For the past hundred years, Hong Kong
has transformed from a fishing village to one of the major
financial centres of the world. We are very proud of this
achievement. Hong Kong is presently experiencing another
change. She is moving from a British Colony to a Special
Administrative Region of China. To maintain stability and to
make this transition a smooth one, one of the things we can
do is to make Hong Kong a fair and harmonious community
where the rights and interests of individual citizens are
respected and protected. The ombudsman, or the Commissioner
for Administrative Complaints (COMAC) as it is called in
Hong Kong, has pledged to redress grievances arising from
maladministration and to promote fairness and efficiency in
the public administration. COMAC therefore has a role to
play in ensuring the continued prosperity and stability of
Hong Kong.
2. The first ombudsman was appointed in Sweden some two
hundred years ago. His duty was to watch over the way
government officials applied the regulations and law in
their dealings with the public. With the rapid expansion
of government and citizens have become increasingly
vulnerable to the decisions of civil servants, the
ombudsman concept has been regarded as a useful
instrument to secure fair treatment from Government.
After World War II, the concept has found applications
in many countries.
3. By the mid-sixties, Hong Kong began to see the need
and advantages of some form of ombudsman. Following
public consultation in 1986, the Government accepted in
principle that an additional and independent authority
with status and power conferred by statute and appointed
by the Governor, should be established to serve the
public, to deal with complaints related to the operation
of the public service referred only by Members of the
Legislative Council, and to recommend remedies. He would
report to the Governor annually and his reports would be
tabled in the Legislative council. However, he would not
pursue matters which are within the competence of the
Courts or tribunals, government policies or investigate
actions in respect of personnel, contractual, or other
commercial matters. The Office of the Commissioner for
Administrative Complaints became operational in March
1989 following the enactment of the COMAC Bill in July
1988. By so doing, the Government has demonstrated its
intention and commitment towards a fair and accountable
Government which is of fundamental importance if the
well-being of the community is to be perpetuated.
4. I consider it a great honour to be appointed the
second COMAC. To fulfill the trust and responsibility
placed on me, I shall apply my best endeavours to
righting individual wrongs; making bureaucracy more
human; lessening people's alienation from government;
indicating abuses by acting as a watchdog; indicating
when public officers are unjustly accused; and improving
the standard and efficiency of the public sector through
my investigations and recommendations with a view to
contributing to the stability and prosperity of Hong
Kong.
5. However, if COMAC is to accomplish his mission and
vision, his jurisdiction, powers and accessibility
should be extended and improved. His jurisdiction should
not be confined only to the government services but
should be extended to include major statutory and public
bodies. Further, the public should be given direct
access to COMAC who should also be empowered to publish
investigation reports and carry out investigation on his
own initiative. All these would enable COMAC to
understand the feelings, experiences and interests of
the general public and public sector officials,
eliminate misunderstandings, establish the truth and
preserve confidence and trust in the public service.
6. I am glad that shortly after my assumption of
office, legislative amendments to improve the COMAC
system by providing direct access to COMAC, allowing the
publication of anonymized investigation reports, direct
investigations, and extending COMAC's jurisdiction to
include six statutory bodies were passed and became law
in June 1994. Starting from March 1995, I am also
empowered to investigate any alleged breaches of the
Government's departments and four more statutory bodies
came under my jurisdiction. I am grateful for the
confidence and support of the government and the
community given to the COMAC system. We are moving
towards a more open and accountable Government, and
COMAC is there to provide the necessary check and
balance.
7. My role, power and jurisdiction now resemble those
of a classical ombudsman. First and foremost, I am
independent of the Government and my power is conferred
by statute. Besides, I am readily accessible by members
of public and responsible for carrying out
investigations on my own volition apart from receiving
and dealing with complaints lodged with this Office. I
also have the power to summon witnesses, enter premises
of department or statutory body under complaint, make
recommendations as to suitable remedies or corrective
measures and so on.
8. Referring to the recommendations made, I would like
to say that I do not have the power to make legally
binding decisions. Some would take this as a structural
flaw in the COMAC system. The COMAC has no real teeth to
compel compliance! I cannot agree with this perception.
In an open community such as ours, it is always wise to
adopt a flexible and pragmatic approach in working out
solutions to our problems. The remedial measure I can
use, if departments or organisations refuse to heed my
advice is persuasion. I hope to bring about improvements
in the public administration through my persuasive power
instead of fighting those who might challenge my
decisions in Court. In accordance with the COMAC
Ordinance, I can also submit a report to the Governor
who will lay the report before the Legislative Council
for consideration. Furthermore, three months after my
Annual Report, the Chief Secretary will inform the
Legislative Council, in the form of a Government Minute,
as to whether COMAC's recommendations have been
adequately implemented. As such, I can influence those
who have the power to review and change decisions which
appear to be unreasonable and oppressive.
9. I would like to reiterate that I am not trying to
look for culprits in my investigations. I am trying to
look for solutions and I am providing the organisation
concerned with an independent opinion on the fairness of
its administrative procedures. Though fault-finding has
its place, constructive administration is the best and
most lasting response to the shortcomings in the public
administration. This is the belief I have always held
and as a matter of fact, all my recommendations and
initiatives in the past two years are based on this
conviction.
(a) Public Education and Participation in Government
10. COMAC must be clearly visible and accessible if he
is to be of any service to the public. The early system
of routing complaints through Members of the Legislative
Council had hampered the effective operation of this
Office as only an average of 170 complaints per year
were received in the first five years. The referral
system was a barrier and had impaired COMAC's
independent image. This barrier was finally removed with
the introduction of direct access to COMAC for the
purpose of lodging complaints in June 1994.
11. To promote greater public awareness and to make the
public know that COMAC has the power and is readily
available to help them resolve their problems and
redress that grievances free of charge, I have launched
a series of public education and awareness initiatives.
These include roving exhibitions, publicising COMAC's
services on television and radio, mounting posters in
public areas, distributing publicity video for use by
schools, delivering talks to schools and universities,
meetings with district boards and other statutory
organisations, and a pilot district outreaching
programme where COMAC staff are attached to district
offices in Wan Chai, and to receive complaints.
Recently, I have introduced post-free complaint form for
the benefit of those who would like to air their
grievances. A Resource Centre, with a full collection of
this Office's publications such as the COMAC News and
investigation reports, has been established and is open
to the public for the purpose of public education,
bringing the COMAC system closer to the public we serve,
and promoting the concept of ombudsmanship.
12. My efforts have led to an eight and fifteen-fold
increase in the number of enquiries and complaints
received compared with the pre-direct access era. These
are positive indications that the COMAC system is better
understood and utilized and the general public is ready
to contribute to the fair and efficient operation of the
public service by coming forward to lodge their
complaints. However, in a recent survey conducted by the
Census and Statistics Department, some 2.69 million or
51.3% of all the persons interviewed, were aware of the
Office of the Commissioner for Administrative Complaints
(OCAC) whilst the remaining 2.56 million or 48.7% were
not. And of the 2.69 million persons who were aware of
the OCAC, only 159,700 or 5.9% understood the work of
OCAC correctly. I thus see a need in continuing my
public education programmes and we are reviewing the
publicity strategy.
13. My newly-given power of publishing anonymized
investigation reports enables me to announce cases of
interest to the public; inform the public of matters
they would like to know; arouse people's attention of
their civic rights, and explain to the public what would
be unreasonable expectation of the public
administration. I hope people will realize that by
coming forward to file a complaint, they give COMAC and
organisations concerned, a chance to right what is
wrong. They are actually putting "Do-it-yourself good
governance" into practice.
(b) Communication with Departments/organisations
14. The success of the COMAC system hinges very much on
the attitude and co-operation of departments and
organisations under my jurisdiction. I have hence
embarked on a series of visits to these departments and
organisations since early 1995 to better understand
their operations and limitations, and to explain my role
and obligations as an ombudsman. I would like them to
understand that the purpose of my investigation is to
improve their service to the public. I have also
arranged training programmes and complaints management
workshops for their staff for the purpose of promoting
professionalism in complaint management, transferring
complaint handling skills and cultivating a positive
attitude towards complaint. Complaints if taken
positively, can be used as a valuable management tool in
serving the community. An Administrative Fairness
Checklist on COMAC's standard on fairness and efficiency
has also been drawn up for their reference. I anticipate
that the checklist will be a useful guide to departments
and organisations in their continual assessment on
whether the service they provide is the best possible.
In recognition of the departments/organisations whose
efforts in addressing complaints under our investigation
are exemplary and praiseworthy. The awards will be
announced in July 1997.
(c) Internal Complaint Handling (INCH) Programme
15. As COMAC is not established to replace existing
channels of complaint and bearing in mind that "justice
delayed is justice denied", I have initiated the INCH
Programme to give organisations under complaint, by way
of referrals, an opportunity to investigate and resolve
simple complaints lodged with COMAC in the first
instance. Depending on the outcome of their
investigations, I will decide whether intervention or
formal investigation by this Office is required. It is
gratifying to note that most complaints referred to
organisations are speedily resolved, a sign that
organisations are committed to a customer and
task-oriented culture. It is worth mentioning that the
INCH Programme gives me greater flexibility in the
deployment of resources in tackling the increase in
caseload since the introduction of direct access and in
investigating complaints which are complicated and of
wide implications. It is also in line with my belief of
striving for a solution to a problem rather than a
finding of fault. I am confident that the Programme is
working to the benefits of all concerned.
(d) Investigations
16. As COMAC, I have the power to conduct
investigations into complaints lodged with this Office.
I would like to emphasize that I approach my
investigations and recommendations from the standpoint
of whether departments or organisations have acted
fairly, reasonably, suitably and timely in the eyes of
an ordinary citizen after thorough examination of the
relevant facts, value judgement, law and policy. If
complaints are founded, I will inform organisations
concerned so that they can learn from their mistakes and
make improvements. If complaints are unfounded, I will
try to explain to complainants the decisions or actions
of organisations concerned. I am neither an advocate for
the people nor a defender of public sector actions. The
sole intention of my investigations is to eliminate harm
and provide suitable explanations. Further, as I have
the opportunity to see a wide range of complaints, I am
in a better position to identify and detect the presence
of a problem or a defect giving rise to individual
complaints.
17. I am glad that the COMAC Ordinance gives me the
power to initiate investigation on my own volition,
without any complaint being received. However, the
'potential' complaints (i.e. complaints which are
anonymous or complaints directly lodged with other
organisations but copied to this Office) received by
this Office are good indications on areas of public
concern and possible targets for my "own volition"
investigations. Between January 1995 and September 1996,
I have initiated and completed six investigations. There
are -
 |
Enforcement actions against
unauthorized building works; |
|
Overcrowding relief arrangements in
public housing; |
|
Accommodation for foreign domestic
helpers; |
|
Enforcement procedures and actions
against unauthorized building works in New
Territories exempted houses; |
|
Provision of emergency vehicular access and fire
service installations and equipment in public and
private building developments; and |
|
Procedures and actions on the prevention and
reduction of the occurrence of water main burst |
18. The provision in the COMAC Ordinance for "own
volition" investigation is useful. COMAC can use this
power to nip problems in the bud or look into the source
of the problem and recommend preventive or remedial
actions. Investigations conducted by this Office so far
revealed no serious administrative flaws. Most of the
departments and organisations render their full support
to my investigations. Except for a few which cannot be
implemented on resource grounds, most of my
recommendations have accepted and implemented.
19. I plan to conduct more "own volition"
investigations for the benefit of the community.
Recently, I have directed an investigation on the
provision of general outpatient services and the
investigation is scheduled for completion by the end of
the year.
(e) Community Involvement
20. I believe that everyone is a unique person and can
make a difference to his community by what he does. The
efficient and fair operation of the public
administration can only be achieved through the
concerted effort and constructive actions of each and
every individual. I therefore see the need of involving
more sectors of the community in the COMAC system in one
way or the other. I have established three Panels of
Advisors with professionals and academics in the legal,
medical and engineering fields as members after taking
up the role of COMAC. I believe that I will benefit
greatly from their expert advice without which I may not
be able to convince myself that I have done a thorough
and impartial job.
21. I have recently started to enlist the assistance of
the Non-official Justices of the Peace (JPs), having
regard to the fact that shortcomings or mistakes should
be brought to the attention of the Administration if the
standard and quality of the public administration is to
be improved. I anticipate that the JPs would be able to
draw my attention to areas of concern or deficiencies in
the public administration and refer complaints from
members of public or complaints from prison inmates to
this Office for investigation if they are not satisfied
with the internal investigation reports from the
Correctional Services Department. Response from the JPs
so far is very encouraging.
22. I notice that some young people in Hong Kong are
not too concerned about fairness and justice and even
find it acceptable to obtain money through graft and
corruption. I consider that this modern ethic will
eventually undermine the fairness and justice in our
society. As the COMAC system is to promote fairness and
justice, I find it relevant to include the role and
responsibilities of COMAC in the curriculum of both
primary and secondary schools. My Office is now working
with the education and youth services on a programme to
encourage fair and clean government. I hope COMAC will
be able to bring about changes in the ethical standard
and principles by instilling a sense of fairness in the
minds of young people at the early stage of their
development.
(f) Extension of Jurisdiction
23. If the role of COMAC is to redress grievances from
members of public against the maladministration of
public sector organisations which may have been
insensitive or careless of their needs and rights or
even oppressive, then COMAC's jurisdiction should be
extended to include all major public and statutory
bodies. I have recently proposed the inclusion of the
civilian staff in the Police Force, the District Boards,
the Hong Kong Examinations Authority, the Hong Kong
Sports Development Board and the Employees Retraining
Board under my jurisdiction. I see the need to make
further proposals where justified. Some people may
wonder why this Office proposes to extend its
jurisdictional power amidst the upsurge in caseload.
However, if they fully appreciate the role and function
of an ombudsman, they will understand that COMAC is only
trying to improve the quality and standard of
governance. A grievance investigated is a resentment
relieved! The further extension of my jurisdiction will
only help to eliminate grievances and maintain
confidence in the public administration which will have
a direct bearing on the prosperity of the community.
(g) Caseload and the Provision of Mediation Service
24. For the year 1995-96, 2784 complaints were received
by this Office. Present indications are that the number
of complaints is on the rise. I will be doing a
dis-service to the public if I do not find or try other
alternative dispute resolution methods, in addition to
the full process of investigation and the INCH Programme
introduced earlier, to resolve complaints received.
Flexibility in investigatory procedures may help to
alleviate the caseload problem. I have proposed
therefore to amend the COMAC Ordinance to give COMAC
greater flexibility in determining his investigatory
procedures, to change the title of COMAC to 'The
Ombudsman' and to broaden COMAC's jurisdiction.
Alongside with these legislative amendments, I intend to
assist complainants and complainee organisations in
finding a solution to their problems or grievances by
mediation. I concede that not all complaints are
suitable for mediation but the provision of a mediation
service will certainly give me the flexibility in
resolving complaints in a less costly and time consuming
manner thereby meeting the needs and expectations of the
community.
(h) Co-operation with Departments/organisations
25. As mentioned earlier, investigations conducted by
this Office revealed no major errors or weak spot in the
public administration. We should not retreat into
complacency though. Departments and organisations can
further improve their service and performance if they
are more willing to respond to individuals and
co-operating with departments and organisations in the
training of staff engaged in complaint handling duties.
26. I am approaching the fourth year of my tenure of
office. Looking back, I find that I have accomplished
the tasks outlined in my five year plan announced
shortly after I assumed office as COMAC in February
1994. According to my plan, the first year is one of
consolidation and development, having regard to the
widening of my powers and jurisdiction. The second year
is a time for strengthening and improving my services
and establishing my credibility. The third year is a
time for refining my quality service to the community
and further improving the standards of the public
service. In the fourth year, I will continue my efforts
in the furtherance of my mission to ensure the smooth
transition of Hong Kong to a Special Administrative
Region of China. By the fifth year of my tenure of
office, I hope that the COMAC, through independent,
objective and impartial investigations will improve and
enhance fairness and efficiency in the public
administration, and help to develop a public service
culture characterized by dedication, commitment,
accountability, openness, professionalism, quality
service and performance.
27. COMAC's success and future depends on how you look
at the ombudsman or COMAC system. I hope I have made the
message loud and clear : my investigation is not made
with the intention of denting a career or damaging a
reputation. It is more appropriate to consider the COMAC
Office as providing a kind of weather service for the
standard of public administration - it acts as a
barometer to measure public response to existing
procedures, attract attention to possible failures
within existing systems; and prompt solutions to
problems which may not otherwise be immediately
forthcoming.
28. Everyone can help to shape the community and make
the world a better place through positive and
constructive actions. There is a proverb which goes like
this : Better to light one candle than to curse the
darkness! Please light your candle so that justice and
fairness will prevail in Hong Kong.
(October 1996) |
