Opinion | Ex-prosecutor: Civil servant pledging fidelity appropriate and necessary

By Grenville Cross

In successful societies, the civil service invariably has a crucial role to play. It acts as a facilitator of government policy, and discharges its responsibilities in a principled way. If it is to function to best advantage, it must be honest, professional and loyal, and committed to upholding the rule of law. High standards, therefore, are required of civil servants, although some have recently been found wanting.

According to the Civil Service Code, the "Civil Service is a permanent, honest, meritocratic, professional and politically neutral institution" (2.1). Its members are expected to display "objectivity and impartiality", as well as "political neutrality" (2.2). As to the meaning of political neutrality, the code explains that civil servants "shall serve the Chief Executive and the Government of the day with total loyalty and to the best of their ability, no matter what their political beliefs are" (3.7).

It is essential, therefore, that civil servants do not allow their own political beliefs, if any, to influence the way they discharge their responsibilities. Of course, they can express their views in an objective way when government policy is being formulated, but, once a decision is reached as to the way forward, they must be prepared to support it, implement it, and, where necessary, explain it. Were it otherwise, the work of government would be stymied.

It is vital, moreover, that civil servants do not say or do things which give rise to a conflict of interest, actual or perceived, with their official duties, or which suggest their sympathies lie with those opposed to government policy. During the recent protests, the 180,000 strong civil service, by and large, supported the government as it acted to bring the mayhem to an end. It was regrettable, however, that some civil servants were not so disciplined as to engage in public protests against the very policies they were supposed to be implementing, and that some of them were even arrested for alleged involvement in illegal activities.

On Sept 30, Secretary for the Civil Service Patrick Nip Tak-kuen revealed that 46 civil servants had been suspended from duty after they had been arrested or prosecuted for participating in unlawful public events. There have, moreover, also been credible reports that some civil servants have openly sided with those opposed to the government and its policies, and, in one alarming case, a civil servant allegedly encouraged his colleagues to participate in an unauthorized assembly. Such conduct, apart from violating the Civil Service Code, is a flagrant breach of the Basic Law, which states that "public servants must be dedicated to their duties and be responsible to the Government of the Hong Kong Special Administrative Region" (Article 99). A decisive response is therefore essential.

Following the enactment of the National Security Law for Hong Kong on June 30, people who stand for election or assume public office "shall confirm in writing or take an oath" to uphold the Basic Law, and also "swear allegiance" to the Hong Kong SAR "in accordance with the law" (Article 6). On Oct 12, accordingly, it was announced that all civil servants joining the government on or after July 1 will have to enter into these commitments. This policy will be expanded to include probationers, and later to all civil servants. It has, of course, always been the duty of civil servants to uphold the Basic Law and to bear allegiance, so nobody can have any complaints, and the change now requires them to unequivocally acknowledge and accept these responsibilities.

Indeed, under the Basic Law (Article 104), the chief executive, principal officials, members of the Executive Council and of the Legislative Council, and judicial officers are already required, when assuming office, to swear to uphold the Basic Law and to pledge allegiance to the Hong Kong SAR, so it is entirely logical that civil servants should enter into the same commitments, as happens in many other places.

In Belgium, for example, civil servants are required to swear "fidelity" to the king, as well as "obedience to the Constitution and to the law of the Belgian people", and in the Netherlands the oath for civil servants is almost identical. In the Philippines, public officers and government employees must swear an oath of allegiance, by which they commit to "uphold and defend the Constitution", and show "true faith and allegiance to it". In the United States, the California state constitution, for example, requires all state workers who are US citizens to sign a loyalty oath as a precondition of employment, and they must commit to "support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic".

Although civil service unions have expressed concerns over the implications of the pledge of allegiance, the Civil Service Bureau has emphasized that legitimate trade union activity, including salary negotiation, will not be affected. While civil servants, like other citizens, enjoy the rights enshrined in the Basic Law, those rights are not absolute, and they clearly cannot be exercised in a way which leads to a conflict of interest, or which harms the interests of the government, or which contravenes their responsibilities. Anyone who falls below the high standards expected of the Civil Service must expect to face consequences, including disciplinary proceedings under the Public Service (Administration) Order.

Much is expected of civil servants, and their role in ensuring the stability and prosperity of Hong Kong is pivotal. If, moreover, they do their job well, this will also benefit the country as a whole. Government service, while challenging, also carries with it many benefits for the employees themselves, which is why its posts are so coveted, and it is entirely appropriate to expect civil servants to bear true allegiance to their law, their city and their country.

The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.

(Source: China Daily)

Grenville Cross is a Senior Counsel and Professor of Law, and was previously the Director of Public Prosecutions of the Hong Kong SAR.

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