In March 2020, the Home Affairs Department (HAD) warned two Sham Shui Po district councilors from the opposition that a controversial and insulting notice they had posted outside their office, which made clear their dislike of government supporters, may have violated the Code of Conduct for elected representatives.
At the root of the issue is whether the HAD should be entrusted with additional power to investigate the complaint and punish those district councilors who have breached the Code of Conduct for members of a district council or its committees. Or should district councilors be allowed to form a self-regulatory disciplinary body to ensure their fellow councilors comply with the Code?
More concerned with pleasing their supporters in the yellow camp, two newly elected Sham Shui Po district councilors put up a provocative notice stating that service would be refused to supporters of the blue camp. It seems commonsensical that district councilors must serve all residents in their designated districts indiscriminately. In response, DAB lawmaker Vincent Cheng alleged that the move may have constituted misconduct in public office. The HAD correctly pointed out that there had been a possible breach of the Code. Most disappointing was the fact that no follow-up disciplinary action was taken by the HAD.
The provocative notice was not an isolated challenge encountered by the sixth-term district councils. According to the Undersecretary for Constitutional and Mainland Affairs Clement Woo Kin-man, some newly elected district councilors deliberately divided the community and created confrontation. These acts included smearing the police force in their speeches, evicting other district council members who opposed them, detaining government officials who attended the district councilor meeting, introducing biased terms when vetting and granting funds to some of the activities and funding the propaganda organizations that glorified “black-clad” violence. Some of these may have breached the Code or attracted criminal liability.
Published by the HAD in December 2019, the Code ranges from big-picture ideals to specific standards. Firstly, the four General Standards are ethical standards and obligations for district councils that may exceed the requirements of the law. For instance, a district councilor shall ensure that his or her conduct must not be such as to bring the council into disrepute (point one of the General Standards of the Code). It’s obvious that a breach of point one does not attract criminal sanction.
Secondly, the eight Specific Standards set out clear guidelines for acceptance of advantages/gifts/entertainment, conflict of interest and use of confidential information. Point one of the Specific Standards is a reminder that district councilors shall comply with the Prevention of Bribery Ordinance. But the Code is flawed because it makes no reference to provisions concerning disciplinary actions or follow-up measures to refer the unlawful breaches to law enforcement agencies. The absence of these disciplinary actions and follow-up referrals has cast a long shadow on the Code.
Some of the General Standards of the Code seem to have drawn inspiration from the seven principles of public life (Nolan principles) promoted by the Committee on Standards in Public Life in the UK. The committee was set up in 1994 to advise the British prime minister on ethical issues relating to standards in public life. But the committee does not investigate individual allegations of misconduct. In stark contrast to the general ethical principles promoted by the committee, the General Standards of the Code have specifically put an emphasis on the obligation of district councilors to maintain the honor and dignity of the district council.
Since a performance monitoring mechanism will be introduced by the government under the proposed district council reform plan, we may feel there are a lot of ifs and buts about the need to establish another regulatory framework for overseeing matters relating to breaches of the Code. The performance monitoring mechanism has some inherent limitations because some of the underlying goals of the key performance indicators are not easily quantified. Therefore, we strongly believe that the establishment of a Code-enforcing disciplinary board may offer an effective mechanism to further strengthen the post-election accountability system.
But the “pro-democratic” camp may be less than impressed if the HAD is given additional power to discipline district councilors who have allegedly breached the Code. Adding new duties to the HAD may strain its capacities to breaking point. It’s worthy of note that the operation of the performance monitoring mechanism is complicated and time-consuming. If the district officer is required to lead the investigative and disciplinary work of the disciplinary board, he or she may not have enough time to do other necessary tasks. District officers are responsible for leading the district councils and care teams as well as the three committees — the area committee, the district fire safety committee and the district fight crime committee.
Running a disciplinary board is not an easy task. In some cases, a particular act of misconduct will also breach the law. Strict referral guidelines are needed to determine whether an alleged breach of the Code should be referred to the police force or the Independent Commission Against Corruption for follow-up criminal investigation. Investigative work by the board is also time-consuming. For fear of placing the HAD-dominated disciplinary board in an unfavorable light, members of the board should declare their relations with the targeted councilor so as to avoid conflicts of interest. It may require some screening tests.
As an alternative to the HAD-dominated disciplinary board, a self-regulatory board may be in a better position to deal with matters relating to breaches of the Code. The self-regulatory board would be formed by district councilors and board members would be selected either by election or through consultation. They would be expected to play the fullest possible role in regulating the conduct of district councilors. To enhance the credibility of the board, we suggest inviting lay participation in investigative and disciplinary work.
We also propose that the board should appoint more than one legal adviser to give legal advice on referral issues. District officers may also be invited to act as advisers. An appeal system should be set up to ensure the disciplinary proceedings can meet the basic standard of a fair hearing. The Code should be amended to set out clear guidelines for disciplinary sanctions and follow up referrals to law-enforcement agencies.
We should no longer tolerate the misconduct of district councilors. Not only will the misconduct of the “black sheep” affect the credibility of all district councils, it will also adversely affect the relations between government and residents. There are some pearls of wisdom to the proposal that a Code-enforcing self-regulatory board is more suitable for regulating the conduct of district councilors.
Joseph Ho is a solicitor, director of Sino-Australia Relations of Chinese Dream Think Tank.
Kacee Ting Wong is a barrister, part-time researcher of Shenzhen University Hong Kong and Macao Basic Law Research Center, chairman of Chinese Dream Think Tank.
The views do not necessarily reflect those of China Daily.
