|
IACCI Baghdad Office
|
|
 Arabic |
|
|
|
|
|
|
|
TI Source Book 2000Chapter 10: The OmbudsmanNo authority more useful and necessary can be granted to those appointed to look after the liberties of the state than that of being able to indict before the people or some magistrate or court such citizens as have committed any offence prejudicial to the freedom of the state. |
 |
What can the ordinary citizen do when things go wrong? When grievancesarise, and complaints about government bureaucracy fall on deaf ears? Oneoption is to turn to the legal system, but even when the legal system isoperating in accordance with the law, the courts tend to be slow, expensive,public and far from user-friendly.
However, the courts, too, may be in disarray, perhaps themselves corrupt,and the Rule of Law may be faltering if not actually foundering. How, then,can people be protected when the legal system itself is failing? Many turnto the Ombudsman, however described--styled as Defender of the People(Defensor del Pueblo) in Spain, and as Public Protector in South Africa.[1]
Although the word "Ombudsman" is Scandinavian in origin, the firstOmbudsman actually flourished in China over 2,000 years ago, during the Ts'in Dynasty (221 BC) and in Korea, too, during the Choseon Dynasty. TheRomans also grappled with the problem, but it was the example of the secondMuslim Caliph, Umar 1 (634-644) and the concept of Qadi al Qadat (developedin the Muslim world), which influenced the Swedish King, Charles XII. In1713, fresh from self exile in Turkey, Charles XII created the Office ofHighest Ombudsman. The Scandinavians subsequently moulded the Office intoits contemporary form. As a result, in modern times the institution wasthought to be unique to the needs of Scandinavians, until the 1960s, whenNew Zealand introduced its first Ombudsman.[2]
As Sir Guy Powles, New Zealand's and the common law world's first Ombudsmanlater observed, citizens found the Office to be useful in dealing with thepowerful engines of authority and the concept quickly spread to the rest ofthe world.
Today, the Office of the Ombudsman is found in the constitutions of manycountries. It has also proliferated in larger countries so that there are adhoc "Ombudsman" offices in various sectors--banking, health,insurance to name but a few.[3]
The British and Irish Ombudsman Association works to criteria whicheliminates those "Ombudsman" institutions which are really captiveto the organisations they are supposed to monitor, rather than beingindependent of them. It recognises only those offices which meet fourcriteria:
It is independence which above all distinguishes recognised Ombudsmanschemes from other complaints procedures. Those who head the internalcomplaints procedures of their own organisations, even if described asOmbudsmen, are not wholly independent and so misuse the expression when itis applied to them. The concept of the "Ombudsman" has becomepopular with the private sector, and the expression is increasingly foundthere, but for the purposes of this discussion we are looking at the classic"Ombudsman", the Ombudsman in the public sector.
The Ombudsman constitutes an Office which independently receives andinvestigates allegations of maladministration.[4]It does not compete with the courts, or act as a further body to which thoseunsuccessful in the courts can appeal.[5]Most do not have jurisdiction to investigate the courts themselves. Theprimary function of the Ombudsman is generally to examine:
In essence, "The Ombudsman can bring the lamp of scrutiny to otherwisedark places even over the resistance of those who would draw theblinds".[7]
The institution of Ombudsman gives individuals an opportunity, in additionto existing provisions such as Parliament, the Judiciary, and internalcomplaints procedures, to place complaints about the practices of governmentbefore an independent and expert body. Complaints to the Ombudsman mayresult in remedial action being taken to resolve maladministration inparticular cases, and, in a broader context, help to restore confidence inthe integrity of institutions. In view of this role vis-à-vis theindividual, the law establishing an Ombudsman often deliberately elects toplace a single person, the National Ombudsman, as the representative of theinstitution in the eyes of the outside world, as a counterbalance to anoften faceless bureaucracy.
As a high-profile constitutional institution, the Office is potentiallybetter able to resist improper pressure from the Executive, than are others.It can perform an auditing function to stimulate information flows whichreveal and contain the limits of corruption in government. Theconfidentiality of these procedures gives the Office the added advantage ofproviding a shield against possible intimidation of informants andcomplainants.[8]
In many countries, the mandate of the Ombudsman also extends toinvestigation and inspection of systems of administration to ensure thatthey restrict corruption to a minimum. Thus, it can recommend improvementsto procedures and practices and act as an incentive for public officials tokeep their files in order at all times.
The Office has also been found to be extremely adaptable, and has workedwell in parliamentary democracies, societies with radically different ethnicand religious backgrounds, and in one-party as well as military states. Forinstance, when Tanzania introduced a one-party state, the PresidentialCommission observed that:
"In a rapidly developing country, it is inevitable that many officials,both of the government and of the ruling party, should be authorised toexercise wide discretionary powers. Decisions taken by such officials can,however, have the most serious consequences for the individual, and theCommission is aware that there is already a good deal of public concernabout the danger of abuse of power. We have, therefore given careful thoughtto the possibility of providing some safeguards for the ordinarycitizen."[9]
The result was the establishment of the Permanent Commission of Enquiry--anOmbudsman. This was a landmark development. For the first time, concernabout corruption of leaders in developing countries led a country toestablish a leadership code in its Constitution for which the OmbudsmanCommission was made responsible for supervising, as well as its traditionalOmbudsman role.[10]
Poland created its Ombudsman Office in 1987 to investigate violations by theadministration of the law and principles of community life and socialjustice. Its success has inspired other emerging European democracies to dothe same.[11]
When is conduct proper or improper? If a particular government actionconflicts with statutes and principles, and does not appear to be justifiedon other grounds, it cannot, in principle, be regarded as proper conduct.Ideally, an Ombudsman approaches the action broadly and reviews it both inthe light of the provisions of the written law, and in the light ofunwritten legal principles, as well as, against the standards for goodgovernance.
Investigations of the action in view of the written law include such areasrelating to human and constitutional rights, definitions of competence, andprovisions governing from procedure and substance. Investigation of theaction in view of the unwritten legal principles (developed in case law andlegal doctrine) are equally relevant to the lawfulness of governmentconduct, and include the principles of: equal treatment for equal cases;reasonableness; proportionality between means and end; legal certainty andof legitimate expectations; the requirement to provide reasons fordecisions; and, of certain duties of care.
In addition, when reviewing a government action, an Ombudsman also usesstandards or guidelines for good governance which contribute to thepropriety of the way the Executive authorities act. The standards can besummed up as the imposition of a broad duty of care. These are manifested incertain accepted standards for administrative processes and the conduct ofpublic servants in relation to the public. They include the requirement toact without undue delay; to supply the individual with relevant information;to treat people fairly and respectfully; and, to be unbiased and helpful.
Finally, the Ombudsman sets standards for the government organisation--suchas those of co-ordination, monitoring of progress, protection of theindividual's privacy, and accessibility of the authorities.
The Offices of Ombudsman around the world receive many more complaints thanthey are authorised under their legislation to handle. Hence, they operatewithin the jurisdiction set out in their legislation. Guidelines foraccepting or rejecting complaints commonly include the following questions:
A classic Ombudsman is concerned with eliminating"maladministration", and generally "maladministration"stems from some degrees of corruption in public administration. Therefore,an Ombudsman will need to tackle corruption where it is the cause ofmalfunction in the administration.
In order to perform its function of improving public administration, theOmbudsman needs to develop a relationship of trust and confidence amongthose whose standards he or she is responsible for overseeing. It isgenerally thought inadvisable--if it can be avoided--for the Ombudsman tohave an investigative and prosecutorial role. This is to convert the"friendly Ombudsman" into the "feared policeman", andcould, in some environments, render the wider function of the Office lesseffective.
However, several countries have taken the view that the Ombudsman, withright of access to government files, is in a far better position toinvestigate and police the administration thanare the less expert orthodox police investigators.[12]
A recent development of interest, in the Australian State of New SouthWales, has been the appointment of the Ombudsman also to be the Commissionerresponsible for the Independent Commission Against Corruption.
In some countries, such as Papua New Guinea and Taiwan[13],the Ombudsman is seen as being in a unique position to review and to monitordeclarations of income and assets made by senior public officials.Independent of government, with a high level of public trust and profile,and investigative capacities to examine their contents, the Ombudsman'sOffice can be an effective instrument, thereby, avoiding the necessity forestablishing other independent mechanisms specifically for monitoringassets. Alternatively, where a large number of applications for informationare likely to be disputed, the option of establishing a separate Ombudsman'sOffice to handle these has been adopted.[14]
In the same way, an Ombudsman's Office is well placed to handle appealswhere officials refuse to provide members of the public with informationthey are entitled to have. This would fall within the general ambit of anOmbuds-man's work, but as there is usually specific legislation dealing withaccess to information (where there is any at all), the question arises ofwho should handle appeals when the legislation is passing through aParliament. Obviously, the Ombudsman's Office has advantages because it isaccustomed to handling sensitive information.[15]
An Ombudsman can also contribute significantly to the quality of government,by providing feedback as to how the administration is performing its tasks.This is particularly important for government organisations wishing toperform their functions in a customer-friendly manner. Complaints aresignals, constituting a valuable source of information for qualityassurance. This feedback can be of particular value for governmentorganisations as they often have a monopoly of their own and are rarelyexposed to the dynamics in the outside world. Observing the criteria forproper conduct developed through the Office of the Ombudsman can, in short,contribute to the rationality and legitimacy of public administration.
As with many other elements in a system of checks and balances, the processof appointing an Ombudsman is crucial to building and sustaining publicconfidence in the institution. If the Office is filled with party faithfulor pensioned-off officials, chances of success are severely limited. In somecountries, Parliament itself makes the selection and the head of stateformally announces the appointment. In others, the appointment is made bythe head of state after consultation with the Leader of the Opposition andthe Prime Minister (if there is one). Or, in some cases, the appointment issimply made by the Executive without any formal requirement forconsultation. The actual mechanics of the process are secondary to theoutcome. The Office must be seen by the public as independent, fair,competent, and serving the best interests of the people, and not as abureaucratic appendage, serving the objectives of the ruling politicalparty.[16]
One distinguished Ombudsman has noted that:
"However the appointments procedure may be set up, the institutionalsafeguards for independence will be undermined if there is any possibilityof party political considerations leading to bias--or the appearance ofbias--in the person appointed. It is equally important to guard againstmaking an appointment that waives or dilutes the necessary professionalqualifications. In this respect all that can be done, once a sound selectionprocedure is enshrined in the law, is to hope that the responsible authoritywill act wisely. The Ombudsman himself, of course, must endeavour to steerclear of any conduct that could undermine his impartiality or publicconfidence in him in this regard. He must never use his Office to pursue hisown personal interests, for instance in connection with his future career.[17]
The position of the person appointed Ombudsman needs statutory safeguards toensure independence. Thus a fixed term of office needs to be laid down,making it impossible for him or her to be dismissed before this termexpires. Or, in the event that they can be dismissed prematurely, specialprocedural and substantive conditions must be enshrined in statutoryprovisions, to guard against any political or administrative influence thatmight prejudice the independence of the Ombudsman's Office.
The status of the Ombudsman must not be subordinate to that of theleadership of the bodies that he is empowered to investigate. Salary is adifferent matter from formal status. There are many Ombudsman operating inthe Commonwealth and elsewhere who have lower salaries than the leadershipof jurisdictional bodies, but who are still very effective.
During his or her term of office, an Ombudsman should not hold any otherposition. This minimises possibilities of conflict of interests, as well asreducing the space for an administration to "show favours" to anobliging office-holder.[18]
The Ombudsman must feel secure in tenure and not subject to removal at thewhim of the Executive. When an Ombudsman has a short-term position or is nototherwise guaranteed tenure of office, the holder of the post may lack theconfidence to act as fearlessly and as impartially as required. Ideally, anOmbudsman should have the same assurance of tenure as a superior courtjudge, removable only through a special procedure.[19]
If the functions of the Ombudsman are to be conducted credibly, thepost-holder must also be shielded from hasty or ill-considered action bythose who are the subject of criticism or exposure. It is, however,interesting to note that very few Ombudsman have suffered such a fate.[20]
Best practice suggests that the grounds for removal of an Ombudsman shouldbe similar to those for members of the senior Judiciary. In other words, theoffice-holder can only be removed due to an inability to perform the dutiesrequired by reason of physical or mental incapacity, or misconduct. Usuallythe Legislature has to be involved in removal procedures. For example, withtwo-thirds of the Members voting for the establishment (by the ChiefJustice) of a tribunal of enquiry.
The post-holder must also enjoy some form of protection after he or she hasleft office. This is critical where a period in office is of relativelyshort duration and where the office-holder is expected to resume gainfulemployment elsewhere in the public or private sector after their period hasended. Unfortunately, some administrations can hound office-holders intotheir retirement, and to attract able people to the post (and likewise tothe post of Auditor-General) it is important that this type of"revenge" is inhibited.
"An Office of the Ombudsman that does not have an adequate budget, isnot properly staffed, and is not backed by those who brought it into beingamounts to nothing more than a front and a façade."[21]
Even so, a common complaint is that the Office of the Ombudsman isunder-funded for the job it has to do. It matters little that theConstitution of a country may actually state that "the Ombudsman shallbe provided with a staff adequate for the efficient discharge of (his orher) functions," as it does in the Constitution of Trinidad and Tobago.Such constitutional requirements are more honoured in the breach.
With a lack of resources to fulfil the mandate of the post, it is often only"the will of the Ombudsman" which sustains the office-holder inthe job. This is an undesirable situation and a matter which needs to beseriously addressed in any overhaul of a country's integrity system. TheOmbudsman is uniquely placed to identify gaps and weaknesses in the systemand to recommend preventive action. Any failure to equip the Officeadequately for this task will, in many instances, prove costly in terms ofundetected corruption, inefficiencies, and malpractice. A functioningOmbudsman's Office should be highly cost-effective, and be recognised assuch.
Whether under-funded or not, the Office of the Ombudsman should beresponsible for its own budget and not be subordinate for funding toanother, larger department. For example, the Ombudsman in Zimbabwe islargely funded through the Ministry of Justice. The Ombudsman in Barbadoshas complained that the government refuses to acknowledge the independenceof his Office by presenting its annual estimates of expenditure as asub-head of a ministry, rather than under its own head of expenditure.
Although the question of budgetary allocation and control is a matter forparliamentary and other channels, the Ombudsman ought to be able toauthorise travel and other expenditure, within approved limits, in order toconduct expeditious and discreet investigations, without seeking thepermission of someone else. As many complaints will concern the slow pace ofgovernment administration, the Ombudsman cannot fall prey to the same maladyor else the Office may quickly resemble just another inefficient governmentdepartment. The quality of staff is also important. In some Offices, staffwith investigative skills will be needed (in Uganda, serving police officersare seconded into the Office) and relevant training is essential.[22]
The hallmark of the Office of the Ombudsman is that citizens have directaccess; they don't have to go through lawyers or involve their electedrepresentatives.[23]The process is generally free, and can simply be a matter of writing aletter knowing that someone will read it and take notice.[24]However, a special concern, as President Julius Nyrere once observed, isthat "we must not forget that the Ombudsman receives complaints onlyfrom the most literate, aware or energetic and courageous of ourcitizens."[25]
As a consequence, some Ombudsman Offices find it necessary to travel torural areas in order to make their office more accessible and better known.Certainly, the available evidence indicates that such outreach efforts leadto an increase in the number of complaints against maladministration made bythose in the rural areas. For example, the Office of the Ombudsman inSwaziland did not reach out to the outlying areas. As a result, only 40complaints were received in three years of operation and the institution wasscrapped. In larger countries, decentralisation of the Office is alsonecessary and other awareness-raising initiatives, including publicitycampaigns, paid-for advertising (if the budget allows), newspaperinterviews, and "talk-back" radio, are often used to increaseaccessibility.
In addition, the Ombudsman must win the trust and confidence of the variousdepartments within the government structure in order to operate effectively.These departments should be encouraged to view the Ombudsman as bothaccessible and as a potential ally--one which can independently vindicatethe department and its officials when they are the subject of unjustcriticism.
However, a right to complain is not much of a right if the generalpopulation are unaware of the right. Public education is an important partof any Ombudsman's role and should be adequately funded and, where possible,promoted by civil society groups. Education can take the form of"clinics" undertaken as a part of the Ombudsman's outreachactivities. "Doorstep justice" is an important element in buildingthe integrity of the Ombudsman institution.
If maladministration or corruption has been identified by the Office of theOmbudsman, what happens next? The Office of the Ombudsman operates in theexpectation that public officials will undertake the recommended remedialaction. Where recommendations are ignored or deferred at the highest levelsof public officialdom, a culture of disrespect will be engendered and theOffice will lose its effectiveness. Civil society therefore has a clear rolein upholding the findings of an Ombudsman and in insisting onimplementation.
The Ombudsman is not a court of law and has no power to order action on itsfindings. This may seem strange, but bear in mind that the Ombudsman doesnot make a binding determination according to law, as a judge would at theconclusion of a court hearing. Rather, the Ombudsman determines theconclusion of an investigation based on the merits of a particular case.Defining merit is infinitely more vague and intangible. However, the Officeis guided by its own previous recommendations and those of colleagues fromcountries with similar administrative and constitutional arrangements.
If the Ombudsman has powers of determination, rather than simplyrecommendation, the Office may be obliged to proceed much more formally andcautiously. We could all be back to where we started: complaining about theabsence of a remedy that is accessible, speedy and inexpensive. In practice,fears that departments will simply ignore the findings of an Ombudsman areseldom realised, and the general view among Ombudsman Offices around theworld is that powers of enforcement would not be helpful. On the other hand,the argument for increased powers of enforcement may be stronger insituations where the Office of the Ombudsman has a specific mandate toinvestigate corruption. In Uganda, for example, the Office ofInspector-General of Government has uncovered a number of corruption cases,and, having documented these, has forwarded the files to the prosecutingauthorities for action, only to see the cases disappear into a void orprosecuted with a distinct lack of vigour. As a consequence, the new (1995)Constitution of Uganda confers powers of prosecution on the Ombudsman. Evenso, these new powers do not confer the power of enforcement per se, butrather they allow the Ombudsman to access the criminal courts foradjudication on findings.
For an Ombudsman to fulfil his or her role, they must be visible to thepublic, which in turn must have confidence in his/her impartiality andmethod of operation. Where the government is concerned, decisions made by anOmbudsman are generally not legally enforceable. Where formal power islacking, respect for the authority of the Ombudsman and the Ombudsman'sdecisions is of particular importance, if they are to have any impact atall. That authority is determined in the first instance by the quality ofthe work itself: a brisk and thorough investigation, well-reasoneddecisions, and readable reports.
Quality work is a sine qua non, but not enough by itself. For the Ombudsmanto function properly as an independent institution, it makes certain minimaldemands on the democracy of which it forms a part. It must have politicalsupport (from Parliament, government, administration and the courts); itmust be given adequate resources; and the public must be aware of, andunderstand, the Office and its functions.
In an environment where it is insufficiently recognised that the governmentexists to serve the people--and where it is not taken for granted thatExecutive government officials must uphold the Rule of Law, or thatgovernment bodies have continuous external accountability--the existence ofan independent Ombudsman will easily be experienced as a threat to existinginterests and positions of power within the government. As Dr. MartenOosting noted:
The Ombudsman will have his work cut out for him in such surroundings, tosay the least. Approaching the Ombudsman will pose risks for the generalpublic, while the Ombudsman himself will find it difficult, if notimpossible, to perform his investigation, and to find a listening ear in thegovernment for his views and recommendations. This means that theOmbudsman's role as protector of the public is under pressure, making ithard for him to build up and maintain credibility. Some Ombudsmen do indeedhave to work in such circumstances, reliant on the support of those who,like themselves, are dedicated to developing their country as a democracygoverned by the Rule of Law. The pressure under which they have to performtheir responsibilities may even be such that their personal safety, or thatof their family, is at stake. I have great respect for these colleagues'dedication to performing their task with credibility, while upholding theirindependence.[26]
Although the European Parliament has established its own"regional" Office of Ombudsman, the first moves to translate theconcept of Ombudsman into a truly international setting took place in 1999.Then, after discussions among the private sector, interested NGOs and hisstaff, the World Bank Group President recruited the first appointee to serveas Compliance Adviser/Ombudsman (CAO). The same multi-stakeholderconsultation process helped produce Operational Guidelines for the newOffice, and continues to serve as a reference group.
The new Office has three basic functions:
Future developments will be followed with close interest, as the success ofthe initiative could well lead to the adoption of this approach by otherinternational institutions, and so render them far more accountable thanthey ever have been in the past.
|
