Extending the application of sections 3 and 8 of the Prevention of Bribery Ordinance to the Chief Executive

11/11/2015

 

President, first of all, I have to declare that I am a member of the Operations Review Committee of the Independent Commission Against Corruption. The issue of our discussion today is indeed very straightforward, which arises because sections 3 and 8 of the existing Prevention of Bribery Ordinance (Ordinance) provide that they "do not apply to the Chief Executive", this is clear enough. Against this background and previous events, I recalled that in 2008, the Government advised that it was inappropriate to amend sections 3 and 8 of the Ordinance because, inter alia, Article 47 of the Basic Law provided that the Chief Executive must be a person of integrity, and gifts received by the Chief Executive out of courtesy would be recorded in the Register of Gifts Presented to the Chief Executive established by the Chief Executive's Office for public inspection. While it appears that there is sufficient safeguard, it has been nearly seven years when the remark was made in 2008.

As a matter of fact, the occurrence of several incidents in a row has stirred up a mixed feeling of expectation and suspicion among members of the public, wondering why sections 3 and 8 of the Ordinance remain inapplicable to the Chief Executive or Executive Council Members, and no amendment has been made to the relevant law to meet public aspirations amidst those events. The enactment of proper legislation would allow members of the public to rest assured that the Chief Executive will not commit bribery or corruption offences, and even if he will, we have already put in place a check and balance system, which is essential.

In this connection, the Independent Review Committee for the Prevention and Handling of Potential Conflicts of Interests (Independent Review Committee), set up by the former Chief Executive in 2012, clearly stated in its report that regulations should be made to govern the corrupt practices of the Chief Executive. In relation to this point, the report also stated that with respect to the solicitation or acceptance of advantages, the Chief Executive should be governed in the same way as civil servants. In response, the Government said that there were constraints in applying section 3 due to various reasons, including constitutional issue. But even if the Chief Executive has unique constitutional status as claimed by the Government, but as our colleagues have said earlier, the Independent Committee proposed to be established by the Review Committee only gives permission, or in some cases, advance permission for the Chief Executive to accept advantages, which should not have any direct implication on the constitutional status of the Chief Executive. Most importantly, as pointed out by the Independent Review Committee, it is totally inappropriate for the Chief Executive to decide on the solicitation or acceptance of advantages for himself without subjecting to any checks and balances, as provided under section 3. This is precisely why the Independent Review Committee has recommended the establishment of an Independent Committee, which seeks to demonstrate that as the head of civil servants, the Chief Executive is not self-regulatory but subject to checks and balances, with a view to setting a good example for all. As Mr Albert HO has said earlier, this would in turn boost people's confidence in the entire governing team, which was one of arguments presented back then.

Another argument is, since the Government again considered that there were difficulties in amending section 8, thus no amendment could be made. Nonetheless, the Independent Review Committee considered that the establishment of a statutory Independent Committee could be a solution to the issue and enhance the credibility of the Chief Executive in the system. This is not a question about the overriding status, the Basic Law or constitutional issue, but the need to boost public confidence. With the Independent Committee serving as a check and balance, the Chief Executive may dispel any suspicion about corrupt practices, which is the most important function of the Independent Committee.

While colleagues have divergent views on the matter, the Chief Secretary also has her viewpoints. To put it simply, under the present circumstances, if a complicated system is introduced all of a sudden to monitor the Chief Executive through prolonged procedures, people may have different considerations. But as pointed out by a colleague, and certainly some Members may disagree, if all Hong Kong residents are equal before the law in accordance with Article 25 of the Basic Law, then should the Government, based on this principle, expeditiously implement the recommendations made by the Independent Review Committee in 2012 to establish a system to highlight that the post of the Chief Executive ― it is the post but not the person ― is also equal before the law. This should not, in my opinion, give rise to any conflict.

Above all, the incumbent Chief Executive LEUNG Chun-ying undertook on 31 May 2012 to expeditiously examine and review the issue, and implement the abovementioned recommendations. In other words, he also failed to see how the recommendations put forward by the Independent Review Committee would cause disputes, or could not be implemented for constitutional reason. Certainly, the Government now claims that there are practical constraints, but after a lapse of almost three years and with only 10 months or so left for the current term of the Legislative Council, and more than half-way through the incumbent Chief Executive's term of office, how come the relevant recommendations are still under study and cannot be implemented? Just now, Members have also asked what exactly the difficulties are. If the Government argued that there is constitutional constraint, we doubt its existence as the proposed Independent Committee does not seek to govern the Chief Executive, but only to provide flexibility for him to make the necessary adjustments. It has been quite some time since the recommendations were made, but they are still not ready for implementation. Members of the public are doubtful whether the Government has really encountered difficulties or there are other reasons.

Lastly, I must say that integrity is the cornerstone of Hong Kong, and it has taken some two to three decades for us, including the Hong Kong Government, civil servants or members of the public, to lay this cornerstone. It is utterly disappointing for the Government to turn a blind eye to the deficiencies of the proposed system and refuse to conduct any review, or remain indifferent despite knowing that the checks and balances built into the said system could demonstrate to all that the post of the Chief Executive will also be subject to control.

Thank you, President.

 
Last Updated : 2015-11-11