Special Committee on Constitutional Affairs & Human Rights' views on System of Accountability for Principal Officials

1. The Chief Executive proposed
in his 2001 Policy Speech a new system of appointment applicable to
the Chief Secretary, the Financial Secretary, the Secretary for Justice,
and most Directors of Bureaux. These officials would have clearly
defined roles and responsibilities. They would each be responsible
for policy areas designated by the Chief Executive and would lead
the executive departments within their particular portfolios. They
would be responsible for formulating, explaining, and defending government
policies as well as canvassing support from the public and the Legislative
Council. They would be answerable to the Chief Executive for the success
or failure of their policies, and would have to shoulder political
responsibility for their respective portfolios. They would also be
appointed to the Executive Council.

2. It is said that this new system of appointment
of principal officials would improve accountability. There would be
greater incentive for principal officials under the new system to
keep closely in touch with the public, to be more responsive to public
sentiments and demands, to be in a better position to prioritize policy
and legislative initiatives as well as the allocation of resources
and coordinate decisions. Above all, the new system would become more
flexible.

3. We generally embrace the policy of enhancing accountability
of principal officials who are responsible for policy making. We also
support the principle of maintaining neutrality of civil servants.
Thus, it is an appropriate direction to separate the political role
of policy secretaries from the executive role of civil servants. The
problem of the existing system is that civil servants have to play
a political role in formulating, explaining and defending policies
and lobbying political support and have to maintain at the same time
political neutrality, which sometimes become a disguise that they
are not responsible for their policy decisions.

4. However, it is unclear what 'accountability' means.
Neither the Policy Speech nor the paper prepared by the Constitutional
Affairs Bureau dated 26 October 2001 explains this concept of accountability
or the mechanism to ensure accountability. All that the paper prepared
by the Constitutional Affairs Bureau said was that these principal
officials 'would be answerable to the Chief Executive for the success
or failure of their policies. They would have to shoulder political
responsibility for their respective portfolios.' (para 12)

5. Accountability can be achieved at various levels.
At the lowest level, accountability entails periodic reports and explanations
or justifications of one's decision. At a higher level, accountability
envisages consultation before any decision is taken, or even approval
of a particular body before a decision can be effective. At the highest
level, accountability involves the power of dismissal.

6. Under the present system, the Government has to
present regular policy addresses to the Legislative Council. It shall
answer questions raised by members of the Council, and have to obtain
approval from the Council for taxation and public expenditure. On
the whole, the Government does explain its decision and consult the
public on major decisions.

7. Thus, the only main difference between the proposed
new system and the existing system is that, under the existing system,
the principal officials are civil servants and can only be removed
pursuant to a well established mechanism. The new system enables the
principal officials to be removed more easily.

8. However, according to the present proposal, the
power of removal is vested in the Chief Executive alone. The proposal
does not entail any power of the Legislative Council over the principal
secretaries. Nor does it introduce any system under which the views
of the public would affect the appointment or removal of the principal
officials. In other words, the principal officials are accountable
to the Chief Executive but only to him. They are appointed by the
Chief Executive. They obtain their mandate from the Chief Executive,
and not from the people. They can be removed by the Chief Executive,
and by the Chief Executive alone. There is neither convention nor
mechanism to ensure that the Chief Executive will exercise his power
of removal in accordance with public sentiment. The new system strengthens
the control of the Chief Executive over the principal officials, but
it does not enhance any public accountability of the principal officials.

9. Article 64 of the Basic Law provides that the
Government of the HKSAR must be accountable to the Legislative Council.
The proposed system does not in any way enhance the accountability
of the principal officials or the Government to the Legislative Council.



A Constitutional Dimension

10. The position of the Secretary for Justice requires
further consideration. Under the present system, the Secretary for
Justice assumes the role of the former Attorney General. She discharges
both legal and political duties. In other systems, these roles may
be discharged by different persons (e.g., Minister of Justice and
Attorney General, or Attorney General and Solicitor General).

11. The Secretary for Justice is the principal legal
advisor to the Government. She is responsible for policies relating
to the administration of justice and delivery of legal services. She
is, inter alia, a member of the Executive Council, the Chairman of
the Law Reform Commission, and a member of the Judicial Officers Recommendation
Commission. These roles would not be affected by converting her role
into a political appointment.

12. At the other end of the spectrum, all criminal
prosecutions are taken out in the name of the Secretary for Justice.
She is ultimately responsible for all prosecution decisions. All decisions
to prosecute are, at least in principle, determined by the Secretary
for Justice. She may stop the trial of an indictable offence by entering
a nolle prosequi. She can grant an amnesty or immunity to witnesses.
She decides the venue of criminal trial and gives consent to the prosecution
of certain offences. It is obviously important that decisions to take
out criminal prosecution should not be interfered with by political
consideration.

13. In England & Wales, the Lord Chancellor is
a member of the Cabinet and responsible for legal policies and legal
services. The Lord Chancellor is assisted by the Lord Chancellor's
Department, which has a staff of over 11,000, in discharging his duties.
The Attorney General is not a member of the Cabinet and only attends
Cabinet meetings when summoned.

14. Article 63 of the Basic Law provides that the
Department of Justice of the HKSAR shall control criminal prosecutions,
free from any interference. The Secretary for Justice stated that
the independence of the Department of Justice in relation to prosecutions
would be unaffected by the proposed changes because the Director of
Public Prosecutions remains a civil servant. This is half accurate
only. Under Article 63 of the Basic Law, the decision to prosecute
is to be taken by the Department of Justice, not by the Director of
Public Prosecutions, and the Secretary for Justice remains the head
of the Department of Justice. Therefore, if the Secretary for Justice
is to become a political appointment, it is important to ensure constitutionally
that all decisions relating to criminal prosecution shall be vested
in the Director of Public Prosecution or Department of Justice free
from any interference (or alternatively that the Secretary for Justice
under the proposed new system shall no longer be responsible for any
criminal prosecution).

15. Under the existing system, the Secretary for
Justice is also the guardian of public interest. Traditionally in
the common law system, the Attorney General represents the interests
of the Crown qua Sovereign and also qua parens patriae. The areas
in which these jurisidictions were first invoked were public nuisance
and the administration of charitable and public trusts. As guardian
of public interest, she can restrain public nuisances and prevent
excess of power by public bodies. In circumstances where a plaintiff
does not possess the requisite interest to bring a case in his own
name, the consent of the Attorney General is necessary - known as
relator action. It has been held that a citizen can only enforce public
rights through the Attorney General as the guardian of public interest,
and the consent of the Attorney General cannot be sidestepped or circumvented:
Gouriet v Union of Post Office Workers [1978] AC 435. It is not uncommon
in these circumstances that the subject matter in issue may be of
great importance to the government (e.g., challenging planning permission
by a person not directly affected by it, as in Gregory v Camden London
Borough Council [1966] 1 WLR 899, or industrial action as in Gouriet
v Union of Post Office Workers [1978] AC 435). What is best in the
public interest may not always be best in the government interest.
In exercising the jurisdiction as guardian of public interest, the
Attorney General has to be able to act independently and impartiality,
and if necessary, act contrary to government policies or even government
interest. A politically appointed Secretary for Justice who is accountable
only to the Chief Executive may be hampered in discharging her role
as guardian of public interest.

16. Therefore, if the position of the Secretary for
Justice is to become a political appointment, it is important to ensure
that the legal roles of the Secretary for Justice be transferred and
discharged by another law officer, such as the Solicitor General or
the Director of Public Prosecution, so that the Secretary for Justice
is only responsible for legal policies.



Dated on 19 November 2001