last bastion of the people
SCMP May 19
Where can Hong Kong people look for accountability of the government,
its ministers and bureaucrats? Clearly, they cannot look to Chief Executive
Tung Chee-hwa to make ministers accountable to principles, rather than
to his own whims and preferences. The scandal surrounding Financial
Secretary Antony Leung Kam-chung and the purchase of his new Lexus,
and episodes such as the hounding of academic Robert Chung Ting-yiu
by another of Mr Tung's personal appointees, demonstrate that.
Constitutionally, Mr Tung is accountable to the central government and
the National People's Congress, not Hong Kong people. Central government
officials are unlikely to abandon their man. Loss of face is more important
than the quality of leadership in Hong Kong.
What, then, of Legco. It showed last week that the people cannot look
to it to hold Mr Tung accountable. That is hardly surprising, given
the narrow interest groups - often with their eyes on contracts and
other state favours here or on the mainland - which have the balance
of power in the unrepresentative chamber. But all is not lost. Hong
Kong's judicial system is one of the few institutions which has gained
in public esteem. For all its flaws - costs and archaic procedures among
them - it has enhanced its reputation since the handover.
Elsewhere, judicial activism can run to ridiculous extremes - but in
Hong Kong, where other restraints on bureaucratic and corporate power
are so weak, its potential is clear and needs to be developed by public
One of the more encouraging signs was a Court of Final Appeal judgment
last year rejecting the appeal of a senior government official convicted
of the common law offence of misconduct in public office. The official
had failed to disclose his interests when steering some contracts to
a company - controlled by a close relative - which was not properly
qualified for the work. The common law offence is very broad, but the
court accepted that the offence "is necessarily cast in general
terms because it is designed to cover many forms of misconduct on the
part of public officers". It was not necessary to prove the officer
personally benefited from his misconduct, only that the misconduct was
wilful and serious.
This judgment was important and sweeping. Hopefully, the law will be
applied again by the government against its erring officers. Failing
that, cases should be brought by the public.
The ruling should also have made Mr Tung sit up. Did he disclose the
large interest of the Li Ka-shing family-owned companies in his own
family's shipping company prior to the Pacific Century Group being awarded
the Cyberport contract on favourable terms without going through any
of the normal tendering procedures? Was this not partial behaviour and
damaging to the public interest?
At the very least, at the civil law level, the owners of non-subsidised
competing office space could argue that the partiality amounted to misconduct
by the government in general, if not by any particular individual.
The prison term of former legislator Gary Cheng Kai-nam, found guilty
of abusing his power, may also seem unduly harsh, given the general
past tolerance of failure to reveal conflicts of interest, particularly
in cases where public servants move on to become executives of large
companies for whom they had previously made favourable decisions. A
more frequent problem than partiality is the secrecy and stubbornness
demonstrated by the bureaucracy. Hopefully, the challenges are just
beginning. Judgment is awaited in the case brought to prevent government-ordained
reclamation of the Wan Chai waterfront, which opponents say is contrary
to the Protection of the Harbour Ordinance. Whatever the result, it
is at least encouraging that the court was willing to hear a case which
challenges such unaccountable institutions as the Town Planning Board.
Next on the list of projects hatched in quiet corners between ambitious
bureaucrats and developers could be the plan for a $16 billion prison
on Hei Ling Chau.
The fundamental issue with this and other schemes advanced in the name
of progress is the secrecy with which they are moved forward and the
lack of public discussion of alternatives. Behind most secrecy lies
a desire not to speed up decision-making, but to avoid light shining
Misconduct in public office can also be as much about omission as commission.
Deliberately failing to carry out one's duty as an official for fear
of being disadvantaged is also a matter which should be brought to the
attention of the courts. For example, as Kevin Sinclair has pointed
out repeatedly in the South China Morning Post, land use regulations
mean nothing in much of the New Territories thanks to the unwillingness
of officials to take on local vested interests.
In the private corporate sector, it is encouraging to see shareholder
activist David Webb draw attention to the conflicts of interests among
board members of many listed companies and the abuse of rights to place
shares in favour of those close to management, resulting in the dilution
of interest of outside shareholders . There is a huge problem here,
given shareholder lethargy and the preference of the stock exchange
and the Securities and Futures Commission to protect the interests of
issuers and managements against those of the investing public. But here
again, there is potential to use the courts to redress the balance.
The principle of breach of trust towards shareholders at large is as
fundamental to private corporate governance as misconduct in public
office is to civil servants.
Likewise, without wishing to encourage a culture of blame, there needs
to be readier access to redress for victims of government and corporate
failure due to negligence and wilful avoidance of public or corporate
responsibility. Could the Sars outbreak, and Amoy Gardens in particular,
Unfortunately, the cost of bringing action against directors of the
many listed companies in Hong Kong who have exploited their outside
shareholders has deterred activism. The exploiters have the money to
defend themselves, the victims are too impoverished to fight. Like libel
suits, the cost of civil law provides a means by which corporate knaves
and crooks can deter honest reporting of their activities.
But the instruments do exist, and a public deprived of democratic means
of enforcing accountability on government should redouble its efforts
to use the one choice still left.
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