TOWARDS AN ACCOUNTABLE AND QUALITY PUBLIC ADMINISTRATION IN HONG KONG: REDRESSING ADMINISTRATIVE GRIEVANCES THROUGH THE OMBUDSMAN

ABSTRACT

Following considerable public pressure, in 1989, the Hong Kong government followed many other countries and established an Ombudsman. The establishment of the post has to be seen in the context of the political awakening of Hong Kong and demands for a more accountable and client-oriented public service. Previously, complaints of maladministration in Hong Kong were dealt with under a diffuse and fragmentary system which lacked effective powers. Effective legal action against the government for maladministration is also severely constrained by a number of factors. This article traces the growth of the Ombudsman concept and jurisdiction in Western countries over the last few decades and outlines the structure and jurisdiction of the Ombudsman's office in Hong Kong by way of comparison. The effectiveness of the Hong Kong Ombudsman is then evaluated by a detailed analysis of his achievements over the last ten years in combating maladministration, and his role in three high profile cases. These cases also elucidate some of the limitations inherent in the Ombudsman's role. Lastly the future of the Ombudsman in Hong Kong is explored. It is concluded that the Office of Ombudsman has scored initial success in Hong Kong public administration, and has enhanced government efficiency as well as satisfying public needs and filling a major gap in the system of public redress. However, problems of continuing resources and mapping out a sustainable ethos remain.     

Ombudsman for Bangladesh: Theory and Reality

Abstract

Although the term “Ombudsman” is a relatively unfamiliar term in Bangladesh in general, it is widely used and is a practiced technique of ensuring administrative accountability and transparency in western developed countries. The offices of Ombudsmen, as currently found in an increasing number of countries, are institutions of government design to meet the perceived needs as to both out come and process. Their objectives are to secure fairness, integrity, accountability and efficiency in public affairs, by methods conductive to promoting confidence in all institutions of the state. In reality the Ombudsman's office is seen as an institution, which has been established in regional jurisdictions in order to promote high standards of public administration and management, and to protect the right of citizens in their dealing with government. In this article, an attempt is made to analyze the role of the “Ombudsman” concept and why it is needed and how it can be institutionalized in Bangladesh. In doing so, the article has been divided into two parts. Part I discusses the conceptual framework of the Ombudsman while part II throws light on the prospects and problems of this concept in Bangladesh as attempts are being made to establish the office of the Ombudsman.     

Reforming the Parliamentary Commissioner

For the most part reforms in administrative procedures in England are not produced by rational argument. So the fact that a Committee of Justice has enumerated the deficiencies in the Parliamentary Commissioner legislation gives one no great confidence that the deficiencies will be remedied. Nevertheless the Committee chaired by David Widdicombe QC has performed a useful service by setting out the obvious flaws in the British Ombudsman machinery. * They can be summed up under five headings.     

NEW FORMS OF ADMINISTRATIVE LAW IN THE AGE OF THIRD‐PARTY GOVERNMENT

This article explores the democratic values underlying public services when they are outsourced. Building on Rosenbloom and Piotrowski's (2005a, 2005b) framework, we examine whether and how administrative law norms – that serve as central democratic governance and accountability mechanisms in the administrative state – are extended to the new (private) frontline service providers. Through a study of the regulation of the privatized welfare‐to‐work programme in Wisconsin, we find that new forms of administrative law are evolving in third‐party government. These forms differ from administrative law as it usually applies to public agencies in several important aspects. The findings highlight the active role of legislative and administrative mechanisms in the promotion of these new forms of administrative law; and they shed light on the transformations that administrative law norms undergo in the age of third‐party government.     

JUDICIAL REVIEW AND THE 'CONTROL OF GOVERNMENT'

Administrative law is traditionally said to be concerned with the 'control of government', and judicial review of administrative action is said to be the primary mechanism of 'control'. It is argued that judicial review fails in any significant sense to control central government. Explanations for this include the ability of the executive, acting through the legislature it controls, to reverse or nullify judicial decisions: the characteristics of the civil service which, in the absence of any significant legal training as a condition of employment, tend not to be aware of the significance of administrative law principles; and the imprecision of those principles, which make them inadequate as a guide to determine administrative processes. If administrative lawyers do in fact seek to establish control over central government, some at least of those problems must be faced, perhaps by the creation of a body of principles of administration.     

FREEDOM OF INFORMATION: THE IMPLICATIONS FOR THE OMBUDSMAN

In an article in Public Administration five years ago I reported on the operation of the new freedom of information laws in Australia, Canada and New Zealand (Hazell 1989). Despite these Commonwealth precedents, under Mrs Thatcher's premiership the British government maintained that freedom of information was incompatible with the Westminster system of ministerial accountability to Parliament. Under John Major that line has softened a bit, and last year the British government took an important step towards freedom of information, with the introduction of its new code of practice on open government. The code of practice will be policed by the Ombudsman; and this article considers the implications of this novel extension to his jurisdiction.     

THE ROLE OF POLITICS AND INSTITUTIONS IN THE ITALIAN ADMINISTRATIVE REFORM TRAJECTORY

This article applies broad conceptual categories of comparative politics to the explanation of administrative reforms in Italy. It takes as its argument some lines of influence on public sector reform of the features of the party system in Italy, the executive‐legislative balance, the politician‐bureaucrat relationship, and the role of administrative law. In the search for explanations for the trajectory of administrative reform, pre‐existing political and institutional factors also have to be interpreted through the lens of negotiated change occurring via processes of conversion and layering involving new and old institutions that has taken place in Italy since the ‘political crisis' began in 1992.     

In the Shadow of the Ombudsman: Civil Society and the Struggle for an Independent Human Rights Institution in St Petersburg,Russia

Abstract

National Human Rights Institutions (NHRIs) have become hallmarks of good governance and democracy. Although many countries have an NHRI, it remains unclear how they operate on the regional level in political systems where democracy malfunctions and human rights are under pressure. Drawing on interviews, this essay examines how Russian nongovernmental organisations (NGOs) established a shadow Ombudsman—the Human Rights Council (HRC)—to protest against the appointment of an Ombudsman in St Petersburg and put pressure on authorities to inaugurate a new and independent Ombudsman. Although we would expect relations between the Ombudsman and NGOs to deteriorate when civil society is under pressure, this essay finds that political repression and the persona of the current Ombudsman, Alexander Shishlov, have brought civil society and the Ombudsman closer together.     

THE PARLIAMENTARY OMBUDSMAN AFTER TWENTY-FIVE YEARS

Twenty-five years after it was established in 1967 the Parliamentary Commissioner scheme is now criticized not so much on the grounds that it lacks teeth; the problem rather is that the system could be used with advantage a good deal more extensively than it is. The parliamentary Ombudsman has been under-used largely because it has generated only bounded enthusiasm among MPS, the 'gatekeepers' and potential 'magnets' for the office. Survey evidence suggests that MPS' attitudes are related mainly to their dissatisfaction with the limitations on the ombudsman's 'spatial' jurisdiction and the length of time taken by the office to investigate complaints. MPs' disapproval of these aspects of the scheme, however, may be symptomatic of a divergence between members' desire for 'quick-fix' solutions to constituents' problems and the emphasis placed on the 'audit role' of the office by successive commisioners. Greater awareness of the functions of the office by both the general public and among MPS; an extension of the Commissioner's jurisdictional remit; a faster average 'throughput' time for investigations; and possibly the introduction of a two track procedure for inquiries are all arguably required if the full potential of the Parliamentary Commissioner scheme is to be realized.     

THE DONOUGHMORE REPORT IN RETROSPECT

The Report of the Committee on Ministers' Powers which appeared in 1932, was principally concerned with problems of subordinate legislation and formal administrative adjudication. Against a background of Dicey's views on parliamentary sovereignty and the Rule of Law, the Committee explored a variety of issues and made numerous proposals. In this article an attempt is made to consider why the Committee was appointed and what has happened since 1932. Particular reference is made to the Report of the Committee on Administrative Tribunals and Enquiries which appeared in 1957. The Reports of 1932 and 1957 are important in identifying significant developments in administrative law during this century.     

AUSTRALIAN ADMINISTRATIVE LAW: INSTITUTIONS, REFORMS AND IMPACT

Over the last decade the Australian Government has enacted a package of legislative reforms dealing with administrative law, some aspects of which are radical and innovative. The reforms comprise the establishment of a general appeals tribunal to review certain administrative decisions on their merits, the appointment of a Commonwealth ombudsman, changes to the procedures and principles concerning judicial review of administrative action, the enactment of freedom of information legislation and the creation of an advisory body to monitor the new system of administrative law. The key features of these reforms are described in this article and some general observations are also made on the impact that the reforms have had on federal public administration.     

ADMINISTRATIVE LAW AND JUDICIAL REVIEW – THE PRACTICAL EFFECTS QF DEVELOPMENTS OVER THE LAST 25 YEARS ON ADMINISTRATION IN CENTRAL GOVERNMENT

The writer of this article served in the legal civil service from 1951–1984, mainly in the Board of Trade and its successor departments but from 1980–1984 as Treasury Solicitor. The article reflects his personal views based on this experience. Its theme is that, although access to the courts has been made easier for the citizen aggrieved by an administrative decision, and court procedure has been greatly improved, the course of administration has been less dramatically affected – in fact little, if at all, by some important earlier cases. Nevertheless the spirit of administrative law is now becoming more widely diffused, the areas which are not subject to review are becoming less and a number of specific doctrines have been developed which affect administration. The following are particularly emphasized: (1) the courts’restrictive view of the ‘Wednesbury’ doctrine and their tendency to find other grounds to overide decisions which they find objectionable or unreasonable – a tendency which causes real administrative difficulty; (2) the recently enunciated doctrine of legitimate expectation whose limits are uncertain but which may have considerable effect on administration in future; and (3) the requirement that a person affected by a policy should be given an opportunity to show that he is a special case. Finally the writer has to emphasize that his personal experience ended in August 1984 when he retired. In a large organization such as the civil service a change of ethos is slow. He is assured by some, particularly Mr John Bailey cb , his successor as Treasury Solicitor, who has read this article in draft, that he understates the degree to which concepts of administrative law are infusing the whole spirit of administration, and even more directly, the short-term effects in individual departments such as the Department of the Environment which has been the subject of long-running campaigns directed by other bodies against it through the courts.     

POLICY CHANGE AND SOFT EUROPEANIZATION: THE TRANSFER OF THE OMBUDSMAN INSTITUTION TO GREECE,CYPRUS AND MALTA

The paper adopts a historical institutionalist approach to Europeanization and argues that policy change is facilitated by three factors. First, it is driven by ‘soft’ mechanisms of Europeanization such as policy transfer. The EU provides the framework for reform and functions as a platform of best practices. Policy transfer mechanisms are implemented in order for member states to pick and choose institutions. Second, domestic mediating factors such as policy preferences are as important as EU obligations. The introduction of the Ombudsman to Greece, Cyprus and Malta demonstrates that hard mechanisms of Europeanization (for example, directives) are not always necessary for change to occur. Soft mechanisms can be equally effective, as long as the political leadership prioritizes the reform. Third, policy change depends on time. Member states adjust their policies and institutions over time. The most common outcome of this adjustment is inertia or incremental change rather than convergence.     

PUBLIC ADMINISTRATION IN THE NETHERLANDS: EXPANSION,DIVERSIFICATION AND CONSOLIDATION

The rise of Dutch administrative sciences is related to the post‐war expansion of the country’s welfare state. The growing welfare state needed scientific support for policy‐making and planning. Legal expertise alone was no longer sufficient. After the initial separation from administrative law, the post‐war policy and administrative sciences in The Netherlands were strongly oriented towards our American ‘big brother’. Since the 1980s, a growing self‐identity and self‐confidence has developed. The period from the late 1970s to the mid 1990s witnessed a steady expansion and diversification of Dutch PA sciences. The subject is now taught at 11 of the 13 Dutch universities. The enormous growth of the early 1990s is over, and student numbers have now stabilized – and at a substantial level, thus consolidating the position of PA departments in most universities. From the mid 1990s onwards Dutch administrative sciences have gone through a process of internationalization. Dutch PA sciences have as a result acquired a status of recognized quality in the international scientific community.     

ADMINISTRATIVE REFORM – GENERAL PRINCIPLES AND THE AUSTRALIAN EXPERIENCE

Failure to understand the political nature of administrative reform and to develop a political strategy to overcome resistance lies behind the failure of many reform attempts. The prerequisites of reform include political will, time, resources, an ongoing institution promoting change, and a strategy which concentrates on the implementation stage when resistance is strongest. Such a strategy must use the principal levers of change, including legislation, which directly affect administrative behaviour. In Australia in the 1970s administrative reform proceeded only slowly with the exception of changes in some States and the introduction of a new body of Federal administrative law. A better reform strategy in the past two years has resulted in extensive legislative change at the Federal level including greater ministerial control over certain senior appointments, open public competition for the top one per cent of civil service jobs, affirmative action and industrial democracy. There has thus been a further shift towards a unique Australian model of public administration.     

Public administration and the rule of law

This article deals with the enduring problem of administrative discretion in the modern American democratic-constitutional state. In the American constitutional tradition, administrative action is legitimate when and only if it adheres to the rule of law. This implies that administrators must be able to link directly their actions to grants of authority in statutes or the Constitution. But the growth of the state apparatus and the increasing intensification of the public administration's role in society have necessitated rather broad legislative grants of discretion to the bureaucracy. The result has been a seemingly perennial tension between the rule of law ideal and the modern administrative reality.

Attempts to control discretion via evolving doctrines of administrative law have proved unsatisfactory for a variety of reasons explored in this essay. The most important shortfall has been that the continuing expansion of the administrative state threatens directly the rule of law itself. After a survey of the weaknesses of these doctrines, we conclude that the rule of law is fundamentally incompatible with the necessary work of administration in the modern American state. Administrative discretion is thus seen to pose an intractable problem for the liberal democratic society, which accounts for its problematic persistence.     

THE DYNAMICS OF DEVOLUTION PROCESSES IN LEGALISTIC COUNTRIES: ORGANIZATIONAL CHANGE IN THE ITALIAN PUBLIC SECTOR

The devolution of authority from central to regional and local governments is a widespread trend in many countries. Differences in the outcomes of devolution reforms are often significant, between countries as well as within a country. The work reported in this paper assumes that the dynamics of the implementation process and the way it is affected by the national tradition of governance and by the features of the politico‐administrative system is important in explaining such differentiation. The paper investigates devolution in Italy and proposes explanations for the substantial differentiation of outcomes that can be observed. The case of devolution in agriculture in Lombardy, investigated in depth in the article, is striking for the magnitude and rapidity of change as well as for the way the reallocation of the workforce to the lower levels of government has occurred. This case study provides the basis for some theorizations about the dynamics of devolution processes in countries that have a legalistic administrative tradition, especially those nations which have a ‘Napoleonic’ administrative tradition.     

EXCHANGE WITHOUT CAPTURE: THE UK FINANCIAL OMBUDSMAN SERVICE’S STRUGGLE FOR ACCEPTED DOMAIN

This article explores the formation of public organizations’‘domain perception’, that is, their internal interpretation and external articulation of their role and its boundaries. The analysis is based on non‐participant observation research of the UK Financial Ombudsman Service (FOS), and archival research of its predecessor organization, which handled consumer complaints regarding the retail selling of financial products. I show that the FOS’s articulation of its domain emphasized the strictly individual and confidential nature of its complaint handling, rather than formulation of general principles to guide firms’ sale practices. This domain perception embodied an implicit exchange between the ombudsman and the retail financial industry on behalf of consumers, and distinguished the ombudsman’s role from that of the Financial Services Authority and the civil courts. The case is employed as means for theory building regarding the nature of public organizations’ domain perceptions and the process by which such constructs develop in regulatory contexts.     

PUBLIC LAWYERS AND PUBLIC ADMINISTRATORS: PROSPECTS FOR AN ALLIANCE?

There is in Britain a longstanding gulf between the study and practice of public administration on the one hand, and the study and practice of public law on the other. This state of affairs contrasts sharply with the situation in many other countries of Western Europe, where public administration is underpinned by well-developed systems of administrative law. Recent procedural and substantive developments in the field of judicial review of administrative action, together with intensification of debate about constitutional issues, such as the desirability of enacting a new Bill of Rights, have increased the urgency of improving communications and collaboration between these two cognate areas of activity. The burgeoning literature of public law, and the law reports of cases in this subject-area, constitute a potentially invaluable quarry of source-material for students of British public administration.     

The process of professionalization and the rebuilding of administrative ethics in post-MAO China

The process of professionalization for Chinese administration is in essence one that is shifting from the Party's cadres to the civil servants of the state, from a revolutionary clique with a special mission to a professional administrative group serving the general interest of the society. As a revolutionary clique existing under the Party's leadership for a long time, it was characterized by “traditional features,” such as not being open to all citizens, politics overwhelming administration, management based on personal style rather than professional norms, etc. These features, to a large degree, produced a corresponding administrative attitude, ethics and behavior, which include a sense of “paternal official,” self-discipline, adoring personalized authority. They in turn support the traditional system with both positive and negative consequences.

The economic reform provided the impetus for changing the traditional system, and new framework with a strange civil service emerged, with such professional characteristics as opening jobs up to the whole society, respect for law and regulation, management and promotion based on merit, etc. However, the negative side of the economic reform has hindered the further development of professionalization. In particular, corruption and negligence of administrative ethics have undermined the new system. Further professionalization needs a spirit provided by rebuilding public administration: changing ideology and attitude, innovating institutions, and reforming the culture.