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) |
