Article of faith in the ICAC
THE Legislative Council called upon the Government to form a broad-based committee to carry out a full review of the powers of the Independent Commission Against Corruption (ICAC) and to ensure that there is proper accountability, taking into consideration any changes in social circumstances which have taken place since it was established in 1974.
In asking for a review, the legislature does not intend to impede the work of the graftbuster. It is, however, the duty of legislators to ensure that the work of the ICAC is subject to some adequate form of democratic oversight. The dilemma is to find the mechanisms which will enable that oversight to be exercised in ways which are effective but not obstructive.
To a large degree, of course, the work of the ICAC is subject to the oversight of the courts. If and when the Attorney-General decides in favour of a prosecution, it is for the courts alone to weigh the evidence and pass judgment.
But particularly during the early stages of an investigation, the ICAC has a variety of exceptional powers which can be exercised at the discretion of its commissioner alone. They include powers to obtain information and evidence, to search and seize evidence, and to arrest and detain. Some of the ICAC's powers exceed those granted to the police for investigating other types of crime, however serious.
The ordinances governing the powers of the ICAC were drawn up many years before the enacting of the Bill of Rights. Now, as a matter of general principle, derogations and departures from the Bill cannot, and should not, be entertained, whether in favour of the ICAC or anyone else.
The amendments which the Government has moved to those ordinances since the Bill of Rights was enacted only pertained to those areas which were patently inconsistent with the Bill. Since then, the Government has insisted that there is no more they must do unless a court decision required further amendment of the law.
But the ICAC investigates many cases which never get to the courts, and during the process of investigation, the commissioner wields enormous powers. For example, section 14 of the Prevention of Bribery Ordinance empowers the commissioner to require information from anyone about his or her assets, even though he or she is not a suspect in an investigation if the commissioner believes such information may assist in the investigation of proceedings of another person.
Article 14 of the Bill of Rights guarantees to the individual protection against arbitrary interference with his or her privacy. If we are to continue to grant such powers to the ICAC, then we should perhaps consider requiring an independent judicial authority, instead of the commissioner, to decide whether a person, not a suspect, should be required to divulge personal information.
The Bill of Rights has imposed new standards on all of government. The executive and legislative branches of government have an obligation to ensure compliance with those higher civil rights standards. I would like the ICAC and the Government to demonstrate unswerving political commitment to root the Bill of Rights firmly in the process of crime detection and investigation.
The Chief Secretary, Mrs Anson Chan, has promised to appoint a review committee to carry out a ''wide-ranging'' and ''in-depth'' review of every aspect of the ICAC. That is to be welcomed. But we have to wait ''several weeks'' before we will be told about its size, terms of reference and work methods.
Mrs Chan gave a public assurance that the review committee would have access to all the information which it needed in order to arrive at an exhaustive view of the ICAC and that there will be, at the end, a published report.
I believe the review is timely, not because we have lost confidence in the ICAC but because periodic reviews could ensure that our public institutions continue to perform at the highest standards.
Periodic reviews could ensure that our institutions continue to perform at the highest standards
