The Public Sector in Hong Kong

11. Rights, Complaints and Redress

11 Rights, Complaints and Redress Aregime with a legitimacy deficit may ease its problems by conceding rights to citizens to protect them against illegal action by the government, by dealing with complaints against the unacceptable or corrupt behaviour of its public officials, and by providing channels for the redress of individual grievances about unfair or arbitrary administrative decisions. If recognition of citizens’ rights and complaint-handling and redress systems become institutionalised as part of the political system, they may compensate to some extent for the absence of democratic legitimation. It is sometimes said that Hong Kong people have freedom but that they do not have democracy. If they have individual freedom, that may mean that they are readier to tolerate, if not necessarily to approve, the more arbitrary and high-handed actions of the government in other matters which only indirectly affect their liberty. Their freedom depends, however, on the surety that rights will be protected and that the complaints and the individual grievances of citizens will be properly, fairly and impartially handled. If rights are ignored and the complaints and redress systems are not credible, grievances may fester and contribute to further mistrust of the government. In this chapter, we examine how the debate over rights developed and the extent to which the post-1997 government has protected them; the evolution of complainthandling bodies for systemic problems such as corruption and the work of the ICAC; and the growth of the redress system and the problems that it has encountered. We draw a distinction between: • rights which we use in the sense of civil liberties, belonging to individuals rather than groups, which are protected by the legal system and possibly by other specific institutions;1 • complaints which we define as objections raised by citizens about inappropriate behaviour on the part of public officials, particularly corruption, where the complaint relates to the way in which the system is operating or where policy is significantly lacking or deficient; and • redress which is the remedy sought by individuals against arbitrary or unfair administrative action and which may be pursued through such institutions as the ombudsman which have been established for the purpose of deciding whether the grievance is justified. 258 The Public Sector in Hong Kong These distinctions are not self-contained. For example, a person seeking redress through the ombudsman is making a complaint and, in so doing, is exercising a civil liberty. The distinction does, nonetheless, enable us to analyse the various institutions which have been created to meet these different objectives and the extent to which they have fulfilled their purposes. Rights Until 1984, the protection of civil liberties rested almost entirely on the rule of law and the legal system and on conventions about how the government would or would not use its power. Under such a system, civil liberties were residual and were not embodied in domestic legislation; as one observer describes them, they were what was left over after the law had taken away.2 With the negotiations on the change of sovereignty, there was evident public concern that the civil liberties that were in place would be disregarded by the incoming regime. The Joint Declaration on the future of the territory addresses that concern and promises that the post-1997 government will honour the rights and freedom as provided for by the laws previously in force in Hong Kong, including freedom of the person, of speech, of the press, of assembly, of association, to form and join trade unions, of correspondence, of travel, of movement, of strike, of demonstration, of choice of occupation, of academic research, of belief, inviolability of the home, the freedom to marry and the right to raise a family freely.3 In addition, every person “shall have the right to challenge the actions of the executive in the courts”, religious freedom is guaranteed, and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, as they then applied to Hong Kong, were to remain in force.4 The covenants themselves contain many specific rights and freedoms, some of which repeat those outlined in the Joint Declaration and some of which offer further rights of self-determination under which a people may “freely determine their political status and freely pursue their economic, social and cultural development.”5 The Basic Law incorporates the civil liberties outlined in the Joint Declaration and specifies, in Article 39, that the International Covenants shall apply in...