ROLE OF THE CHIEF EXECUTIVE & EXCO AND THE CIVIL SERVICE PROF YASH GHAI Professor of Public

Law, The University of Hong Kong (Transcript) Let me first look at the scheme of the Basic Law for the evolution of government of the HKSAR. The first point I would like to make is that unlike the provisions evolved in the Joint Declaration and the Basic Law for the economy, for social policies, for the international relations of Hong Kong on which there is a very great deal of detail, there is very little in the Joint Declaration about the political structure of Hong Kong, and I suppose this reflect the lack of agreement between Britain and China on the political structure. The Basic Law of course is more detailed than the Joint Declaration on the political structure but the Basic Law doesnt really provide what we might call the definitive political structure of the SAR. It establishes importantly the general principles which must guide the development of the political structure. But it envisages a long period of which the principles had been set out until the year 2007. After that it is envisaged that there would be changes - precisely what the changes will be has not been specified. So in a way we are in an evolving transitional period, and of course in a way all political systems have to evolve, respond to changing circumstances, shifts in political power. But the Basic Law, I would say, provides not only for the natural evolution of the political system but also provide for institutional changes itself for that we have a kind of dual modality of change: one is the naturally evolving system that any political system undergoes, but we also have quite specific changes particularly in the electoral system that will take place over a period of about 10 years at least, or maybe longer. The second general point I want to make is that the Basic Law in this aspect forming the Joint Declaration sets out in very great detail the kind of policies that the SAR must follow. But it sets very little about the institutions that must make policy. And this is a kind of imbalance, I would say perhaps because in most of the constitutional arrangements we expect a great deal about the political structure and the institutions, methods of representation, and relatively a little about policies except maybe a board Bill of Rights, which is a framework within which the government must make his policies. We have an inversion of that, and it seems to me that that inversion is significant because in a way the basic purpose of the Basic Law is less the economy in Hong Kong as the separation of the systems of Hong Kong from that on the Mainland. And so in a way by putting in some many policies in the Basic Law and discussion of which we had in the last few weeks with the Budget in process where there were certain constraints impose on the Budget in process and the substance of the Budget by the economic provision of the Basic Law. And it seems to me that the Basic Law places less importance on the political structure than it does on specific explicit policies which are set out, and in that sense it seems to me it limits the autonomy of political institutions that are created in the Basic Law. The third point will be the logical, the political structure, as supposed to come into fact in 1997, is quite consistent with the economic and social policies that are continued in the Basic Law. I would say that there are two themes of the Basic Law, one is what has been seen by the Chinese authorities as the
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primary theme of the Basic Law, which are continuity, stability, and prosperity of Hong Kong. A subtheme I would say is democratisation of Hong Kong, particularly as expressed in the article dealing with the election of the Chief Minister, which says that the ultimate aim is the selection of the Chief Executive by universal franchise, subject to a nominating process, and in an article dealing with the composition of the Legislature which says that the ultimate aim is the election of all the members of the Legislature by universal franchise, so in a way there is a sub-text there, and I suppose part of the process, the political evolution is how we can move towards this ultimate goal of universal franchise, both in the representation at the executive level and the legislative level. Let me come back to the point that Ive made that the political structure which was to come into fact on the transfer of sovereignty was congruent with the economic and social policies that are in the Basic Law. The policies of course are conservative; there are policies which privilege at the business community at the expense of other sectors of the community; it provides for other limited devote for the public welfare policies conservative physically, and conservative socially. And that I think the political structures reflect similar values: the rule of functional constituencies, and precisely to ensure the privileged voice for business, and other commercial, professional leads, which will be sympathetic to the other conservative, economic policies, social policies and the Basic Law. So to begin with, it seems to me that there would not be, or was not seem to be any big contradiction between the political structures and the economic, social policy in the Basic Law, but if you look into the implications of the sub-text the text of the democratisation, then it does seem to me that there would be problems that the economic and social policy logic of the Basic Law will come into conflict with the democratization agenda of the Basic Law. I could mention, for example, a number of provisions which govern institutional relationships which we come on a certain stress with the increasing democratisation of Hong Kong. That is, for example, the relationship of the Chief Executive with the Central Government which will come into some pressure the question of the approval by the Mainlander, by the Central People of the Government of the appointment of the Chief Executive, the protection of the Chief Executive from impeachment by the Legislature where the ultimate decision rest for the Central People of the Government; Central Governments are in control of the appointment or dismissal of senior officials, the restriction on the power of the legislators to initiate legislation, and generally the dominance of the Chief Executive or the Legislature will all come into stress as we move towards democratisation. My next general point I want to discuss is to look at the modalities at the method, the mechanism for the evolution of the political system, and here the Basic Law detaches the process of changes in the political structure from the general question of the amendment of the Basic Law. The Basic Law is to be amended by the National Peoples Congress of a certain consultative processes. But the changes in the political structure can take place without that process being followed. And here I would say that the Basic Law makes the sanction between the changes into the electoral system of the Legislature from that for the election of the Chief Executive. The changes and the electoral system can be made by the Legislature of Hong Kong if it has a 2/3 support of the members and also has the consent of the Chief Executive. Once these two institutions have agreed on a change then the change is mainly reported to the Central People of Government in the NPC but no action is required on the part of the Chinese authorities. But the amendment to the system of election of the Chief Executive, however, not
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only requires the support of 2/3 members of the Legislature in Hong Kong and the Chief Executive but also the approval of the NPC. So that there is a very clear rito?? in the Central Government as far as changes in the system of election are concerned for the Chief Executive. So it is entirely possible, I suppose, that it maybe likely that the evolution will be going a different direction then the democratisation of Legislature may take place but on a certainly democratisation of the Chief Executive, in which case the tension that I have just pinned at would became even more acute. Now let me talk a little more specifically about the Chief Executive and the Exco and the public service. It seems to me that the changes on the electoral system, more for the Chief Executive and for the Legislature, will of course have a very profound effect upon the role of the Chief Executive. If the Legislature is democratised, and the Chief Executives electoral process doesnt change very much, then the Legco will have more legitimacy than the Chief Executive would have, and that the Basic Law vests most of the power of the government in law-making, or initiating law in the Chief Executive. And it would be, I think quite hard to maintain stability and prosperity of theme of the Basic Law unless there are more harmonious relationships between the Chief Executive and the Legislature. And that seems to me to suggest that the Chief Executive would have really engaged in a very serious negotiation with the legislators and cannot give a life?? upon his part of dissolution or rito?? because that would immobilize the system. So it is simply important that some ways we found of a corporation between the Chief Executive and the legislators. Now I should say of course that the particular kind of Legislature we had on the first of July or even before the first of July has in one sense postponed the kind of problem that would emerge in the Basic Law because that happened a rather complied Legislature, and so the Chief Executive hasnt quite headed to and engage in a kind of politics that he would have to head to with a more democratically elected Legislature. And even though for the time being the geographical members were being a minority they will be the members with the greatest moralpholity??, and so the Chief Executive will have to engage with them. Other question is if he has to engage with them, then what are the implications of that for his own relationship with the Exco and with the public service. Now I find the provisions about the Exco among almost all string?? provisions of the Basic Law in terms of the political structure. The Exco of course is taken over from the previous colonial system, in which the role of the Exco in the early days was an important one in providing a source of information for the governor, sent from London for short periods, a kind of sounding board for him, and legitimacy what he does is a kind of three kind of functions. But we move to more elective institutions when we have political parties, when we have leaders of the community emerging from different processes than the nomination by the Governor, then its unclear what the role of Exco is. And if you look at the deeper provisions in the Basic Law for the Exco, its again hard to see what exactly is doing there. It doesnt have any power of its own centrally, it is a kind of extension of the Executive, of the Chief Executive; it is to advise him, her; it is to ascertain administrative function in relation to regulations, decision-making and administration, even though the last one of them started the process about 10 years ago, and investing those in a more apparent bodies. So in one sense the Exco is consultative, in other sense can be the watchdog of the Chief Executive. And if you look similarly at the composition of the Exco, its hard to see whats doing. The Chief Executive is required to have members of the Legislature, from members of the senior public service, and then public figures. So it is hard to see why this is the mixture of persons. So it seems to me that the precise role the Exco might play will depend on the evolving system, and one of the issues which I want to let to open by the Basic Law but at least there is scope for development is
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whether the Hong Kong system will move in a presidential or a more parliamentary system. It seems to me, given some of the detailed provision of the Basic Law, neither is a complete option that can never be a purely parliamentary system, given the provision or there can be a totally parliamentary system, so we are somewhere in-between. And of course traditionally if you look at British decolonisation, there was always Exco type of bodies or colonies, and the Exco developed with decolonisation, causing democratisation into the cabinet. It became the central feature of the parliamentary system. But that hasnt quite happened in Hong Kong, and it might not happen. And I have explored elsewhere the precise cope and the limits of the development of Exco in the direction of the parliamentary system becoming the cabinet, and I wont go into that because of the problem of time. But it seems to me that there are some possibilities of the Exco emerging in that draw with limitations there. Now that brings me to the Civil Service, and the Civil Service has in one sense more of a status (if I can say that) in the Basic Law than the Exco does have. There is a more detailed provision for the senior civil servants. It is interesting that it is the senior civil servants whose appointment must be referred for approval by the Chief Executive, the Central Peoples Government but not by the Exco members, which might suggest that the draft of the Basic Law assume that the Exco would be a less important body than a senior public servant. Of course we have to see how the relationship between the Exco and the civil service develop. As you all know we have a little on debate of that in recent months and certainly the Chief Executive might then have a more ambitious role for the Exco. Traditionally the Exco was not a policies making body it didnt have the resources to make policies; it was a body which looked at policies which had emerged from the public service and moved this away to the Executive, and of course at that stage Exco have to say yes before legislation went to Legco or Executive policy was made. So it is part of advisory: it didnt initiate policy; and whether the attempt of the Chief Executive to turn the Exco in that direction will be meant to be seen. Now again if one can look to the more general experience of decolonisation elsewhere one would say that there are a certain parallels and certain difference between Hong Kong and other experiences because in other colonies too, policy was made by the bureaucracy by the public service and the governor. The Legislature under the very terminal stages of decolonisation had no particular policy making role, and when of course on the dependants you get the parliamentary system, there should be a significant shift of the look of policy making. But that doesnt happen immediately because you have a relent trained civil service which has for long time been making policy, and it certainly finds that constitutionally they have ministered over them who have primary responsibility. And it takes a bit of time before the new constitutional system takes rule before public servants come to terms with the laws of their place of apparent power. Now in a way we could say the continue of the dominance of the civil service in Hong Kong might represent one might just be a reflection of that kind of experience, but the difference here of course is that the constitutional provisions do not solely provide a very explicit terms of relationship between Exco as a ministerial body and the public service. Public service means nominant?? in the Basic Law as well compare to the other decolonisation experiences. So I think its meant to be seen how the relationship between the two of them will develop, and in one sense I guess the relationship between the Executive and the Legislature, and the Executive and the Central Peoples Government may have an impact on the relative importance of the Exco and the Civil Service. I cant go into all the factors which would govern that relationship because of the lack of
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time, but it just seems to me that so many factors are involved in the evolving system of Hong Kong, importantly the relationship between the Chief Executive and Central Peoples authority. We had been told that so far China has been back, has let the government of Hong Kong get on with things. How long that will continue if the Legislature becomes more democratic and pressures are put on the Chief Executive; whether China would then have to change its stance in the method, legitimate, guides and so on. The second major issue of course is the development of the political party structure (its running out of time, and Im sure that my colleague Prof Lau will speak about that in his representation). It does seem to me that the role of political parties is going to be a continuing matter of interest, and especially if you move towards a more democratic system, its not easy to see how the Chief Executive could remain above the political party free as he has sought to do so far. And that to some extent has envisaged() in the scheme of the Basic Law. It seems to me that its going to be increasingly hard for the Chief Executive to manage the relationships with the Legislature which he has to do increasingly, once he get new elections, without trying to establish a base of his own. And that ought to be access to political parties, I think, as the system is evolving. As so we may get into a system where the leader of the largest party might become the Chief Executive, and if that happen we will be completely in a new ball game and the Basic Law will have little relationship to the politics. Thank you.

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