Office of The Ombudsman, Hong Kong

The promotion and protection of "human rights" have been an area of sustained concern and interest in the international as well as regional ombudsmen communities of which The Ombudsman is an active member. The aim of this paper is primarily to simulate discussions on selected areas in human rights issues relevant to the role of The Ombudsman and to examine -

(a) what the term "human rights" actually encompasses, particularly in the Hong Kong context;
(b) how "human rights" are promoted and protected in Hong Kong;
(c) whether, and if so, to what extent and in what manner The Ombudsman is contributing through his sphere of activities, including the investigation of administrative complaints, the conduct of direct investigations and his efforts made in educating the public about and promoting the concept of administrative fairness, towards the implementation and realization of the various international "human rights" obligations by which Hong Kong is bound; and
(d) the need, if any, for an expanded "human rights" role for The Ombudsman and, if so, how such an objective can be achieved.

2. In the course of compiling this paper, various publications, including relevant documents released by the government, texts of United Nations (UN) "human rights" covenants applicable to Hong Kong, the Basic Law of the Hong Kong Special Administrative Region (HKSAR) and a number of locally enacted statutes like the Hong Kong Bill of Rights Ordinance (BORO) and other pieces of related legislation have been studied. Relevant publications by ombudsman institutions in overseas countries have likewise been consulted. Specific references to the above sources of information, where appropriate, have been made throughout the paper.

3. For ease of reference, a full list of such reference material is produced at Annex A.

4. A "right" may generally be defined as something to which an individual has a just claim and "human rights", as a term, owes much of its origin, historically speaking, to prominent philosophers of the 17th and 18th centuries. "Human rights", then more often referred to as "individual rights" or "natural rights" were those that individuals would be considered to have by virtue of their existence as human beings, e.g. the basic rights to life, liberty, privacy, the basic necessities of food and clothing. The concept further developed from 19th century onwards and has since been broadened to include the right to own property, the right to work, freedom of speech, freedom of worship, freedom from slavery, freedom from torture and inhuman punishment, and, in more recent times, to the right to political participation and the rights to equal opportunities, education, medical care and a standard of living conducive to the health and well-being of an individual and his family.

5. It is believed that the term itself came into common use in the wake of World War II when various appalling atrocities committed against humanity were found to have taken place during the years of conflict. The most significant single event in the development of the modern "human rights" concept is, needless to say, an unanimous resolution adopted by the General Assembly of the UN in December 1948 - the Universal Declaration of Human Rights.

6. The Declaration, sometimes described as the International Bill of Rights, consists of a total of 30 articles aimed at promoting and encouraging respect for human rights and other related fundamental freedoms. It sets out the general principles on such rights and freedoms "as a common standard of achievement for all people and nations." Amongst the rights and freedoms cited in the document are, inter alia, the rights to -

7. A copy of this UN "Human Rights" historic document is produced at Annex B. It is of interest to note, however, that this UN resolution, despite its importance and significance, did not impose at the time of its birth, any obligations, in terms of international law, on the part of the UN member states to put those principles into practice. The UN Commission on Human Rights (UNCHR) was therefore subsequently established with the aim to seek the incorporation of the said main principles into various international treaties and to see to their implementation by the signatory/participating states. It was in line with such a spirit that in 1966, two international "human rights" treaties, the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR), were adopted by the UN. These two Covenants, setting out, in more concrete terms, the basic "human rights" and fundamental freedoms cited in the 1948 Declaration, seek to impose an obligation on all participating states to implement those rights by appropriate means.

8. After a series of negotiations, these two Covenants came into force in 1976. In the same year the government of the United Kingdom (UK) ratified these two international agreements in respect of the UK and its dependent territories, then including Hong Kong.

9. In 1984 the government of the People's Republic of China and the UK government agreed that the provisions of the two Covenants should remain in force in Hong Kong after 1997. The Sino-British Joint Declaration states that "the provisions of the ICCPR and the ICESCR as applied in Hong Kong shall remain in force". This provision is reflected in Article 39 of the Basic Law subsequently promulgated by the National People's Congress for the HKSAR, which stipulates,

"The provisions of the ICCPR and the ICESCR, and the International Labour Conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the HKSAR.

The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article."

10. There is a total of 53 articles, divided into six parts, in this agreement which sets out the basic civil and political rights of individuals and nations. Amongst the rights of nations are the right to self-determination and the right to own, trade, and dispose of their property freely, and not to be deprived of their means of subsistence. Cited amongst the rights of individuals include the rights to -

12. This Covenant also permits the governments of the participating states to temporarily suspend some of the above rights but only in civil emergencies. Of interest to note is that Articles 28 to 45 of this document deal with the establishment of the United Nations Human Rights Committee (UNHRC) and set out the conditions under which it should operate, including, where appropriate, the rules and procedures governing the submission of "human rights" reports to it by participating states. A copy of the ICCPR is produced at Annex C for reference.

13. This Covenant contains a total of 31 articles divided into five parts. It seeks to set out the basic economic, social, and cultural rights of individual and nations, including notably the rights to -

14. In addition, this international agreement forbids any form of exploitation of children, and requires all nations to co-operate to put an end to hunger. Each nation which has ratified this covenant is required to submit periodical reports on its progress made in providing for or achieving the observance of these rights to the Secretary-General of the UN, who shall send copies of such reports to the Economic and Social Council, which in turn may, if considered appropriate, send copies of such reports to the UNCHR for study and recommendation. The full text of this covenant is reproduced at Annex D.

15. Apart from the above two Covenants, a host of various other "human rights" treaties have also come into being at different times. The majority of such treaties invariably seek to set out, in more specific terms, the conditions under which the rights of individuals of a specified group of individuals requiring protection are guaranteed by the signatory states. Most of these treaties, for obvious reasons, have been entered into by UN member states since the 1948 Declaration but surprisingly a few have been in force since the turn of the century.

16. Those other treaties which have been extended to Hong Kong by the UK prior to the return of its sovereignty to China include the following 12 -

17. Further details regarding how the rights conferred by some of the more prominent and important "human rights" treaties as seen in the present-day context are protected/observed in Hong Kong shall be discussed in para. 18 to para. 29 below.

18. As stated above, Hong Kong abides by a number of international human right related conventions including most importantly the ICCPR and the ICESCR. Under the terms of the Sino-British Joint Declaration and Article 39 of the Basic Law, provisions of these two Covenants as applied to Hong Kong prior to 30 June 1997 have continued to remain in force in the HKSAR. This protection is further re-inforced by other provisions in Chapter III of the Basic Law which cover various "fundamental rights" of HKSAR residents. These rights include -

Article No.	A Gist of the Fundamental Rights Cited
25	Equality before the law.
26	Right to vote and right to stand for election.
27	Freedom of speech; freedom of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.
28	Freedom of person; freedom from arbitrary or unlawful arrest, detention or imprisonment; prohibition of torture, unlawful search, or arbitrary or unlawful deprivation of life.
29	Prohibition of arbitrary or unlawful search of or intrusion into one¡¦s home or other premises.
30	Freedom and privacy of communication.
31	Freedom of movement.
32	Freedom of conscience; freedom of religion.
33	Freedom of choice of occupation.
34	Freedom to engage in academic research, literary and artistic creation, and other cultural activities.
35	Right to confidential legal advice, access to the courts and to judicial remedies; right to institute legal proceedings against the executive authorities.
36	Right to social welfare and security.
37	Freedom of marriage and the right to raise a family.
38	Any other rights and freedoms safeguarded by the laws of the HKSAR.
39	Rights provided in the ICCPR, the ICESCR and international labour conventions.
40	Traditional rights of NT residents.

19. The full text of chapter III of the Basic Law is reproduced at Annex E. Hong Kong Bill of Rights

20. In 1991, following a period of public consultation and discussion, the Bill of Rights Ordinance (BORO) was enacted with the intention of incorporating the provisions of the ICCPR as well as the ICESCR as then applied to Hong Kong in its domestic laws. Such an intention was spelt out in Section 2(3) of the Ordinance upon its enactment. Owing to a resolution adopted by the Standing Committee of the National People's Congress of the People's Republic of china in February 1997, this particular part of the Ordinance, together with Sections 3 and 4 thereof, dealing respectively with the effect of the Ordinance on pre-existing legislation and the interpretation of subsequent legislation, have been rendered ineffective for the HKSAR as they are considered to be contrary to the Basic Law. Nevertheless, it is noteworthy that the various rights set out in the Ordinance, which shall be mentioned in more detail in para. 21 and para. 22 below, have not been affected. In any event, it must be stressed that Article 39 of the Basic Law has already provided that the provisions of the two Covenants shall continue to remain in force in the HKSAR.

21. Incorporated in the BORO is the Hong Kong Bill of Rights. This is where the individual rights are set out in 23 articles. They are almost identical to the rights contained in the ICCPR. However, some of such rights are restricted in their application in certain specified circumstances, e.g. when dealing with persons detained in penal institutions. A gist of the rights are as follows -

Article No.	Rights Cited
1	Entitlement to rights without distinction
2	Right to life
3	No torture or inhuman treatment and no experimentation without consent
4	No slavery or servitude
6	Rights of persons deprived of their liberty
7	No imprisonment for breach of contract
8	Liberty of movement
9	Restrictions on expulsion from Hong Kong
10	Equality before courts and right to fair and public hearing
11	Rights of persons charged with or convicted of criminal offences
12	No retrospective criminal offences or penalties
13	Right to recognition as person before law
14	Protection of privacy, family, home, correspondence, honour and reputation
15	Freedom of thought, conscience and religion
16	Freedom of expression and opinion
17	Right of peaceful assembly
18	Freedom of association
19	Rights in respect of marriage and family
20	Rights of children
21	Right to participate in public life
22	Equality before and equal protection of law
23	Rights of minorities

22. The full text of the BORO, Cap. 383, Laws of Hong Kong, is reproduced at Annex F.

23. Each place must design its own system of protecting and defending the rights of its citizens according to its own laws, traditions, requirements, cultural background and realities. In Hong Kong, the executive branch of the Government as a whole, particularly the various Bureaux at the Government Headquarters, have their definite roles to play in the formulation of specific policies affecting the rights of their residents and dictating how these rights are to be protected. Needless to say, the courts, too, have been playing a very vital role in administering justice and in protecting rights of individuals, in all shape and forms, as provided in the law. In this connection, access to free or subsidized legal representation for those in need has also been made possible by the provision of legal aid through the Legal Aid Department or by means of the Legal Advice Scheme jointly administered by the Law Society and the Bar Association.

24. Unlike some overseas jurisdictions where a special office, often referred to as Human Rights Commission, has been established to promote and protect the human rights of it citizens, Hong Kong has so far developed its own system to carry out such tasks through a combination of legislative and administrative measures in terms of setting up various monitoring, enforcement, investigation and educational agencies. The Ombudsman Ordinance (Chapter 397) (previously known as the Commissioner for Administrative Complaints (COMAC) Ordinance) was enacted in 1988 to empower The Ombudsman (previously known as COMAC) to investigate and report on grievances from members of the public as a result of administrative actions of not only the executive branch of the Government but also of other designated public bodies having a direct and significant impact on the daily livelihood of the public. To facilitate his work, The Ombudsman is given very wide powers of investigations under the Ordinance. These include the powers to summon witnesses and require them to produce information under oath. He may also enter, inspect and carry out an investigation in any premises managed by an organisation under his jurisdiction. He is allowed to publish anonymised investigation reports. The Ordinance was amended in June 1994 following a review of the system and was further amended in December in 1996 to give The Ombudsman a wider jurisdiction and more discretionary powers in the discharge of his duties. The number of public bodies drawn under The Ombudsman's jurisdiction now stands at 14 but the intention is gradually to extend it to other major statutory bodies.

25. Most of these legislative amendments were introduced to improve the system in line with public expectation. Access - formerly by a referral system - has been made direct, enabling the public to take their grievances direct to The Ombudsman who is also empowered to initiate an investigation on his own volition, i.e. a direct investigation if he believes any person may have suffered injustice inconsequence of maladministration. Upon the conclusion of an investigation, The Ombudsman is required to report the result of his investigation to the head of the organisation affected. He may also include in his report his opinions and reasons, together with a statement of any remedy and recommendation that he considers necessary. If the Ombudsman is of the opinion that a serious irregularity or injustice has taken place, he may make a report, stating his reasons and opinions, to the Chief Executive. Such a report is bound by law to be laid before the legislature. In addition, he is empowered to report directly to the CE if he finds that any of his recommendations has not been adequately acted upon.

26. Following the introduction of the BORO, a number of other measures, both legislative as well as administrative, have been introduced by the Government to further promote the concept of "human rights" in the community and to prevent such rights from bring violated. These measures include notably -

(a) the extension of the CRC (para. 16(k) above) and of the CEDAW (para. 16(l) above) to Hong Kong;
(b) the introduction of new human rights related legislation such as the Sex Discrimination Ordinance, the Disability Discrimination Ordinance, the Family Status Discrimination Ordinance and the Personal Data (Privacy) Ordinance and the setting up of special enforcement agencies, e.g. the Equal Opportunities Commission (EOC) and the Office of the Privacy Commissioner for Personal Data (PCO);
(c) the implementation of the Code on Access to Information which applies to all government and agencies with the power of investigating complaints for non-compliance given to The Ombudsman;
(d) the establishment of the Committee on the Promotion of Civic Education and of a sub-committee set up thereunder now retitled as the Human Rights Education Working Group; and
(e) the strengthening and expansion of the role and jurisdiction of The Ombudsman, as mentioned in para. 24 and para. 25 above, in promoting administrative fairness and improving public administration.

27. The Government has been publishing special notes periodically giving an account of how human rights are protected in Hong Kong. Appended at Annex G is a copy of such a note issued in July 1997.

28. Whilst on this subject, it is felt necessary to mention that in the Hong Kong context, efforts to promote "human rights" are also being made by various civic groups which are sometimes collectively referred to as Non-Government organisations.

29. As stated above (para. 12 and para. 14 above), some international human rights treaties entail an obligation on the part of each member state to report on the implementation of the provisions in such treaties for its people to the appropriate monitoring bodies, such as the UNCHR or some other UN bodies. For instance, both the ICCPR and the ICESCR follow a five-year reporting cycle. In the past, those reports on Hong Kong were submitted by the UK Government. Subsequent to the reunification, future reports are, where necessary, naturally expected to be submitted by China. In this connection, China has already indicated for sometime its intention of signing by the end of the year the ICESCR and has recently revealed that it will submit a relevant report on Hong Kong to the relevant UN monitoring body.

30. The subject of the role that the ombudsman institution can or is allowed or expected to play in the furtherance of human rights has become in recent years an area attracting a definite degree of public attention in a growing number of countries, particularly the Nordic countries and those in South America. In addition, it must be stressed that human rights issues are very frequently discussed at international meetings attended by the ombudsmen from different jurisdictions all over the world. Indeed it is known that the International Ombudsman Institute (IOI) has been studying the possibility of having a working relationship with the UN in the field of human rights and a special committee under the IOI has been set up since 1994 for the purpose. In this connection, it is understood that issues relating to the role being played by an ombudsman in those areas of human rights protection relevant to his role were raised by Mr Kevin Murphy, the Ombudsman of Ireland who is currently sitting on the IOI's Board of Directors, with Mrs Mary Robinson, the President of Ireland, upon her recent appointment as the UN High Commissioner for Human Rights.

31. Mr Arne Fliflet, the Parliamentary Ombudsman of Norway who visited Hong Kong in this October, has very recently published two papers, entitled "Overseeing and Protecting Human Rights in Norway" and "The Parliamentary Ombudsman and Human Rights in Norway" respectively. In the papers, he sets out, inter alia, to proclaim, both in principle and in practice, that his office is a competent body to contribute towards, through the discharge of its functions, the implementation of the various international human obligations by which Norway is bound. The reasons given in support of his opinion include -

(a) The purpose of his office, Mr Fliflet argues, is to seek to ensure that injustice is not committed against individuals by the public authorities. Thus, the spirit of the ombudsman institution can be deemed to be basically the same as that enshrined in various international agreements for the protection of the fundamental rights of an individual against "injustice and arbitrariness by the authorities". He therefore agrees to accepting the view the institution of the ombudsman and human rights conventions are based on the same philosophical idea with each sharing a common goal of protecting citizens against unjust governmental actions.

Proactive Function (b) Whilst acknowledging that the legal profession as a whole and the judicial system are each playing an important role in protecting human rights, Mr Fliflet describes their activities and functions as primary backward instead of forward looking. This is probably true since the courts in general (with perhaps the exception of the Coroner's Court or other commissions of enquiries appointed for specific purposes in the Hong Kong context), unlike the office of an ombudsman, are more inclined to finding faults/apportioning blame than to making recommendations for future improvements. The courts cannot act unless cases are put before them for adjudication. In contrast, an ombudsman can exercise more initiatives by conducting own-motion, i.e. direct, investigations.

(c) Mr Fliflet further argues that the provisions of the (Norwegian) Parliamentary Ombudsman Act has provided a framework within which he sees it as his duty to draw the attention of the Parliament and his government to any discrepancies that he may discover between human rights conventions and the laws of his country. In pursuit of this duty, he will, in the course of investigating individual complaints, seek to verify that the "public administration has taken due account of any international human rights obligations by which Norway is bound". More specifically, he will require the authorities to re-consider their decisions which have taken, in his opinion, without proper references made to the relevant provisions in such human right conventions. In any event, he points out that it shall not be in keeping with good administrative practices if the public authorities fails to comply with relevant international human rights obligations.

(d) In general, the provisions of any international conventions or treaties, including those concerning human rights, can only be enforced by the courts of a participating state if such have been incorporated in the local laws of that state. This process is normally achieved by, in most jurisdictions, the passage of an act in the legislature, or by, in some, the promulgation of a specific decree by other competent authorities. In this connection, Mr Fliflet stresses that he, as the Ombudsman for his country, is not empowered to render legally binding decisions, yet primarily because of that he is allowed to enjoy more flexibility in making his decisions and recommendations. He can, upon the conclusion of an investigation into a complaint, criticise the administration for any actions taken in accordance with the law but clearly contrary to good administrative practices. For the same reason, he can exercise his independent judgement to criticise the administration for violating the provisions of any international human rights conventions which have not been formally incorporated into the local legislation. Mr Fliflet, however, registers with regret in regard to a recent decision handed down by the Norwegian Supreme Court which has stated that international obligations must "give way for Norwegian statutory provisions". Perhaps the situation can somehow be remedied by the flexibility he has in the exercise of his duties as stated above. Indeed it is stated in a report compiled by a special committee set up to deal with matters concerning the incorporation of international human rights obligations into Norwegian national law that the Ombudsman is "so independent, and able to amass such specialist knowledge and practical experience that it is able to prevent and react against possible violations of the conventions, regardless of whether they are incorporated or not".

(e) Mr Fliflet further points out human rights issues have become the subject of extensive discussions at international meetings and workshops attended by ombudsmen from different jurisdictions. Obviously such a subject has been increasingly accepted as an area of common concern to most ombudsmen over which they want to put forward their ideas and exchange their experience. In his opinion, human rights issues have clearly constituted an important common "ideological platform" for the ombudsmen from different jurisdictions where they can seek to strengthen their sense of fellowship and solidarity. In other words, through participating in the activities organized by the international ombudsmen community, an ombudsman can place himself in such a position where he can gain a better insight into the focus of current human rights matters.

(f) A variety of other bodies/agencies have been set up in Norway for protecting the rights of the consumers and children, etc. or to promote equality. In Mr Fliflet's opinion, these organisations only aim to perform specific tasks or to enforce specific laws e.g. relating to children's welfare or equality between sexes. By contrast, the scope of the ombudsman's activities tends to be mush larger and wider.

32. In conclusion, Mr Fliflet states, amongst other things, that there is no need for Norway to establish a Special Commissioner for Human Rights as the Ombudsman will be able to look into all aspects of any given case on human issues. He further believes that there is a general desire in Norway for the Parliamentary Ombudsman to assume a more active role in safeguarding human rights. To support his argument, he points out that the Council of Ministers of the Council of Europe had adopted as early as in 1985 a recommendation that the institution for ombudsman is well suited for the task of promoting human rights.

33. In Finland, the Parliamentary Ombudsman there has been given a special statutory duty to oversee the implementation of over 40 international agreements on human rights. In regard to the situation elsewhere, it is noted that in some other countries, particularly those in South America and in Eastern Europe, the task of protecting human rights has indeed been given to their respective ombudsman institutions.

34. In a nutshell, all the circumstances contributing to making the ombudsman institution suitable for taking up an oversight role over human rights matters as described in Mr Fliflet's papers (para. 31 above) are, on the whole, equally applicable mutatis mutandis to the Hong Kong situation and therefore, for the purposes of this paper, there may not be a need to look further into such circumstances. Nevertheless, in addition to what has so far been said about the work of The Ombudsman in this paper (para. 24 and para. 25 above), it is felt pertinent as well as necessary to further highlight the following areas showing yet again the very link between the work of The Ombudsman and the protection and promotion of human rights for the people of Hong Kong and the contributions made by him in such an area -

(a) The statutory duties of The Ombudsman is primarily to investigate complaints of maladministration on the part of policy bureaux, other government departments (excluding the Hong Kong Police Force (HKPF) and the Independent Commission Against Corruption (ICAC)) and a total of 14 statutory bodies which may lead to various forms of injustice and to conduct direct investigations for the same reason. The underlying purpose is to promote fairness and efficiency in the public administration with the intention of making Hong Kong not only a better place for one to raise his family but also a fair and harmonious community where the legitimate rights and interests of individuals citizens are not only protected but also respected. In the course of discharging his duties, The Ombudsman seeks to identify unreasonable, arbitrary, oppressive administrative procedures causing inequality and discrimination and to make recommendations to amend or abolish them. Thus, much of The Ombudsman's work does to a definite extent resemble and reflect the aims of the provisions of the human covenants applicable to Hong Kong and other similar provisions in the Basic Law.

(b) The Ombudsman is also empowered to investigate complaints for non-compliance with any provision of the Code on Access to Information by the government departments, including the HKPF and the ICAC. The Code is only an administrative code but until formal freedom of information legislation is introduced, it shall continue to serve to ensure and increase the transparency of the Government which prides itself on being characterized by openness, fairness and impartiality and an important means to make the government more accountable to the public. It is therefore a useful tool available to the public in guarding against arbitrary or unfair governmental actions jeopardising the legitimate rights of its people.

(c) There are many vivid examples indicative of the constant and regular involvement of The Ombudsman in the protection of important human rights cited in various international covenants, the Basic Law or other related local enactments like the BORO. For instance, many of the complaints received by The Ombudsman deals with matters pertaining to the provision of social, medical, educational services and of subsidised housing accommodation by the authorities coming under The Ombudsman's jurisdiction. All these or other related matters are, in one way or another, covered by provisions in the ICESCR. On the other hand, in processing complaints lodged against the Correctional Services Department over the treatment of prison inmates, those against the Legal Aid Department for refusal of legal aid applications, or those against the Department of Justice or the Judiciary Administrator for any improper administrative acts, The Ombudsman is de facto dealing with matters falling within the purview of the Basic law, ICCPR and BORO. These, it must be stressed, are just a few examples. In regard to direct investigations, the situation is essentially the same. For instance, a good example is the one conducted into the provision of accommodation for Foreign Domestic Helpers by their employers.

35. In comparison with the scope of the human rights functions exercised by some of his counterparts operating in other jurisdictions, it can be said that The Ombudsman is hampered by a rather prominent obstacle in that he is not empowered by The Ombudsman Ordinance to investigate complaints of maladministration (as opposed to information complaints) made against the HKPF and ICAC, and for that matter, to have any oversight authority over the administrative actions of the EOC and the PCO (para. 26(b) above). Hence his human rights role vis-a-vis the relevant provisions of the ICCPR, ICESCR, the Basic Law and BORO relating to liberty of persons, freedom from arbitrary and unlawful arrest and detention, equality as well as protection of privacy, etc., is therefore considerably limited. In this connection, it should be noted that the current police complaints handling system of having such complaints investigated by the Complaints Against Police Office (CAPO), an internal unit of the HKPF, has for a long time been a subject of repeated public debate and is likely to remain so in the foreseeable future. Although the investigation conducted by the CAPO is monitored and reviewed by the Independent Police Complaints Committee (IPCC), an oversight body consisting of non-official members appointed by the SAR's Chief Executive, it is likely that calls from the community for further reforms in the system to achieve an enhanced level of transparency, accountability and credibility shall continue to be heard. The Ombudsman (or his representative) is an ex-officio member of the IPCC. Nevertheless, in order to avoid any possible conflict of interest and not to compromise the image of the independence of his office, The Ombudsman has recently decided to withdraw his membership from the IPCC and has informed the Government of his decision. A similar decision has likewise been taken in respect of his ex-officio membership in the ICAC Complaints Committee.

36. In addition, it is worthy of note that The Ombudsman is also facing another limitation in regard to his functions over election-connected complaints. At the moment, he is only empowered to investigate complaints made against the Registration and Electoral Office (REO) but is precluded from looking into the actions of the Electoral Affairs Commission (EAC).

37. There is no doubt that various measures have been introduced in Hong Kong for the implementation and realisation of various provisions of international human rights agreements by which it is bound. The Ombudsman, under the existing arrangements as being one of the agencies given the responsibilities on some areas of human rights, is playing both a positive and active role, through the discharge of his statutory investigation functions and his efforts made in promoting administrative fairness, in contributing to the implementation of many of such rights in Hong Kong. His work and accomplishments in such an area may not, however, have been given an appropriate degree of recognition due perhaps to the intrinsic sensitivity, or a lack of proper understanding in the matter.

38. For a variety of reasons as stated above (paras. 24, 25 and 30 to 34), it is only logical to conclude that The Ombudsman is both competent and suitable to play such a role and to discharge oversight functions over the implementation of some human rights obligations applicable to Hong Kong. Furthermore, The Ombudsman is, in many aspects, already carrying out the duties of what may be regarded as those belonging to the Human Rights Commissioners in other jurisdictions. He enjoys more flexibility and, as such, can more readily appreciate human rights issues in a wider perspective and be able to deal with them on a more flexible manner than the courts or other human rights related administrative and/or enforcement agencies such as the EOC or PCO.

39. If a larger and wider role for The Ombudsman in the human rights area is preferred and intended, the obstacles as described in para. 35 and para. 36 shall need to be appropriately tackled and dealt with.

40. Next year, i.e. 1998 will mark the 50th anniversary of the promulgation of the Universal Declaration of Human Rights by the UN. The event is bound to attract world-wide attention. In preparation for a possible increase in Hong Kong of public interest in human rights issues, it is deemed appropriate and necessary for the following actions be taken by this Office with the intention of fostering a proper understanding acquired in the right perspective of the work of The Ombudsman in the sphere of human rights -

(a) To arrange for increased publicity on the human rights functions of The Ombudsman.
(b) To monitor reactions and opinions from the community on the need or otherwise for an expanded human rights role for The Ombudsman and to take action accordingly.
(c) To promote the level of awareness of the human rights functions of this Office amongst its staff and to provide them with appropriate training.
(d) To encourage, where appropriate, making references to relevant human rights provisions in the course of conducting investigations into complaints received.
(e) To procure and keep relevant human rights materials and publications for internal reference as well as for interested visitors to the Resource Centre of this Office.

41. The Ombudsman is playing an important role as an integral part of the good governance for Hong Kong. Whether he can continue to carry out successfully his human rights monitoring and promoting functions in his current or an expanded role shall ultimately depend very much on his being given the necessary support from the public as well as from the Administration in terms of providing the necessary resources and policy backing. Without such support and understanding, the task will become exceedingly difficult, let alone being accomplished.

42. Upon the completion of the paper, a copy was sent to The Chief Executive the Honourable TUNG Chee Hwa of the Hong Kong Special Administrative Region for his information.

43. A copy of the paper was also sent to the Director of Administration for her information and comments which were received in due course. Such comments revolved mainly around some factual observations made in paras. 35 and 36 by The Ombudsman in regard to the limitations of his power to investigate into complaints against the Police, the ICAC, the administrative actions of the EOC and PCO as well as those lodged against the EAC in which the Administration's views are indicated as follows-

(a) There is no justification to extend the Ombudsman's jurisdiction to cover the Police and the ICAC as such complaints are already adequately dealt with by the IPCC and ICAC Complaints Committee.
(b) There also appears to be no real need in the present context for The Ombudsman to oversee the administrative actions of the EOC and PCO as both are independent bodies and in regard to the PCO, the Personal Data (Privacy) Ordinance already provides for the Administrative Appeal Board to consider appeals against the decisions of the Privacy Commissioner. In any event, the Administration is prepared to look at the matter further in the future.
(c) In regard to complaints against the EAC, it is neither necessary nor appropriate for that body to be included under The Ombudsman's jurisdiction since it is already subject to oversight by the legislature and the courts.

(a) His comments on the handling of complaints against the Police or the ICAC are no more than factual observations on the limitation of his power for the protection of human rights. Such were made because some members of the public were still under a misconception that complaints against the Police were within his jurisdiction. The Ombudsman, it must be stressed, has never suggested that he should take over the investigation of such complaints although he is still firmly of the view that his jurisdiction should be expanded to cover complaints against civilian officers in the Police on non-constabulary functions.
(b) By the same token as for (a) above, the comments on the limitation of his power over complaints against EOC and PCO are equally no more than factual observations. The Ombudsman is pleased to learn that the Administration is prepared to consider in due course The Ombudsman overseeing the administrative actions of these two organisations.
(c) In regard to the issue pertaining to the EAC, The Ombudsman is still subscribed to the view that complaints against administrative actions of the Commission should come under his purview and has so informed the Administration.