Office of the Ombudsman (Hong Kong)

Functions

The major purpose of Ombudsman is to investigate complaints against major public organisation, government department and its agencies. It also oversees the complaints against executive branches in relation to the non-compliance with the code of Access to information. Notably, the Ombudsman is empowered to initiate direct investigation into issues of potentially wide public interest and concern without the requirement of having a complainant. For instance, They have conducted 4-8 active investigation each year, for example the policy over special education service for students with emotional need after an enquiry by the Legislative Councillor. (Lau, 2016) Another example would be looking into the government policy on granting recreational lease and gave recommendation after the investigation.(Li, 2012)

The Ombudsman adopts different methods to handle complaint. The basic form is inquiry, referring to the practice that require the organisation to offer response for examination and giving suggestion thereafter. Yet when serious or further problems were observed, full investigation will follow. It applies when the complaint involves issues of principle, systematic flaws or serious maladministration (Lai, 2009). The in-depth full investigation will be conducted with prior notice the Head of the relevant department. In cases of minor maladministration, obtaining the consent of the complainant and the organisation concerned, investigators who are trained in mediation will serve as impartial mediator to settle the conflict. (Lai, 2012) ; Ombudsman, HK, 2013)

It worths noting that the Ombudsman will not have right to investigate into the following decisions due to statutory restrictions: Prosecutorial policy, legal proceedings, imposition (or variation) of condition of land grant, personnel matters and commercial transactions. (Ombudsman Ordinance, Schedule 2) Also, as published through the advertisement, they will not take complaints that the complainant had knowledge but fails to contact them for more than two years. (s10(1) of Ombudsman Ordinance) They will not take complaints that the complainant was not person aggrieved or the subjects of complainant has no connection with Hong Kong. The Ombudsman also retain the discretion to reject trivial, frivolous complaints or those that was not made with good faith. (s10(2) of Ombudsman Ordinance)

History

In its establishment in 1989, it is first named “The Commissioner for Administrative Complaints” under the Commissioner for Administrative Complaints Ordinance. By that time, the Ombudsman was not a corporate unit and may only handle complaint that was referred from the Legislative Councillor.(Legislative Council Secretariat, 1998)

Before its establishment, channels complaints were scattered, for example in Legislative Councillors, members in District Board or Urban Council. However, they do not have power to demand information to explanation. Petition to British government or judicial review was available but these channels failed to limit the discretion of the Governor. (s9 of Crown Rights (Re-entry and Vesting Remedies) Ordinance) The more institutional way is to complain through the Complaints Office under the Executive Councils. In corruption-related matters, they may express their grievance to the ICAC, however, a distinct and independent office on maladministration handling is lacking.

The concept of Ombudsman system was introduced in the speech of the Legislative Council stressing the importance of ombudsman system first in February, 1965, and such proposal is supported by the councillors also urged for the establishment of the Ombudsman in the post-riot period after 1967. (Official Report of Proceedings, 1965) On 1986, the Government published the publication “Redress of Grievances” which reveals the majority view then that an independent and authorised organised to handle complaint should be created. (Hong Kong Government Printer, 1986) Scholars regards the establishment of Ombudsman was argued to be motivated by the Hong Kong Public Administration Reform that emphasised on “higher efficiency and better services”, and the growing political awareness and the democratization initiated since the mid-80s.

When it is established, the Office consists of 27 members with its policy sources vested in the Directorate consisted of 5 members. They were respective divisions for development, assessment and investigation. They also have independent panels of professional advisors. Since most officials there were to be sent back to administrative department upon completion of secondment, the staff there is commented to be lack commitment, continuity and has limited vision in terms of the long-term development of the Ombudsman.

Development

Situation as in 1988

There are several limitations in the 1988 Commissioner for Administrative Complaints Bill. Firstly, the Ordinance required complaints to be first made to Legislative Council members instead of the Commissioners. As a result, the system cannot be fully utilized due to the multi-layered bureaucracy. Besides, the penetration power of the Commissioners was limited to only 52 governmental departments. They were not allowed to investigate acts of police and ICAC, affairs related with security, international relations, legal actions and contracts, and even public enterprises and administration of civil servants. This implied a failure to meet the legislation aim, which is to investigate minor mistakes of civil servants. Other than penetration power, the Commissioner also faced a lot of constraints in conducting investigations. The targeted administrative departments could hinder investigation into maladministration that involves public interests but do not have specific victims by refusing to disclose document without legitimate and persuasive explanations.

In the following decade, the Ombudsman has undergone several reform to address different deficiencies until 2001, through amendment of legislation. The post-2001 has been a gradual process of development emphasizing both on investigation and publicity, leading to the present state of Ombudsman.

1994 Reform

To respond the change proposed by Chris Patten in 1992 and the limitations of the 1988 Ordinance, a Committee was set up to draft the “Commissioner for Administrative Complaints (Amendment) Ordinance. The amended ordinance was signed in 1994 incorporating several improvement in the institution of the Ombudsman.

First, its degree of perpetration has been enhanced as 6 statutory bodies were then possible to be investigated by the Ombudsman. Some examples of them are Urban Council, Regional Council and the Housing Authority. Second, the power and capacity of the Ombudsman has been strengthened by enjoying the power to publish anonymous investigation reports that are related with public interest during any time of the year. This is an improvement since previously, investigation report was only permitted to be published in an annual report. The degree of authority and power enjoyed by the Ombudsman then has more than less similar to the present days. Yet, it is still criticised in terms of its confidentiality element in that it limits the capacity of Commissioner to disclose the necessary information and to exercise discretionary power. Third, the Chinese title of the Ombudsman was changed from “Administrative Affairs Ombudsman” to “Ombudsman”.

The most remarkable change in 1994 is the invention of a direct complaint system and abolition of the referral system. Citizen can therefore direct file complaint to the Ombudsman. The Ombudsman handles the complaints from its receival to conclusion, which is more independent and autonomous. However is an expansion of power but it magnifies the undersupply of resources of the Ombudsman in the pre-transition period. The number of complaints has dramatically rise. The workload of the Office has increased 17 fold comparing to 1989 but the size of establishment has only been tripled. The small office of 90-staff against 62 department with approximately 180,000 public servants are regarded as burdensome. The Ombudsman has made corresponding measures by eliminating the mandatory requirement to prepare report to the Head of the Department.Alternatively, with consented by the complainant, the investigation will be remitted to the relevant Department. That marked the removal of the mandatory requirement of investigation that lasted until now (i.e. 2016).

1996 Improvement

In 1996, the Commissioner for Administrative Complaints was given a new English title of “the Ombudsman” and the “Office of the Ombudsman” (Ombudsman, HK, 2016).

In order to enhance the maladministration handling system, a drafted Ombudsman (Amendment) ordinance was proposed to further expand the power and enhance the operation of the Ombudsman. The Ordinance came into effect on 27 December 1996.

The degree of penetration has been enhanced. The jurisdiction of the Ombudsman was expanded to cover the Hong Kong Police Force, Hong Kong Auxiliary Police Force, Independent Commission Against Corruption, Independent Police Complaints Council and Public Service Commission (Ombudsman Ordinance (Cap. 397)). The Ombudsman was empowered to investigate into these organizations regarding the Code on Access to Information, however, there are still a certain degree of limitation on their actions relating to the ICAC and the Hong Kong Police Force. As stated in the Ombudsman Ordinance (Cap. 397) Schedule 2:

Any action taken by the Independent Commission Against Corruption, the Hong Kong Auxiliary Police Force or the Hong Kong Police Force in relation to the prevention, detection or investigation of any crime or offence, whether or not the action is taken solely by any one of these organizations, or jointly by more than one of these organizations or by any one or more of them together with any other organizations or persons.

Furthermore, the Ombudsman was no longer required by rules to come up with investigation reports in verified complaint cases (Ombudsman Ordinance (Cap 397 s 16(1)). Discretionary power is granted to the Ombudsman on their investigations.

In terms of responsibility, the Obligation of Confidentiality expressly required the Ombudsman and its officers to have no disclosure on the content of investigation as well as the any other matters related to the complaint that they have received. An expanded interpretation on confidentiality regulations had been set out in 1996, stating that when and only when the disclosure of the information could lead to enforcement of the investigation under the Ordinance, the Ombudsman and its officer has the power to disclose that information (Ombudsman Ordinance (Cap. 397) s 13(3)(a)).

Despite the improvement such as that the obligation of confidentiality has been relaxed, the Ombudsman still possess no right to publish and publicize the investigation report to the public. The lack of independence and flexibility still remain as a problem found in the operation of the Ombudsman.

2001 Reform

In face of the constraints encountered the implementation of the 1996 Ordinance, the Head of the Ombudsman raised the suggestion of bringing the Ombudsman out of government and civil servant hierarchy so as to build an independent maladministration-handling system with separate financial management. In support of the independence, the government was concurrently encouraged to think from the perspective of ‘managing maladministration’ and was urged to delegate necessary power in order to ensure the effective working and management after the departure from the government structure.

Therefore, in response to the demand from the Ombudsman, a Committee was once again set up to draft the ‘Ombudsman (Amendment) Ordinance 2001’, which then remains to be the effective Ordinance in Hong Kong.

The most remarkable change in the 2001 Reform was the growth of independence of the Ombudsman. It was stipulated in the Ordinance that the Ombudsman is a single legal and permanent entity that can sue or be sued. The law also empowers the Ombudsman to determine the terms and conditions of those he delegate. The Ombudsman cannot be seen as agency or employee of the government of have a position in the government, with controlling officer of bribery prevention as the only exception. Hence, Ombudsman does not enjoy the status, exemption and privileges available to the government.

However, checks and balances are maintained simultaneously. As expressly stipulated in The Ombudsman Amendment Ordinance 2001, the Ombudsman have to submit working report, account statement and an auditor’s report to the Chief Executive each year, which will then be submitted to the Legislative Council. They should also submit to the LegCo on their resource management status. Therefore, it could be said that the CE and LegCo may supervise their operation and management. Financially, the Auditor General may in any financial year evaluate the efficiency of the Ombudsman without questioning their policy goal. Although being a separate legal entity, just as other statutory bodies, the Ombudsman and the staff of its office is still subject to supervision of the Prevention of Bribery Ordinance (THE OMBUDSMAN (AMENDMENT) ORDINANCE 2001) .

Post-2001 - Gradual development with growing focus on publicity initiatives

Increase in Direct Investigation

Come the turn of the 21st century, the HKSAR Ombudsman’s Office has adopted a far more progressive outlook towards civic unification, and amendment within political and socio-economic maladministration, focusing notably on the use of modern resources to best ensure efficiency. To be more specific, the Ombudsman’s Office has, since 2001, prioritized the conduction of a far more thorough range of preliminary enquiries towards the direct investigation of issues, in doing so allowing for a more effective assessment of the social and financial viability of proposed reform policies, prior to their implementation. For example, the annual Ombudsman’s report from 2003–04, refers to the need of a more analytical, or “global view”, towards addressing maladministration within Hong Kong, given the emergence of a set of identified patterns within public complaints, most notably including, though not limited to, the “reluctance in enforcement”, along with interdepartmental coordination, etc.

Publicity

Having acknowledged the discrepancies within the relationship between the public and the Ombudsman, the latter therefore embarked on increasing awareness as to their role, along with the prevalence of one's social, or civic duty, via a range of contemporary publicity initiatives, such as the wider use of media and technology to better inform Hong Kong’s public not just as to what issues were of most importance to society, but more so how they could be more involved in facilitating social, political and economic paradigms, and bring about progress. This was best exemplified by the Ombudsman’s Offices’ cooperation with Radio Television Hong Kong (RTHK), over the production of an 8 episode television series, in 2013 (Lai, 2013) , in addition to entirely restructuring their website, so as to make it more user friendly. Earlier implemented social initiatives had a near immediate impact as well, as by 2005 the Ombudsman’s Office had received record high 15,626 enquiries along with over 5,600 complaints, completing 4 direct investigations, symbolizing a positive and progressive trend in public and civic interaction through to 2015-16, wherein 8 direct investigations were completed. (Lau, 2015)

Government department’s perception on ombudsman

Despite exemplary developmental progress from within the HK Ombudsman’s Office, post the handover going into the 21st century, their authority has nonetheless come under question, and been criticized on occasion. For example, during the 2013-2014 term (Lau, 2014) , a government department from within the administrative infrastructure, challenged the Ombudsman’s Office, over issues relating to their contractual obligations or protocol, during a sales contract between two parties. Given further investigation, and ample consultation from a wide array of advisors, the Ombudsman Office reaffirmed their authority and jurisdiction over matters under complaint, given the fact that contract was not commercial in nature (thus under public sector review), and that its nature was against that of accepted policy. (Lau, 2014)

Ombudsman