Last Sunday, Carrie Lam said clearly in an interview on TV that the amendment of the Prevention of Bribery Ordinance, which is intended to extend the application of Article 3 about any prescribed officer accepting any advantage and Article 8 about any person offering any advantage to any public servant while having dealings of any kind with the government to include the Chief Executive, will not be completed during her tenure. She alleged that “we have clarified and learned about the constitutional status and role of the Chief Executive in the SAR polity; if the incumbent Chief Executive commits those offences, I believe the Central People’s Government will handle it, and because the Chief Executive is designated by the Central People’s Government, he/she has to be held accountable to the Central People’s Government”.

“Clarify and learn” is reminiscent of the fact that in April this year, the Liaison Office of the Central People’s Government " abruptly “clarified” Article 22 of the Basic Law about “departments of the Central People’s Government”, pointing out that the Hong Kong and Macau Affairs Office and LOCPG are not part of them, thus being able to “exercise supervision power”. A statement released by the government initially indicated that the LOCPG was one of the three arms set up in the SAR by the Central People’s Government pursuant to the Basic Law, but later on, it was “clarified” time and again, and in the end the second revised edition showed that the authorities finally “learned” about what the LOCPG meant. Afterward, Lam even admitted a fault that the SAR officials “might not understand the Basic Law thoroughly”.

Is it really the case that Lam realized how wrong the SAR had been? Everyone knows the answer well. Actually, as early as in 2008 when yours truly was a LegCo member, the pro-democracy camp put forward the notion of extending the application of Article 3 and 8 of the Prevention of Bribery Ordinance to cover the Chief Executive. At that time, the government said it involved structural troubles to subsume the Chief Executive under the framework concerned, and argued that in view of the “unique constitutional status " of the Chief Executive, no legal provision regulating acceptance of advantage by the Chief Executive needed to be drawn up.

Then in 2012, after former Chief Executive Tsang Yam-kuen accepting hospitality offered by wealthy businessmen was brought to light, the government established an independent committee chaired by Li Kwok-nang, former Chief Justice of the Court of Final Appeal, to review the Prevention of Bribery Ordinance directed at the Chief Executive. The committee issued a report in May 2012, suggesting an amendment of Article 3 of the Prevention of Bribery Ordinance, including establishment of a dedicated independent committee responsible for granting permission to the Chief Executive to accept advantage, and an amendment of Article 8 to regulate the conduct of offering advantage to the Chief Executive.

Leung Chun-ying alleged he would deliver on the recommendation, but the Prevention of Bribery Ordinance remained intact when he left his post. In 2017, Carrie Lam put forward in her political platform that she would resolve the constitutional and legal problems concerned, amending the Prevention of Bribery Ordinance by extending the application of Article 3 and 8 to encompass the Chief Executive. Coming in at the election, she brought up the same recommendation in her first Policy Address, and reiterated at a press conference that with respect to “Li Kwok-nang’s advice on revising Article 3 and 8, I personally approve of it, so I would make every effort within my tenure to resolve the constitutional and legal problems”. However, now after “clarification and learning”, the promise she gave and the objective she laid down have been wiped off by herself.

Carrie Lam argued that it is not possible for the Prevention of Bribery Ordinance to cover the Chief Executive because of the “constitutional status and role” of the Chief Executive. Yet, the 2012 report by Li Kwok-nang has had detailed discussion about it, advising that it would not impact on putting the Chief Executive under the regulation of Article 3 and 8. Why did Carrie Lam demolish Li’s suggestion, inasmuch as she had “approved of”?

Indeed, Carrie Lam has already shed light on the cause. She said “if the incumbent Chief Executive commits those offences, I believe the Central People’s Government will handle it”. In other words, with the overall jurisdiction of the Chinese Communist Party(CCP) over Hong Kong, under no circumstances should a chief executive preordained by the Party step down for violation of the law. The Party decides everything. If the Party wants to kick him/her out, there is no way he/she can stay; if the Party retains him/her, he/she can’t escape. Such a “spirit of party governing” is perfectly congruous with CCP’s conception of rule of law. In short, the Party stays above the law anyhow. As such, the CCP will never ever allow of any legal provision overriding the Party’s supreme authority.

It seems that the Policy Address delivered after Carrie Lam’s “clarification and learning” in Beijing is to get Hong Kong people accustomed to the life under the “spirit of party governing”.

(Martin Lee is a barrister and founder of Hong Kong’s Democratic Party.)

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