Privilege, discretion and the rights of whistleblowers

PUBLISHED : Wednesday, 22 April, 2009, 12:00am
UPDATED : Wednesday, 22 April, 2009, 12:00am

Greg So Kam-leung, the undersecretary for commerce and economic development, has apologised publicly for using his name card in lieu of an income statement when he applied to the Immigration Department to hire a foreign domestic helper. Even if we ignore Mr So's personal slip-up, the incident raises three important issues of public interest.

First is abuse of privilege. High-ranking officials the world over are given certain privileges not available to ordinary people so they can discharge their duties without unnecessary delays or distractions. One example is preferential customs and immigration clearance. But, in an open and modern society, officials are expected not to abuse their position for special favour or treatment.

Take Mr So's case. The requirement to show proof of sufficient income when applying to hire foreign domestic helpers is to ensure that the prospective employer will not leave the imported worker stranded abroad. That Mr So did not yet have a tax return from the government was not a justification to use his name card instead. A recent bank statement or pay slip would have been sufficient proof.

Acting director of immigration David Chiu Wai-kai's defence of his department's decision to process Mr So's application raises the second issue: use of discretionary powers. Mr Chiu said that, on average, the income-statement requirement was waived for 20 to 30 per cent of applications. He did not say whether a name card of a well-known person was always accepted as a substitute. No wonder some legislators want a full discussion of how the Immigration Department processes applications to hire foreign helpers.

The department is one of the most efficient. In principle, I support its use of discretion when processing applications that do not meet normal requirements. This is bureaucracy with a human face. In comparison, the unfortunate death of a heart attack victim outside the Caritas Medical Centre in February was a tragic case of public servants working blindly within the rules.

But discretion should be exercised without fear or favour. As I explained before, Mr So had more than one means to satisfy the requirement without using his name card. A clear exposition of the criteria used by the Immigration Department in processing different categories of applications would certainly be useful. This would allay any public concern that civil servants serve their political masters with undue enthusiasm.

The third area of public concern is relatively new to Hong Kong: the question of protecting whistleblowers against punishment or retaliation by their employers. This arose in Mr So's case when it was suspected that the Immigration Department was conducting an internal inquiry into how Mr So's case came to light.

Insiders who speak out are respected in many western countries for exposing matters of public interest that would otherwise remain hidden. Notable examples include how the tobacco industry knew for years about the health risks of smoking, or the Enron fraud scandal involving senior management.

In the US, where a number of federal and state laws contain provisions to protect whistleblowers, President Barack Obama is under intensive lobbying to pass a comprehensive whistleblower protection act. Similarly, Britain's 1998 Public Interest Disclosure Act protects employees making 'qualifying disclosures'.

Under Hong Kong's civil service regulations, a civil servant risks disciplinary action for divulging any internal information to the public. While I don't think Mr So's case was a serious case of misconduct, it should be seen as a chance for public debate on the need to protect whistleblowers in both the public and private sectors. Experience in many places, including on the mainland, shows the importance of exposing abuses or crime in the public and private sectors.

Joseph Wong Wing-ping, formerly secretary for the civil service, is an honorary professor at the University of Hong Kong