The CM Leung Case

The Select Committee studying the CM Leung case should have been more selective. The episode has many lessons to teach the Government and the Legislative Council, but all the signs are they have not learned at least some of them.

Reading the report of the Select Committee, three issues jump off the page. The first concerns our much vaunted system of Ministerial Accountability. Whether New World was wise to have offered a senior position to someone with whom they had extensive official dealings, whether that person was wise to accept the offer, well we will all have our own opinions. But there can be no doubt that the officer's application to take up the employment offer should have been rejected. The fact that it was not, and the application was approved, constitutes a major blunder. Yet the Minister immediately ruled out resigning. If the mistake had been made by a civil servant alone, would disciplinary action have been launched?

What scale of political error would be required to trigger a Ministerial resignation or dismissal?

The second issue raised, by implication, is what sort of post-service employment controls should apply to political appointees. At the moment, Ministers, their deputies and assistants are only required, for one year, to consult an advisory committee. They are not obliged to take the committee's advice, just to seek it. But these are the people who under our current system wield the most power. If we are dealing with potential conflict of interest and abuse of power, shouldn't we start with the most powerful?

Contrast this with the restraints imposed on senior civil servants who are subject to control periods of between one and three years. The Select Committee report suggests these should be extended. But such a proposal is irrelevant to the main problem which brings us to the third issue: the present system of control is deeply flawed and the officials implementing it do not know how to make it work. We need to completely redesign the system and then train people how to operate it effectively.

We need to start by acknowledging the fact that there are two powerful forces pulling in apparently opposite directions. The first is the legitimate desire by the community to have a civil service which is impartial, honest and hardworking. The second is the right - yes the right - of former civil servants to work if they wish, a right guaranteed by the Basic Law and by the Bill of Rights. (The present system of controls is in breach of both and is therefore unlawful and unconstitutional.)

So it is reasonable to institute a system to prevent as far as possible abuse of power, but that system must be focused and relevant. It needs to be a rifle, not a shotgun.

Why do we wait to deal with applications to work only after the officer has retired? Why can't the Civil Service Bureau study the officer's recent career before he goes out the door, discuss it with his superiors and then with the officer himself, and agree a schedule of employment that he should not be allowed to undertake because it would create a conflict of interest or might reasonably be perceived as doing so. Everything else would be permissible but the officer could be required to notify CSB of jobs he was about to accept, for publication in a register open to inspection, for a reasonable period after ceasing official duty.

For me, the biggest disappointment in the whole exercise has been the stream of LegCo Members coming out to say that senior civil servants should in effect never be allowed to work for pay after retirement. It is a part - an important part - of LegCo Members responsibility to defend human rights. Their willingness, indeed their enthusiasm, to abandon the human rights of civil servants by playing to the public gallery is nothing short of neglect of duty.

Moreover they have failed to spot that we are dealing with a sunset situation. New generations of civil servants are not being hired on pensionable terms, instead they will receive a lump sum from the MPF like private sector workers. The pensions legislation, which is how the Administration enforces its present policy, will gradually become irrelevant.

The Select Committee has done a good job in establishing what happened and spelling out what went wrong. But they have let themselves down in the recommendation section. By proposing to build upon a flawed system, rather than rebuilding it from the bottom up, they risk perpetuating a situation which neither addresses public concern nor protects civil servants' rights. After all if the system is wrong, it doesn't matter whether the control period is 15 minutes or 15 years. It still won't work.