CLAUSE
- 3
12(2)
14(a)
14(e)
15(4)
16 & 18
clalt with
dialt
with
REMARKS
Is it intended that prisoners and mental patients should be able to write direct to the Commissioner? the normal provision of the prison rules. provision in the UK statute.
This is contrary to There is no such
Is it appreciated that this clause means that, in a case whore there is a statutory right of appeal to the Governor, there is nevertheless also a right of access to the Ombudsman? The provision appears to be unacceptable in some cases e.g. immigration petitions to the Governor under section 49A(3) of Cap. 243 (See also comments against Second Schedule, item 1).
Civil Servants are precluded from being complainants where in effect Government is concerned as employer (See Second Schedule). Presumably they may complain as private citizens where a decision has affected them in this capacity. There is however the inter- mediate case of a civil servant complaining about particular maladministration in his department. This may be precluded under clause 14(e) on the grounds of "insufficient personal interest in the subject matter, but this is at the discretion of the Commissioner. It might be better to spell the position out positively to the effect that a civil servant may only be a complainant where a decision affects him personally in his private capacity.
!!
It seems politically unwise to allow the Commissioner to direct that a deportee or illegal immigrant shall be permitted to re-enter and remain in Hong Kong. Should not this power be reserved to the Governor?
Mr. Henderson has commented as follows:
"Unless it is intended to include this point in the rules, it is essential to determine as a matter of policy and principle, whether a "deciding" officer shall be examined in the presence of the complainant and/or other "witnesses". This must be decided one way or the other, not left to be determined by the Commissioner under clause 16(5). Also, if there is to be examination where questions are asked other than by the Commissioner, grave doubts must be cast on the validity of clause 16(2), since a Commissioner's report may ultimately lead to disciplinary proceedings. Nothing can happen to a complainant as long as he does not commit a perjury or obstruction type of offence. But the Government officer is not protected under the clause as it stands. Disciplinary action may well be justified, and contemplated, but we must ensure the officer is properly protected where his evidence may tend to "incriminate" himself. Where inquiries are private and on oath and without benefit of counsel, clause 16(5) is positively dangerous unless some principles for procedure are laid down for guidance of the Commissioner by law, particularly if the Commissioner is not qualified. Clause 18(1) and (2) are not adequate protection for an officer since his statements influence the 'reports' of the Commissioner."
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