Hong Kong gov’t’s bottled water scandal and political accountability

On August 21, Carlson Chan, the head of the Government Logistics Department (GLD), apologised to the public for causing “huge public concern” over the procurement process and the safety of drinking water supplied by the government.

Unusually, authorities have allowed Legislative Council (LegCo) members to speak out on the issue. At least one legislator has demanded that officials be held to account for the incident, which she said “was only the tip of the iceberg.”

Secretary for Financial Services and the Treasury Christopher Hui also acknowledged that “everyone is concerned about whether anyone will be held accountable for the incident.”

Authorities acknowledge that both LegCo and the public demand accountability. What does this mean? 

Both officials, Chan and Hui, reference political accountability: a relationship between a government official and an external forum, in which the official has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgement, and the official may face consequences.

In our system, the external forum is LegCo. The possibility of consequences – or sanctions – is a necessary part of political accountability.

Based on this understanding, we see that the government’s response so far is inadequate.

First, Hui, the treasury chief, whose portfolio includes government logistics, has set up an internal body – a task force – to examine the issue. 

While welcome, these developments do not meet the minimum threshold for “holding officials to account.” Accountability requires more than that the parties responsible investigate themselves. 

Second, Chief Secretary Eric Chan and Carlson Chan, the logistics chief, both assume that trying to punish civil servants is sufficient to address the demand for political accountability.

Even if this happens, past experience shows that this is insufficient. Indeed, it was to address this issue that in 2002, authorities set up the political appointment system, then called the principal official accountability system (POAS). 

From airport chaos to SARS

Let’s look back. From 1998 to 2002, when civil servants held all positions in government, the then chief executive, Tung Chee-hwa, found no way to hold officials to account for the chaotic opening of the new airport. 

LegCo convened a select committee. In addition, Tung also appointed a commission of inquiry, and the Ombudsman investigated.

However, only the select committee focused on accountability. The select committee was scathing in its criticism of the chief secretary, Anson Chan, who it said took on “special personal responsibility,” failed both to fully assess the airport’s readiness to open and to assess the risk of a chaotic opening, and “should shoulder responsibility.”

The select committee also criticised Secretary for Works Kwong Hon-san for misleading the airport development steering committee and failing as a professional adviser. Strong stuff. Yet, there were no consequences for either civil servant.

The chief executive found no evidence of misconduct that violated the civil service regulations. The senior officials all acted in good faith, Tung said. Authorities may punish civil servants only if they have violated the regulations.

To remedy this and other situations calling for political accountability, in 2002, the government introduced the POAS. In this system, civil servants who serve as principal officials are required to first resign from the civil service and give up the protection of the civil service regulations. 

As laid out in 2002, principal officials are required to oversee the delivery of services by relevant departments and “accept total responsibility for policy outcomes and the delivery of services by the relevant executive departments.” 

At the time, the government also claimed: “Principal officials under the accountability system will accept total responsibility and in an extreme case, they may have to step down for serious failures relating to their respective portfolios.”

Afterwards, LegCo and the public were able to hold principal officials to account. For example, in 2004, Secretary for Health, Welfare and Food Yeoh Eng-kiong resigned to take responsibility for leadership failures during SARS. Then central authorities accepted a more activist role for LegCo, and this outcome.

Subsequently, authorities codified the duties and responsibilities of both political appointees and civil servants in separate codes. The 2012 and 2022 versions of the code for political appointees both appear to require less of politically appointed principal officials.

Both versions state that political appointees are accountable to the chief executive for the “success or failure of their policies” and for their decisions.

Politically appointed principal officials are responsible for their portfolios, that is, “formulating, explaining, and defending” government policies and “canvassing support from the public and LegCo.” In our case, this refers to the treasury chief for government logistics.

Weakening responsibilities

However, compared with the 2002 formulation of political appointees’ duties in the POAS, the code appears to weaken their responsibilities for policy execution.

Still, to what extent has the treasury minister adequately explained, defended, and sold to the public and LegCo the government’s procurement policies? 

And, where does this leave civil servants? According to the civil service code, civil servants are accountable for their decisions. They are bureaucratically accountable to their superiors. I can imagine that in the government bottled water scandal, civil servants may claim that they violated no civil service regulations.

Rather, as the director of the GLD stated, his colleagues followed standard operating procedures (SOPs) for the procurement of goods, which the government paid for after delivery.

Perhaps these SOPs worked well in the past with less devious vendors. As in the airport opening and other scandals – for example, public housing short-piling – I can imagine that authorities may be unable to point to any civil service regulation that the GLD civil servants violated. 

Such an outcome would unlikely meet the public and LegCo’s demands for public accountability.

Does LegCo now have the autonomy to establish select or other investigation committees? Formally, it still has the power to do so. Such an investigation would provide the public with a thorough understanding of what went wrong.

In the past, even the threat of a LegCo select committee was sufficient to push the government to establish a commission of inquiry, for example, excess lead in drinking water, Lamma vessel collision, etc.

Commissions of inquiry can play a legal accountability role because they sometimes lead to criminal prosecutions. For example, the behaviour of officials in the Marine Department in the Lamma vessel collision case.

Central authorities may worry that if they allow LegCo to set up such an investigation, they may lose control of the issue. This seems unlikely given the authorities’ tight control of the selection and behaviour of “patriots-only” LegCo members.

Still, why should they control the issue?

In Hong Kong’s low-trust environment, where the legitimacy of the current LegCo is questioned, and now facing the prospects of new LegCo elections in December, more legislative activism may be just the ticket.

Facing a LegCo election, authorities have apparently relaxed gag orders (see: “warm reminders”) on this issue that prevented LegCo members from speaking out in the past. 

I urge the authorities to allow LegCo to play the role it was designed for and has the formal resources to fulfil. This will improve trust in the government and heighten the legitimacy of LegCo.

Hong Kong needs stronger institutions. The government will then be seen to be politically accountable – something that our constitution also requires.