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Sleaze and the ICAC: cops and builders

SCMP June 3

Civil service sleaze is of increasing concern in Hongkong. It partly accounts for the fact that the government seems to be on a political winner in its drive to reduce civil service pay. Legislated reduction of agreed salaries is surely not the right way to address the pay issue.

Comparisons with the private sector are inexact. Starting salaries and fringe benefits have certainly been reduced for many in the private sector, and the self-employed and small businesses have especially suffered. But there is not much sign of actual reductions for existing staff at such large employers as Hang Seng Bank or Kowloon Motor Bus. The apolitical way to deal with the problem would be an extended pay freeze, forcing higher productivity through a hiring freeze and reducing fringe benefits such as housing loans, and (for the future) ending inflation-proofed, defined-benefit pensions.

Another longer term saving would be to stop senior civil servants from taking early, pensioned retirement then collecting huge salaries from quasi government bodies. It should be remembered that retirement at 60 or less is a legacy of a colonial era when life-spans were shorter and retired officials were expected to leave the territory not hang around trying to capitalise on their past roles.

The current situation whereby they go to plum jobs, whether as acknowledgment payment for past services to the private sector, or to some ex-civil servants' "clubhouse" is an invitation to sleaze. Well done to Kowloon Canton Railway chairman Michael Tien for putting his managing director K.Y. Yeung in his place. Mr Yeung was an able public servant but the mandarins have seldom felt a need to be accountable.

Public disquiet over the civil service - not least the "disciplined" parts of it -- seems to focus at least as much on its tendency to secrecy, arrogance and lack of accountability as on its generous (especially in the upper reaches) pay and perks scales. These deficiencies have long existed among an elite trained by the British to believe in its own wisdom. But they have been exacerbated by the authoritarian tendencies of Tung Chee-hwa's "executive-led" government, which seems to have reversed the modest efforts of Chris Patten to make the civil service more transparent and accountable.

So it was disturbing to see the lack of discipline showed by the head of the police, Y.P.Tsang , in publicly criticising the Independent Commission Against Corruption (ICAC) following the arrest of a senior officer. It is not clear to me whether the ICAC acted appropriately in the way that it announced the arrest. The ICAC does have some reputation for seeing smoke and crying "fire". However, the appropriate way for the police to deal with the matter is to raise it with the Chief Secretary or, even better, the Chief Executive, to whom the ICAC has always been directly accountable.

One would have expected Mr Tsang's indiscipline to have earned the public rebuke of the head of the civil service, Sir Donald Y.K. Tsang. It is not clear whether his failure to speak out was the result of brotherly loyalty, or reflected a desire within the administration to let the police chief have his say as a way of clipping the wings of the ICAC. As its treatment of the Court of Final Appeal, and of the Legislative and Urban councils has shown, the administration resents limitations on its powers.

For all its faults, the ICAC still has a semblance of independence and enjoys a higher level of public trust than the police. Critics of the ICAC often focus on two issues. Firstly, its successes mostly seem to be against low to middling level public servants, police included, rather than those who make the big money from gambling, drug and prostitution rackets or from buying favourable decision on property development, immigration and other issues. It is the high level of the recent arrest that makes it doubly important that the ICAC is seen to be independent. The lack of official reaction against Commissioner Tsang's behaviour puts that in doubt.

The second issue is whether the ICAC concentrates too much on the police and not enough on other public servants. Police are highly visible and their contact with the public exposes them to complaints. Not so the civil servants hiding behind self-proclaimed confidentiality in town planning, buildings and related departments making decisions often worth hundreds of millions of dollars. Given the number of cases of buildings being built (or in some cases not built) in apparent contravention of planning and other requirements, one would have expected rather more action in this area.

Of course, it is difficult when both sides of a corrupt deal are satisfied. Who will know enough blow the whistle when civil servants receive an advantage, now or in the future, for a generous interpretation of a planning requirement or building code? That is why the secrecy of departments such as planning and buildings is such a scandal.

Attention has recently been focussed on the possibility that a part of Stanley Market, from which stall-holders were evicted, be developed into a hotel or shopping mall. No one really know what is going on, who or how much money is involved or how to stop the process of so-called "planning" by which fat cat developers bend civil servants to their will.

Last December I mentioned in this column the refusal of the Buildings department to let owners of the residential building of which I am an owner/occupier see a plan which it had approved to re-develop one half of what is one building. After four months of letter-writing I have received their explanation. It reads like something from Kafka. Firstly it maintains that even to show the drawings to someone else would be against the Copyright ordinance - even though that Ordinance exempts provision of copies documents in the public domain!

Then it argues that the government's Code on Access to Information also prevents it from enabling directly affected parties, let alone the public at large, from seeing the plans it has approved. Firstly, it claims that the application was made on the understanding that it would not be disclosed! Why, other than if it had an ulterior motive, would a department accept an application based on the prior assumption of secrecy?

The Buildings department is even more culpable because the Code allow disclosure if "public interest in disclosure outweighs any harm that would result". What harm could possibly result from disclosure of approved building plans to the public, let alone the other owners of the said building.

Secondly, the Buildings department also alleges that disclosure would be contrary to the section (2.16) of the Code which prohibits disclosure "which would harm the competitive or financial position of any person". It would be interesting to know which persons the department has in mind in invoking this clause. Is it a reference to the developer, in which case why should disclosure of approved plans be a potential cause of loss unless the plans were contrary to some law, regulation or legitimate interest? Or is this a reference to the Department itself?

I do not know the answer. But I do know that lawyers to whom I have spoken are amazed at the department's interpretations of the Copyright ordinance and Information Access code. "Self-serving to the point of being an abuse of power", said one.

If the ICAC is serious about corruption prevention it badly needs to take action against secrecy in the departments dealing with planning, land, housing and buildings. It is no wonder that anecdotal mention of large scale sleaze is so common - and that the police feel they are unfairly targeted by the ICAC. ends