Public Forum: Assault on the ICAC and the Rule of Law? - "ICAC – independence, abuse and vulnerability" (Dr Margaret Ng)

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

Dr Margaret Ng - "ICAC - independence, abuse and vulnerability"

Synopsis:  ICAC – independence, abuse and vulnerability

General observation: The crucial quality of ICAC is the “I” for “independence”.  Why?  Because ICAC wields enormous powers.  Without such enormous powers, it is believed, ICAC would not be able to carry out its important task against corruption.  Yet, if ICAC is not independent, such powers would be open to abuse.  How can independence be achieved and safeguarded?  In my view, a foolproof method of absolute guarantee does not exist.  Independence, institutional, operational and effective, can only be achieved and safeguarded by a system of check and balance.

There are three layers:

  1. The individual with a set of core values
  2. The system or institution
  3. The law

In that order.  Not the reverse.  In their anxiety for crumbling consensus and core values, Hong Kong people erroneously focus on the law and pin their faith on it.  They will come to grief.  Without the 2 upper, or foundational layers, the law is a dead letter, and will work against, not in favour of, peace and prosperity in our community.

Our ICAC story this afternoon illustrates this observation.

The Law 

1. The law provides the ICAC with tremendous, or even Draconian powers.  Its independence, ie. freedom from interference is guarantee by its direct responsibility to the Governor/CE: 

  • ICAC Ordinance
  • POBO

The System/Institution

2. The independence of operations – the deputy C, ICAC/Head of Operations:

  • Appointed by CE
  • Accountable to Operations Review Committee (ORC)

3. Status, procedure and practice of the ORC

  • Non-statutory, non-official
  • What its composition tells us about how it works:
    • Ex-officio members
    • Non-officials – independent professionals
    • LegCo member in personal capacity

The core values and the community

4. Illustration:  the non-prosecution of Sally Aw, 1998 / “No confidence” motion in LegCo 11 March 1999

5. Position of the CE post 1999: loss of trust and confidence

  • Challenge of the rule of law:  is the CE above the POBO?
  • Long campaign in LegCo:  1999-2007

6. The POBO (Amendment) Bill 2007: 

  • Bringing the CE within the legislation
  • What guarantees investigation of CE will be independently pursuied/prosecuted?
  • The provisions of the law and role of the ORC:  Bills Committee Report [15],[31-32]

Governance, value and integrity of the system

7. The foundation of the ORC and the law: individual and community values:

  • ORC members:  my reputation is dearer than my life
  • The CE: the efficacy of governance – trust and confidence
  • The expectation of the community: integrity and the rule of law

8. Why is the Rebecca Li Bo-lan resignation a crisis?

  • The crumbling masonry?
  • The last straw?

9. Putting Humpty-Dumpty back again

  • Start with restoring the individual and his integrity as our core value
  • Then give the law its true and proper meaning