TNAG-0106-FCO40-142-Proposals-to-appoint-an-Ombudsman-1969 — Page 195

wonded into office is Sovernar

COMMISSIONER FOR ADMINISTRATION BILL

SUMMARY OF SECRETARIAT REMARKS

CLAUSE

2017

3 & 4

exituij alic servant will

At be apprinces: but

shind officers may be

REMARKS

It would appear that the definition of 'Commissioner' should include a person appointed to act under section 5.

Mr. Henderson has minuted as follows:

"It is not clear whether the Commissioner is or is not in the public service, or whether he may be appointed from the public service. This is unlike the Chairman P.S.C., who under the Public Services Commission Ordinance is not allowed to be the holder of a pensionable office whose emoluments are derived from Hong Kong Government funds. Clause 4 in this Bill excludes the Commissioner from holding another office, but since "pensionable office" is not specified he is presumably a public servant. However, doubt is cast on this by clause 20(1) where the Commissioner and his staff have to be deemed to be public servants for the purposes of the Official Secrets Act, which implies they are not for other purposes. This clause may be double insurance or a hang-over from a previous version of the Bill. It must be clearly established whether the Commissioner is or is not a public servant, for purposes of his terms of service etc. If he is to be like the Chairman of P.S.c. then we can act accordingly, but we know from experience the difficulties that can arise if there is doubt on this score.

It is quite clear from clause 3(4) and 6(2) that his status is special, and rightly so to protect his independence from pressure. But it is also essential to make clear whether an existing public servant can be appointed. If the policy is to make this possible, the officer may need some provision for protection of his position on his return to service after his three year appointment, particularly for his pension.

The protection from removal for misconduct similar to that of a judge is understandable, but rather quicker action in the case of invaliding might be required for a tenant of office reluctant to resign. I would incline to suggest that the Governor be given power to convene a medical board, chaired by, say, the Dean of the Faculty of Medicine at H.K.U. to make it independent of D.M.H.S. This would be more realistic for terminating an appointment which will normally be of some fairly "senior citizen" whose health may be erratic, but who may be obstinate about admitting the fact.

One small point: should there not be a nationality qualification for this appointment?

Mr. Henderson's minute continues

"The same point about these officers being or not being public servants arises, except that the Commissioner's salary etc. is chargeable to the general revenue (clause 6(2)). The salaries etc. of his staff are presumably covered however by clause 32. This in itself gives rises to an awkward constitutional point which does not arise in the case of the Commissioner. The Commissioner appoints, the Governor determines the "complement", and Leg.Co. can theore- tically not provide the funds. If clauses 8(2) and (3) are to be

/meaningful....

LACK

Registry,

This paper, brought by the Governor, should now be p.a. the 25/0

горо

2

•H ET "ཤ"' ཀ

Page 195Page 196