1987 — Page 132

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HONG KONG URBAN COUNCIL

For the attention of Mr. P. T. PELHAM

Dear Mr. PELHAM,

I refer to your circular of the 19 November regarding the Draft Bill 'The Commissioner for Administrative Complaints' and I have the following comments:

This Bill is a bad compromise, and based on the UK system which is by far the worst of the Ombudsman systems in existence around the world, and was designed to protect the Civil Service rather than to allow honest and wide-ranging investigations. In this connection, what is of the utmost importance is that the Commissioner is not a Civil Servant and that none of his staff are Civil Servants. The Commissioner has to be seen to be entirely independent, and I do not believe that a lack of knowledge of the workings of the Civil Service would be a handicap. On the contrary, it would probably be a benefit. But the important thing, of course, is that the Commissioner has to be seen to be independent of the Civil Service. This brings up the point that the Bill specifies the Commissioner to be appointed by the Governor. I would prefer if he were appointed by the Governor with the consent of LEGCO. Also, the Bill would be far better if it followed New Zealand or Swedish practice, the main difference being that there the Commissioner has powers to investigate matters on his volition instead of, as suggested in the Bill, only when there is a specific complaint, and this is a very important distinction. But above all approach to the Ombudsman must be direct, not via LEGCO members or anyone else. It is quite wrong to put an obstacle into the complainant's path, and the reasoning that LEGCO would act as a filter is illogical since the Commissioner, as shown in the Bill, has his own discretion whether to accept or reject a complaint.

Going into detail, I refer you to Part II, paragraph 3(iv)(b). It is most important there is some more exact definition of the grounds on which the Governor, with the approval of the Legislative Council, can remove the Commissioner. As worded at the moment, it would allow a lot of leeway and could be open to misuse.

Part II, paragraph 6(1): I think, in line with my remarks above, it is most important here that the persons to be appointed to help the efficient carrying out of the Commissioner's functions are not Civil Servants and this should be specified in the Bill.

Part III, paragraph 7(a): In this paragraph the word maladministration bothers me. First of all there is no real definition and if the word is used, it should be closely defined, and it limits the powers of the Commissioner since I can certainly envisage situations where there are justified complaints which are not due to maladministration. The New Zealand law deals with this in a very much better manner in that the Commissioner there is empowered to report on Civil Servant decisions that appear to be unlawful, mistaken, unreasonable, unjust, oppressive, or wrong.

HONG KONG URBAN COUNCIL

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Part III, paragraph 7(b): As already indicated above, this paragraph should be deleted. I think it is quite wrong to make it a condition for complaints to be considered by the Commissioner for these to have to go through members of LEGCO, especially since it is quite possible that complaints may be made against members of LEGCO. If this paragraph is deleted there are consequential other deletions necessary in the Bill.

Part IV, paragraph 10(i)(e): I don't understand the intent of this paragraph as the last three lines give the Commissioner the option of investigating complaints even though right of appeal or remedy by way of proceedings in Court is available. I would prefer this whole paragraph to be deleted unless there were very good reasons for keeping it in. I think it is unnecessary.

Part V, paragraph 13(iii): This is an extremely limiting paragraph. As the Commissioner's investigations will in any case be private and confidential, I would like this paragraph rephrased, stating that the Commissioner should be entitled to receive information and documents relating to security and defence etc., but that his conclusions based on such evidence will have to be kept confidential, although the final result of the enquiry, of course, must be made public without, under these circumstances, having to give reasons for the result. If this is not done then I can see a great deal of Civil Service obstruction arising from hiding behind these two clauses, and I see no difficulty in my suggestion, especially as under the following paragraph 14 the Commissioner is, in fact, bound to secrecy, and under that paragraph, under (iii), there is already a method available of keeping a Commissioner's conclusions secret.

As regards the Schedules:

I think that in the first Schedule, the Legislative Council, The Urban Council, The Regional Council, and all District Boards should be added, since although the membership of these Councils is mostly non-Civil Service they are part and parcel of Government and should be as much subject to the Ombudsman's investigations as any other Government department.

It is also essential that the ICAC and the Police is added to this Schedule. This is especially important as present complaints procedures against these two organisations are seen in the public's mind as not being satisfactory.

Regarding the second Schedule, i.e. actions not subject to investigation, in view of what I have said above regarding paragraph 13, Item 1 of the Second Schedule should be deleted.

Item 2 should be deleted as it is essential that the ICAC and police are added to the first Schedule and if so item 2 in the second Schedule becomes redundant.

Item 5 should be deleted. I really don't understand why it is included since a great deal of injustice can result from Civil Service action taken in relation to contractual or other commercial transactions.

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