Public Forum: Assault on the ICAC and the Rule of Law? - "The Evolving ICAC" (Mr Bertrand de Speville)

Public Forum: Assault on the ICAC and the Rule of Law? (13 August 2016)

Mr Bertrand de Speville - The Evolving ICAC

The ICAC has been fighting corruption with and on behalf of the people of Hong Kong for 42 years. During that time it has been evolving. That is hardly surprising. For living organisms and species, evolution is an essential of their existence. Likewise for organisations and institutions.

Evolution necessarily involves change. The point about evolution is survival – thriving in changing circumstances.

The ICAC is an institution, created in 1974 in the context and circumstances of Hong Kong at that time. Those of you who are old enough to recall the Hong Kong of the 1970s, and indeed those of you who are much younger, know that Hong Kong has changed and is changing in many ways – economically, socially, politically. That ability to change, to adapt, to evolve is what has made Hong Kong the success that it is. The ICAC is no exception. It remains the most admired anticorruption institution in the world. Within Hong Kong it is the most strongly supported of all the agencies of the Administration, enjoying for 20 years now the support of 97-99% of citizens.

We should not overlook an important feature of the theory of evolution. It is only the changes that are right for the environment that ensure survival. Those that are not right have the opposite effect. The same applies to organisations and institutions. Again, the ICAC is no exception to this rule.

Let me mention a few of the positive  changes made at the ICAC over the years (there have been many but we haven’t the time today to consider all of them).

  • It used to be a highly secretive organisation where nothing was revealed unless it had to be. But for a long time now the guiding principle has been: all is transparent and open unless it has to be confidential. Confidentiality remains a vital aspect of some of the Commission’s work.
  • Three of its advisory committees were chaired by the Commissioner. That changed when the workings of the Commission were reviewed by a committee chaired by Dr Helmut Sohmen in 1994. It recommended that those operational advisory committees should be chaired by a non-official member of the committee, not the Commissioner.
  • The advisory committees’ activities used to be included in the Commissioner’s annual report to the Governor. Dr Sohmen’s committee recommended that they should report separately, as they have done ever since.
  • Warrants of interception and surveillance are now subject to judicial supervision – an important safeguard against possible arbitrary use of those intrusive powers.

Let me turn to some of the ICAC’s features that have not changed but should have been adapted to a changed environment.

The Administration and the Commission

A strange feature of the law is that it states that the Governor, now the Chief Executive, can order and control the ICAC. Section 5 of the ICACO reads (as it always has):

 (1) The Commissioner, subject to the orders and control of the Chief Executive, shall be responsible for the direction and administration of the Commission.

(2) The Commissioner shall not be subject to the direction or control of any person other than the Chief Executive.

These words have never presented a threat to the operational autonomy of the Commissioner simply because successive governors and chief executives have wisely exercised restraint. In the course of my work in different countries I have often been asked if the words ‘orders’ and ‘control’ did not undermine the Commission’s independence and operational autonomy. I reply that wise restraint has protected it. My questioner remains sceptical – you can see why. The words are plain enough.

Why were they in the Ordinance in the first place? We must recall the context. The ICAC was a new creation with novel, extensive powers. Many were worried. No one knew how it would perform. The Administration had for years resisted the call from sections of the community to create such a body. The Governor had to be sure things would not go wrong. He therefore had to insist on being able to control his creation. In the circumstances of Hong Kong, he did not feel that accountability by means of an annual report alone was a sufficient check.

That was then. Since then, the accountability mechanisms have been increased and tightened. The exercise of some powers is subject to judicial control and supervision. The advisory committees of citizens work closely with the ICAC, monitor its activities and report separately to the Chief Executive. Prosecutions remain in the control of the Attorney General.

Is it not time to look at section 5 of the ICACO, a colonial relic of the those times, and allow the Commission’s operational autonomy to rest on the security of law rather than the forbearance of the Chief Executive?

Since 1 July 1997, evolution of the ICAC must take account of the provisions of the Basic Law. For instance, the appointment of the Commissioner is governed by article 48 of the Basic Law which says that the Chief Executive is ‘to nominate and to report to the Central People’s Government for appointment the …..Commissioner Against Corruption…. and to recommend to the Central People’s Government the removal of the above-mentioned official[s].’

BL 8 ‘The laws previously in force in HK, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong SAR.’

BL 57 ‘A Commission Against Corruption shall be established in the Hong Kong SAR. It shall function independently and be accountable to the Chief Executive.

In my view ‘accountable’ does not mean ‘subject to the orders and control of the Chief Executive’ in s.5 of the ICACO. The ordinary meaning of ‘accountable’ I suggest is ‘bound to give account to …’ or ‘bound to give an explanation’.  It does not mean ‘bound to take orders from a person’. Nor does it mean ‘bound to be controlled by a person’.

Is there then an argument that ICACO s.5 contravenes BL 8?

But whether it does or not, the question should be asked: does the Basic Law prevent the legislature of HK considering ICACO s.5 and amending it if it thought fit? If the answer is no, it does not, how might it be amended?

The words ‘subject to the orders and control of the Chief Executive’ in S.5(1) could be deleted. Furthermore, the words ‘free from any interference’ in BL 63 (which deals with criminal prosecutions by the Department of Justice) might be added so that s.5(1) would read: ‘The Commissioner shall be responsible for the direction and administration of the Commission, free from any interference.’

In consequence, s.5(2) would be amended by deleting the words ‘other than the Chief Executive’ so that it would read: ‘The Commissioner shall not be subject to the direction or control of any person.’

These amendments would, it seems to me, accord with the Basic Law and would rid Hong Kong of an historical anomaly in the law that has lain in wait for more than 40 years and now threatens the survival of Hong Kong’s world-class anticorruption body. The historical reasons that justified this inroad into the independence and operational autonomy of the ICAC have long been overtaken by the checks and balances that have evolved to ensure that the ICAC is properly restrained in the use of its powers. These suggested amendments are small but significant evolutionary changes to the institution. They would not guarantee its survival but would, in my view, be a step in the right direction.

Commissioner and Deputy Commissioner

Another evolutionary change that should be considered is the situation that has obtained at the ICAC from the outset, namely that the Head of Operations is always the Deputy Commissioner. In consequence, when the Commissioner is absent, the Dep Commissioner always acts as Commissioner (unless the Chief Executive otherwise directs). Since the Deputy Commissioner is, like the Commissioner, nominated by the Chief Executive, the Head of Operations tends to regard himself or herself as equivalent to the Commissioner. The self-importance of some officers of the Operations Department is made worse. It’s bad enough that the largest department should have the lion’s share of the ICACO and of the PBO and sell far more newspapers than the other two departments ever could, without having the Head of Operations also being the Deputy Commissioner. The key to success of the famous 3-pronged strategy is the equal importance of each arm and therefore the equal importance of each department – Community Relations, Corruption Prevention, and Operations. They must all pull together, like the horses of a troika, and the Commissioner’s job is to ensure they all pull in the same direction.

How then did this lop-sidedness of the Commission come about? When Jack Cater was invited to be the first Commissioner, he wanted John Prendergast as his Head of Operations. Prendergast agreed to come only if he was made Deputy Commissioner. And so it was. The law was drafted to create a Deputy Commissioner. Prendergast was appointed Deputy Commissioner and Jack Cater made him Head of Operations. The precedent was set, and has dogged the ICAC to this day. Every Head of Operations has also been the Deputy Commissioner. But the reason for this situation has long disappeared. There certainly is a need for a Deputy Commissioner to help manage an institution of, now, some 1400 established posts. But why continue the historical quirk of making the Deputy Commissioner also the Head of Operations? No change to the law would be needed – just a change in internal arrangements.

Independence of the ICAC 

The word itself in the ICAC’s title is insufficient. We need some detail to put flesh on the bare word. One of the most important details is the security of tenure of the Commissioner. It is curious that there is not a word about security of tenure in the ICACO. On the contrary the Commissioner holds ‘office on such terms and conditions as the Chief Executive may think fit. Apart from that, there is nothing about how long he or she is to serve. Nor is there anything about his or her removal. There never has been. It seems to be a hangover from colonial days. Is it not time to specify the term of service in office and the procedure and conditions for removing the incumbent before that term expires?

Periodic review of the ICAC

Originally Government felt a review of the ICAC should occur every 10 ten years. Time slipped by and it was 20 years before the Sohmen Committee was established and set to work in 1994. It reported 22 years ago. Another review I suggest is overdue. Should it not now be done?

Turning to other matters I’ve been asked to say a little about.

The Corruption Perception Index

Transparency International’s CPI first appeared in 1995. The latest CPI is for 2015. 183 jurisdictions have appeared in the index. Hong Kong has been included in it for all of those 21 years. Its rating score started at 7.1 (out of 10). In 2015 the rating score was 7.5.

From its highest rating score of 8.4 in 2011 and 2012, Hong Kong scored slipped to 7.5 in 2015.

What could account for this decline? To answer that question, it’s necessary to understand how the index is prepared. TI does not itself carry out surveys. It prepares a composite of corruption perception surveys carried out by others in each of the jurisdictions measured. At least 3 such surveys must be available for each jurisdiction to be included in the CPI. The surveys used by TI are done by local and international chambers of commerce who seek the views of the business community, by NGO’s (local and international) who seek the views of local citizens and by the experts of international institutions that work in these countries.

It is important to note that this is a perception survey: how do people, at home and abroad, perceive the corruption situation.

It is also important to note that the rating score is not the same as the ranking. The ranking is the position relative to the number of countries appearing in the CPI for that year. The ranking can therefore rise or fall from year to year, depending on the number of countries measured for that year. Hong Kong’s ranking in 1995 was 17th position out of 41. In 2015 its ranking was 18th out of 168. Because a jurisdiction’s ranking depends on the number of jurisdictions measured in any one year, the more significant measure is the rating score out of 10.

I must emphasise that the CPI is generally regarded as being far from perfect. But it is also regarded as the best we’ve got. Certainly, the countries themselves attach importance to it and the press worldwide gives it much publicity when it is released each year. It is believed to have a significant effect on foreign direct investment.

So, how has Hong Kong fared on its rating? As I said earlier, Hong Kong’s first rating score in 1995 (out of 10) was 7.1. In 2015 (the latest CPI) it was 7.5. In the intervening years the rating rose to 8.3 in 2005, 2006 and 2007, dropped slightly in 2008 and 2009 and rose again to 8.4 in 2010 and 2011. It then dropped sharply to 7.7 in 2012 and declined fractionally more to 7.4 in 2014. In 2015 it rose slightly to 7.5.

Answering the question asked earlier - why the decline from the high point of 8.4 in 2010 and 2011 to the current 7.5 - news and public comment in my view play an important part. That said, the rest would be mere speculation on my part.

Staff morale

I have read comments in the press about poor staff morale at the ICAC. I don’t know about that. I’m not so sure the comments are valid. Certainly, that indefinable feature we call morale is a valuable asset. I’ve long left the Commission and I cannot know its current state of morale.

But I can mention the elements that contribute to high morale:

A worthwhile, secure job; good employment terms; an inspiring mission; knowledge that selection is carefully done; initial induction training; continuing professional development; career planning; promotion on merit; a fair performance appraisal system; a clear code of conduct; an internal command structure; strong discipline; an understanding of how the institution works; regular face-to-face communication with the Commissioner; appreciation of the contribution made by other colleagues; mutual respect of and from colleagues; an institutional culture of loyalty, fair dealing and integrity; the well-earned respect from family, friends and the community; pride in a job well done.

I believe these elements continue to play their part in upholding the Commission’s morale and commitment to its mission statement, which is the opening sentence of the Commissioner’s annual report to the Chief Executive: ‘With the community, the ICAC is committed to fighting corruption through effective law enforcement, education and prevention to help keep Hong Kong fair, just, stable and prosperous.’