Ministerial Responsibility Hong Kong
Ministerial Responsibility (MR) is commonly founded in Westminster’s country, particularly in the United Kingdom. Gillian Peele concluded that the ministerial responsibility is a convention in the British Parliament. Minister should be responsible to the legislature for their conduct or department outcome (Peele, 2004: 46). It aimed at enhancing the accountability and protecting the public interest.
Hong Kong, as a world-class city under Chinese sovereignty, has been also setting up a ministerial responsibility from mid-summer of 2002. The former Chief Executive, Mr. Tung Chee-hwa, attended the Legislative council in April of 2002. He announced the ultimate objective of Principal Official Accountability System is introducing the idea of ‘responsibility’ to those principal officials, especially, Chief Secretary for Administrator, Financial Secretary, Secretary for Justice and all directors of Bureaux (Tung 2002). However, many incidents proved that Westminster’s minister responsibility system has not been fully applied in Hong Kong during these five years, such as, the Car Scandal of Antony Leung and the resignation of Regina Ip.
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In this paper, it will use Britain as an example to illustrate POAS of HK is similar to the traditional concept of ministerial responsibility. It will also argue that the concept of Westminster’s style could only marginally apply in Hong Kong mainly due to its political constraints. This paper will be divided into four parts. First, it will illustrate the concept of Westminster’s “ministerial responsibility”. Second, it will find out those similarities between POAS and British setting. Third, it will point out how the political institution limits its practice. Finally, it will use the Car gate scandal to illustrate the political institution constraint the practice of POAS.
The job role and responsibility of Westminster’s minister
Westminster’s ministerial responsibility is a convention which cannot be well-defined. To understand this concept, it is better to have a look on the basic job task of “minister” and the concept of “responsibility” separately.
R. Pyper observed that the job task of a minister includes four aspects. They should lead the department, manage department, pilot legislation in the Parliament and represent the departmental interest (Pyper 1996: 4). The minister is also playing as the gatekeeper of the policy. He should also responsible for his policy outcome. When the policy outcome could create unintended consequences, he should take the remedial measures to solve the problem. Those aspects can illustrate the role and responsibility of the minister specifically.
Brich advocated that a political actor should be responsive to the public opinion. He should be also accountable for his action to anybody, especially the Parliament (Brich 1989: 25). His ideas show the concept of ‘answerability’ and ‘accountability’. By attending the particular policy committee of the parliament and answering the enquiries from the opposition party, the public interest could be well-protected. On the other hand, the transparency could also be achieved.
Simply speaking, the ministerial responsibility not only means accounting for certain things, departmental action, the policy outcome and his personal conduct, but he should also provide answerability to the executive and legislative branch. He should resign if the minister could not meet those standards or fail to gain the support from the Parliament.
The features of Westminster’s ministerial responsibility Ministerial responsibility includes collective and individual responsibility. According to Marshall, confidence, unanimity and confidentiality are three key elements of collective responsibility (Marshall, 1989: 3). For the collective responsibility, minister should protect the policy which is the final decision of the cabinet. S/He necessarily contains the spread of confidential document which served as national interest. On the other hand, providing accurate information, explaining his behavior and answering Parliament’s enquiry is the individual ministerial responsibility.
The ministerial responsibility could commonly be founded in Westminster system. Barendt stated that the ministerial responsibility is a key feature of a Parliamentary constitution which is a fusion of power between executive and legislature (Barendt, 1998: 120). Fusion of power means the government post maybe filled by the legislature. Since the majority party in the Parliament form the government, it is always difficult for the opposition to give harsh criticism towards the executive branch.
Woodhouse found out that ministerial responsibility has five levels of accountability. They are redirectory, informatory, explanatory, amendatory and sacrificial (Woodhouse 1994:28). Based on these levels, minister should provide accurate information for his action and amend the shortcoming of his department. And, the highest level is resignation which is resulted from private or political misjudgment. Normally Speaking, the minister should offer the resignation under two conditions. When the House of Commons passes the non-confidence vote, it means the minister should resign. The minister should also provide a resignation if his important bill was failed to pass in the House of Commons.
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The Practice of Principal Official Accountability System (POAS)
Before talking about the introduction of the POAS, the background and reasons should be examined. Jermain Lam summarized that there were three major reasons which led to the POAS, such as, reduce the policy failure, enhance the government performance and increase the accountability (Lam 2004: 197). First, there was an increasing public demand for accountability due to a series of policy failures and scandals, such as, the 85,000 housing policy and the Short Pile Scandal. Second, the government wanted to enhance her performance by asking the external expert to join the government, such as, Antony Leung and Frederick Ma. Third, the government imposed the ministerial system to enhance the accountability.
Based on above reasons, the POAS was established when Tung started his second term of Chief Executive. The ultimate aim of this ministerial system is to enhance the accountability of the principal government official. In addition, the civil servant had to do the political work before 2002. Introducing the POAS could maintain the professional and neutrality image of the civil servant. Besides, the POAS tries to find out suitable person to serve the community and enhance the policy implementation. Moreover, the POAS not only aims at improving the relationship between the Legislative Council (LegCo) and the Executive, but also brings a responsive government to the public (Constitutional Affairs Bureau, 2006: 2).
The operation of the POAS is sophisticated and specified. Under this system, the principal official will be chosen from inside and outside of the government system. There are totally fourteen principal officials who are participating in this system, especially, the three secretaries of Department and eleven Directors of Bureau. Their job roles are mainly focusing on the political works, such as, providing policy leadership, answering LegCo questions and collecting public opinion. Besides, there will be Permanent Secretaries, a civil servant with D8 rank, to assist the appointed official under each department. For the civil servant, they will remain political neutrality.
Setting up the POAS could also bring a great impact towards the political system. According to Lam and Cheung, the Chief Executive could reduce the political influence and important role of the senior government official under the POAS system (Lam: 2004; Cheung: 2003). It implied that the civil servant could not play as the major role in ruling HK. The leadership of CE could also be strengthened by bringing pro-government party into the Executive Council (Exco) and appointing the principal officials who share the similar political belief with the CE. The Exco is no longer act as an advisory committee, but perform the task of Cabinet in Westminster system, especially, the final decision of policy making. Generally speaking, the CE is the gainer of introducing the POAS.
The similarity and difference between Westminster’s ministerial responsibility and POAS
Since the POAS has been adopting for five years, government and academia thought that it was a ministerial responsibility. Donald Tsang indicated that POAS as ‘Hong Kong-style ministerial system’ (Tsang 2002). Respectively, C.Y. Cheung also wrote ‘POAS is essentially a form of individual responsibility’ (Cheung 2005: 163). However, those statements implied that the POAS is not fully copied from the Westminster. It just follows those features in the name only and ignores the essence of the Westminster’s ministerial responsibility.
The ultimate aim of both systems is seeking for the accountability. In the Bristish system, the Parliament could account for the minister’s behavior and his policy failure. In Hong Kong, those appointed officials are accountable to LegCo theoretically. Due to the representative democracy, it could say that both systems could bring a responsive government to the public. Under the Minister Code or Basic Law Article 64, those appointees should not only attend the legislative meeting regularly, but also provides accurate information to the public. However, attending the LegCo meeting is the choice of those appointed official. The appointed officials are also mainly responsible to the CE for the policy success and failure. However, the CE is not elected by the universal suffrage. It is doubt that the accountability could really be achieved.
The appointment process is similar. In Britain, those ministers are recommended by the Prime Minister. They should gain the approval from the monarchy. In Hong Kong, those officials are selected by the Chief Executive. The Central government could decide the appointment. However, the different method of gaining power could affect its legitimacy. Those ministers under Parliament system should win the election first. The POAS officials do not face the election. They are only political appointed by the CE with a contract basis. This shows the representative of the principal official in HKSAR is lower than the minister under parliamentary system. Since those appointees have a low legitimacy, tension always exists between the executive branch and LegCo in Hong Kong. Moreover, there is also a contradiction in the POAS. The Secretary of Civil Service is an appointee who is also a senior civil servant. It seems that this inherent flaw violates the original objective which is looking for political neutrality of civil servant.
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The role of Legislature
The Parliament or LegCo is a major mechanism to check and monitor the performance of appointed officials. However, their approach is very extreme. For the Parliament, the non-confidence vote is a direct method which can show their dissatisfactions. On the other hand, there is also a ‘shadow cabinet’ to monitor the government rule by using committee investigation. However, LegCo does not have this coercive power. Motion debate and private member’s bill is the only way for expressing their dissatisfaction. Those methods can exert pressure on the CE to ask the appointed official to resign for gaining the public support and popularity. However, the private member and the motion debate could be easily turned down by the fragmented LegCo setting. As a result, the LegCo could not play as efficient role as the Westminster’s Parliament.
The minister has his own regulation to obey. In the Britain, the Ministerial Code is the guidance which regulates minister action. In Hong Kong, this is replaced by the Code for Principal Officials under the Accountability System. Both systems require their official to declare their interest, such as, financial and personal interest. It sounds that HK did a great job to prevent the conflict of interest for those appointed officials. However, Chueng commented that the code of POAS is not sufficient to build a foundation for developing the individual ministerial responsibility (Cheung 2003: 260). It does not clearly define those three levels responsibility, such as, policy outcome, personal misconduct and departmental fault. Based on this, the code does not only imply the regulation is not specific enough for the official to follow, but also can not be implemented significantly.
The difference between of Westminster and Hong Kong is very extreme. By the convention of Britain, the minister should provide resign under two conditions. First, the minister should resign after the non-confidence vote was passed in the House of Commons. Secondly, the minister should offer a resignation when his major bill is failed to pass by the majority of the House of Commons. In Hong Kong, these scenarios may not lead to the resignation of the appointed official. For example, Antony Leung was involved in the Car Scandal. Although he offered the resignation to the CE, CE could have the final decision to reject it. It showed that there is not any mechanism which leads the principal official to step down. And, it failed to achieve the purpose of POAS.
To have a short conclusion, it reveals that the POAS could just learn the ‘key’ features from the Westminster’s style. Although their ultimate aims are the same, the essence of the traditional ministerial responsibility could not be fully applied in Hong Kong, especially, the regulation and resignation.
How does the HK political institution constraint the practice of the Westminister’s ministerial responsibility Generally speaking, the ultimate aim of POAS is seeking for the accountability of the HKSAR government. However, there are many incident reveal that the development of ministerial responsibility is under satisfactory, such as, the Car Scandal of Antony Cheung and SARS incident. According to John Uhr and Cheung, an effective accountability is building upon two foundations. There should be mechanisms for providing information and imposing sanctions (Uhr, 1998: 63; Cheung, 2003: 256). In spite of those elements, the undemocratic election of Chief Executive, the strong executive-led system and insufficient channel for the public to express their opinion could also constraint the development of the ministerial responsibility.
Low Transparency and asymmetric information flow
Transparency has a positive relation with the information flow. A government without transparency is difficult for the public to monitor its performance and governance. Rowena Kowk notes that “transparency is a precondition if the public are to effectively hold the government to account for ministerial responsibility to be meaningfully discharged” (Kwok 2003:116). In Hong Kong, there is already a Code of Access to Information. However, our code is still far from satisfactory. The accessibility of information heavily depended on the attitude of those government departments. Without a transparent government and well-established information flow, it is difficult for the ministerial responsibility to develop in Hong Kong. It is difficult to chase for the individual responsibility or any policy failure.
Fragmented Legislature without any coercive power
Legislative Council is enjoying a higher legitimacy than the Chief Executive since it is formed by fully election in Hong Kong. However, it may not have sufficient power to seek for accountability. It is mainly due to the Basic Law which limits the authority of LegCo. First, the non-confidence vote is not legal binding. Even the LegCo passes this bill, the minister still does not need to step down from his office. According to Lam, there were only two secretaries, the Secretary of Justice and the Secretary for the Environment, Transport and Works, would resign if they receive the vote of non-confidence from the LegCo (Lam 2004: 203). Second, the LegCo members need to have the consent of CE when they introduce a bill is related to the public expenditure or political structure. Third, the voting by group rule also provides a buffer zone for the government. Those embarrassing bill is always turned down by the functional constituency. For example, the non-confidence vote towards Antony Leung is finally turned down by the functional constituency and pro-government party. Based on those reasons, the LegCo can not seek for the appointee’s accountability.
Undemocratic Election of Chief Executive
The small circle of CE election also constraints the practice of POAS. He is only selected by the one thousand and six hundred election committee. Since the CE is not elected by the universal suffrage, he is not totally responsible to the public. Although Basic Law article 73 stated that LegCo can impeach the CE, the removal of CE is highly determined by the PRC government. As a result, people believe that the CE is just responsible to the PRC rather than the HK society. On the other hand, the CE has the highest authority to choose his executive team, especially the Principal Officials. However, those principal officials do not gain the power by the open election or even approved by the LegCo. Emily Lau, the LegCo member, also criticized that the POAS is different from the Western countries since the principal officials are lacked of representatives. The public could not remove the officials by their votes (Lau 2002). Since the election of CE and the appointment of those appointees are undemocratic, the public could not hold the accountability easily.
Strong Executive-led system
The Hong Kong Chief Executive enjoys the highest authority in the political context, especially, forming his political team. The nomination process and resignation are both highly controlled upon the preference of the Chief Executive. It does not need to gain any formal approval from the LegCo. Besides, the Chief executive can control the information flow toward the LegCo. The Basic Law and the legislature house rules offer that CE could use the public interest as a reason to refuse to offer any useful information to the LegCo. Based on this, the strong executive-led system provides a protective shelter to those appointees while it is difficult to seek for the accountability.
Insufficient channel to express public opinion
Enhancing the accountability need a comprehensive channel for the public to express their opinions. However, most channels are responsible to the CE, such as the Commissioner of the Independent Commission against Corruption, Director of Audit. Cheung pointed out that it is hard for the public to believe those watchdogs are free from executive interference while those appointees are also under the leadership of CE (Cheung, 2003: 266). Finding the LegCo member is the only way to express their dissatisfactions. But, the LegCo member also faces a lot of constraints. For example, they can only focus on some controversial issues and lack of sanction power. Based on this, it can conclude that there is not sufficient institution to express the public dissatisfaction.
Case Study: Antony Leung’s Car gate Scandal Since those above arguments just mention the practice of POAS theoretically, this section will illustrate by a real-life example: the Car gate Scandal. Leung’s scandal regarded as personal immorality. He violated the Code for Principle Officials under the Accountability System since he purchased a car prior to the raise of the first resignation tax for vehicles. It is a case having conflict of interest. Although he provided a series of remedial measures, the donation and apology, it still could not gain back the trust for the public. Based on this, he offered his resignation. However, his resignation was finally accepted after four months of this incident released. It did not only violate the core values of ministerial responsibility, but also showed the POAS was not working properly due to its political institution.
Leung’s incident already revealed that the information flow is highly determined by those officials themselves. According to Choy, Apple Daily requested Leung to explain the reasons of purchasing the car. However, Leung still did not have any response in front of media and the public. As a result, the media disclosed this scandal two days later (Choy 2005: 154). If the transparency cannot be enhanced, the accountability and responsibility of appointee will not be held easily.
LegCo could not play an effective role in seeking the responsibility of Antony Leung. As mentioned, the vote of non confidence was failed since the majority of the functional constituency did not support. In addition, the Panel of Constitutional Affairs did urge for the impeachment power. However, the Secretary of Constitutional Affairs Bureau, Stephen Lam, replied that the Basic Law does not delegate the impeachment power to LegCo. Based on this case, Antony Leung, the principal appointee, did not receive any punishment from the LegCo.
The incident reveals that the accountability and responsibility will not be achieved if the selection of CE and principal official is undemocratic. Generally speaking, Tung’s administration was not directly accountable to the public. Also, appointees are only determined by the CE without the approval of LegCo.So, Leung was only accountable to Tung. For example, he stated that he would only offered resignation if the CE requested him to do so. This statement could show Leung did not only lack of the concept of accountability, but also illustrated the undemocratic institution limited the practice of ministerial responsibility.
The Tung’s executive-led system played a role to distort the nature of POAS. Even the Financial Secretary tried to responsible for his fault directly by offering resignation, he still can in the office based on the support of Mr. Tung. When Anotny offered the resignation to Tung in March of 2003, he just refused Leung’s resignation and gave a formal criticism. This case strongly supports that the minister does not need face his responsibility if the CE is willing to protect his colleague.
The July First incident not only focused on the dissatisfaction on the Tung’s rule, but also revealed insufficient channel for the public to express their anger on the Leung’s scandal. According to the performance evaluation survey, carried out by the Chinese University in 2002, stated Leung’s popularity already dropped extremely after the scandal (Wong 2003: 5). It showed the massive discontent on Antony. Since the LegCo, their representatives, could not impose any measures to seek for the accountability, the public became angrier. Based on this, it was part of those reasons which led the people to step up in the July First Protest in 2003.
Tung did try to bring an accountable and responsive government by introducing the POAS. The objectives of POAS and Westminster’s ministerial responsibility are nearly the same. However, the Antony’ scandal already proved the practice of POAS is far from the success of Westminster one. Jermain Lam pointed out “the institutional weaknesses of the ministerial system in Hong Kong, it is not realistic to expect that a high degree accountability will be achieved.” (Lam 2004: 213) The ‘institutional setting’ includes asymmetric information flow, fragmented LegCo, undemocratic election of CE, a dominant executive system and insufficient channel to express public views in this paper.
In order to overcome those political constraints of the POAS, three main solutions should be adopted. First, a democratic and legitimated election of CE should be established. This will bring the CE and his executive team to face the public critism. Second, the role of the LegCo should be strengthened by giving them approval and impeachment power. Third, the government should establish a better information flow and allow the public to express their opinion on those ministers. If those measures can not be adopted, the core values, accountability, answerability and responsibility, are difficult to achieve under the POAS.
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