The Principal Officials Accountability System

Everyone is responsible for its own fault and mistakes, especially in this wrestling field of politics. We often see politicians reluctantly stepping-down by either public pressure or being sanctioned by making tiny but mighty mistakes.

In this essay, I will critically analyse the Principal Officials Accountability System (POAS) of Hong Kong (HK), one of the biggest developments in recent HK politics. By comparing the UK Parliamentary system and the US Presidential system, I will discuss the uniqueness of POAS, its development and its weakness. I will also discuss how POAS could reconcile itself with respect to the constitutional framework of HK – the Hong Kong Basic Law (HKBL).

Since the introduction of the POAS in 2002 [1] , the POAS has been heavily criticized by both press and academics. In the later part of this essay, I will discuss whether POAS has achieved its objective, and how it may develop in the future.

What is Accountability

The word “Accountability” is the crux of POAS, Mulgan referred this concept as “a process of being called to account to some authority for one’s actions” [2] , Mulgan believed this process must involve “answerability, responsibility, and accept sanctions for making mistakes” [3] .

Thynne and Goldring described “Accountability” as a system “where one person … responsible to another for the performance” [4] , and such in turn will come with obligations arising from responsibility. Etzioni pointed out the word “Accountability” should consist a degree of, “responsiveness to society” [5] .

McKinney and Howard indicated that “empowerment” and “accountability” should appear simultaneously as to avoid power abusement, and the both together will improve the quality of governance in a democratic state [6] . But, as Normanton stated, “official in dictatorial and absolutist states are frequently even more strictly accountable than those in Western-type states with a separation of power” [7] . For example, the communist Chinese government removed two senior officials for mishandling the SARS epidemic [8] .

In brief, we can see that “empowerment”, “control” and “responsibility” interact with each other and such interaction and process can sum up as the definition of “accountability”. Those who are given power shall be responsible for their action and accept punishment if necessary, and the governance of state shall improve when accountability operate in a proper manner.

The development of POAS in HK

Under the colonial rule, HK was led by the Governor as the policy initiator and the civil servants as the policy executors. The power of the Governor was conferred by the Letters Patent and the Royal Instructions [9] .

Before the introduction of POAS, HK had been run by a model known as executive-led government [10] . By chaired both the Executive Council (Exco) and the Legislative Council (Legco) [11] , the Governor played a major role in policy-making process, at the same time, the Governor also relied on different branch secretaries for policy implementation and legislation [12] . Although formally, the colonial Government was subordinated to the Crown, the Governor and civil servants were in practice, largely autonomous in internal matters and only in rare occasions that the British government would interfere [13] .

In the post colonial era, the newly formed Hong Kong Special Administrative Region (HKSAR) government has continued to be run by this executive-led model, as the Chinese authority believed that it would help to maintain the prosperity and stability in HK. However, this has been heavily criticized because the civil service began to develop their own policy agenda, and departed from acting as a coordinated role [14] . Also, the first HKSAR Chief Executive (CE) Tung Chee-hwa, decided to alter the Exco role from an influential policy maker to a powerless policy adviser [15] . The civil service then became the strongest institution within the HK politics.

Shortly after the handover, the avian flu outbreak occurred in late 1997 and the decision to slaughter 1.2 million live chicken attracted heavy criticism from the public. On the other hand, different contradictory advices were announced from different government departments, and officials were found to be slow to respond to the public [16] . However, in this incident, no government officials were held accountable.

In late 1998, the chaotic opening of the Chap Lak Kok New Airport had again placed HK in the international headline. The failure of the system change-over had led to flight delays, misplaced baggages and jeopardized HK’s international image. Once again, the follow-up investigation eventually declared that no official needs to resign.

In 1999, the press reported that two new blocks of public houses were built with short-pile and construction flaws, those building had to be demolished at a cost of HK$ 258 million [17] . Following investigation, it was discovered that three government officials had been corrupted. Although the Director of Housing Department, a career civil servant, had been publicly denounced by the Legco, he refused to resign [18] .

Traditionally, career civil servant enjoys a life-long tenure unless major mistake is made during his service. Thus, along with the unexpected Asian financial crisis, and the dissatisfaction due to poor administration of government [19] , since year 2000, the public had started to discuss whether HK should seek for an introduction of a political accountable system [20] .

In October 2001, Tung Chee-hwa, announced that he will conduct a review, aiming to enhance the accountability of principal officials to the public [21] . In July 2002, he announced the implementation of POAS.

Under the new system, all heads of bureau would become ministers, the principal officials (POs) are no longer civil servants and they no longer enjoy life-long tenure, they are all appointed with separate contracts, and they are dismissed at the discretion of the CE. All POs are also required to be accountable to the CE. And all POs will take part in the Exco and assume collective responsibility for the decision made [22] . However, the rest of the civil service would remain permanent, and apolitical. [23]

In summary, the executive-led principle is preserved while all bureaus ministers will become politically accountable for their own department actions. It is also a mean for the CE to transfer the control of different bureaus from career civil servants to him.

Comparison between the British Parliamentary System and US Presidential System

The Executive and POs – UK

The UK government is led by the Prime Minster (PM), who formulates policy and introduces legislation in the parliament. He is usually the party leader of the majority party and he must be a member of the parliament (MP). All ministers in UK are politically appointed by the PM (although formally appointed and dismissed by the monarch, on the advice of PM, this is merely for formality purposes). Also, each minister is required to be MP, normally, all UK ministers are career politicians. Thus, they often have the experiences of handling public policies when they are in oppositions or as backbenchers [24] .

The PM and his ministers are then part of a cabinet and are collectively responsible for government policy.

The Executive and POs – US

In US, the President is the head of the executive branch and also the head of state. The power and duties of the President are stated in the constitution [25] . The US President and the Vice President are elected separately from the congress by a popularly elected electoral assembly. Some may argue their Presidencies are not returned through direct election like that of the UK, since they are picked by an electoral assembly rather than the public [26] . However, this particular election method is stated in US constitution [27] .

Within the US constitution, it is not a requisite for the President to form a President cabinet so the President may seek opinions from the principal officers in respective executive department for any opinions when formulating policies. In US, all cabinet secretaries (Principal Officials) cannot be a member of the congress or hold any other elected office, this is known as the “Incompatibility Clause”. [28]

By convention, the President cabinet has no collective responsibility for policy as they are not a decision making body, but when the President leaves his office, all cabinet members are expected to resign.

The Executive and POs – HK

In HK, CE is the head of HKSAR [29] nominated on a five-year term by a 800 members election committee as prescribed in the HKBL [30] , the nominated CE will subsequently need official appointment by the Central People Government (CPG) [31] . CE is also the chair of the Exco which includes members of PO, Legco members and public figures. All appointment or removal within the Exco is decided by the CE [32] .

The power and duties of CE include formulating all government policy related to internal affairs within HKSAR, enforcing all matters directed by HKBL [33] , and nominating POs for appointment and removal by the CPG [34] .

The Accountability – UK

In UK, one of the major constitutional convention is that ministers are accountable to Parliament and via Parliament to the public, since all ministers are publicly elected. Such accountability exists in two forms – ministers’ collective responsibility for government policy and minister’s individual responsibility for their own department or their own behavior. As a team, all cabinet members (CM) are expected to support and defend government policy even if it is contrary to their own opinion. If individual CM has strong opposition to government policy, CM must resign [35] .

For individual responsibility, it accounts for policy blunders in the minister’s portfolio, or doubts over their integrity as public officials, such cases will lead to resignation. Quick response to call for a resignation in some situations does help to restore the faith and the confidence of the administration, however, in some circumstances, some minister refused to resign. [36]

The UK Parliament consists of the House of Commons and the House of Lords. House of Commons are elected through universal suffrage for every 5 years. In general, the opposition would hold the government by giving criticism and asking questions during parliamentary debates and different select committees. In extreme cases, the House of Commons could pass a motion of “no-confidence” which may result in the ouster of the entire ministry. However, this hardly happens because typically the majority party is able to defeat such motion [37] .

The Accountability – US

Since the US President is not chosen from the Congress, it is possible for one political party to win the presidency without controlling the Congress [38] . All cabinet secretaries are nominated by the President but are subjected to the approval of the senate [39] . Furthermore, they are only accountable to the President and only the President is allowed to dismiss them. There is no ministerial responsibility in relationship to political accountability in US, but the President has to take the views of the Congress into consideration, as they are elected by direct universal suffrage.

In addition, other than key officials’ appointment, the US constitution gives the Congress the sole power to pass a vote to impeach key government officials including the President, Vice President and other key executive officials. If such impeachment is passed by both House of Representatives and Senate, the President will be removed from his office.

The Accountability – HK

Per the HKBL, the CE is accountable to the CPG and the HKSAR [40] . Although Article 64 is related to accountability, the provision primarily concerns with the implementation of laws, regulation of policies …etc. In extreme cases, the legislature could force the CE to resign by impeaching the CE. However, since HK has a rather weak legislature system due to the fact that only 24 members out of 60 are returned by universal suffrage. It is not likely to for Legco member to gain over two-third of votes to pass an impeachment motion. Thus, it is the sole power of CPG to remove the CE. As Loh suggested “The CE is also not accountable to the general public since he is nominated by the election committee not returned by universal suffrage, and only appointed or removed at the sole discretion of the CPG” [41] .

Following that analogy, one could argue that under the POAS, the POs appointed by CE are not accountable to legislature and the public, since POs are only accountable to CE. Although without electoral accountability, the POs are still under constant media and public scrutiny [42] .

Comparison between UK, US and HK

Although the HKSAR government has repeatedly emphasized POAS is not a “ministerial system” both during contemplation and after the formal announcement, one could see they share many common characteristics. In UK, the ministers are held individually responsible for government policy under his portfolio and his personal integrity. There is also a cabinet where ministers are held collectively responsible for government policies.

Similar to the POAS in HK, ministers (POs) are held individually responsibility to the CE and they are collectively responsible for government policies as members of the Exco, the Exco is de facto the cabinet of the government [43] .

In the UK parliamentary-executive system, the line of accountability extends from the department through the PM and ministers to the legislature, and through the legislature to the public, in which the line of control goes in the opposite direction.

Similar to UK, the line of accountability in the US system also extends from the department through the President and secretaries and through the President to the Congress, then through the Congress to the public. Again, the line of control is different from HK.

In these two systems, the line of accountability both stems from the government and eventually to the public. There are means by which the public can influence the performance of the government, since the House of Commons and the Congress are both returned by universal suffrage. Although in US, key executives only held accountability indirectly through the President to the public, but its principle is still based on universal suffrage.

The POAS in HK is different, since all ministers (POs) are politically appointed by the CE. They are not elected from the public like MPs in UK, or Congressmen in US. Moreover, there is no mechanism to extend the CE accountability to the legislature, or the public, since the 800 members Election Committee is not returned by universal suffrage. Although, POs in HK are held individually accountable for the failure of matters within their respective departments, they are only accountable to the CE, as their removal or stay is solely on the discretion of the CE. Therefore, as Loh comments, “The POAS is not a system that provides political accountability in a democratic sense. [44] ”

Despite the deficiency of democracy and public participation, the HKBL has set out a controlling mechanism on the operation of the Government. The HKBL requires the government to establish departments such as ICAC [45] and Audit Commission [46] , which exert a type of internal-formal control, as suggested by Thynne and Goldring.

To summaries, POAS is a hybrid system which is neither clearly presidential nor parliamentary [47] . However, its direction leans towards the presidential system in US than to the ministerial system in UK [48] .

POAS Weakness and its Control

The objective of POAS is to make government officials more “accountable” for their actions [49] , and makes CE easier to remove poor performance officials. Cheung argued such system only increases the power of a non-elected CE, not the political accountability [50] . Lam reinforced this argument by emphasizing, the hidden agenda of POAS was to increase the political power of the CE as merely replacing civil servants with political appointees alone is different from the notion of ‘political accountability’ [51] .

As Tung Chee-hwa responded in a Legco debate and agreed by Cullen [52] , the HKBL “already conferred all necessary powers on the CE, there is no need for these powers to be strengthened by the new system… in implementing the Accountability System, the CE will be devolving further his authority. [53] ”

The HKBL contains no provision for the Legco to remove POs through a vote of no-confidence, but the Legco can pass a motion of no-confidence to evaluate the power of POs, such motion is not legally binding. However, the CE has said that if Legco passes such motion, he would “consider among other things the circumstances leading to such a motion.” [54] Also, the Power and Privilege Ordinance allows Legco to investigate possible government wrongdoings [55] . While all these actions are non-legally binding, they are hugely influential and can lead the public opinion [56] .

For instance, in the “short-piling” scandal, the chairperson of the Housing Authority, quickly resigned under public pressure [57] 58. As stated by Loh, such non-legally binding motion against a PO will make the PO very difficult to remain in office [59] . Even if the PO remains in office, it is unlikely for him to pass any bills in his future political career [60] . And possibly, such retainment will only further deteriorate the faith and confidence of the entire administration [61] .

POAS and the HKBL

The HKBL does not explicitly mention about the POAS, in fact, the HKBL clearly indicates the continuation of the civil service-led system as well as their administrative and ministerial roles [62] . However, as argued by the HKSAR Government [63] and Cullen [64] , the Australia written constitution also says nothing about a cabinet government which exists legitimately under the constitutional conventions.

In October 2007, the government created the positions of “under secretary” and “political assistants [65] “, aiming to strengthen the POAS and provide a comprehensive career path for professional politician. However, it quickly attracted criticisms such as nepotism and cronyism. Legco members condemned such appointment “was merely looking for a way to offer well-paid jobs to its supporters [66] “.

Political neutrality of the civil service

The other aim of POAS is to maintain the apolitical civil service, as to ensure they could provide objective advice during policy formulation [67] . Once policy is decided by POs, the civil service should impartially implement the policy irrespective of his own view or preferences [68] . Therefore, senior civil servants – the permanent secretaries, are expected to attend most Legco meetings and public forums to defend government policies.

However, it is questionable whether the POAS could properly separate the political responsibilities of POs and administrative responsibilities of their permanent secretaries [69] . This issue is amplified in the role of Secretary for the Civil Service (SCS), which is a political appointment but he is allowed to return to the civil service after his term [70] . Therefore, it would be difficult for SCS to balance the interest between his role as a PO, and as a returning civil servant [71] .

Since the majority of POs appointed were in fact, former senior civil servants, it may jeopardize the neutrality of existing civil servants as they may choose to favors or speculate the intention of CE in order to seek for future potential political appointment [72] .

POAS Challenges and its Development

Within one month after POAS was in implemented, Ma, the secretary of Financial Services, claimed to be too busy to read the Stock Exchange proposal and allowed a controversial issue to be announced to the public (penny-stock delisting incident). This incident has led to rigorous reaction to the stock market, as a result, 75% of stocks recorded a loss on the following day, with a vanished market capitalization of $10 billion [73] . This was the first incident after the implementation of POAS. Nevertheless, the inquiry report concluded “This inquiry should not be taken as a fault finding exercise, the panel’s finding that no one was to blame”. The incident ended with Ma making a public apology [74] .

In 2003, Leung, the Financial Secretary, was accused of avoiding tax by purchasing a new Lexus before announcing a tax increase on new vehicles. At the end, the incident led to serious doubt on his integrity. The CE decision of not accepting Leung first resignation further damaged the whole administration creditability and POAS effectiveness. In fact, there was an attempt to vote for no-confidence motion in Leung in Legco, however, the motion failed to pass. Shorty after the July 1st rally, his second resignation was then accepted by the CE.

Following the “Lexus-gate” scandal, the outbreak of SARS and the introduction of the Article 23 legislation [75] had also led to the resignation of the Secretary of Health, Welfare and Food, and the Secretary of Security. In these incidents, we can see there is a development of ministerial accountability. When major political incident occurs, the CE will consider whether politically appointed PO should face criticism, make public apology or leave office. This seems to lay down a prospect development of accountability by way of convention [76] . However, the CE has not detailed specific criteria or factors he will consider to determine the degree of sanction [77] .

Future Development of the POAS

One would say the POAS has achieved its objective in holding officials accountable for the policy implemented. As shown in above incidents, different POs resigned, despite they all cited personal reasons rather than others, many would believe it was partly due to the public pressure. Also, if POs were civil servants, POs might be exempted from resignation like Mr. Miller, the previous Director of Housing Authority.

Therefore, the establishment of POAS shows a promising improvement in the political accountability in HK. It has transformed the government from a civil servant led-executive system to a accountable political appointed system. It is also a sign for future development of patrician politics.

Constitutionally, all POs are only accountable to the CE. Since the “Lexus-gate” and “Article 23″ incidents, we have seen the media, and public opinion turning into an external-informal control that applies to POAS. This i