The High Court has quashed the decision arising from the government's internal disciplinary proceedings against InvestHK chief Mike Rowse. What lessons will the top ranks in government learn from this? I had been asked by many people why I agreed to assist Mr Rowse defend himself in the disciplinary action against him for misconduct in the discharge of his duties over HarbourFest. Some even suggested there was no sense in helping a negligent official heading the department that oversaw what was considered a failed music festival in 2003, to boost morale after the severe acute respiratory syndrome outbreak. The internal process ruled against Mr Rowse. He then started judicial review proceedings challenging the decision. Last week, the court overturned it. Mr Rowse is not a personal friend. I agreed to assist him because of the far-reaching implications of the disciplinary proceedings. They went to the heart of Hong Kong's ministerial system, and would define the future relationship between civil servants and ministers. I agreed to become involved because this case would have an important impact on the future of good governance for Hong Kong. The ministerial system, known formally as the Principal Officials Accountability System, was put in place by the former chief executive in 2002 to add a layer of political appointments within Hong Kong's executive structure. As a result, the responsibilities and accountability of civil servants have changed. Mr Rowse's case was the first in Hong Kong where a senior civil servant was charged with misconduct for his performance in connection with a specific event, where the anticipated deliverables were fulfilled. The media had many negative reports on HarbourFest, which was managed by the American Chamber of Commerce and sponsored by the government. There were criticisms of over-ambition in programming and poor attendance. InvestHK was in charge of co-ordination. So who was really politically accountable? Should it not have been the minister in charge? Why was a civil servant held out to be the single person responsible for misconduct? I worried that the precedent of these proceedings might go towards setting the wrong tone in defining what falls within the responsibility of civil servants and what ministers should be held accountable for. This issue is even more acute in light of there being a further layer of deputy ministers. I was concerned during the proceedings that the burden of proof was not set high enough in view of the seriousness of the charges. This was a key point considered by the judge on how the two members of the inquiry committee considered the evidence as to whether it supported culpability. The court decided that the committee did not do justice to Mr Rowse, and its findings should not have been relied upon by the secretary for the civil service. The judgment addressed the dual advisory roles played by the Department of Justice acting as legal adviser to the government in disciplinary proceedings on every aspect, including advising the secretary for the civil service whether to accept the committee's findings. The judge found there was a breach of the rule of fairness. Finally, Mr Rowse appealed to Chief Executive Donald Tsang Yam-kuen on the secretary's decision under the government's administration order. Fifteen months later, Mr Rowse was informed that Mr Tsang had delegated the responsibility to the chief secretary, who had decided to uphold the original secretary for the civil service's decision. The court found Mr Tsang had acted outside his powers. The case brought up several issues: the disciplinary procedures need revamping to ensure a high standard of fairness; the legal department's role needs to be impartial; and powers vested in the chief executive to exercise personally should not be delegated. All require the executive to take positive action. Will there be the stomach at the top to deal with them? I fear not. Christine Loh Kung-wai is chief executive of the think-tank Civic Exchange
