Editorial | Bribery exemption for Hong Kong leader must end despite complexity

Way has to be found at difficult time in cross-border relations to allay Beijing fears and avoid public perception that the chief executive is above the law

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Carrie Lam told reporters on December 1 that she would drop an attempt to extend anti-bribery legislation to cover the chief executive position. Photo: Xiaomei Chen

Published: 9:21pm, 7 Dec 2020Updated: 11:16pm, 7 Dec 2020

The principle that no one is above the law is deeply rooted in Hong Kong. Chief Executive Carrie Lam Cheng Yuet-ngor was quick to remind us of this last month when defending arrests of pan-democrat lawmakers. But the city’s leader continues to be exempt from anti-bribery laws regulating the conduct of ministers and civil servants. This situation is set to continue, with Lam revealing she will not be extending the relevant laws to cover the chief executive.

The issue has been debated for many years. Former chief executive Donald Tsang Yam-kuen set up a committee to review the relevant law in 2012 after becoming embroiled in a scandal. The committee, chaired by ex-chief justice Andrew Li Kwok-nang, described the exemption as “totally inappropriate” and a “fundamental defect”. It recommended the law be changed so the chief executive is found to have committed a crime if in receipt of an advantage without permission from an independent body. The proposal was not implemented. Five years later, Lam pledged in her election manifesto to extend the law to the top job and resolve any constitutional issues that arose. She has now reneged on that promise.

The reason for her U-turn is Beijing’s opposition to amending the law. The chief executive is appointed by the central government and accountable to it. Beijing regards the leader to be beyond the scrutiny of anyone in Hong Kong. Even if the chief executive is impeached by the legislature, a decision to dismiss the top official can only be made by Beijing, according to the Basic Law. The bribery exemption, however, does not prevent the city’s leader from being prosecuted for other offences. Tsang was jailed for misconduct in public office in 2017, although his conviction was later overturned.

The exemption continues to create the perception that the chief executive is above the law. It undermines confidence in the position. Lam said a future administration might look at the issue again if it had “brighter ideas”. But it has already dragged on for too long. Lam also said “very difficult situations” might arise if the amendments were made. The respective governments should explain clearly what these difficulties are and further explore how to overcome them. It should not be beyond the ability of the city’s legal experts to find a way of making the chief executive fully accountable to the law in a way that is consistent with existing constitutional arrangements and acceptable to Beijing.

Lam’s U-turn comes at a difficult time in cross-border relations and no doubt involved complex considerations. But the public expects high levels of accountability for officials. A way must still be found to end the bribery exemption for the chief executive.