Bills Committee on the Commissioner for
Administrative Complaints (Amendment) Bill 1996
(1) Whether the proposed item 10 of Schedule 2 could reduce COMACs existing power of investigation over other law enforcement departments such as Agriculture and Fisheries Department and Inland Revenue Department, etc.
- The answer is yes. The proposed item will reduce COMACs existing power of investigation over all other law enforcement departments vested with law enforcement responsibilities. Action taken in relation to prevention, detection and investigation of any crime or offence is essentially administrative acts and alleged maladministration therefore is investigable by COMAC. What is currently not investigable is if such acts are carried out by the Police and ICAC as they are outside COMACs jurisdiction.
- On the need for the proposed item 10, namely "Any action taken in relation to the prevention, detection or investigation of any crime or offence" in Schedule 2, this Office has reflected our view to the Administration that there was no need, from a legal and practical point of view for the proposed item. This is because the inclusion of the Police and the ICAC in the Code on Access to Information can be achieved by a new Part II in Schedule 1. This Office sees the inclusion of the Police and ICAC in the Code is a separate issue altogether from the de facto stance of the Administration of not putting them under COMACs jurisdiction for the investigation of administrative complaints.
- In view of (a) and (b), item 10 would need to be qualified by adding "undertaken by the Police and ICAC" to make it absolutely clear. However, since currently, COMAC does not investigate into action of the Police and ICAC, including the prevention, detection and investigation of any crime or offence the inclusion of item 10 is superfluous.
(2) Whether the proposed discretion for COMAC to report maladministration to the head of the organization could affect COMACs report to the complainant
- Under the existing provisions under Section 16(1) of the COMAC Ordinance, it is mandatory for COMAC to report his opinion of any matters of maladministration after making an investigation and his reasons to the head of the organization concerned. The proposed amendment will make COMACs reporting requirements to the head of the organization discretionary. This Office considers the proposed legislative amendment necessary to enable COMAC to have greater flexibility in the deployment of his resources to cope with the enormous increase in caseload by 15 fold compared with the pre-direct access era. COMAC will exercise this discretion carefully and will apply this discretion to essentially simple and minor complaints as he thinks fit.
- At present, the COMAC Ordinance requires COMAC under Section 17 to inform the result of his investigation to the complainant including any report or recommendation made under Section 16 among others. Currently, this is always done as a final results report has to be produced under Section 16(1) to the organization. In future, COMAC will continue to inform complainant the result of his investigation. However, if COMAC, at his discretion, decides not to make a report to the organization concerned, complainant will likewise not be provided by any report. This Office considers for simple and minor complaints it will be more appropriate to inform complainant the result of COMACs investigation rather than compiling a full investigation report which requires the production in the form of draft results report and then final results report. The procedure has taken up a high proportion of this Office resources and in turn, lengthened the waiting time of other complaints to be processed. This Office considers a balance has to be struck to achieve speed and quality of investigation which are the hallmarks of ombudsmanship. Given "justice delayed is justice denied", this Office will continue to endeavour to enhance the complaint handling capacity thereby increasing the throughput of cases without sacrificing the quality of our work.
- As a matter of fact, this Office is also looking into the feasibility of offering mediation services next year as an alternative dispute resolution as opposed to formal investigation in respect of complaints which do not involve major procedural deficiency or systemic flaws. This is because very often complainants would wish to have their personal complaints addressed and resolved as soon as possible rather than going through the full investigation procedure.
(3) Need for the proposed change to the title from the Commissioner for Administrative Complaints to the Ombudsman
- The proposed change of COMACs title was initiated by this Office. Essentially, following the legislative amendments to the COMAC Ordinance in June 1994, COMACs powers and jurisdiction are now comparable to those of other classical ombudsmen overseas. Specifically, the legislative amendments have brought about the following changes -
- the public is allowed direct access to COMAC;
- COMACs jurisdictions extended to cover six major statutory bodies, Urban Council, Regional Council, Securities and Futures Commission, Housing Authority, Mass Transit Railway Corporation, Kowloon-Canton Railway Corporation;
- COMAC is allowed to publicise investigation reports; and
- COMAC is empowered to initiate investigation on his own volition.
- As COMACs overseas counterparts are mostly commonly known as Ombudsmen under their respective enabling statute/act/ordinance, it is important that the title of the COMACs office should be so amended to better reflect his work. The English office title of Ombudsman is widely adopted world-wide among English speaking countries and is well known among the English speaking international community. Indeed the local English electronic and printed media has already chosen to call COMAC "Ombudsman". For those not using the title of ombudsman, most have included the title of ombudsman in their correspondence and publications. The change of the English title is expected to greatly facilitate contacts between COMAC and his overseas counterparts which is important to allow the exchanges of experience and information essential to keep COMACs office abreast of international development of ombudsman institutions and ombudsmanship.
- It is relevant to note that according to the directory published by the International Ombudsman Institute (a non-profit making international organization established for promoting the concept of ombudsmanship) in January 1996, of the 80 countries/territories listed in the directory, a total of 43 countries call their head of the organization Ombudsman, while 37 countries use various names depending on their mode of appointment and focuses of their work. In the latter case English is generally not the official language. Of interest is the fact that in the United Kingdom, the ombudsman is still called Parliamentary Commissioner for Administration and Health Service Commissioner. However, the U.K. Commissioner also identifies himself as "ombudsman" in his publications.
Office of the Commissioner for Administrative Complaints
Last Updated on 15 December 1998