from administrative state to ministerial system: the quest for accountability in hong kong

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From Administrative State to MinisterialSystem: The Quest for Accountability inHong KongRowena KwokPublished online: 06 Sep 2010.

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From Administrative State to MinisterialSystem: The Quest for Accountability in

Hong Kong

ROWENA KWOK

In an attempt to enhance the public accountability of principalofficials, Hong Kong has replaced civil servants with politicallyappointed ‘ministers’ to be in charge of policy portfolios. Suchministers will henceforth shoulder political responsibility for policyand administrative fiascos. This paper argues that in the deliberationson ministerialisation, the local discourse has not sufficientlyappreciated the complexities and uncertainties in both the theory andpractice of ministerial responsibility. It highlights the mistake ofconcentrating almost exclusively on ministerial resignation as amechanism for enforcing government accountability, and ofoverlooking explanatory accountability as a core tenet of the doctrineof ministerial responsibility. It points to the impotence of pursuinggovernment accountability in the absence of transparent government,and argues for access to information legislation as a prerequisite forthe meaningful discharge of ministerial responsibility.

BACKGROUND

On 10 October 2001, the Chief Executive of Hong Kong, Mr Tung CheeHwa, delivered his fifth policy address, the last in his current term of office,to the Legislative Council.1 One of the themes of the policy address wasexecutive accountability.2 The Chief Executive had in his preceding policyaddress in October 2000 noted a community desire for a morecomprehensive system of public accountability. The governmentacknowledged that senior government officials, involved in policy-makingand playing a leading role in public affairs, should be held accountable forthe outcome of public policies.3 In his 2001 policy address, the Chief

Rowena Kwok, Department of Politics and Public Administration, University of Hong Kong

Commonwealth & Comparative Politics, Vol.41, No.1 (March 2003), pp.101–128PUBLISHED BY FRANK CASS, LONDON

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Executive outlined the skeleton of a new system that the government wasconsidering.4 The new system has since been put into effect in July 2002.

The concern about executive accountability had come as a result ofpublic anger with a string of policy and administrative blunders. Theseblunders included a culling operation in December 1997 to rid the territoryof its entire chicken population of over a million in order to break an avianflu which had claimed several human lives.5 The government’s response tothe flu was criticised as being too late, devoid of coordination and properplanning, and, above all, lacking in transparency.6 However, no official washeld responsible for mishandling the crisis. In another incident, the ChiefExecutive spoke of Hong Kong’s pride in the ‘amazing engineering project’,when Hong Kong’s new international airport, taking $155 billion and sevenyears to complete, was officially opened on 2 July 1998.7 As events turnedout, patrons of the new airport were treated to utter chaos during its openingdays. Mishaps ranged from security lapses, malfunctioning flightinformation display boards, misplaced luggage and cargo loads, to water andelectricity supply breakdowns. An official investigation into the fiascononetheless exonerated all government officials,8 much to the chagrin of thepublic.9 A third incident involved the first ever no-confidence vote in HongKong’s legislature against a government official on 10 March 1999.10 Thevote was sparked by the decision of the Secretary for Justice not to prosecutethe proprietor of a local newspaper who had been named on a charge sheetfor co-conspiring to inflate the paper’s circulation figures. The Secretary’sjustifications for her decision, citing in part ‘public interest’, caused a publicfurore, with calls for her resignation and concerns about the rule of law inHong Kong.11 The Secretary’s contract with the government was, however,renewed subsequently.

The above incidents by no means exhaust the policy and administrativefiascos that occurred after July 1997.12 Almost invariably in these cases,either the public officials perceived to be responsible for the blunders wereable to escape public blame and stay on in their jobs, largely due to the factthat they were career civil servants, or it was never made clear who wasresponsible. This resulted in growing public frustration with thegovernment’s lack of public accountability. Thus, when the Chief Executiveindicated in his 2000 policy address that the government was looking intomeasures to enhance the public accountability of principal officials, the movewas widely welcomed and generated considerable discussion in society.

As outlined in the 2001 policy address, the blueprint to strengthen thepublic accountability of principal officials essentially involves theintroduction of a layer of political appointees to take over the positions ofsecretaries and directors of bureaux rank originally occupied by career civilservants. These new principal officials can be appointed from either within

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or outside the civil service, and will enjoy conditions of service andremuneration packages different to civil servants. They will be individuallyaccountable to the Chief Executive for successes or failures within theirrespective policy portfolios. Collectively, they will assist the Chief Executivein overall policy-making and setting policy priorities as members of theExecutive Council.13 The Chief Executive will in turn nominate the officialsfor appointment or removal by the Central People’s Government in Beijing.

The blueprint, since being put into effect in July 2002, is popularlyregarded as suggestive of some form of ministerial system.14 The politicalappointees, serving on contract terms, are akin to ministers in other politicalsystems in that they have to bear political responsibility for policy-makingand effective management of their respective departments.15 They have ineffect taken over the policy responsibilities formerly discharged by civilservants, and are held responsible for the formulation and promotion ofpolicies as well as being expected to shoulder public responsibility fordepartmental debacles. Career civil servants, in this new system, will beable to shed the popular image of being both policy-makers andimplementers. Senior civil servants who used to head policy bureaux nowbecome permanent secretaries to their ministers. They will henceforthreturn to their conventional duties of policy advice and efficientimplementation of policies, and be accountable to their respective ministersinternally through hierarchical control.

On the face of it, therefore, the new system is a positive response topublic concerns about the government’s lack of accountability, namely, theseeming impossibility of holding senior career civil servants to account forserious policy or administrative mistakes. Henceforth, since principalofficials serve only on contracts, it should be that much easier to hold themresponsible for blunders, and to remove them if necessary. Wherescepticism exists regarding the real effects of the new system, it relateslargely to the likelihood of further centralisation of powers into the hands ofthe Chief Executive.16 It appears that, for most critics, the most importantrequirement is for Hong Kong to have fundamental political reform first sothat accountability can be pursued through ministerial responsibility rootedin a democratic political structure.

It is the contention of this paper, however, that even if deficiencies in thepolitical structure of Hong Kong are removed so that ministerialresponsibility is premised on a democracy, attainment of governmentaccountability is not a straight-forward business and cannot be assumed. Inthis connection, the major focus of this paper is on the theory and practiceof the doctrine of ministerial responsibility. Three related arguments areadvanced. Firstly, through a discussion of the doctrine, the paper highlightsthe superficiality and narrowness in Hong Kong’s approach to the subject of

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ministerial responsibility. Such superficiality and narrowness has inducedmisplaced expectations of what a ministerial system can do to enhancegovernment accountability. Local discussions are superficial in that theyhave focused almost solely on finding some official to bear publicresponsibility for fiascos and not considered other pertinent questions suchas what ministers should be responsible for; such discussions have alsosimple-mindedly assumed that conventions on ministerial resignations caneasily be established. Even for critics who are sceptical about the directionof change, the solution seems to lie primarily in reforming the politicalstructure. This paper argues that all these views fail to recognise thecomplexity and uncertainty in both the theory and practice of the doctrineof ministerial responsibility. Local discussions are narrow, furthermore, tothe extent that they have completely overlooked the role of explanatoryaccountability in inducing more responsible government.

Secondly, the paper argues that, because of the inattention to explanatoryaccountability, local discussions have failed to appreciate the importance ofgovernment transparency as a precondition for accountable government andfor allocating responsibility. In this relation, the lack of transparency on thepart of the Hong Kong government is seen as posing a severe obstacle in theway of Hong Kong’s quest for more accountable government.

Thirdly, on the basis of the preceding explication, this paper makes apositive case for access to information legislation in Hong Kong. Given theuncertain prospects of fundamental political reform in the foreseeablefuture, and in view of the observation that even ministerial responsibilityrooted in a democratic system is no guarantee of accountable government,it is suggested that access to information legislation may well be betterplaced to bring more immediate, yet long-lasting results in greatergovernment accountability, as well as lay the foundation for a moreeffective ministerial accountability system when fundamental politicalreform becomes a reality.

Before the above arguments are presented in detail, let us first review theproblems of accountability in the administrative state of Hong Kong, whichhad prompted the government’s reform, and explicate how Hong Kongunderstands the promises and challenges of attaining governmentaccountability through ministerialisation.

PROBLEMS OF POLITICAL ACCOUNTABILITY IN AN

ADMINISTRATIVE STATE

Hong Kong had for a long time been described alternatively as anadministrative state or a bureaucratic polity to indicate the predominance ofbureaucratic power in the Hong Kong polity.17 The term ‘administrative


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state’ is commonly taken as an ideal type that denotes a state in which thebureaucratic sector projects an image of strong autonomous powers. In sucha state, how the increasing exercise of bureaucratic powers can beeffectively held to account and adequately accommodated for within theframework of democratic government is of great concern.18 In this relation,Hong Kong represented a more extreme form of the genre to the extent thatbureaucratic power was exercised without the envelope of a democraticframework and where problems of accountability assumed correspondingproportions. Despite the emergence of electoral politics and an increasinglybelligerent legislature since the 1990s as well as a change of sovereignty in1997,19 much political power had continued to reside in the civil service.Hong Kong’s mode of politics used to be described as ‘the administrativeabsorption of politics’, meaning that political interests and bargaining werelargely mediated through the bureaucratic sector.20

At the head of the Hong Kong government is the Chief Executive.Constitutionally, the Chief Executive is to be advised by the ExecutiveCouncil on all important policy decisions, but he can act alone.21 Before thereform, in any case, executive councillors who were not civil servants servedonly part-time and did not have policy portfolios. The Chief Executive, forhis part, did not govern with the back-up of a political party or devise policieswith a cabinet of party colleagues. Instead, he was heavily dependent on hiscivil service lieutenants for policy formulation and implementation.22

In this scheme, the senior civil service assumed the dual roles of civilservants and quasi-ministers.23 Not only were the senior officials responsiblefor effective resource allocation and administration in their respectivebureaux and departments, but, most importantly, they also performedfunctions that in most other democratic systems would be the responsibilityof politicians. The three most senior civil servants, namely, the ChiefSecretary for Administration, the Financial Secretary, and the Secretary forJustice, sat on the Executive Council. A ‘star chamber’ chaired by the ChiefSecretary and comprising three other senior career officials oversawstrategic planning and annual allocations of resources.24 Senior careerofficials also moved or withdrew policy motions for legislation in thelegislature; they regularly attended meetings of the legislature to explain,promote and defend public policies, engaged in policy debates withlegislators, and were routinely asked about public policy planning andprogress in public. Despite their occupational status as civil servants, theywere not ‘faceless’ as in the conventional model of civil service anonymity.Instead, they were recognisable and powerful movers and shakers in thelocal political system, arbitrating between varied and conflicting interests.

It is therefore understandable that while, constitutionally, the ChiefExecutive is responsible for all important policy decisions, senior career


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officials have always been widely perceived as policy-makers and not merebureaucrats. As a matter of fact, the confusion between political andadministrative roles not infrequently appeared to catch up with the seniorofficials themselves. In March 1998, a veteran adviser to the Chinesegovernment opined that the Chief Executive should keep tighter controlover Radio Television Hong Kong (RTHK), a government-owned stationwhose broadcasts were sometimes critical of the Chinese government, theHong Kong government, and the Chief Executive. The Chief Executivereacted cautiously, saying that, notwithstanding the importance of freedomof speech, government policies would need to be presented positively tooand that he would look into the RTHK issue. The Chief Secretary, on theother hand, scarcely hid her scorn for the adviser’s opinion and launched aforceful rebuttal.25 In another episode, the Chief Executive was similarlypromptly contradicted by his Financial Secretary when he said that thegovernment would seriously consider suggestions to defer the collection ofprovisional tax.26 The Financial Secretary, when asked, effectively ruled outany possibility of a deferral.

The political influence of the civil service could be further gauged giventhe weakness of the legislature, which is significantly constrained in itspolicy-making powers and its ability to monitor the executive authorities.27

All public expenditures have to be approved by the Legislative Council,28

but the Council may not amend government proposals for expenditure.Private member’s bills are allowable only when these ‘do not relate topublic expenditure or political structure or the operation of thegovernment’.29 Legislators may question government officials on policy oradministration and seek information from them, but the Chief Executive isempowered to forbid government officials from testifying or givingevidence before the legislature on grounds of ‘vital public interests’.30

Given the dominant position of the civil service in the political system,public responsibility for policy and administrative mishaps became aproblem. When policy and administrative blunders occurred, there wasinvariably no one to assume public responsibility. Constitutionally, the ChiefExecutive is politically responsible for all government actions, being head ofthe executive authorities. But the Chief Executive is not selected by popularelections,31 and there is almost no means by which the Hong Kong people canremove the Chief Executive if displeased with his performance.32 But even ifthe Hong Kong people were in a position to remove the Chief Executive, itcould only be done once, the Chief Executive being a lone individual.

To the extent that senior civil servants were de facto ministers, there hadbeen increasing demands that they should bear public responsibility whenserious mistakes occurred in their respective realms of duty.33 Public desireto see government officials held responsible for policy or administrative


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blunders punished publicly was, however, at odds with the latter’s civilservant status. The majority of civil servants are employed on permanentand pensionable terms and have a reasonable expectation of remaining onthe government’s payroll until normal retirement. Where disciplinary actionis considered necessary, this is dealt with through an internal disciplinarysystem.34 Civil service accountability is thus largely understood as legal,hierarchical and professional, meaning respectively the duty to obey thelaw, the superordinate, and professional codes of behaviour, if any.35

However, it is not in the tradition of a civil service to have its memberspublicly admonished, still less forced to resign or be dismissed, barringgrave personal misconduct. After becoming the first government official tobe censured by the legislature in a no-confidence vote and under intensepublic pressure for his resignation for a series of scandals in public housingprojects, the Director of Housing insisted: ‘I have no intention of resigningon the basis of political factors or other pressure. As a non-political civilservant, one can resign only on a matter of principle or belief.’36 This isconsistent with civil service conventions. After all, civil servants aresupposed to be anonymous, tendering expert advice to ministers on mattersof governance and carrying out ministerial instructions. If publicaccountability is an issue, it is for other political actors in the system totackle, not civil servants.

The upshot of such a unique political system in which civil servantsdouble as ministers and effectively constitute the government is an‘accountability vacuum’ in Hong Kong. The Chief Executive cannotpractically be held responsible for all government disorders, and it is next toimpossible to remove him in any case. Civil servants, for their part, cannotbe held publicly responsible because of their occupational status. Whenpolicy or administrative fiascos occur, therefore, it often looks as if they areacts of nature rather than consequences of human error. Almost invariably,the government will refute any suggestion that any official was responsible,and will insist that officials discharged their duties with due diligence.Increasing public frustration with frequent policy and administrativeblunders in the absence of government accountability thus led to growingagitation for reform.

THE QUEST FOR POLITICAL ACCOUNTABILITY THROUGH

MINISTERIALISATION

Since the government first indicated its intention to study ways to makeprincipal officials more accountable, local discussions have focused almostexclusively on reform to facilitate the removal of officials deemedresponsible for policy misadventure. In this connection, there have been


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widespread calls for developing constitutional conventions to obligeprincipal officials to resign from their posts in the case of gravedepartmental errors.

That public sentiments saw a ministerial system as a means to disciplineofficial incompetence and irresponsibility through removal was amplydemonstrated in Legislative Council deliberations. The chairman of thelegislature’s House Committee made his view clear during a debate on thedevelopment of Hong Kong’s political system: ‘by the adoption of theministerial system … any person accepting the political appointment as aminister must be prepared to be “beheaded” for policy blunders. Civilservants … need not shoulder such political consequences.’37 A fellowlegislator opined: ‘In the event of major political mistakes, the officialsresponsible must take the blame and resign.’38 Yet another legislator said:‘With regard to … constitutional conventions, [if officials] indeed haveerred, then should they hold themselves accountable to the Government,take the blame and resign?’39 Major political parties like the DemocraticParty, the Democratic Alliance for Betterment of Hong Kong and theLiberal Party all broadly shared similar views; all were favourably disposedtowards a contract system for principal officials and the development ofconventions on ministerial resignation or removal.40 Individual academicswere similarly inclined.41 For the public at large, an opinion surveyconducted in January 2000 found 65 per cent of the respondents agreeing tothe view that officials responsible for policy failures should resign.42

Admittedly, public response to the government’s interest in reform hadnot been wholly positive or uncritical. There were concerns thatministerialisation without more fundamental political reform, particularlywithout a role for the legislature in the appointment or removal of officials,43

could only result in a highly centralised system; the Chief Executive wouldbe able to govern supreme with almost complete freedom to hand-pick orremove his principal officials, thus rendering the public accountability ofthese officials immaterial.44 The common focus on removing principalofficials for policy or administrative failures and on ministerial resignationswas nonetheless unmistakable. It was even suggested that the test of thegovernment’s blueprint would be whether some heads were made to roll incase of serious mistakes.45 It is the argument of this paper that such a focusreflects a very limited and tenuous appreciation of the doctrine ofministerial responsibility itself and of its practice in other countries.

THE DOCTRINE OF MINISTERIAL RESPONSIBILITY

The doctrine of ministerial responsibility is not a single doctrine or rule, butrather comprises a complex cluster of distinct though related principles,


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understandings and practices. It is a multifaceted doctrine that imputesvarious legal, political and moral responsibilities, both collectively to thegovernment and individually to ministers.46 Since the kind of ministerialsystem that Hong Kong is experimenting with does not relate to any formof party government, and the main focus is to see how replacing senior civilservants in policy portfolios with political appointees may induceresponsible conduct of public affairs by officials, the following discussionwill concentrate on elements of the doctrine that pertain to the duties ofministers individually; it will not deal with the collective responsibility ofthe government.

This section argues that in pinning hopes on enforcing governmentaccountability through ministerialisation, Hong Kong has forgotten to askitself more incisive questions about what is being sought, what ministerialresponsibility means, and what the practice of the doctrine has been likeelsewhere. In saying that ministers should take responsibility for policyerrors, what is meant? Are ministers to assume public responsibility forevery departmental act undertaken by civil servants – that is, assumevicarious responsibility? To the extent that this appears to be implied in thelocal discussions, the justification and the parameters for such anexpectation are not clear. Or should ministers be deemed responsible onlywhen their personal culpability in fiascos can be established? In this case,one might not expect to see the majority of fiascos attributable immediatelyor largely to ministers personally. Similarly, much has been made of the ideaof developing constitutional conventions to oblige ministers to takeresponsibility for serious departmental mistakes and resign, but what sort ofblunder will warrant a resignation? Through what mechanisms doconventions normally develop?

If it is hoped that Hong Kong’s principal officials will in future allreadily take responsibility for policy blunders or even resign in some cases,what incentives exist in the political structure to induce them to do so? Whathas been the experience of other countries where ministerial responsibilityis a regular feature of government? The following shows that on bothvicarious responsibility and ministerial resignation there is no consensus onwhat the doctrine of ministerial responsibility requires of ministers, nor hasit been borne out in practice in other ministerial systems that ministersalways assume vicarious responsibility or resign from their positions to giveeffect to public accountability. It is further argued that there is no obviousreason why ministers in Hong Kong would act differently from theircounterparts in other countries.

The Uncertain Tenet of Vicarious Ministerial Responsibility

The conventional wisdom is that the doctrine of ministerial responsibilityholds ministers to be solely and wholly responsible for the conduct of


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departmental affairs to the elected assembly. This is related to the fact thatthe act of every civil servant is by convention regarded as an act of hisminister’s. Thus, if ‘a mistake is made in a Government Department theMinister is responsible even if he knew nothing about it … publicly he mustaccept responsibility as if the act were his own’.47 Mallory explains theconstitutional principle that requires ministers to assume vicariousresponsibility for departmental affairs:48

All formal acts of government officials are done on the authority andin the name of the minister. Accordingly, any act by an official of thepublic service, within the scope of his duties, is one for which theminister must accept responsibility … If there have been mistakes theminister may take disciplinary action, but this does not absolve himfrom political responsibility.

This interpretation of vicarious ministerial responsibility has, however, notachieved consensus among scholars, nor is it borne out by experience of thepractice of ministerial responsibility. In terms of principle, Turpin arguesthat a minister’s responsibility for what is done or omitted by his departmentmust in modern days be qualified by the volume and complexity ofdepartmental business that the minister can practically inform himselfabout, let alone control.49 In the view of Finer, while the principle has beenestablished that ministers alone will be answerable to parliament for everyact or omission of their civil servants, it is not true that a minister cannotshield himself by blaming his officials.50 A former British Home Secretary,Sir David Maxwell Fyfe, believed that ministers could occasionally criticisetheir civil servants on well justified grounds.51 In other words, there is noagreement on what exactly ministers should be responsible for. For some,the acts of civil servants are acts of their ministers and the latter must acceptresponsibility when things go wrong; for others, civil servants are notentirely anonymous, but rather can be named and blamed in justified cases.Ministers do not have to defend their subordinates who have acted indefiance of their instructions, or whose acts the ministers could not have hadfore knowledge about.52

In practice, it is also increasingly not the case, if it has ever been, thatministers will necessarily assume vicarious responsibility for their civilservants. One of the most pronounced demonstrations of ministerial refusalto assume vicarious responsibility in the United Kingdom was when twoIRA remand prisoners escaped from Brixton Prison in July 1991. The HomeSecretary, Kenneth Baker, repeatedly tried to distance himself fromculpability and instead placed responsibility at the doors of prisonofficials.53 Similarly, in Canada, when controversies broke out over theadmission of Iraq’s ambassador to the United States as a landed immigrant


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to Canada in 1991, the Canadian government was found guilty of trying todeflect its own responsibility onto a senior career official and of politicisingthe public service.54 In New Zealand, after the collapse of a Department ofConservation viewing platform at a wilderness location, resulting in the lossof 14 lives, it was a civil servant who made an immediate public gesture ofresponsibility by resigning from his position. The resignation of theMinister of Conservation more than a year after the tragedy and only fourmonths before a general election was considered to be only a cynicalpolitical ploy.55

The foregoing illustrates that while it remains general practice that civilservants are immune to political accountability, it is becoming increasinglyuncertain that ministers will as a matter of course shoulder politicalresponsibility for mistakes in their respective portfolios. The assumption ofvicarious responsibility is not evident in the principle or in the practice ofministerial responsibility. As a matter of fact, whether ministers shouldundertake vicarious responsibility, and how administrators could be made tobear some public responsibility for their acts have been central questionsafflicting public sector reformers on a global scale.56

As far as Hong Kong is concerned, if the personal involvement andresponsibility of a minister in a policy or administrative blunder can beestablished and turn out to be significant, presumably ministerialisation willprovide a more effective institutional channel for the realisation of politicalaccountability; public punishment, dismissal at an extreme, cantheoretically be more easily inflicted on politically appointed ministers thanon career civil servants. But where a minister’s personal culpability is notclearly established or substantial, and if experience elsewhere is anyindication, any assumption that ministers would as a rule shoulder vicariousresponsibility, or that public punishment could be imposed on them in caseof departmental misdeed is not well-grounded. In fact, foreign experienceshows that even where a minister’s personal culpability is substantial,punishment in the form of resignation or forced removal is anything butautomatic. This leads to an examination of the supposed convention ofministerial resignation.

The Supposed Convention of Ministerial Resignation

Just as there is disagreement on whether ministers should be made to bearpolitical responsibility for every official act within their portfolios, there aredifferent views on whether the doctrine of ministerial responsibilitycontains a liability to loss of office, and if it does, when such liability isinvoked. When a minister is only assuming vicarious responsibility for adepartmental debacle about which he has no prior knowledge or littlepersonal involvement, would removal of the minister be required? Or is


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ministerial resignation expected only when the minister is personallyculpable, or when resignation is demanded by the legislature?

On whether the doctrine entails a liability to lose office, Wade andPhilips equate responsibility with simple answerability to parliament, withno connotation of removal from office whatsoever.57 For Marshall and Finer,there is liability to loss of office in the doctrine of ministerial responsibility,but they differ on when that liability is invoked. For Marshall, a ministershould offer resignation if he is guilty of significant personal or politicalindiscretion, but ‘pure vicarious headrolling is not required’.58 Finer, in histurn, believes there is, at least in the British context, a political tradition thata minister should tender resignation upon the expressed dissatisfaction ofparliament. Notwithstanding, Finer doubts if practice in this regard has everadded up to a convention.59

Finer’s scepticism about the force and operation of the said conventionappears to be well justified by empirical investigations into the history ofministerial resignations.60 The number of resignations related to the conductof official business turns out to be conspicuously small. Over the century1855–1955, Finer could identify only 20 ministerial resignations subsequentto overt criticism by the House of Commons in Britain.61 This, in his view,constitutes only a tiny fraction of the known instances of mismanagementand blunder. In a more recent study covering the period 1945–97, the authorsconclude that only 13 per cent of cases of departmental error led toresignations in Britain and that even this is misleading because the casesinvolved only two incidents.62 In Canada, Sutherland identifies a total of 151resignations from the Canadian cabinet over the period 1867–1990. Of these,19 per cent were due to disagreement with cabinet colleagues (solidarityproblems) while in 41 per cent of cases ministers resigned to take up politicalappointments offered by the prime minister.63 In contrast, only two ministershad resigned to take responsibility for maladministration, with another threeor four resignations brought about by personal culpability in alleged lapsesrelevant to the ministers’ portfolios. Sutherland concludes that ‘[r]esignationfor the errors of officials is … not a feature of either doctrine or practice inresponsible government in Britain or Canada’.64 David Butler, in anothercomparative study of ministerial resignations between 1901 and 1996 inAustralia and Britain, found zero and five cases respectively of ministerialresignation due to accepting blame for public servants out of a total of 57resignations in Australia and 109 in Britain. Butler laments that ‘the largestcause of popular cynicism about ministerial responsibility comes from theabsence of resignations when things go wrong’.65 It appears that for too longthe convention of ministerial resignation has simply been assumed byacademics and self-proclaimed constitutional experts without fullyacknowledging the extent of non-resignation.66


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Indeed, it is not easy to formulate a rule that specifies the kind or degreeof fault that would warrant loss of office.67 Where a major policy failure orserious mismanagement can be clearly attributed to a minister, it can beexpected that the idea of ministerial responsibility will be stirred andpolitical pressure brought to bear for the minister’s removal. Conversely,where the personal responsibility of the minister is less direct, pressures forresignation are likely to be more muted. The actual course of action of thoseinvolved is thus less likely to be guided by prescribed conventions than bycontextual political dynamics.

Where ministerial resignations did occur, observations are that thesewere more the result of political circumstances than any deeply feltobligation to abide by constitutional conventions, if any existed.68 InCanada, opposition parties can force a resignation only when the lack ofpersonal ethics or probity on the part of a minister has lost him the supportof his own prime minister and party colleagues, or when the government isin a minority.69 Similarly, resignations are usually forced in Britain to servethe needs of the prime minister or the governing party, or if the minister inquestion has alienated sufficient numbers of his own backbenchers.70 Veryoften, whether a minister has to resign depends on the prime minister, who,normally, will let a weak minister go but intervene to save a valuedcolleague. Thus, very often too, whether a valued minister is personallyculpable or just assuming vicarious responsibility, his career can be savedthrough cabinet solidarity or timely reshuffle; even in the eventuality ofresignation, the career of the minister may suffer only a brief interlude as‘the resignation … may be made purely formal by reappointment to anotherpost soon afterwards’.71

It thus appears that the supposed convention of ministerial resignation,desirable as it is, does not really stand up to scrutiny. If such a conventionhas not assisted mature democracies like the United Kingdom, Canada,Australia and New Zealand in holding ministers to good behaviour, onewonders how much practical force it would have in Hong Kong where thegovernment is not even subject to democratic control.

A cursory examination shows that there has been no shortage of cases inHong Kong where senior officials deemed to be responsible for policy oradministrative fiascoes have ignored calls for their resignation.72 Lifejackets available to officials under such pressures ranged from a denial ofpersonal responsibility like that of the Chief Secretary in the New AirportOpening fiasco,73 to passing the buck on to subordinates as the HousingAuthority management did in the public housing piling scandals,74 to beingsaved by political allies closing ranks as in the case of the JusticeSecretary.75 In another incident, the former chairlady of the HousingAuthority was promptly appointed by the Chief Executive to head another


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powerful commission hardly a year after she was forced to resign for astring of scandals in public housing projects.76

If senior officials have in the past displayed aversion to shoulderingpublic responsibility, albeit on the ground that they were civil servants, thereis no obvious reason why politically appointed ministers should behavemuch differently. All important policy-making and executive powers inHong Kong are concentrated in the hands of the Chief Executive and lessthan 20 principal officials. The government, moreover, is not popularlyelected. In addition, public opinion is often divided and can be easilyevaded. As for the legislature, there is no provision in the Basic Law for anyrole for the legislature, whether in the nomination, confirmation ofnomination, or removal of principal officials. In any case, the threat ofcensure by the legislature, which is not wholly popularly elected, is notgreat and there is no lack of government allies in the assembly.77 Apparently,then, hardly any incentive exists in the political structure to inducepolitically appointed ministers to accept responsibility for policy ormanagement failures, and to voluntarily resign when demanded by thepublic or the legislature. As for the Chief Executive, he alone has the powerto nominate principal officials for the appointment or removal by theCentral People’s Government. Since he is neither popularly elected norowes his position to the legislature, he is in a very strong position todisregard public or legislative pressures in his decision to protect or removean unpopular minister. As a matter of fact, when asked about the issue ofpolitical accountability, the majority of the newly appointed ministers werenon-committal on whether they would step down if they made a seriousmistake, or if the legislature passed a motion of no-confidence in them.78

If the tenets of vicarious ministerial responsibility and ministerialresignation are subject to different interpretations and are not always borneout in practice, this paper suggests that Hong Kong has totally overlooked apotential answer to problems of government accountability in a morefundamental tenet of the doctrine of ministerial responsibility, namely, theminister’s responsibility to provide explanations for mishaps. This is thetenet of explanatory accountability. It is more fundamental, compared tovicarious ministerial responsibility and ministerial resignation, to the extentthat it illuminates the inner workings of government and the turns of eventsin particular incidents. It points to a potential answer to problems ofgovernment accountability because it necessitates government transparencyfor its effective discharge, and transparency enables more informed publicjudgement about government activities and the degree of responsibility ofdifferent parties for them.


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The Overlooked Tenet of Explanatory Accountability

It is a commonly held maxim that the minister is the sole authoritative voicein the elected assembly on acts of administration in his portfolio and thefocus of answerability. In Questions of Procedure for Ministers, it isstipulated that it is the British minister’s duty to be as fully informativeabout the government’s decisions and actions as possible and not to deceiveor mislead the parliament or the public.79 In an investigation into whetherthe export of defence and dual-use equipment from the United Kingdom toIraq between 1984 and 1990 had been in accordance with governmentpolicies then in force, Sir Richard Scott, who headed the inquiry, opined that‘[t]he obligation of ministers to give information about the activities of theirdepartments and to give information and explanations for the actions andomissions of their civil servants lies at the heart of ministerialaccountability’.80

In the event of legislative investigations into government acts, no doubtministerial and official cooperation in providing explanations and answeringquestions is important, but it is not sufficient. As Bogdanor observes in theBritish context, witnesses may be under an obligation to answer questionsaccurately in investigation proceedings, but they are under no obligation tovolunteer information unnecessarily. Nor are they under an obligation to ‘tellthe full truth’.81 How much of the truth can be unearthed thus depends on theability of those conducting investigations to frame their questions in such away as to elicit the required information. This may create difficulty forlegislators because they may not know what questions to ask, not being privyto relevant information or documents, and thus miss out on important leads.82

In particular, insofar as inquiries into policy failures are often politicallycharged, access to pertinent information assumes even more importance inalerting investigators to any attempt at ‘impression management, blameshifting, and bureau-political maneuvering’ by actors and agencies whosereputations are at stake.83

It is the contention of this paper that transparency is a precondition if thepublic and the legislature are to effectively hold the government to account,or, for that matter, for ministerial responsibility to be meaningfullydischarged. Where government acts are being investigated, the more thelegislature is apprised of the complexity and subtlety of procedures andrelationships involved, the more it will be in a position to ask the pivotalquestions; where routine daily decision-making is concerned, the more thepublic have access to government information, the more they will be in aposition to appreciate the rationale and intricacies of governmentoperations. In brief, information is the prerequisite for any informedjudgement to be made.


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In Hong Kong, legislators are facilitated by the special powers of thelegislature in parliamentary investigations. The Legislative Council(Powers and Privileges) Ordinance empowers legislators to order theproduction of documents deemed useful for investigation proceedings,barring objections from the Chief Executive on specified grounds.84

However, both the Basic Law and the legislature’s house rules allow theChief Executive, on grounds of ‘vital public interests’, to preventgovernment officials from testifying or giving evidence before thelegislature or its committees.85 As a result, the government’s jealousy overthe confidentiality of official information has been a constant bone ofcontention between the government and the legislature. More than once, thelegislature’s Public Accounts Committee (PAC), which follows up on thegovernment auditor’s reports on departmental wastage and inefficiencies,has found itself compelled to protest at the government’s lack oftransparency. In April 1996, the Legislative Council overwhelminglypassed a motion condemning the government’s refusal to release ExecutiveCouncil documents that the PAC felt would be necessary for it to pursueissues raised in the auditor’s report about housing benefits for HospitalAuthority staff.86 In July 2001, the PAC similarly criticised the governmentfor refusing to release information to facilitate its investigation into theauditor’s scathing attack on the government’s handling of the closure of aloss-making abattoir.87 In another Legislative Council investigation into thesudden departure of a former Director of Immigration, the chairman of theselect committee looking into the matter bitterly complained about repeatedofficial challenges to the power of the select committee. He questionedwhether the government’s refusal to disclose required documents on ‘publicinterest’ grounds was justified, and wondered if the government was notemploying ‘public interest’ repeatedly as an ‘all-purpose’ shield to obstructmonitoring by the legislature.88 Other recent instances of official secrecyhave included a refusal to release a report written by the government’seconomist on financial arrangements for bidding to hold the Asian Gamesin Hong Kong,89 and issuing inaccurate information on the deterioratingquality of water bought from the neighbouring Guangdong authorities.90

Explanatory accountability, therefore, is likely to be attained onlyinsofar as there is transparent government, for how else can one feelconfident that the truth has been largely established and responsibilityappropriately allocated if not with the help of pertinent information anddocuments. Transparent government is a precondition for accountablegovernment.


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ACCESS TO INFORMATION LEGISLATION FOR GOVERNMENTACCOUNTABILITY

Without political pressure or statutory requirement for the executive branchto be as open and transparent about its activities as possible, a great deal ofaccountability can be undermined. Experience shows that there are manyways in which executive authorities can short-change the public onaccountability, through misleading information, refusal to provideinformation, or forbidding civil servants to be witnesses in parliamentaryinvestigations. In the ‘arms to Iraq’ investigation referred to above, Scottfound instances of both misleading and unreasonable withholding ofinformation.91 In another celebrated case of the 1980s, in which the Britishgovernment tried to prevent a former secret service agent from publishinghis memoirs in an Australia court, the then head of the British civil service,Sir Robert Armstrong, was forced to confess that he had been ‘economicalwith the truth’ in his testimony to the court.92 It is a contradiction if ministersare said to be answerable or responsible and yet cannot be made to discloseinformation.93 If accountability depends on the goodwill of ministers andofficials, then in what sense is it accountability?

In Hong Kong, as noted earlier, the legislature is legally empowered todemand information and documents to facilitate its investigations, but whatthe government is obliged to disclose has given rise to many tugs-of-warbetween the two parties. Furthermore, it is not the case that the legislaturewill look into every problematic exercise of public authority. Normally, onlycontroversial or serious mishaps will attract the attention and interest oflegislators. How then can day-to-day government accountability be betterensured? Access to information law to oblige the government to open thebulk of its information and records for public scrutiny would be a move inthe right direction.

Article 19 of the International Covenant on Civil and Political Rights(ICCPR) stipulates the right of people to freedom of expression, and thisright includes the freedom to ‘seek, receive and impart information’. Article19 of the ICCPR has been incorporated into Hong Kong’s Bill of RightsOrdinance and the Basic Law.94 Thus far, however, there has been nogovernment attempt to effect the right through legislation. Instead, a Codeof Practice on Access to Information has been in operation since 1995,applying to all government departments and a number of public agencies.95

This Code, however, is significantly different from legislation as it is onlyan administrative code and has no legal basis. In the Code, the Hong Konggovernment recognises the public’s need to access official information, butnot their right.96 It also pertains to information only; there is no mention ofdocuments. In addition, there are a great number of exemption categories inthe Code, 16 in total, so that it is not difficult for officials to reject


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applications for information on the basis of the requested informationfalling within one of the exempted categories.97

Over the years, different quarters in Hong Kong have called for accessto information law, and there is reason to believe that there will be noshortage of agents to use the right that such a law provides. As early as1994, a legislator actually put forward an access to information bill forpublic consultation.98 When the Bill of Rights was invoked to press thegovernment for an information law, however, the government’s responsewas that the Bill of Rights only provided for a right to seek information, butdid not oblige the government to respond.99 As a response to the legislator’sinitiative, the government introduced the Code of Access to Informationinstead. The legislature’s frequent frustration with the government’s secrecyhas already been referred to above. One recent incident involved the defeatof the legislature’s wish to know the procedures for appointing principalofficials. Legislators were concerned that if the appointment of someofficials received blessing from the central government before securitychecks on them were completed, the integrity of the appointment systemmight be compromised. All legislators’ repeated questioning was side-tracked by the government.100

Similarly concerned with the government’s lack of transparency, theHong Kong Journalists’ Association mounted a campaign for aninformation law in 1998.101 To test the administration’s open governmentclaims, the Association organised a campaign that involved requesting morethan 50 documents from various departments operating under the Code ofAccess to Information.102 It subsequently transpired that instead of helpingto facilitate the search for the requested documents, the Home AffairsBureau, responsible for the operation of the Code, contacted various headsof department to draw up defensive strategies to defeat the campaign.103 Themedia have not been deterred, however, and have remained highlyinquisitive about government operations. In 1999, it was an investigation bya local newspaper that broke the news that the wife of the thenCommissioner of Inland Revenue operated a tax consultancy firm when herhusband was the tax chief. The Commissioner’s contract with thegovernment was subsequently terminated upon investigation of conflict ofinterest on his part.104 Most recently, another media investigation created apublic furore and led to a policy change by revealing that a long-awaiteddonor liver had been wasted because of a lack of resources at Hong Kong’spublic hospitals to carry out the transplant.105 Subsequent to the report, theHospital Authority promptly announced that it would consider increasingfunding for liver transplants.106

While the effects of an information law are frequently measured in termsof how often, by whom, and for what purpose it is made use of, the


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existence of such a law is in itself significant. All access to information lawsare premised on the principle of openness. Underlying the whole system isthe principle that every citizen should be able to see virtually all publicdocuments if they wish to, save for certain essential exemptions on, forinstance, national security, foreign affairs, criminal investigations andpersonal privacy. Where such laws obtain, government agencies are usuallyrequired to facilitate the public’s access – for example, in Sweden,government departments have to keep a daily register of official documentsand correspondence ready for inspection by any citizen.107 Governmentagencies in the United States similarly have to publish in the FederalRegister, among other things, rules of procedure and instructions as to thescope and contents of all papers, reports, or examinations, as well as makeavailable final opinions in the adjudication of cases. Access to informationlaw, therefore, affirms the presumption that ‘all of the records that thegovernment keeps in its file cabinets belong to the public and thegovernment is but a custodian, not an owner’.108

As a matter of fact, more and more countries around the world haveinstituted freedom of information laws. The spread of such laws stretchesfrom advanced democracies such as Sweden and the Netherlands where thelaws enjoy constitutional status, to the United States, Australia and Canadato former Eastern European countries like the Czech Republic, Latvia andLithuania.109 Even the United Kingdom, long distinguished for lacking aninformation law among mature democracies, adopted a Freedom ofInformation Act in November 2000.110 In a comment on the relationshipbetween democracy, accountability and access to government information,James Madison once noted that ‘a popular government without popularinformation or the means of acquiring it, is but a prologue to a farce or atragedy or perhaps both’.111 Hong Kong does not have a populargovernment, nor is the legislature an equal counterpart to the executive; theimportance of public access to information for enforcing governmentaccountability cannot be more obvious.

CONCLUSION

In the administrative state of Hong Kong, civil servants have for a long timeperformed the dual functions of both de facto ministers and implementers.This has resulted in problems of government accountability. As a response,the Hong Kong government has replaced career civil servants with politicalappointees who will be akin to ministers in taking political responsibility forpolicy performance. This paper seeks to point out that in the attempt topursue government accountability through ministerialisation, the localdiscourse has not sufficiently appreciated the complexities and uncertainties


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in both the theory and practice of ministerial responsibility. The precedingdiscussion has highlighted the mistake of concentrating almost exclusivelyon ministerial resignation as a mechanism for enforcing governmentaccountability, and of overlooking the importance of explanatoryaccountability as a core tenet of the doctrine of ministerial responsibility. Itpoints to the difficulty of pursuing government accountability in the absenceof transparent government. It further argues, in this connection, theimportance of access to information as a check on government secrecy andas a prerequisite for the meaningful discharge of ministerial responsibility.

It is argued that it will be more important and practical to press forgreater government transparency in the current context of Hong Kong.Judging from the kind of ministerial system that has been put in place, it ispossible that responsible and accountable government will be exposed tofurther hazards before any benefit materialises. To start with, conditions forcorruption and power abuse may thrive if political appointees from theprivate sector bring to their newly acquired authority the complex web ofeconomic and social connections that they have established in the businessworld, or if they do not have any long-term commitment to a political careerbut have agreed to the appointment simply to have a stint in the governmentfor the challenge or power and glory of it.112 Add to these the fact that theyare serving in their individual capacities, operating in a small and enclosedpolitical system without either party discipline or electoral constraints, andare further protected by a thick layer of government secrecy. It is not clearhow more stringent requirements on interest declaration will be fool-proofin preventing favouritism or impropriety.113 Secondly, it is not unimaginablethat an ambitious minister with an agenda, but who does not have muchtraining in or respect for objective criteria and fair procedures, may demandassistance from the civil service to the jeopardy of core values that havehitherto guarded the service’s integrity and legitimacy, namely, politicalneutrality and professionalism.114 Thirdly, accountability may become aneven more evasive goal when the Chief Executive stands by officials whoare widely deemed to have erred. The Secretary for Justice and the formerchairlady of the Housing Authority are just two examples.

This is not saying that the former system under which civil servantsdoubled as ministers was desirable; only that government by politicalappointees, to the extent that it equally lacks democratic control andlegitimacy, may expose Hong Kong to even more dangers of questionabledecision-making. Without fundamental political reform to institute ademocratically responsible government, the touted ministerial system mayat best be a half-way house with uncertain benefits, and at worst aninvitation to significant potential hazards for government accountability inthe centralised and secretive state of Hong Kong. However, as the


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experience of other democratic countries has testified, it is not the case thatonce a democratic system is in place problems of governmentaccountability will then disappear. This paper has argued that governmenttransparency lies at the heart of accountable government and, for thatmatter, ministerial responsibility. In this connection, it is further argued that,given the uncertain prospects of fundamental political reform in Hong Kongin the foreseeable future,115 government transparency enforced through anaccess to information law will be a reform measure poised to bring moreimmediate benefits for government accountability with less potentialhazards, as well as pave the way for an effective system of ministerialresponsibility. It has been noted that there will be no shortage of agents toactivate the rights that such a law provides.

Indeed, the kind of accountability pursuable through a ministerial systemand conventions of ministerial resignation may be limited. It might be theadvocates’ hope that through publicly punishing responsible officials, therewill be demonstration effects on all concerned. But this is only speculativesince punishment in this manner is contingent on the specific characteristicsof individual cases, as well as on the prevailing political atmosphere.Moreover, there are always different ways of interpreting the nature of anincident or the lessons to be learned. In addition, identifying and punishingthe culprits after something has gone wrong is in the main reactive.Responsibility in this manner is retrospective. Above all, to place publicfocus on ministerial resignation is to pursue vindictive rather than vindicativeresponsibility. Resignation or dismissal may satisfy retributive instincts, butbecause ‘it creates in itself an incentive for individuals to evade legitimateresponsibility it tends therefore to undermine such a sense’.116 Vindictiveresponsibility cannot serve as the primary means of affirming that publicofficials actually take responsibility and accountability seriously.

In the view of Aucoin and Heintzman, the purposes that accountabilityare intended to serve are mainly threefold: firstly, to control for abuse andmisuse of public authority; secondly, to provide assurance about frugalityand legal propriety in governmental operations, and, thirdly, to encourageand promote learning in pursuit of continuous improvement.117 Freedom ofinformation legislation, in this relation, will strongly enhanceaccountability, whether political or administrative. In terms of control, ifpunishment is the objective, the fact that information about the majority ofgovernment operations is freely available for public scrutiny will make itmuch easier for investigators as well as the public to understand thecomplexity and intricacies of the inner workings of governmentalinstitutions, thus facilitating the location of responsibility andapportionment of blame. In terms of assurance, an access to information lawwill help to shift the focus from punitive, result-oriented, case-based witch-


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hunting as would largely be the case where punishment and resignations areemphasised, to process-oriented, system-wide pursuit of accountabilitybecause the transparency will cultivate prudence and reasonableness in theexercise of public authority; in terms of learning and related to the point onassurance, such a law serves as a positive tool that encourages thecontinuous development of a system-wide transparent and open culture. Itis only on the foundation of such transparency that ministerial responsibilityas an accountability mechanism is likely to deliver its full benefits.

NOTES

1. After being a British colony for one and a half centuries, Hong Kong became a SpecialAdministrative Region of China in July 1997. Its executive authorities are led by a ChiefExecutive. See Consultative Committee for the Basic Law of the Hong Kong SpecialAdministrative Region of the People’s Republic of China, The Basic Law of the Hong KongSpecial Administrative Region of the People’s Republic of China, April 1990 (hereafter TheBasic Law), chapter IV.

2. ‘Building on our Strengths, Investing in our Future’, the Chief Executive’s 2001 policyaddress. Hong Kong Special Administrative Region Government: The Printing Department,paragraphs 130–40 (hereafter 2001 Policy Address).

3. ‘Serving the Community, Sharing Common Goals’, the Chief Executive’s 2000 policyaddress. Hong Kong Special Administrative Region Government: The Printing Department,paragraphs 111 and 112 (hereafter 2000 Policy Address).

4. The government’s initial blueprint in this connection will be described shortly.5. South China Morning Post (hereafter SCMP), 29 Dec. 1997.6. Linda Choy and Genevieve Ku, ‘Taskforce Chief Defends Role of Officials’, SCMP, 8 Jan.

1998; Ronald Arculli (a legislator at the time), ‘Official Disgrace Over Bird Flu Saga’,SCMP, 18 Dec. 1997; Jane Moir, ‘Pleas for Information on Bird Flu’, SCMP, 13 Dec. 1997;Linda Choy, ‘Tung Quarantined, Says Martin Lee’, SCMP, 12 Jan. 1998.

7. The Chief Executive, ‘New Airport Opening Message’, 2 July 1998.8. Report of the Commission of Inquiry on the New Airport (accessed at website: www.info.gov.

hk/iairport/report.htm). The problems were so many and serious that two other inquiries werelaunched into the debacle, namely, by the legislature and the Ombudsman. See Report of theLegislative Council Select Committee to Inquire into the Circumstances Leading to theProblems Surrounding the Commencement of the Operation of the New Hong KongInternational Airport at Chap Lap Kok Since 6 July 1998 and Related Issues (accessed atwebsite: www.info.gov.hk/yr98-99/english/sc/sc01/papers/report.htm) and the Ombudsman,Report of the Investigation into the Commissioning and Operation of the New Airport atChek Lap Kok (accessed at website: www.sar-ombudsman.gov.hk/english/publications/esricona.htm). Both the Legislative Council and the Ombudsman investigations found topgovernment officials to be responsible, the former even singling out the Chief Secretary forspecial mention. The official investigation, on the other hand, laid the blame largely at thedoor of the Airport Authority management. The Airport Authority is a statutory bodyresponsible for the provision, operation, development and maintenance of the new airport.

9. ‘Editorial’, Hong Kong Economic Journal, 23 Jan. 1999; Apple Daily, 23 Jan. 1999; AngelaLi and Jimmy Cheung, ‘Important Questions “Unanswered”’, SCMP, 23 Jan. 1999.

10. ‘Vote of No Confidence in the Secretary for Justice’, Hansard (Proceedings of theLegislative Council, accessed at website: www.legco.gov.hk/yr98-9/english/counmtg/hansard/990310fc.htm), 10 March 1999, 84–136.

11. The Secretary, Miss Elsie Leung, had explained that apart from inadequate evidence, herdecision was informed by a consideration that prosecution of the proprietor, Sally Aw, mightlead to the collapse of Aw’s media group. The Secretary worried that the failure of a major


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media group would not only result in the group’s employees losing their jobs, but also senda bad message to the international community. See Hong Kong Economic Journal, 5 Feb.1999; SCMP, 2 Feb. 1999. The Secretary’s decision was roundly criticised by leading figuresin the legal circle, echoed by calls for her resignation. See SCMP, 5 Feb. 1999; Hong KongDaily News, 29 March 1999; and Ming Pao, 6 Feb. 1999. In a survey conducted immediatelyafter the Secretary explained her action, public confidence in Hong Kong’s legal systemtumbled by over 30%, Ming Pao, 7 Feb. 1999; another poll showed over 50% of therespondents supported a no-confidence vote against the Secretary, Hong Kong Standard, 13March 1999.

12. At the time of writing, a legislative committee is investigating a series of short-pilingproblems in public housing units, see agendas and minutes of meetings of the SelectCommittee on Building Problems of Public Housing Units (accessed atwebsite:wysiwyg://main.203/http://www.legco.gov…1/english/sc/sc_bldg/general/bl_mtg.htm). Other incidents had included a series of medical errors and the official clearing ofthree immigration officers who wrongly sent an autistic teenager across the border into Chinain Aug. 2000. The teenager has since gone missing. See respectively Ruth Mathewson,‘Murphy’s Law and Medical Errors’, SCMP, 21 Aug. 1998, and ‘Man-hon FindingsReleased After Public Outcry Over Cleared Officers’, SCMP, 28 July 2001.

13. The Executive Council is the most senior advisory body to the Chief Executive whoseendorsement must normally be sought before any policy bill can be introduced into thelegislature. Members of the Council are appointed or removed by the Chief Executive fromamong legislators, public figures and senior civil servants. See The Basic Law, Articles 54–6.

14. The government stops short of calling it a ministerial system and presents the reform only asa measure to enhance the public accountability of principal officials. For convenience, thispaper will use the term ‘ministerial system’ although the reform obviously does not involvechanges in the broader political framework, such as election of the government or changingthe role of political parties.

15. A total of 14 such political appointments were made in July 2002, five from outside the civilservice. See SCMP, 25 June 2002. In this connection, it is noteworthy that the appointmentof outsiders to senior positions in the bureaucracy on contract is not unprecedented. As earlyas 1981, a Swire director, John Bremridge, was appointed Financial Secretary. In more recenttimes, outsiders have been brought in to become the Secretary for Justice, the SolicitorGeneral, the Secretary for Health, Welfare and Food, and the Financial Secretary. There is adifference between the earlier appointments and the latest reform, however. While the earlierappointees were appointed on civil service terms and served as if they were civil servants,the latest are explicitly political appointments. These new appointees not only have paypackages and other conditions of service different from civil servants’ but have to shoulderpolitical responsibility for performance.

16. See the section on ‘The Quest for Political Accountability through Ministerialisation’ below.17. For the former, see Peter Harris, Hong Kong: A Study in Bureaucratic Politics (Hong Kong:

Heinemann Asia, 1978); for the latter, see Lau Siu-kai, Society and Politics in Hong Kong(Hong Kong: Chinese University Press, 1984).

18. For related literature on the administrative state, see Dwight Waldo, The AdministrativeState: A Study of the Political Theory of American Public Administration (New York: TheRonald Press Co., 1948); Fritz Morstein Marx, The Administrative State (Chicago andLondon: University of Chicago Press, 1957); and O.P. Dwivedi (ed.), The AdministrativeState in Canada (Toronto: University of Toronto Press, 1982).

19. Norman Miners, ‘The Transformation of the Hong Kong Legislative Council 1970–1994:From Consensus to Confrontation’, Asian Journal of Public Administration, 16/2 (1994),224–48.

20. Ambrose Y.C. King, ‘The Administrative Absorption of Politics in Hong Kong, with SpecialEmphasis on the City District Officer Scheme’ (Hong Kong, Occasional Paper No. 25, SocialResearch Centre, The Chinese University of Hong Kong, 1973). The latest reform and theappointment of ministers to take charge of policy portfolios may presage certain structuralchange in Hong Kong’s power configuration so that the bureaucracy ceases to wieldpredominant influence, but how the system and the actual power dynamics will evolve is as


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yet too early to tell. This section describes Hong Kong’s political system as it had been for along time and uses the past tense to describe some of its main features. Elements of the oldsystem, however, may continue to persist for some time as the new system evolves.

21. The Basic Law, Article 56.22. The former Governor, Chris Patten, went so far as to admit that he would only take a decision

against the advice of his Chief Secretary ‘in extremis’. See Jonathan Dimbleby, The LastGovernor (London: Little, Brown and Co., 1997), 208.

23. For the purpose of this paper, the senior civil service refers to those positions named inArticle 48(5) of The Basic Law, namely, secretaries and deputy secretaries of bureaux anddirectors of departments.

24. Hong Kong Government, The Efficiency Unit, Serving the Community: A ManagementGuide for Civil Servants (Hong Kong: Government Printer, 1995), 15.

25. Fanny Wong, ‘Civil Service: The New Era’, in Chris Yeung (ed.), Hong Kong China: TheRed Dawn (Sydney: Prentice Hall, 1998), 141.

26. The collection of provisional tax is a core feature of Hong Kong’s tax system. The suggestionwas made with a hope to boost economic recovery by stimulating consumer spending. SeeHong Kong Standard, 8 Sept. 1999; and Ming Pao, 13 Sept. 1999.

27. Yash Ghai, Hong Kong’s New Constitutional Order (Hong Kong: Hong Kong UniversityPress, 2nd edn. 1999), chapter seven.

28. The Basic Law, Article 73(3).29. The Basic Law, Article 74.30. The Basic Law, Article 48(11).31. The first Chief Executive, Mr Tung, came to office through selection by a 400-strong

Selection Committee made up of representatives from designated economic and socialsectors, as well as political figures. See The Basic Law, ‘Decision of the National People’sCongress on the Method for the Formation of the First Government and the First LegislativeCouncil of the Hong Kong Special Administrative Region’. Subsequent Chief Executiveswill be selected by a 800-strong Election Committee similarly composed, The Basic Law,Annex I.

32. The Legislative Council may, after stipulated procedures, impeach the Chief Executive, butonly on grounds of serious breach of law or dereliction of duty on the part of the ChiefExecutive, The Basic Law, Article 73(9). See Article 52 for circumstances under which theChief Executive must tender resignation from his post.

33. There were calls for resignation and removal of the Chief Secretary, the Justice Secretary,and the Director of Housing in the New Airport Opening incident, the Sally Aw incident, andthe housing scandals respectively (see the first section above).

34. During the New Airport Opening incident, under great public pressure to admitresponsibility for the chaos, the former head of the civil service, Mrs Anson Chan, told thelegislature that the civil service had a sound mechanism to deal with misconduct, negligenceand failure to discharge duties and that, if necessary, she would be willing to ‘face the test’under the same mechanism. ‘We’ll face the music, says Anson’, SCMP, 4 Feb. 1999.

35. Consult Joan Y.H. Leung et al., ‘Redefinition of Roles: Hong Kong’s Politicians, CivilServants and the General Public’, Hong Kong Public Administration, 4/2 (1995), 205–22.

36. SCMP, 29 June 2000.37. Hansard, 14 June 2000, 7608.38. Ibid., 7625.39. Ibid., 7624.40. Ibid., 7613–21.41. Submission to the Legislative Council Panel on Constitutional Affairs on ‘System of

Accountability for Principal Officials’, document [LC Paper No. CB(2)972/00-01(2)]; HongKong Economic Journal, 15 Aug. 2001.

42. The Research and Survey Programme, Lingnan University. Also see Andy Ho, ‘MinisterialSystem a Necessity for Open Government’, SCMP, 27 June 2000; ‘Editorial’, Hong KongEconomic Journal, 13 Oct. 2000; ‘Editorial’, Ming Pao, 16 Oct. 2000.

43. That the legislature would have no role in this connection was reiterated by the governmentas late as in the summer of 2001. See Ming Pao, 25 Aug. 2001; Hong Kong Economic


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Journal, 19 July 2001.44. See variously submission to the Legislative Council Panel on Constitutional Affairs in Feb.

2000, document [LC Paper No. CB (2)1111/99-00(03)]; Hansard, 14 June 2000, 7618–21,7633–5; submission by the Hong Kong Human Rights Monitor to the same Panel dated 5Feb. 2001 on ‘System of Accountability for Principal Officials’; Legislative Council Panelon Constitutional Affairs, minutes of special meeting [with academics] on 3 March 2001,paragraph 8; and Hong Kong Economic Journal, 17 Oct. 2001.

45. Ming Pao, 11 Oct. 2001.46. See A.H. Birch, Representative and Responsible Government (London: George Allen &

Unwin, 1964), Part IV.47. Lord Morrison, cited in Geoffrey Marshall (ed.), Ministerial Responsibility (Oxford: Oxford

University Press, 1989), 7.48. J.R. Mallory, The Structure of Canadian Government (Toronto: Gage, 1984), 136.49. Colin Turpin, ‘Ministerial Responsibility’, in Jeffrey Jowell and Dawn Oliver (eds.), The

Changing Constitution (Oxford: Clarendon Press, 3rd edn. 1994), 109–51.50. S.E. Finer, ‘The Individual Responsibility of Ministers’, Public Administration, 34 (1956),

381. 51. Ibid. F.F. Ridley has taken issue with Sir Robert Armstrong, a former head of the British civil

service, for trying to perpetuate the understanding that ministerial responsibility toParliament necessarily excludes any such responsibility on the part of civil servants. See F.F.Ridley, ‘What Are the Duties and Responsibilities of Civil Servants?’ in ‘Symposium onMinisterial Responsibility’, Public Administration, 65 (Spring 1987), 79–87.

52. Finer, ‘Individual Responsibility’.53. See Diana Woodhouse, Ministers and Parliament (Oxford: Clarendon Press, 1994), 153–61.

For more distant cases, see Finer, ‘Individual Responsibility’.54. S.L. Sutherland, ‘The Al-Mashat Affair: Administrative Accountability in Parliamentary

Institutions’, Canadian Public Administration, 34/4 (Winter 1991), 573–603.55. Robert Gregory, ‘Political Responsibility for Bureaucratic Incompetence: Tragedy at Cave

Creek’, Public Administration, 76 (Autumn 1998), 519–38.56. As a result of public sector reforms sweeping across the globe, delineating responsibilities

between politicians and senior civil servants has re-emerged as a central issue posing bothconstitutional and managerial questions. See Patricia Ingraham et al., ‘The State of theHigher Civil Service After Reform: Britain, Canada and the United States’, OECD workingpapers, vol. VII (Paris: OECD, 1999).

57. See Finer, ‘Individual Responsibility’, 379.58. Marshall, Ministerial Responsibility, 11.59. Finer, ‘Individual Responsibility’.60. Resignations owing to ministers’ personal conduct in a private capacity are not considered

here.61. Finer, ‘Individual Responsibility’.62. Keith Dowding and Won-Taek Kang, ‘Ministerial Resignations 1945–1997’, Public

Administration, 76 (Autumn 1998), 411–29. Also Woodhouse, Ministers and Parliament,especially Part Two.

63. S.L. Sutherland, ‘Responsible Government and Ministerial Responsibility: Every Reform isIts Own Problem’, Canadian Journal of Political Science, 24/1(March 1999), 91–120.

64. S.L. Sutherland, ‘Responsible Government’, 106.65. David Butler, ‘Ministerial Accountability: Lessons of the Scott Report’, paper presented as

a lecture in the Department of the Senate Occasional Lecture Series at Parliament House,Australia, 9 Aug. 1996, 7.

66. Dowding and Kang, ‘Ministerial Resignations’, 412.67. Turpin, ‘Ministerial Responsibility’, 141.68. An Australian Senate committee report is said to have listed nine factors that determine

whether a resignation is appropriate, namely, the minister’s moral values, political ethics,parliamentary pressure, peer pressure, party sentiment, community standards, communityreaction, media reaction, and precedent. Butler says he will leave the reader ‘to savour themixture of moralism and realpolitik’ on determining whether a minister must resign. See


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Butler, ‘Ministerial Accountability’, 9. Emphasis in the original.69. Sutherland, ‘Responsible Government’70. Finer, ‘Individual Responsibility’.71. Ibid., 393. 72. See the first and second sections above.73. SCMP, 28 Jan. 1999.74. At the height of the public housing scandals, an investigation panel appointed by the

Secretary for Housing recommended that disciplinary actions be taken against low andmiddle ranking officers in the Housing Department but left untouched the Director ofHousing and his deputies. In the on-going legislative inquiry into the scandals, majorprotagonists also tried to shift blame onto one another. See Legislative Council Secretariat,‘Position Report on the Current Studies and Investigations Relating to the Building Problemsin Public Housing’, 3 Jan. 2001 (LC Paper No. CB(1) 389/00-01). Also see Ng Kang-Chung,‘Lawmakers Reject Piling Report Amid Demands for LegCo Inquiry’, SCMP, 20 Dec. 2000,and Joan Yip, ‘Housing’s Two Chiefs Cleared in Scandals: Report into Piling Problems Says18 Should Face Action’, HK Mail, 19 Dec. 2000, as well as Apple Daily, 6 May 2001, andMing Pao, 11 and 13 May 2001.

75. The hugely unpopular Secretary for Justice survived her no-confidence vote in the legislaturein March 1999 after the Liberal Party, the majority of whose legislators originate fromfunctional constituencies (composed mainly of business and professional elites who tend tobe pro-government), was widely reported to have succumbed to government pressure anddecided to abstain instead of its initial inclination to support the vote. See ‘Liberals SinkCensure Vote in About-face’, Hong Kong Standard, 11 March 1999.

76. See Sing Pao Daily News, 13 April 2001; Oriental Daily News, 13 April 2001; and The Sun,13 April 2001. As the blueprint on ministerialisation was being discussed, the governmentwas already saying that it would not entail requiring ministers to resign from their positionsor that the Chief Executive would necessarily remove ministers for under-performance. SeeHong Kong Economic Journal, 11 Oct. 2001.

77. Legislators could not even agree on whether the legislature should have a role in the removalof erring officials. SCMP, 28 Aug. 2001.

78. SCMP, 14 July 2002.79. Christopher Foster, ‘Reflections on the True Significance of the Scott Report for Government

Accountability’, Public Administration, 74 (Winter 1996), 569–70.80. Quoted in Vernon Bogdanor, ‘Ministerial Accountability’, Parliamentary Affairs, 50/1 (Jan.

1997), 72.81. Foster, ‘Reflections’, 575.82. Bogdanor, ‘Ministerial Accountability’, 81.83. Mark Bovens and Paul ‘T Hart, Understanding Policy Fiascoes (New Brunswick, NJ:

Transaction Publishers, 1996), 130. 84. Legislative Council (Powers and Privileges) Ordinance (Hong Kong Laws Chapter 382),

section 14. The Chief Executive’s powers in this connection concern matters relating to thesecurity of Hong Kong and responsibilities of the Central People’s Government.

85. See The Basic Law, Article 48(11) and the Legislative Council’s Rules of Procedure,paragraph 80.

86. Hansard, 24 April 1996, 203–22..87. ‘Accounts Watchdog Dismayed Over Delay in Abattoir Closure’, SCMP, 5 July 2001.88. Hansard, 18 June 1997, 240–66. 89. Sing Tao Daily, 8 Jan. 2001; Apple Daily, 27 Jan. 2001.90. SCMP, 13 April 2000; Ming Pao, 13 April 2000. Also recall complaints about the

government’s lack of transparency on the avian flu mentioned in the first section above.91. Foster, ‘Reflections’.92. Colin Campbell and Graham K. Wilson, The End of Whitehall (Oxford and Cambridge, CT:

Blackwell, 1995), 275. See other cases on parliamentary pursuit of executive ‘informatoryresponsibility’ in Woodhouse, Ministers and Parliament, Part Two.

93. Rodney Austin, ‘Freedom of Information: The Constitutional Impact’, in Jowell and Oliver(eds.), The Changing Constitution, 393–439.


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94. Article 16, Bill of Rights Ordinance and Article 39, The Basic Law.95. Code on Access to Information (Hong Kong, The Printing Department, 3rd edn. Aug.

2001). 96. If an applicant feels aggrieved by a decision to deny access to the requested information,

the case can be lodged with the Ombudsman who, however, has only a power ofrecommendation but not enforcement.

97. As an illustration of the government’s secrecy, this author submitted an application forguidelines to civil servants on being called to give witness in parliamentary investigations.The application was rejected on the ground that it belonged to one of the exemptedcategories. It was not even intimated whether such guidelines existed or not. As a contrast,British and New Zealand guidelines in this regard, just to name two, are freely available onthe internet.

98. Christine Loh, ‘Freedom of Information and Open Meetings: An Agenda for Hong Kong’,Hong Kong Public Administration, 4/2 (Sept. 1995), 265–73.

99. Loh, ‘Freedom of Information’.100. Legislative Council, Constitutional Affairs Panel meeting, 19 March 2001.101. Carol Lai and Andy Ho, ‘How Free is the Press?’ in Yeung, (ed.), Hong Kong China,

196–204.102. Oliver Poole, ‘Secret Memo on How to “Deceive” Public’, SCMP, 6 Jan. 1998.103. Poole, ‘Secret Memo’.104. SCMP, 22 June 1999; Ming Pao, 25 June 1999.105. ‘Life-saving liver goes to waste’, exclusive report by Ella Lee, SCMP, 9 Aug. 2002.106. SCMP, 12 Aug. 2002.107. Doreen Taylor-Wilkie, ‘Freedom of Information: The Swedish Way’, Scandinavian

Review, 83/3 (1995), 19–23.108. Tonda Rush, ‘Journalists and the Freedom of Information Act’, Public Administrative

Review, 46/4 (July/Aug. 1986), 614.109. David Banisar, ‘Freedom of Information Around the World’, accessed at website:

www.privacyinternational.org/issues/foia/foia-survey.html.110. See website at www.cfoi.org.uk.111. Cited in Robert G. Vaughn, ‘Transparency – the Mechanisms: Open Government and

Accountability’, Issues of Democracy (electronic journal of the US Department of State),5/2 (Aug. 2000), 13.

112. Decision-making under the current Chief Executive, a political appointee brought in fromthe business world, has not been free of suspicion of favouritism towards those with theright connections. In the Sally Aw case, the sponsor of the no-confidence motion, legislatorMargaret Ng, wondered aloud if the proprietor had not escaped prosecution as a result ofpreferential treatment, noting pointedly that the proprietor happened to be a family friendof the Chief Executive and a member of the Chinese People’s Political ConsultativeConference, a consultative forum of the Chinese government, Hansard, 10 March 1999. Inanother case, the government was widely suspected of favouritism when the contract forthe Cyberport project, a multi-billion technology-cum-estate development project, wasawarded without open tender. The contractor happened to be the son of a business partnerof the Chief Executive’s before he took office. See Hong Kong Economic Times, 17 March1999; Sing Pao, 17 March 1999. In this connection, the Independent Commission AgainstCorruption investigates incidents in which there is prima facie evidence of illegality, butthe Commission is powerless where, for example, favouritism is suspected but moredifficult to pin down as in the cases cited above.

113. Already, two new ministers have been criticised for putting shareholdings into family trustsand therefore not going far enough in ensuring that their investments do not conflict withtheir political activities. See SCMP, 6 Aug. 2002.

114. Political pressures on the civil service to provide ‘political assistance’ to an ideologicalgovernment are well-documented under the Thatcher and Reagan administrations inBritain and the United States. For Britain, see for example, Campbell and Wilson, The Endof Whitehall, chapter 2. For the United States, see Joel D. Aberbach and Bert A. Rockman,‘Civil Servants and Policymakers: Neutral or Responsive Competence?’ Governance, 7/4


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(Oct. 1994), 461–9, and Francis E. Rourke, ‘Responsiveness and Neutral Competence inAmerican Bureaucracy’, Public Administration Review, 52/6 (Nov./Dec. 1992), 539–46. InHong Kong, the government had based its position on denying a right of abode in HongKong to thousands of children born in China of Hong Kong residents on the claim that itwould otherwise open a floodgate to 1.6 million prospective immigrants into Hong Kongfrom Mainland China. There had been intense suspicion as to how the Census and StatisticsDepartment arrived at the figure of 1.6 million. See newspaper reports in SCMP and MingPao, 19–21 Oct. 1999 and press release of the Hong Kong Human Rights Monitor, ‘NewSurvey on Right of Abode Casts Doubt on Government’s “Taxi Method” Survey’, 18 Oct.1999.

115. The prospect for further democratisation is provided for in the Basic Law which allowsHong Kong to review the composition of the legislature in 2007, but any reform will needthe endorsement of a two-thirds majority of all members of the Legislative council and theconsent of the Chief Executive, The Basic Law, Annex II; any change in the method ofselecting the Chief Executive will further need the approval of the Standing Committee ofthe National People’s Congress, The Basic Law, Annex I. The Chief Executive howeverhinted that the review process would not commence until after the Legislative Councilelections in 2004, a signal that he did not see great urgency or importance in tending to theissue. See Hong Kong Economic Journal, 11 Oct. 2001.

116. Gregory, ‘Political Responsibility’, 533.117. Peter Aucoin and Ralph Heintzman, ‘The Dialectics of Accountability for Performance in

Public Management Reform’, International Review of Administrative Sciences, 66/1(March 2000), 45–55.


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from administrative state to ministerial system: the quest for accountability in hong kong

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