Why Hong Kong needs a strong ombudsman
There are few checks and balances for Hong Kong's executive-led government. In addition to the legislature, investigative bodies such as the Audit Department, Office of the Ombudsman and Equal Opportunities Commission (EOC) should play important roles in the never-ending process of ferreting out and correcting bad decisions and abuses of power.
Judging by its recent appointments, the Tung administration seems to desire a less aggressive role for the EOC and Audit Department. What of the Office of the Ombudsman? When the last ombudsman, Andrew So Kwok-wing, was replaced in 1998, there was speculation that Chief Executive Tung Chee-hwa wanted someone who would not aggressively pursue complaints. His appointee, Alice Tai Yuen-ying, seems to have performed as predicted.
What is particularly disturbing is the repeated failure of her office to conduct proper investigations, not pursuing evidence with vigour, misunderstanding rather basic issues, and tilting heavily towards the administration. One is left with the distinct impression that the ombudsman often merely goes through the motions, maintaining a facade.
The issues involved can be extremely serious. In the recent liver transplant controversy, a patient complained after he was called to hospital for the operation, only to be informed several hours later that it was cancelled. The Patients Rights Association found that 'the Hospital Authority had twisted the facts' regarding the reasons for the cancellation, and 'the ombudsman merely quoted the authority's explanation without looking into the details'.
Friends of the Earth lodged a detailed complaint over possible contamination from the decommissioning of the Choy Lee Shipyard, and the dire consequences of fast-tracking an environmental study to expedite construction of the Disney theme park. The ombudsman dismissed their complaint, the initial study was fast-tracked, and the later comprehensive study revealed that dioxins present in the soils would cost an extra $430 million to remove. By that time, the shipyard had already been paid $1.5 billion to vacate the site, so the government was left holding the bag.
Friends of the Earth director Mei Ng Fong Siu-mei later wrote: 'The ombudsman's wishy-washy dismissal of public complaints of maladministration nailed the coffin shut and sealed the spirit of public justice.' Two multi-part complaints lodged against the Antiquities and Monuments Office (AMO) were completely whitewashed, with the ombudsman largely parroting the line offered by the AMO. The failure to investigate was seen most clearly in the ombudsman's blunt rejection of an allegation without even contacting the sole witness whose name was given in the complaint.
Probably the most dramatic failure of the ombudsman's 'investigations' is seen in its accidental discovery of racial discrimination. The complainant, an American, had alleged that an official in the Leisure and Cultural Services Department (LCSD) was acting unfairly against him. In dismissing the complaint the ombudsman stated, with a mind-boggling absence of logic: 'Staff of Mr K. [director of the private firm] reported to him that LCSD had insinuated that [his firm] had better avoid engaging foreigners in LCSD projects. There was no mention of names by any LCSD officers in the conversation ... In the circumstances we see no evidence to support your allegation that [LCSD staff] had tried to influence [the firm] not to offer you employment.'
Here it had stumbled upon evidence of action by a civil servant that was not only improper, not only against government policy, but illegal under the terms of the Hong Kong Bill of Rights Ordinance which covers civil servants. Yet the ombudsman closed the case.
The instances cited above reflect incompetence to such a degree that some action should be taken. There is no solace in the fact that the office has scored some successes.
One flaw that begs for reform is the absence of any recourse or appeal, except back to the ombudsman, who answers only to the chief executive and refuses to discuss any case with Legco. An independent board of review should be appointed to examine cases where the complainant has serious grievances over the handling of the complaint.
The current ombudsman should be replaced. It would be good for Mr Tung to realise that ultimately a dynamic and aggressive ombudsman improves the performance of the administration, though not without a degree of pain.
William Meacham is an honorary research fellow at the Centre of Asian Studies, University of Hong Kong
