Arm's length

PUBLISHED : Wednesday, 11 April, 2012, 12:00am
UPDATED : Wednesday, 11 April, 2012, 12:00am


The arrests of former chief secretary Rafael Hui Si-yan and the joint chairmen of Sun Hung Kai Properties shocked the community and focused renewed attention on the Independent Commission Against Corruption (ICAC) and the indispensable role that it plays.

The fact that the ICAC has acted against such prominent people is a sign that, 15 years after the handover, it continues to be independent.

There is a need to ensure that it will stay that way.

The commission is also investigating conflict-of-interest allegations against Chief Executive Donald Tsang Yam-kuen.

But commissioner Timothy Tong Hin-ming was appointed by Tsang and is accountable to the chief executive, raising questions about the impartiality of such an investigation.

Fortunately, Tong recused himself because he was friends with the tycoon suspected of having bestowed favours on the chief executive.

This is the first time that the ICAC has conducted an investigation of the chief executive.

It was only in 2008 that part of the Prevention of Bribery Ordinance was extended to cover the chief executive. But he is still exempt from many of the ordinance's provisions.

Former chief justice Andrew Li Kwok-nang has said that the independent review committee of which he is the head will consider whether to extend the ordinance to fully cover the chief executive.

Clearly, if the chief executive is going to be covered by the law, some mechanism needs to be created whereby he is not responsible for appointing the commissioner and, at the same time, subject to investigation by the commissioner, who, in turn, is accountable to him.

In this regard, the judiciary may offer a model.

Judges, up to and including the chief justice, are appointed by the chief executive but on the recommendation of an independent commission. The Judicial Officers Recommendation Commission, chaired by the chief justice, is composed of judges and eminent people from the legal and other sectors. This creates a buffer between the chief executive and those appointed by him.

If the Prevention of Bribery Ordinance is to be significantly amended so that the chief executive is no longer exempt from its provisions, a similar mechanism may well be needed for the selection of the commissioner of the ICAC in the future.

A commission for selecting ICAC commissioners (and deputy commissioners) may, for instance, be chaired by the incumbent commissioner and include judges, academics and other eminent members of society, but should not include government officials.

There will also be a need to amend the ICAC Ordinance so that, when the commission is investigating the chief executive, the commissioner will not be accountable to him. Then the commissioner should be accountable to another person, possibly the secretary for justice.

Hong Kong is evolving and its needs also continue to evolve. To ensure the independence of the ICAC in the future, a mechanism needs to be created now.

Frank Ching is a Hong Kong-based writer and commentator. Follow him on Twitter: @FrankChing1