Paper for the Bills Committee on
Commissioner for Administrative Complaints (Amendment) Bill 1996
COMMISSIONER FOR ADMINISTRATIVE COMPLAINTS (AMENDMENT) BILL 1996
This paper aims to provide a written response to the six questions raised by Members at the first meeting of the Bills Committee held on 14 October 1996.
THE NOMENCLATURE - OMBUDSMAN
2. According to the International Ombudsman Institute Directory, 43 countries and territories adopted the title "Ombudsman" in naming the office which carries out the functions of or akin to those of an ombudsman. Thirty-seven other countries and territories call their ombudsman by other titles. Please refer to Annex A for details.
PROPOSED AMENDMENT TO SECTION 16(1)
3. The proposed amendment to Section 16(1) of the Commissioner for Administrative Complaints (COMAC) Ordinance will make the reporting requirements of COMAC under the section discretionary instead of mandatory. COMAC considers the proposed legislative amendment necessary to provide him with greater flexibility in the deployment of resources to cope with the enormous increase in caseload which has grown by 15 fold when compared with the average in the period when there was no direct access to his Office.
4. Section 17 of the COMAC Ordinance requires the Commissioner to inform the complainant of the result of his investigation, including inter alia any report or recommendation made under Section 16. If the proposed amendment comes into effect, COMAC will continue to inform the complainant of the result of his investigation. However, if COMAC, at his discretion, decides not to make a report to the organisation concerned, the complainant will likewise not be provided with any report.
5. COMAC considers that for simple and minor complaints, it will be more appropriate to inform the complainant of the result of his investigation than provide him with a full investigation report which requires first the production of a draft results report, then a final results report. The reporting requirements in the Ordinance has taken a large proportion of his resources and caused delays in the processing of complaints. COMAC considers that a balance has to be struck in order to achieve speed and quality of investigation which are the hallmark of ombudsmanship. Given "justice delayed is justice denied", very often complainants do wish to have their complaints addressed and resolved as soon as possible rather than going through the full investigation procedure.
INCLUSION OF THE SECRETARIATS OF THE INDEPENDENT POLICE COMPLAINTS COUNCIL AND THE PUBLIC SERVICE COMMISSION
6. The Secretariats of the Independent Police Complaints Council (IPCC) and the Public Service Commission (PSC) should not be brought within COMACs general jurisdiction. The two Secretariats report to their respective Council or Commission which are independent bodies outside COMACs jurisdiction
7. If COMAC were to investigate general complaints against the IPCC Secretariat, he would in effect be investigating and reviewing the decisions of the IPCC which are outside his jurisdiction. The IPCC Secretariat reports to the IPCC on all operational matters. Complaints against the IPCC Secretariat, if any, will be brought to the attention of IPCC. As COMAC or his representative is a member of IPCC, there is no need to include the IPCC Secretariat in Part I of Schedule 1 in the Bill. Furthermore, the IPCC Secretariat may, under express or delegated authority of the IPCC, question the modus operandi of crime prevention, detection or investigations of individual cases. Placing the IPCC Secretariat under COMACs general jurisdiction may create an anomaly vis-à-vis the proposed item 10 of Schedule 2.
8. The PSC is an independent statutory body whose jurisdiction is clearly defined under the PSC Ordinance, which stipulates its legal powers and how its business should be conducted. The PSC deals with personnel management matters which are outside COMACs jurisdiction as stipulated under item 5 of Schedule 2 of the COMAC Ordinance. The Commissions independence is specifically safeguarded to ensure that it could perform its functions free from external influence or intervention. The duties of the PSC Secretariat are to provide secretarial and executive support to the Commission from which they take instructions. It is therefore inappropriate for the PSC Secretariat to be subject to the general purview of COMAC which is another statutory body with completely different statutory functions. Perhaps what is more significant is that the PSC Secretariat deals with Government departments. Unlike other statutory bodies, PSC does not have a public remit and the PSC Secretariat staff have no direct contact with members of the public.
PROPOSED ITEM 10 OF SCHEDULE 2
9. COMAC is not allowed under Section 8 of the Ordinance to undertake or continue any investigation that relates to any action or matter specified in Schedule 2. Insofar as any action taken in relation to the prevention, detection or investigation of any crime or offence is concerned, the proposed item 10 of Schedule 2 will reduce the existing powers of COMAC over the law enforcing agencies now under his jurisdiction.
10. The proposed amendment is basically to safeguard the law enforcement functions of the Police and the ICAC. The Police and the ICAC have agreed that in the event of a complaint under the Code to COMAC against the Police or the ICAC and is related to sensitive information on prevention, detection and investigation of crime or offence, a directorate officer of COMACs Office, or COMAC himself if necessary, may be given access to the relevant information so as to determine whether or not the refusal is justifiable under the Code.
DISPUTE OVER COMACS JURISDICTION
11. Section 9 of the Ordinance provides that -
"In determining whether to undertake, continue or discontinue an investigation, the Commissioner shall, subject to the provisions of this Ordinance, act in accordance with his own discretion; and any question whether a complaint is duly made under this Ordinance shall be determined by the Commissioner."
In the first place, it would be for COMAC to decide whether he is acting within his powers in accordance with the provisions of the Ordinance. An organisation disagreeing with his decision could seek a judicial review of COMACs act.
INFORMATION AVAILABLE FROM THE POLICE UNDER THE CODE ON ACCESS TO INFORMATION
12. On formal extension of the Code to them, branches and departments will make available to the public a list of their records by category as a ready reference. The draft list prepared by the Police is at Annex B. The Code on Access to Information (the Code) authorises and requires civil servants to provide information unless there are specific reasons for not doing so. The department can only refuse access to information in strictly defined circumstances as set out in Part 2 of the Code, which must be explained in the event of a refusal. The Code also provides for departmental review and complaints to COMAC if a member of the public considers that the department has failed to comply with any provision of the Code.
Administration Wing, CSO
24 October 1996
Royal Hong Kong Police -- List of Records by Category
Courts & Magistracies-Policy/Procedure/Buildings/Security
Emergency Stores & Equipment
Office Procedure & Practice
Police Force Expansion & Planning
Returns, Reports and Statistics
Stores & Inventory
Uniform & accrutrement
Finance & Accounts
Personnel & Establishment
Conditions of Services
Her Majestys Overseas Civil Services
Increments & Salaries
Leave & Passages
Numbering of Ranks & File
Transfer & Postings
Welfare & Sports
Courses & Training
Arms & Ammunitions
Rifle & Revolver Ranges
Emergency & Rescue
Air Sea Rescue
Relief in Emergency
Traffic & Transport
Marine Police Launches
Rights of Way
Traffic Lights & Aids
Relations with Public and other Institutions
Inquiries from the Public
Relation with other countries and organisations
Tourists & Tourist Agencies
Accidents & Incidents involving Police Personnel or Property
Aerodromes & Airports
Boundaries & Beats
Customs & Preventive Services
Guards & Watchmen
Kowloon Walled City
Organisations & Unions
Pharmacy & Poisons
Police Dog Unit
Police Precautions in Public Holidays & Celebrations
Police Protection of Public Venues
Prevention of Obstruction of Roads, Pavements and Open Spaces
Public Property in Police Hands
Security & Defence
Village Penetration Patrols and Village Affair
Woman & Girl Offenders
Squatters & Resettlement
Town Planning & Reclamation
Last Updated on 15 December 1998