The Office of Ombudsman is a Hong Kong statutory authority, established on 1 March 1989, charged with ensuring that Hong Kong is served by a fair and efficient public administration that is committed to accountability, openness and quality of services. It operates mainly by investigating and giving recommendations to government departments.Ombudsman, HK. (2016). The 28th Annual Report of The Ombudsman. Office of the Ombudsman Hong Kong.
Functions The major purpose of the Ombudsman is to investigate complaints against major public organisations and government departments and agencies in Hong Kong. It also oversees complaints against the executive branch in relation to non-compliance with the Code on Access to Information. Notably, the Ombudsman is empowered to initiate direct investigations into issues of potentially wide public interest and concern without the requirement of having a complainant. For instance, it conducts four to eight active investigations each year, such as regarding the policy over special education services for students with emotional needs, following an enquiry by a Legislative Councillor.Lau, 2016 Another example would be looking into government policy on granting recreational lease and then making recommendations.Li, 2012
The Ombudsman adopts a variety of methods to handle complaints. The basic form is inquiry, referring to the practice that requires the organisation to offer a response for examination and give suggestions thereafter. When serious or further problems are observed, a full investigation follows. It applies when the complaint involves issues of principle, systemic flaws or serious maladministration.Lai, 2009 A full investigation will be conducted with prior notice to the head of the department concerned. In cases of minor maladministration, with the consent of the complainant and the organisation concerned, investigators trained in mediation will serve as impartial mediators to settle the conflict.Lai, 2012Ombudsman, HK, 2013
It is worth noting that the Ombudsman is statutorily prevented from investigating: prosecutorial policy, legal proceedings, imposition (or variation) of condition of land grant, personnel matters and commercial transactions.Ombudsman Ordinance, Schedule 2 Also, it will not take a complaint made more than two years after the complainant first knew of the situation.Ombudsman Ordinance (s10(1) The Ombudsman will not take complaints if the complainant is not the person aggrieved or if the complaint has no connection with Hong Kong. It also retains discretion to reject complaints that are trivial, frivolous or not made in good faith.Ombudsman Ordinance (s10(2)
History At its establishment in 1989, the office was known as “The Commissioner for Administrative Complaints”, under the Commissioner for Administrative Complaints Ordinance. The Ombudsman was not then a corporate unit and could handle only complaints that were referred from a Legislative Councillor.Legislative Council Secretariat, 1998
Before its establishment, complaints channels in Hong Kong were uncoordinated, being made through, for example, Legislative Councillors, members of District Boards or the Urban Council. However, such persons did not have the power to demand information or explanation.CWH Lo and R Wickins, “Towards an Accountable and Quality Public Administration in Hong Kong: Redressing Administration Grievances through the Ombudsman” (2002) 25 International Journal of Public Administration, pp 737-772. A petition to the British government or a judicial review was available but these channels failed to limit the discretion of the Governor.Crown Rights (Re-entry and Vesting Remedies) Ordinance The more institutional way was to complain through the Complaints Office under the Executive Council. In corruption-related matters, someone could express their grievance to the Independent Commission Against Corruption (ICAC), however, there was no distinct and independent office to handle matters of maladministration.
The call for an ombudsman was first made in a speech in the Legislative Council in February 1965, and such a proposal was supported by the councillors who also urged the establishment of an ombudsman in the wake of the 1967 riots.Official Report of Proceedings, 1965 In 1986, the Government published “Redress of Grievances”, which revealed the majority view then that an independent and authorised organisation to handle complaints should be created.Hong Kong Government Printer, 1986 Scholars state that the establishment of an ombudsman was argued to be motivated by the Hong Kong Public Administration Reform that emphasised “higher efficiency and better services”, and growing political awareness and democratisation initiated from the mid-80s.
When it was established, the Office consisted of 27 members, led by a Directorate consisting of five members.Garcia, Arthur. The First Annual Report of the Commissioner for Administrative Complaints Hong Kong; The Government Printer: Hong Kong, June 1989, 22 There were separate divisions for development, assessment and investigation. The new set-up also included independent panels of professional advisors. Since most officials in the body would return to the administrative department upon completion of secondment, there was concern regarding a lack of commitment on their part as well as problems of continuity and limited vision in terms of the long-term development of the Ombudsman office.Tai, Alice. The Eleventh Annual Report of the Commissioner for Administrative Complaints Hong Kong; The Government Printer: Hong Kong, June 1999, 27.
Development
Situation in 1988 There were several limitations in the 1988 Commissioner for Administrative Complaints Bill. Firstly, the Ordinance required complaints to be first made to Legislative Councillors instead of the Commissioners, adding an obstructive layer of bureaucracy. Besides, the powers of the Commissioners were limited in application to only 52 governmental departments. They were not allowed to investigate acts of the police or ICAC, affairs related to security, international relations, legal actions or contracts, or even public enterprises and the administration of civil servants.Commissioner for Administrative Complaints Bill 1988 (Cap. 397) This created a failure to meet the legislative aim, which was to investigate minor mistakes by civil servants.Hong Kong Legislative Council (1988). Official Report of Proceedings, Hong Kong As well as such a failure of reach, the Commissioner also faced significant constraints in the conduct of investigations. The targeted administrative departments could hinder an investigation into maladministration involving the public interest but without specific victims by refusing to disclose documents, claiming insufficient legitimate and persuasive explanation by the Commissioner.
In the decade following, the Ombudsman underwent several reforms to address these various deficiencies until 2001, through the amendment of legislation. The period post-2001 saw gradual development in both investigative operations and publicity.
1994 reform In response to changes proposed by Governor 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, gazetted in 1994, incorporated several improvements in the institution of the Ombudsman.Bills Committees on Commissioner for Administrative Complaints (Amendment) Bill 1996
First, its reach was enhanced to include the potential to investigate a further six statutory bodies, including the Urban Council, Regional Council and Housing Authority. Second, the Ombudsman was given the power to publish anonymous investigation reports on issues of public interest, at any time of the year. Previously, investigation reports were permitted only within the annual report. The changes brought the authority and power enjoyed by the Ombudsman to more or less that of the present day. Yet it is still criticised in terms of its confidentiality element in that it limits the capacity of the 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 was the creation of a direct complaints channel and the abolition of the referral system.So, Andrew. The Eighth Annual Report of the Commissioner for Administrative Complaints Hong Kong; The Government Printer: Hong Kong, June 1996, 6. Citizens could now file complaints directly to the Ombudsman, who therefore handled complaints from receipt to conclusion, a more independent and autonomous process. However, the expansion of power also magnified the undersupply of resources of the Ombudsman in the pre-transition period. The number of complaints rose dramatically, increasing 17-fold compared with 1989 but met with personnel levels that had only tripled. Just 90 staff had to deal with 62 departments of approximately 180,000 public servants. The Ombudsman responded to the increased load by eliminating the mandatory requirement to prepare a report to the Head of the department. Alternatively, with the consent of the complainant, an investigation could be remitted to the relevant department, removing the mandatory requirement for investigation.
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 system to handle complaints of maladministration, an 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 jurisdiction of the Ombudsman was further expanded to cover the Hong Kong Police Force, Hong Kong Auxiliary Police Force, ICAC, Independent Police Complaints Council and Public Service Commission (Ombudsman Ordinance (Cap. 397)). The Ombudsman was empowered to investigate these organisations regarding the Code on Access to Information,Chau, P.K. (2006). The Jurisdiction of Ombudsman Systems in Selected Places. Research and Library Services Division, Legislative Council Secretariat. However, there remained certain limitations on its actions relating to the ICAC and the 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 organisations, or jointly by more than one of these organisations or by any one or more of them together with any other organisations or persons.
Furthermore, the Ombudsman was no longer required by its rules to deliver investigation reports in verified complaint cases (Ombudsman Ordinance (Cap 397 s 16(1)). Discretionary power was granted to the Ombudsman regarding its investigations.
In terms of responsibility, the Obligation of Confidentiality expressly requires the Ombudsman and its officers to not disclose any content of their investigations or other information relating to a complaint. An expanded interpretation of confidentiality regulations was set out in 1996, stating that only when sufficient to lead to enforcement of the investigation under the Ordinance could the Ombudsman and its officers disclose its information.Ombudsman Ordinance (Cap. 397) s 13(3)(a)