability of the decision makers. the ministers under the POAS may be more eager to go out of their offices and listen to the public’s views on public affairs. the then leader of the Democratic Party. But it is a myth to which the principal players in the transition to Chinese sovereignty find in their interests to subscribe. 277. in the light of these manifested principles. Martin Lee Chu-ming. one can also ask if the proposed institutional changes are adequate. describing such a system as an accountability system is misleading if not deceitful. Martin’s Press.12 To these critics. Since the critics of the POAS have raised a fundamental query over whether accountability can survive without democracy. a step backwards for democracy. 28 May 2002. however. p. 14. but all they actually seek to do is to manipulate the public and media. argue that it is. no. 44 (Nov. made this observation about the pre-1997 Hong Kong civil service: “Civil service neutrality in Hong Kong is a myth. However. p. and not overstep the political territories of the principal officials. Asmerom and Elisa P. however. Likewise. it is premature to make any definitive judgement on whether the newly-introduced POAS will succeed in its quest for improving the quality of governance. See Democratic Party’s official publication Outspoken (in Chinese). describes the POAS as “government by the Chief Executive’s puppets”. in Democratization and Bureaucratic Neutrality.11 Emily Lau Wai-hing. a more in-depth look at the question of democratic accountability is called for. Increased accountability to the Chief Executive who has no popular mandate will only increase the power of the Chief Executive.10 Critics of the POAS. Emily Lau. ed. it does not follow that we cannot carry out an informed analysis of the POAS to assess if its proposed changes are consistent. in effect. Strictly speaking. 10 11 12 Ian Scott. South China Morning Post. 1996). contends that.

they identify the following aspects of accountability: administrative/organisational. 255 . P. There are different levels13 and different aspects14 of accountability in general political discourse. Public Service Accountability: A Comparative Perspective (Connecticut: Kumarian Press. It is therefore important not to assume that throughout the Basic Law. meaning the obligation to account for one’s actions. answering questions raised by Legco members. Jabbra and O. most people appear to agree that it means the existence of an authority to which an individual or body is subject. a policy thinktank in the HKSAR. (3) responsiveness. while the democrats argue that it should mean that the ministers are responsible either to the people directly. (2) accountability in the narrow sense. or to the elected Legco. even removed from office. Joseph G.THE QUEST FOR GOOD GOVERNANCE Accountability as Sanction While the HKSAR government and its critics have diametrically opposite assessments of the impact of the POAS on the quality of governance. there is only one meaning to the concept of accountability applicable to it. meaning the obligation to take action or carry out a duty and the liability to get blamed for one’s action or non-action. and moral.15 13 14 15 For example. 1988). meaning the obligation to provide an answer or response to questions raised. they appear to share one common proposition: that accountability is most meaningful if it is related to sanctioning incompetent policy makers. On pp. It should be noted that Article 64 of the Basic Law stipulates that the HKSAR government must abide by the law and be accountable to the Legco in terms of implementing laws passed by the Legco. As mentioned before. It is obvious that in this context. See pp. Dwivedi. presenting regular policy addresses to it. accountability does not involve the ability to impose sanctions and is therefore quite distinct from the concept of accountability as used in the context of the POAS. In the context of the POAS. A major difference is that the government takes accountability to mean that the ministers are responsible to the Chief Executive who is not returned by universal suffrage. 5–8. and by which the individual or body concerned can be controlled. meaning the willingness to respond to demand and call for action accordingly. it is pointed out that four separate notions are central to the overall concept of accountability: (1) answerability. there are different levels as well as types of accountability. legal. and obtaining approval from the Legco for public expenditure and taxation. in a paper on the POAS entitled “How to Take Governance Reform Forward: Accountability to Whom and How?” by the SynergyNet. political. professional. 7–8 of the paper. and (4) responsibility.

a conceptually-logical conclusion is to introduce an accountability system whereby the public or the elected Legco can impose direct sanctions against those who are responsible for their policy failures. Instead. As John Uhr. constitutionally. who is selected only by a “small circle” 800-member election committee. many people demanded the resignation of Chief Executive’s Personal Assistant Andrew Lo Cheung-on. errors. in the summer of 2001. Deliberative Democracy in Australia: The Changing Place of Parliament (Cambridge: Cambridge University Press. 16 17 John Uhr. and institutionally tenable or adequate. not political. p. an Australian scholar on public service and deliberative democracy. the government says that all principal officials are accountable to the Chief Executive. media. But that was not what the government proposed. The government itself admits that since the reunification with China in 1997. Meanwhile. it is equally obvious that sanctions alone cannot exhaust the requirements of effective accountability. and elected Legco. 163.16 The point of deliberation and information is discussed in the next section. there has been a big change in Hong Kong’s political ecology in the sense that government policy and operation are increasingly subject to the critical scrutiny of the public. The government refused to let Miller and Lo resign on the grounds that they were civil servants and responsible for administrative. For example. after he was found by an inquiry headed by a judge as a “poor and unreliable” witness to the so-called “Chung Ting-yiu Incident”. though it admits that it is important to listen to the views of the public. let us concentrate on whether the government’s proposals for principal officials to be totally responsible to the Chief Executive for the outcome of their respective policy is conceptually. mechanisms for providing information. In another case. mechanisms for imposing sanctions”. 256 . in which Lo was accused of attempting to undermine academic freedom by indicating to the then Vice-Chancellor of the University of Hong Kong that the Chief Executive was unhappy about Chung’s survey on his popularity.17 One would have thought that if the government really takes its words seriously.CHEUNG CHOR-YUNG While there is no dispute that effective accountability must involve the ability to sanction policy makers. 1998). and second. in which some public housing built by the Housing Authority failed to meet construction safety standards due to corruption. and can only be removed by him. notes. “two prerequisites are required for effective accountability: first. There have even been calls for senior officials to step down and take responsibility for their policy failures. legislators were very dissatisfied with the fact that the then Director of Housing Tony Miller could still maintain his position after the Legco had passed a motion of no confidence in him in the so-called “short pile scandal”.

While it is true that Article 48(5) does specify that nomination for appointment and removal of principal officials are powers vested in the Chief Executive. One Country Two Systems and the Basic Law of the HKSAR (Hong Kong: Cultural and Educational Publications. but the newly-elected second Legco also finds it difficult to support him. Xiao Wei-yun. a Basic Law drafter and Mainland authority on the mini-constitution of the HKSAR. after the Legislative Council is dissolved because [the Chief Executive] twice refuses to sign a bill passed by it. the new Legislative Council again passes by a two-thirds majority of all the members the original bill in dispute. in which only the Chief Executive can nominate principal officials for appointment. one should not overlook the fact that in the HKSAR’s executive-led system. 1990). not only has lost the support of the first Legco in question. the new Legislative Council still refuses to pass the original bill in dispute. Article 52 stipulates three different circumstances under which the Chief Executive must resign. and paragraphs (2) and (3) are related to this check and balance function between the Chief Executive and the Legco: The Chief Executive of the Hong Kong Special Administrative Region must resign under any of the following circumstances: (1)…… (2) When. it is also intended that the Legco somehow has a final check and balance function against the executive in order to prevent predominance of the executive over other parts of the political system. for the Chief Executive. but [the Chief Executive] still refuses to sign it. 181 (in Chinese). This can most clearly be seen in paragraphs (2) and (3) of Article 52 of the Basic Law. 257 .. he believes that the Chief Executive has already lost the confidence of the legislature and the only way to solve this constitutional deadlock and allow the legislature to check the executive power is for the Chief Executive to resign. ed. in those cases. Commenting on these two paragraphs of Article 52.18 18 Xiao Wei-yun. says it is very appropriate to require the Chief Executive to resign under these two circumstances. after the Legislative Council is dissolved because it refuses to pass a budget or any other important bill. and (3) When. it is constitutionally not possible to allow the elected Legco or the people to sanction the principal officials directly. In light of this. p.THE QUEST FOR GOOD GOVERNANCE One may argue that given the present executive-led requirements of the Basic Law.

the Chief Executive requires the support of the legislature to remain in office and he cannot. then we shall follow provisions in Article 52 to hold the government or Chief Executive responsible. the confrontation will easily escalate from an individual level to the administration as a whole. If a minister loses the confidence of the Legco. but the government’s responsibility and risk Legco’s sanctions in accordance with Article 52 of the Basic Law. or. unless the Chief Executive is prepared to regard the official’s failure not as his individual failure. what is the constitutional role of the Legco in checking the executive and maintaining its confidence in the Chief Executive in light of a reasonable principle of accountability? To answer this question. we must first realise that there is a distinction between when an individual minister is at fault.19 It is true that the Chief Executive enjoys great advantage in the event of a constitutional confrontation with the Legco in relation to paragraphs (2) and (3) of Article 52. he must resign if he ultimately loses the confidence of the legislature because the legislature is there to avoid the predominance of the executive. it is almost impossible for him to perform his duties as a government principal official. dissolve the Legco more than once in each term of his office. in the case of an individual principal official’s failure. 4 Apr. 2002 (in Chinese). for any legislation or government measure that falls into his portfolio is unlikely to be passed by the legislature. for he has the power to dissolve Legco first. according to the constitutional principle of the Basic Law. and when the government as a whole is at fault. it is clear that each minister is first and foremost required to take his responsibility within his designated portfolio most seriously. If it is the Chief Executive or the government as a whole that fails to gain the confidence of the legislature. He is therefore required to resign or be removed by the Chief Executive. a speech delivered by Xiao in Hong Kong.20 With the introduction of the POAS. 258 . it is either up to the Chief Executive to exercise his power to remove the official concerned. a vote of no confidence would be the clearest sign that the individual official has already lost the confidence of the legislature. if the pressure comes mainly from the Legco.CHEUNG CHOR-YUNG It is clear from Xiao’s comments that while the Chief Executive in the HKSAR’s executive-led system enjoys the most power in the area of policymaking. However. Article 50 of the Basic Law. However. according to the Basic Law. If he still refuses to resign. 19 20 See Xiao’s article “On the Basic Principles of the Political System of the Basic Law”. Although all principal officials in the POAS are required to adhere to the Exco’s collective responsibility for overall government decisions.

reprinted edition. if he has committed serious policy mistakes or grave personal misconduct. This will require the development of some institutional mechanisms to deal with situations like this. or by justified government principles like democracy or constitutionalism. It is reasonable to expect that the spirit of Article 52 of the Basic Law requires the POAS to develop a set of constitutional conventions whereby Legco’s support is required in order for a minister in trouble to remain in office. that is accountable to the Chief Executive for any policy failure. it is reasonable to expect that the Legco should play an important role in sanctioning incompetent principal officials to check executive power. the conscious principles decided by the political players in Hong Kong. It should be established by precedent. Ministers and Parliament: Accountability in Theory and Practice (Oxford: Clarendon Press.THE QUEST FOR GOOD GOVERNANCE It seems obvious that the rationale for introducing the POAS is first and foremost to enhance the accountability of principal officials as individual ministers to their respective policy portfolios. by agreements among the major political players. not the administration as a whole. Geoffrey Marshall.. 21 See his Constitutional Conventions: The Rules and Forms of Political Accountability (Oxford: Clarendon Press. if the POAS is to work and be compatible with the spirit of Article 52 of the Basic Law. it is crucial that some form of individual ministerial responsibility be developed. Individual ministerial responsibility is a constitutional convention developed in the Westminster type of parliamentary government.21 Though Hong Kong does not have the Westminster type of parliamentary government. 1986). 259 . and enhance the principal officials’ accountability to the Legco. particularly ch. IV “Doctrine of Ministerial Responsibility”.e. It is unreasonable to expect that the Chief Executive should risk the Legco’s or public’s confidence in his whole administration every time an individual minister has difficulties in gaining the confidence of the Legco or the public. the leading British expert on constitutional conventions. and it seems that some form of individual ministerial responsibility principles developed by conventions together with an adequately drafted code of ministerial conduct is required. i. maintain its confidence in the Chief Executive. see Diana Woodhouse. avoid constitutional confrontation with the Chief Executive. He is required to resign by the Prime Minister. for it is each and every one of them. in which each individual government minister is responsible to parliament for his policy areas. For a very good account of the application and development of individual ministerial responsibility in the United Kingdom during 1980s and 1990s. or by parliament. says that conventions are set by a series of precedents. As such. 1994).

G. the government says.24 • • 22 23 24 “Accountability System for Principal Officials”. Civic Exchange. 2002. SynergyNet. 28 Jun. See p. For another comment on the POAS by another local thinktank. made a good suggestion in a recent policy paper by putting forward some relatively specific guidelines to determine when a principal official should tender his resignation: Principal officials are expected to tender resignation from office to take responsibility for: • a major policy error or failure in policy administration within their portfolio which has caused significant damage to the public interest or the public’s trust in the government. “Code for Principal Officials under the Accountability System”. They are accountable to the Chief Executive for the success or failure of their policies.22 In the government’s “Code for Principal Officials under the Accountability System”. 26 of the SynergyNet report mentioned in note 14. It should stipulate clearly the conditions under which the minister should be held partially or totally responsible for policy failure.N.org>. 260 . see its report “Accountability without Democracy: The Principal Officials Accountability System in Hong Kong”. or.CHEUNG CHOR-YUNG and by the constitutional spirit of open and accountable government to determine each individual minister’s political and administrative responsibilities. “principal officials are responsible for formulating. Chief Executive’s Office. at <www. another major inadequacy of this proposal is its failure to acknowledge the need to develop a clear concept and set of principles for individual ministerial responsibility. any act which has grossly harmed the reputation and integrity of the government. the government uses only very general terms in its paper on the POAS to state that principal officials are required to step down in extreme cases of policy failure or grave personal misconduct. which has resulted in significant damage to the public interest or the public’s trust in the government. a serious failure in supervision over their bureau or subordinate departments or agencies in policy implementation. Apart from the undemocratic nature of the POAS. 3845.”23 All these statements are far from adequate in forming a foundation for the development of individual ministerial responsibility. explaining and defending government policies as well as canvassing support from the public and Legislative Council. At the moment.civic-exchange. a Hong Kong liberal policy thinktank. or.

there are always political factors in the determination of what constitutes a “major” error or “serious” failure.28 billion) in value in one trading day. In this regard. even criteria like these are not sufficient to determine the boundaries of individual ministerial responsibility. the press. Adding salt to the wound was the fact that it was released when the stock market was in its most bearish mood since the last global stock slump following the 11 September 2001 terrorist attacks in the US. Meanwhile. shows that in addition to the constitutional aspect. and public opinion and their interaction are crucial in the determination of the contents and meanings of these unspecified words in the dispute concerned. particularly pp. and the Chairman of the SFC.25 Also. Ministers and Parliament. For details of this saga. open and subject to the political judgement of the day. it failed to provide alternative means for small shareholders of these stocks to trade their stocks once they were de-listed by the authorities as proposed. 261 . Though the consultation paper aimed to improve corporate governance in Hong Kong. are always to a certain extent. and its supervisory body. or the so-called vicarious responsibility of a minister.THE QUEST FOR GOOD GOVERNANCE However. 1 Aug. A study by Diana Woodhouse. questions such as whether the minister should be responsible for grave administrative errors made by the civil servants of his department without his prior knowledge. It was implemented with insufficient attention paid to possible market reactions. who were directly or indirectly responsible for the implementation of the consultation exercise — the ministers 25 26 Woodhouse. Legco. the local stock market lost HK$10 billion (US$1. The apparent cause for the panic selling of “penny stocks” was the regulatory authorities’ consultation paper. Andrew Sheng.26 The Hong Kong Exchanges and Clearing (HKEx). According to one estimation. 162–8. the Securities and Futures Commission (SFC) immediately shelved the proposals after the panic selling. public. which issued the consultation document. 2002. for almost half of the stocks trading in Hong Kong’s stock market may be defined as “penny stocks”. and government officials fiercely debated whether apart from the Chief Executive of the HKEx. legislators. an expert on the United Kingdom’s individual ministerial responsibility. Kwong Ki-chi. see South China Morning Post. in which it was proposed that stocks trading below 50 Hong Kong cents for 30 consecutive days would need to consolidate their shares or face de-listing. The role of the Chief Executive. the so-called “penny stocks fiasco” which erupted less than a month after the introduction of the POAS ( July 2002) helps reinforce the claim that there is an urgent need to develop a proper framework for individual ministerial responsibility.

and personnel responsibilities. Kotewall and Gordon C.27 Three points should be noted here: First. 2002. namely policy. Legco. Judging from the responses of. 262 . ch. the latter two claimed that they did not have prior knowledge of the contents of the proposals concerned and were not directly involved in this kind of market regulatory activity which enabled market professionals. 2002. the Financial Secretary (FS) Anthony Leung and the Secretary for the Financial Services and Treasury (SFST). For a more detailed analysis. Frederick Ma) — should also bear responsibility.synergynet. D15 (in Chinese) and “The First Test of Ministerial Responsibility in Hong Kong: Some Thoughts on the ‘Penny Stocks Fiasco’” at <www.. p.org. to make judgements exonerating the FS and SFST from any ministerial faults. set up by the FS and comprising two independent members. the government in this incident there is still a long way to go before the political establishment can develop a relatively comprehensive and mature concept of individual ministerial responsibility for the enhancement of officials’ accountability. they oversaw (since the consultation fell within the ambit of their respective policy portfolios). 11 Sep.CHEUNG CHOR-YUNG who had overall responsibility for financial services policy (i.hk/en_main.htm> (in English). submitted the “Report of the Panel of Inquiry on the Penny Stocks Incident” (the Report) to the government in Sep. Robert G. the day after the release of the “Report of the Panel”. see my contribution on departmental faults and vicarious responsibility of the ministers published in the Forum Section of Ming Pao. K. for these are constitutional as well as political. Yet. not the government.28 It is equally strange for the government to follow those judgements as if the panel has the authority to do so.16. para. 12. the members. Kwong. to regulate their day-to-day operations. 6 Aug. are far from complete.30 The most notable responsibilities that are missing in the Report are the responsibility of oversight and the vicarious responsibility of the ministers concerned for departmental faults. Though both the FS and SFST were not directly in charge of the consultation. and the public. and were indirectly responsible for. “Report of the Panel”. the kind of responsibilities examined by the panel. in which they argued that no principal officials should be made responsible for the incident. and measures adopted by. See the local press reports such as in South China Morning Post and Ming Pao.29 Second. it is strange for the fact-finding inquiry panel. “Report of the Panel”. executive. p. 156.e. not administrative issues to be decided by the government. systematic. 12. 2002. any mistake 27 28 29 30 The government set up a two-member panel to examine the incident.

49–50. Ibid. However. for students of politics and public administration. as it is impossible for the SFST to carry out his duties if he does not have the power and responsibility to make sure that statutory bodies like the SFC follow his policy instructions and implement them faithfully and professionally. while the FS and SFST should not resign as a result of this fiasco. and there is a lack of developed constitutional conventions to assist policy makers. Constitutional Conventions. who. it seems clear that the current POAS as introduced by the HKSAR government is highly inadequate in terms of providing political and institutional guidance for enhancing ministerial accountability. 263 . In this regard. However.. 159. pp. Woodhouse. it is wrong to argue that the SFST’s failings were mainly his “sub-par performance” at the Legco Panel meeting on 31 July 2002 and conclude that the SFST should not be held partially responsible for the fiasco. and together with his role in misleading the FS and public. based on this piece of misinformation. Ministers and Parliament. this creates a vast new academic area for them to pioneer research projects on the theory and practice of ministerial responsibility in the context of Hong Kong’s “one country. indirect or vicarious responsibility alone seldom merits ministerial resignation even in a parliamentary system. politicians and the public to deal with issues related to ministerial responsibility.32 At that meeting.31 Third. Accountability and Deliberation The above section deals with one important aspect of accountability — accountability as sanction. It is absurd for the panel’s report to claim that the SFST did not have oversight responsibility over non-government departments. p. two systems”. as constitutional convention scholars like Marshall and Woodhead have shown.33 In sum. Such a failure clearly points to the conclusion that the SFST was less than competent in exercising his responsibility. Marshall. the SFST revealed that his office was informed of the main points of the consultation exercise in the form of a SFC summary in advance.THE QUEST FOR GOOD GOVERNANCE made by their subordinate bodies tasked with carrying out the policy. should be held indirectly responsible for the fiasco. but he failed to take note of them at that time as he was too busy dealing with other things. there is another equally important aspect of 31 32 33 “Report of the Panel”. told the press on record that the government should not be held responsible as the HKEx or the SFC did not inform it of the contents of the consultation document in advance. This failure also made him mislead the FS.

and so on. arguments. Deliberative Democracy in Australia. the requirement of resignation for grave personal misconduct certainly falls within this aspect of accountability. Uhr. for this kind of misconduct undoubtedly is inconsistent with the moral norms of society. paragraph 2(k).CHEUNG CHOR-YUNG accountability that falls within what James G. Ibid. “Accountability System for Principal Officials”. principal officials must be dedicated to their duties.38 Yet. liberal. March and Hohan P.37 One of the avowed objectives of the POAS is to improve the working relationship with the legislature. the measures proposed under the POAS are far from adequate. uphold the rule of law.35 Under the POAS. what is also being neglected in the whole discussion of the POAS so far is whether the government has put in place mechanisms or measures to ensure that the actions of principal officials are consistently in accordance with the requirements of an open. Behaviour is assessed as proper. be as open as possible about their decisions. 1995). particularly ch. and civilised society like Hong Kong. Democratic Governance (New York: The Free Press. March and Johan P. “Code for Principal Officials under the Accountability System”. p. abide by the law (including the legislation against corruption). promote political neutrality and the meritocratic tradition of the civil service. Olsen call “a logic of appropriateness”: Many of the complications surrounding the accountability of political actors stem from an interweaving of the two standard logics of human action — a logic of consequence and a logic of appropriateness… A-logic-of-appropriateness frame for accountability leads to demands that political actors be accountable for the appropriateness of their actions. and the evoking of shared cultural standards and the rule of law”. 154. avoid conflicts of interest.36 However.34 How does the POAS fare in this logic-of-appropriateness aspect of accountability? In a sense. the logic of appropriateness will require the government to gain the informed consent of its citizens by adopting “coercion-free persuasion through the offering of good reasons. 264 . All these requirements are enshrined in the government’s code for principal officials. To March and Olsen. and moral appeals. less because of its consequences than because of its consistency with cultural and political norms and rules. there are very few additional proposed 34 35 36 37 38 James G. 8. act in the best interests of the HKSAR. However. in some crucial areas (or what John Uhr calls the arenas of accountability). Olsen.

after the introduction of the POAS. All these incidents and practices are inconsistent with the spirit of accountability. for the need to present regular policy addresses to the Legco. Rita Fan Hsu Lai-tai. subcommittees and panels. the Chief Executive. Already.THE QUEST FOR GOOD GOVERNANCE measures to improve the quality of exchanges between the government and legislature.39 Yes.40 According to Fan. including the Chief Secretary for Administration’s announcing of the resumption of sale of Home Ownership Scheme flats to the media without first informing the Legco for fear of negative responses from members of the legislature. or to promote the Legco’s capacity to better scrutinise government proposals under the POAS. or give accurate and truthful information to the Legco are all standard requirements having been practised for a long time in Hong Kong’s legislature. Both incidents occurred after the government had made known its intention to introduce the POAS. The Chief Executive should appear far more often before the Legco to answer members’ questions and promote better quality exchanges between the two parties. 2002. upon his return 39 40 The requirements in this respect as set in the code for principal officials contain nothing new. there are signs that the government is becoming increasingly less forthcoming in its dealings with the Legco. there are things that the government should do to ensure that the POAS can improve the chance of getting the informed consent of the public or their representatives. this was so because legislators were not happy with the administration over several incidents. 265 . or be held accountable for failing to do so. as understood in the sense of the logic of appropriateness. appear before the Legco or its committees. Yet this token increase is far from impressive. 6. 16 Jul. to at least four times a year. making one wonder whether bypassing the Legco and shunning public exchanges with legislators would enhance effective accountability. has agreed to appear before the Legco more often. and the government’s announcement of awarding the Sha Tin-Central rail link project to the KowloonCanton Railway Corporation without informing the Legco first. answer questions raised by Legco members. South China Morning Post. He should go to the Legco at least once a month. May Sin-mi Hon. take part in Legco debates. recently offered the opinion that the relationship between the government and Legco “had worsened”. The President. from three times a year in his first term. and in no way compares to the last Colonial Governor Chris Patten’s monthly appearance before the Legco. “Legislators and Officials Both Blamed for Bad Blood”. p. Although some element of political and tactical consideration is unavoidable in any government business.

“the main weight of democratic accountability has to fall here: on the attempt to 41 42 Australia made a similar proposal in relation to its Auditor-General. will require amendments made to the Basic Law. See Uhr. John Dunn. the Cambridge political theorist. p. all of whom are now appointed or nominated by the Chief Executive and are accountable to him. The officials concerned will be free from any undue executive interference and will be in a better position to assist the Legco in monitoring the government’s performance in these areas. The point. if adopted. is to demonstrate that the POAS has almost totally neglected this important aspect of accountability and should therefore be regarded only as an inadequate system for promoting accountability. Deliberative Democracy in Australia. is quite right when he says. In addition. and together monitor whether the government has conducted its business in these areas properly. Article 58 of the Basic Law stipulates that the Commission of Audit be accountable to the Chief Executive.42 Other measures like the introduction of a Freedom of Information Act can also be considered as a means of improving access to official information for effective accountability.CHEUNG CHOR-YUNG from any major trip to Beijing or overseas. and when the government wants to make important announcements or respond to major events. The merits and suitability of each to Hong Kong deserves to be discussed in detail. It would be very difficult to argue that the Chief Executive takes accountability seriously if he is unwilling to be seen as more accountable than a Colonial Governor. 41 This will enhance the independence of these offices. so that the Legco and the public can then have a clearer picture of the progress made by the government in the previous year before commenting on new government policy initiatives. instead. such a proposal. but due to space constraints this cannot be done in this paper. Other possible instruments for the enhancement of accountability in this respect include making the Director of Audit. and Commissioner of Equal Opportunities. 189. independent officers of the legislature. The purpose of drawing attention to all these possible instruments for enhancement of accountability is not to say that all of them should or can be applied to the HKSAR any time. Ombudsman. 266 . They should report directly to the Legco on their respective areas of responsibility. Therefore. the government may revive the publication of the annual progress report of government policy goals (which was discontinued after 1998) before the Chief Executive announces his annual policy address.

in return. 339. 1999). p. the fusion of the political and administrative dimensions in the upper echelon of Hong Kong’s civil service did not sit comfortably with this widely-accepted constitutional convention of political neutrality. Public servants do not express publicly their personal views on government policies or administration. • In the past. Adam Przeworski. “Situating Democratic Political Accountability”. and Representation. in Democracy. See Kenneth Kernaghan and John W. and Bernard Manin (Cambridge: Cambridge University Press. Stokes. public servants execute these decisions. The Responsible Public Servant (Halifax.43 Political Neutrality: A Framework The success of the POAS does not depend on the enhancement of accountability among principal officials alone. 267 . In this regard. public servants enjoy security of tenure during good behaviour and satisfactory performance. Equally important is whether the POAS can provide a credible framework for the political neutrality of the civil service. perhaps captures best the major aspects of political neutrality of the civil service. Nova Scotia: The Institute for Research on Public Policy. Public servants are appointed and promoted on the basis of merit rather than of party affiliation or contributions. thus politicians make policy decisions. ed. 1990). the framework provided by the Canadian public administration scholar. 56–7. political executives protect the anonymity of public servants by publicly accepting responsibility for departmental decisions. Accountability. the main tenets of which are as follows:44 • • • • • Politics and policy are separated from administration. pp. for the whole POAS undertaking is premised on the separation of politics from administration. The introduction of the POAS is in effect an admission of this inherent mismatch between the 43 44 John Dunn. Public servants provide forthright and objective advice to their political masters in private and in confidence. and Public servants execute policy decisions loyally irrespective of the philosophy and programmes of the party in power and regardless of their personal opinions. Susan C.THE QUEST FOR GOOD GOVERNANCE maximise the degree to which politically consequential conduct by rulers and their subordinates is always in the open”. and the principle of political neutrality is needed for the maintenance of a meritocratic and permanent civil service. Langford. Kenneth Kernaghan. Public servants do not engage in partisan political activities. as a result.

rather doubtful. How can one be assured that the integrity and political neutrality of the civil service will be vigorously protected under such an arrangement?45 45 Can one be assured that the SCS. transfer. to which he and his political colleagues share the same collective responsibility? 268 . with his political responsibilities foremost in his mind. Under the government’s POAS proposals. the Secretary will bring his civil service experience and perspectives to bear on decisions taken in the Exco. recruitment. the candidate to fill the post of SCS. As a politically-appointed principal official. This person may. disciplinary measures. the SCS will be well placed to ensure that the interests and concerns of the civil service will be fully represented and taken into account before the government makes any major decision. not an administrator. his political responsibilities. In other words. However. Nothing short of a full commitment to his political duty should be expected from the SCS. and for all government policies collectively. The government also thinks that this proposal will combine the best of both worlds because as a member of the Exco. Two problematic areas are discussed here.CHEUNG CHOR-YUNG civil service status of these officials and the political demands placed on them by the government. including proposals on promotion. Administrative Responsibilities The first problem relates to the political appointment of the Secretary for the Civil Service (SCS). The Post of Secretary for the Civil Service: Confusion between Political vs. whose main responsibility is to oversee the government’s policy and management of the civil service. the outcome of which very much depends on the implementation process executed by the civil service. etc. both generally and on a day-to-day basis. age permitting. will be carried out by a politician. return to the civil service at the end of his tenure if he so chooses. The government believes that such an arrangement has the merit of reassuring the civil service that they will continue to be managed by a principal official who has a link with the civil service. his first and foremost duty is to honour. whose first duty to the government is political. On the other hand. to the utmost of his ability. whether the changes proposed under the POAS can succeed in maintaining a politically-neutral civil service is. and quite rightly so. of the civil service. the Chief Executive will select among serving senior civil servants. will pursue vigorously a complaint of undue political interference (which could cause political embarrassment to the government) from his civil service subordinate against his political colleague in the Exco.. career development. This is not very convincing as the SCS is a political appointee fully responsible for the political decisions taken by him individually. the management. for reasons given below.

47 Problems with the Role of Permanent Secretaries Under the POAS. 269 . permanent secretaries are the most senior civil servants and act as the interface between their political masters and the civil service. It is a better alternative both for conceptual clarity and for institutional protection of the civil service’s integrity and neutrality. p. In the more traditional approach adopted by the British government. “Accountability System for Principal Officials”. The Elite of the Elite: Permanent Secretaries in the British Higher Civil Service (Aldershot: Dartmouth Publishing. but also the manager of it. They are there to advise the principal officers and the government on policy. and oversee the delivery of government service to the public.48 This apparently contradicts the anonymity rule of the civil service under the principle of political neutrality. the Chief Secretary for Administration or the Chief Executive should assume the political headship of the civil service responsible for civil service policy.THE QUEST FOR GOOD GOVERNANCE The fundamental problem with this arrangement is the fusion of political and administrative responsibilities in one office-bearer. and under the instruction of the latter. According to Article 53 of the Basic Law. is second only to the Chief Executive in the HKSAR government. the Chief Secretary for Administration (which is called the Administrative Secretary in the Basic Law) in terms of seniority. permanent secretaries in Hong Kong are required to defend government policy in public under the instruction of their political superiors. 12–21. They also supervise the daily functioning of their respective departments. 1996). He should be chosen from the most senior civil servants and abide by the regulations governing the civil service. explain and defend government policies in public and at Legco panel or committee meetings. The seniority of the Chief Secretary for Administration or the Chief Executive should also reassure the civil service that their interests and concerns will be made known to the most senior level of the government.46 In the case of Hong Kong. pp. manage the implementation of government policy as decided by the Exco. 11. see Peter Barberis. for the SCS is not only the political master of his bureau. and an equivalent of the administrative head of the civil service should be created to oversee the management of the civil service. Unlike their counterparts in the United Kingdom. the manager of the home civil service (normally filled by the Cabinet Secretary) is himself the most senior civil servant responsible for the management of the civil service with the Prime Minister as its political head. While it should be pointed out that senior civil servants are increasingly being asked to appear 46 47 48 For a good account of the headship of the British Home Civil Service.

However.CHEUNG CHOR-YUNG before parliamentary select committees to answer questions on behalf of the government in the United Kingdom. from both their current political masters as well as possible future ones who may be of different political persuasions. for this is against the constitutional principle whereby the government is accountable through its ministers to the parliament. it is crucially important that the permanent secretaries can obtain policy advice. once they are required to defend government policy. rules must also be in place whereby access to the advice given by permanent secretaries or other senior civil servants to their political masters will be regulated so as not to bias future principal officials towards the personal views of the civil servants. 270 . and justification for. ch. The executive regards this as a form of accountability to the legislature. the concern in this regard has less to do with constitutional propriety than with the danger of confusing political responsibilities with administrative ones. 10. Therefore. the rule of impartiality under the principle of political neutrality of the civil service must apply in policy advice. it would be quite impossible for civil servants concerned to give frank and honest opinions to their political masters.49 In Hong Kong. and the requirement to defend government policy before the Legco and in public will certainly undermine this rule. for it will inevitably make the civil servants look partisan. “The bounden duty of every civil servant is to be loyal to the Chief 49 Woodhouse. Ministers and Parliament. Otherwise. they will face questions related to the rationale of. the political decisions taken by the government. In order for permanent secretaries to perform their duty as policy advisors to their political masters. and non-partisan advice to the principal officials in confidence. they are not allowed to defend government policy in the parliament. so long as they are adhering strictly to the agreed official lines while carrying out this duty. says. which are clearly beyond the scope of their administrative duty. There is nothing wrong for permanent secretaries and senior civil servants who are required to advise the government on policy to explain government policy before Legco committees or in public. As it is now possible for members of political parties to take up political appointment positions under the POAS. In other words. they must be able to give objective. frank. In addition. But the Basic Law does not specify that the HKSAR government shall be accountable through its principal officials to the Legco. Mr Joseph Wong. the SCS. Article 64 of the Basic Law requires the government to answer questions raised by Legco members. in complete confidence. professional. In his letter to all civil servants on 17 April 2002.

Chapman (Edinburgh: Edinburgh University Press. Richard A. For suggestions concerning the adoption of a civil service code in Hong Kong. 271 . in the United Kingdom. ch. However. there are times in which there may be clashes between different departments before a collective decision is taken. in particular.. while the ministers continue to be responsible for the outcomes of government policy in which the effects of the outputs of government service on the community are assessed. Under those circumstances. or when a collective decision is in doubt. and Barberis. 3. this does not mean that permanent secretaries do not have responsibility to the government. 25–6. ch. of their department. under the principle of political neutrality. see SynergyNet’s report. permanent secretaries. for example. Exco as a whole. Such opinions will be passed on to the Comptroller and Auditor General who has the statutory responsibility to report to Parliament on the economy. “Promoting Public Service Ethics: The Codification Option”. Ministers and Parliament. see Kenneth Kernaghan.”50 The first and foremost loyalty. as accounting officers of their respective departments. In New Zealand. For a discussion of the merits of adopting a code of practice for civil service to enhance public service accountability. While the principle of collective responsibility in the Chief Executive-in-Council is well established in Hong Kong. They are entitled to express in writing to the minister any disagreement concerning proposals for spending that they believe they cannot justify before the PAC. 1993). public sector reform in the 1980s and 1990s turned the traditional permanent secretaries of the civil service into chief executives of government agencies who are required by law to report to parliament on the outputs. 4. of any permanent secretary must be to the principal official of his bureau. are accountable and directly answerable to the Public Accounts Committee (PAC) of the House of Commons for the financial control of their departments. Ibid. The Elite of the Elite. and effectiveness of government departments. or Chief Executive. pp.51 The principle of a politically-neutral civil service should not be construed so as to preclude senior civil servants from administrative accountability. ed. and I believe that a code for the civil service which gives directions to handle this kind of situation is needed. Woodhouse. that is.THE QUEST FOR GOOD GOVERNANCE Executive and the principal officials of the day. 268–70.53 50 51 52 53 See LC Paper No. efficiency. in Ethics in Public Service.52 On the other hand. pp. the service or the goods they have delivered. pp. CB (2)1650/01–02(05). 240–3. where should permanent secretaries and civil servants’ loyalty lie? Nothing in the current “Code for Principal Officials under the Accountability System” has touched upon issues of this kind.

While it is safe to say that the POAS may have brought a more coherent team of ministers to the Chief Executive. and students of Hong Kong government and politics in particular. and Rikkie Yeung Au Lai-kit for their intellectual exchanges on this topic. Hong Kong must urgently attempt to demarcate adequate boundaries between political and administrative accountability and develop an appropriate framework for the latter in order to deal with the issues of accountability related to administrative heads of public agencies (like the Chief Executive of the HKEx in the “penny stocks”) in cases of departmental fault. it is far from certain that in its present form.CHEUNG CHOR-YUNG Overseas experience of the above-mentioned kind is applicable to Hong Kong. show that for an accountability system to succeed. Conclusion There is no doubt that the introduction of the POAS has brought some fundamental political and administrative changes to the HKSAR which deserve the careful scrutiny of students of politics and public administration in general. that the POAS as introduced by the Tung administration is found wanting conceptually. Incidents such as the “penny stocks”. I would like to express my gratitude to Anthony Cheung Bing-leung. It is argued in this critical evaluation. it will increase the democratic accountability of the HKSAR government or ensure the political neutrality of its civil service. 272 . and institutionally. constitutionally. Alex Chan Wo-shun.