One system, two laws? Immunity for some
SCMP June 1, 2014
The importance of the rule of law, and of the subjugation of the executive to laws, is critical to the maintenance of Hong Kong's society and government system. So it is both alarming and encouraging to see what is happening in Macau, where institutions are less deeply rooted in law than is the case here.
That the executive has been persuaded to withdraw a bill giving immunity from prosecution to serving officials is a response to the spirited opposition of the thousands who demonstrated against it - reportedly Macau's biggest post-handover anti-government protest.
Yet the Macau episode is a reminder that while no Hong Kong official has such immunity, certain well-connected individuals and firms are given de facto immunity from punishment for illegal activities and non-criminal but sleazy and unprofessional behaviour.
Notwithstanding the axed bill, Macau lags behind the newly developed states of East Asia, notably South Korea and Taiwan, where former presidents have been prosecuted for money- related crimes committed while in office, and where ministers are expected to take responsibility for serious failures in administration. Even the Philippines has done likewise. Hong Kong seems to hover somewhere in between, with the rule of law remaining in effect but with officials seeming to enjoy Teflon status, however incompetent they have been shown to be.
For sure, there are dangers that the law will be abused for political purposes by biased courts. Taiwan's Chen Shui-bian may have received an excessive sentence from anti-Democratic Progressive Party judges. But few doubt that he committed crimes and merited prosecution.
It may be mere symbolism, but ministerial resignations following such tragedies as the Sewol ferry sinking are surely a major advance compared with the civil service cover-ups observed in the case of the sinking of the Lamma IV, in which, after two years, only seamen have been charged.
Due process and justice is not just a matter of implementation of laws without fear or favour. It is also about the proper conduct of professional bodies given the privilege of regulating their own interactions with the public they are supposed to serve. The medical and accounting professions have recently provided massive evidence of their reluctance to provide timely and independent assessment of allegations of professional misconduct. Not for the first time, they appear to have been abusing their privilege.
Whatever the degree of correctness of the outcome, the fact it took nine years for the Medical Council to make a final judgment in the case of the death of a baby shortly after delivery is itself a denial of justice. In this case, the doctors' self-protection organisation initially rejected the parents' complaint, and then took another five years after new evidence was submitted to come to a conclusion.
The Hong Kong Institute of Certified Public Accountants does no better, for years shielding well-connected former head of Ernst & Young, Anthony Wu Ting-yuk, from a decision over his 1999 involvement in a collapsed investment company. Despite the case against him, Wu was appointed chairman of the Bauhinia Foundation Research Centre - a tycoon-funded, pro-establishment so-called think tank - and the publicly financed Hospital Authority.
The case was allowed to drag on for so long that, by the time the institute finally came to a decision - which it tried to bury by announcing it on December 24 - deeming Wu guilty of professional misconduct, he had retired. How convenient for all concerned, not least the government officials who handed key roles to Wu even while he was under investigation for serious professional misconduct. Five months on, no disciplinary action has been announced.
Less obvious instances of what market practitioners see as the non-enforcement of laws can be seen in reference to certain mainland companies listed in Hong Kong with boards composed of influential mainland names. The Securities and Futures Commission seems to prefer not to delve into companies or people who might claim to be protected by "state secrets", however dubious their accounts.
And then there are the well-known issues that citizens see around them daily - illegal land use and buildings in the New Territories, and the illegal parking of cars in Central and other areas. Failure of the police to take meaningful action benefits the 1 per cent, regardless of the inconvenience to the 99 per cent, and is clearly a decision of the police chief or higher still in the administration. Is there a pecuniary reason for this failure to enforce the law equally, or a political incentive? Either way, sustained refusal to implement laws impartially is a form of corruption.
If the trend continues towards the unequal administration of justice, and the ability of elite bodies to place large obstacles in the way of victims of professional misconduct, it will not be long before we are in a Macau situation. For sure, the many yes-men and trough-feeders in the Legislative Council and on government bodies will be quick to support immunity legislation, as most of their counterparts in Macau did.