Accountability
There is likely to be alarm and despondency spreading through Hong Kong’s civil service in coming weeks as the significance of last month’s policy address begins to sink in. The proposal to introduce a new Heads of Department accountability system and make other changes to performance assessment methodology are real game changers.
Despite ritual praise of our 170,000 officials as “an outstanding team”, it is clear chief executive John Lee Ka-chiu feels there is considerable scope for improvement in management, and under existing arrangements it is too hard to fire or otherwise discipline non-performers.
The main change involves creation of a new system to put heads of department on the same level of accountability for implementation as ministers have for policy formulation. This is backed by a fundamental change in the role of the Public Service Commission which will become a problem investigation agency in addition to its traditional remit of acting to ensure fairness in all matters relating to recruitment, promotion and management of the civil service. How it will handle the revised schedule, and any conflicts of purpose remains to be seen.
The Civil Service Bureau has also been charged to strengthen the performance appraisal system applicable to all civil servants to make it focus more rigorously on effectiveness.
The first thing that needs to be said is that a system of accountability already exists as part of the current disciplinary process which covers all civil servants up to and including heads of department. I know this for a fact as that process was applied to me personally 20 years ago. It would be interesting to learn which particular recent events caused the chief executive to conclude that the existing system was insufficient. The only incident to attract media attention in the past few weeks was the contract to supply drinking water to a number of government departments, but that seems rather small beer.
In assessing the merits of the new proposals, it is worth emphasising the fundamental differences between ministers and civil servants. The former are political appointees with no expectations as to security of tenure. They hold office at the pleasure of the chief executive and for no longer than his own term of office. In theory, he can keep them on even if they make a mistake or he can terminate them without giving any reason, though normally would only do so for cause. After leaving office they can return to their previous positions in business or academia or the professions.
Civil servants are in a completely different situation. A career in the civil service would for many be how they planned to make a living and support themselves and their families for the bulk of their adult lives. Having committed themselves and passed the relevant recruitment exams they have a legitimate expectation of permanent employment unless they blot their copybook. If an officer faces the possibility of termination, or demotion or other financial penalty – as he does under existing disciplinary procedures and will do under the new scheme -- then he is entitled to due process. An officer forced out does not have another career to fall back on, but must start again.
Many details of the new arrangements are unclear at this stage. For example, it is not clear who would draft the detailed charges and how the PSC would dovetail with processes previously conducted by Civil Service Bureau.
If there are sufficient grounds to pursue a case, then the charge needs to be put to the officer in writing giving an opportunity to respond. If after considering the response the Commission feels there is a case to answer then formal hearings will have to be held. This will involve witnesses giving evidence under oath with an opportunity for the accused to cross-examine. As we know from the precedent case of Rowse versus the chief executive (HCAL 41/2007), the officer is entitled to representation by counsel to ensure a fair hearing.
The aftermath of any such case will also have challenges of its own. If the charge is substantiated and PSC concludes termination is warranted, that would be the end of the matter (unless the officer seeks a judicial review). But if the penalty is less than termination, then the officer may opt to continue in service, though would still have the right to challenge the penalty. In the circumstances it might be better if this was under a different director of bureau as relations with the director who suggested investigation may be rather frosty.
If the officer is acquitted, there is the matter of reimbursement of legal costs and once again the issue of whether to continue to work for the same director of bureau. Indeed, if the case is dismissed, should the minister quit instead?
Irrespective of the outcome in any particular case, there is one consequence that can be confidently forecast. Department heads will go to extraordinary lengths to protect themselves against the possibility of future disciplinary action in what is sure to be perceived as a more hostile environment. Every policy initiative proposed by the minister will be scrutinised for potential problems in principle and difficulties in implementation. These will be spelt out in a detailed briefing note to the minister so that the officer cannot later be accused or failure to warn.
Whether the hoisting of so many protective administrative umbrellas will slow the work of the government down remains to be seen. I for one wouldn’t rule it out.