Onbudsman

Thursday, July 13, 2017

Ombudsman: A Critical Appraisal

An ombudsman is a person who acts as a trusted intermediary between either the state, elements of state or an organization, and some internal or external constituency, while representing not only but mostly the broad scope of constituent interests. Ombudsman is etymologically rooted in the Old Norse word umboðsmaðr, essentially meaning “representative”. In its most frequent modern usage, an ombudsman is an official, usually appointed by the government or by parliament but with a significant degree of independence, who is charged with representing the interests of the public by investigating and addressing complaints reported by individuals.

 

Origin and Evolution

An ombudsman is a person who acts as a trusted intermediary between either the state, elements of state or an organization, and some internal or external constituency, while representing not only but mostly the broad scope of constituent interests. Ombudsman is etymologically rooted in the Old Norse word umboðsmaðr, essentially meaning “representative”. In its most frequent modern usage, an ombudsman is an official, usually appointed by the government or by parliament but with a significant degree of independence, who is charged with representing the interests of the public by investigating and addressing complaints reported by individuals.

Whether appointed by the legislature, the executive, or an organization, the typical duties of an ombudsman are to investigate constituent complaints and attempt to resolve them, usually through recommendations or mediation. Ombudsmen sometimes also aim to identify systemic issues leading to poor service or breaches of people’s rights. At the national level, most ombudsmen have a wide mandate to deal with the entire public sector, and sometimes also elements of the private sector such as contracted service providers. In some cases, there is a more restricted mandate, for example with particular sectors of society. More recent developments have included the creation of specialized Children’s Ombudsman and Information Commissioner Agencies.

 

The figure of Ombudsman, with its current characteristics, owes its origin from Sweden, however, its traces may be found in ancient history. In this regards, Dr. Pickle, Director General of the Austrian Ombudsman’s Office has made the following observation in his renowned paper: –

 

“Institution to investigate complaints can only be seen in the context of public administration; hence their history is also the history of public administration as a whole. It goes back to the Koran. In the Koran itself the term ‘administration’ is not used, but in many of its verses the principles of political and administrative system are expounded. Justice is one of the basic principles of Islamic Ideology.

 

The genesis of the institution may also be found in Sparta and Athens, where the office of the “Eflore” and the “Euthynoi”, respectively controlled the activities performed by the officials of government and municipal actions. The Romans installed an officer called the ‘tribune’ to protect the interests and rights of the plebeians from the patricians. In China, during the Yu and Sun dynasty, an officer called ‘Yuan’ was appointed to report the voice of the people to the Emperor and to announce the Emperor’s decrees to the people. The Persian Empire, King Cyrus charged the “O Olho de Rei” with the duty to supervise the activity of all his officials. During the XV century, the Council of the Ten, in Venice, had the mandate to control the bureaucratic excesses committed in the city.

 

During his exile in Turkey, the King of Sweden, Charles XII, observed the working of Dewan-i-Mazalim.  On restoration, the King ordered to establish a similar institution in Sweden. In Sweden the office was institutionalized in 1809 with the title of Justitieombudsman. According to Ibrahim al-Wahab “of course one could not draw definite conclusion regarding the origin of any institution anywhere …. But being aware of the history of complaint handling in the Islamic law system and the fact that during the time of King Charles XII in Turkey this system was existing, the influence seems to be evident”.

‘Ombudsman’is an old Swedish word that has been used for centuries to describe a person who represents or protects the interests of another. The word was originally derived from medieval Germanic tribes where the term was applied to a third party whose task was to collect fines from remorseful culprit families and give them to the aggrieved families of victims (Kircheiner, 1983). The part word, ‘man’ is taken directly from Swedish (the old Norse word was ‘umbodhsmadr’) and does not necessarily mean that the holder be of the male gender. At present, there are several women, who are part of ombudsman community worldwide.

In Sweden, the ombudsman office was established by the Parliament to assist it in its dealings with the Executive and the Judiciary. Apparently, it may be considered that the Riksdag (Swedish Parliament) felt inability to satisfactorily exercise its oversight on the activities of other branches of government. In order to carry out its role as representative of the people, the Swedish Parliament felt that it needed an officer who could actively deal with complaints made by the public about action being taken by Executive and the Judiciary. In addition, the following key elements of the Swedish form of government also led to the establishment of ombudsman office: –

  1. There is no concept of Ministerial responsibility such as exists in Parliaments based on the Westminster system, where the minister is chosen from the members of the Parliament.

  2. In Sweden the Judiciary is a career service that is modeled much more closely on a traditional executive style of decision maker and which therefore lends itself to some of the pressures that exist in any career and promotion based bureaucracy.

Spread of Ombudsman Concept

The first Swedish ombudsman was Lars Augustin Mannerheim. For more than 100 years, the office remained confined to Sweden and could hardly create any ripple for other countries. Its contagion effect came out in the twentieth century, when it was adopted in other Scandinavian countries, in Finland (1919), Denmark (1955) and Norway (1962). The introduction of the Danish ombudsman, in 1955, marked the beginning of the worldwide interest in the ombudsman schemes. After assuming as the first Danish Ombudsman, Professor Stephen Hurwitz, begin to write and lecture about his office in English. This activity stimulated interest, which readily spread in the Anglo-Saxon world as more and more article begin to appear about ombudsman in English language publications.[xiv] Professor Larry B Hill has narrated this fact in the following manner: –

“Mindful of the fact that his own countrymen were insufficiently aware of the powers and possibilities of his newly created office, professor Hurwitz energetically engaged in a campaign of public education in his homeland. Early successes as a lecturer abroad created a lively demand for appearances by him at distant places. Responding to that demand, he widened the range of his expository and exhortatory efforts, almost as though he were an apostle of a new faith or perhaps the salesman of an export commodity. His persuasive speeches and writings, well supported by the writings of other enthusiasts, transformed an ancient institution into one seemingly designed specifically to meet current needs”.[xv]

The introduction of an ombudsman in New Zealand, the first common law country, in 1962, sparked off a great deal of interest in the ombudsman concept throughout the world. But the question remains why Westminster like parliamentary democracies, where the ministerial responsibility as well as independent judiciary are significant features, have adopted the institution of Ombudsman. This question warrants a deeper insight into the socio-political and economic conditions of the age, in order to understand the need and justification of this new institution.

The concept of the ombudsman evolved during the Swedish enlightenment (1719-72) where democracy, humanitarianism and individual liberty were emphasized against state absolutism, injustice and abuse or misuse of public power (Caiden, 1983). The surge of democratic values placed prime importance upon the personal responsibility of officials towards their citizens. The period following World War II, ignited considerable discussion in many countries outside Scandinavia, regarding the establishment of a process to examine things undertaken by the administration, alongside and beyond the formal means of redress available through the courts or through Parliament itself, or by means of the Press. The ombudsman institution was established as a reply to the major developments, taking place during the twentieth century. These developments, inter alia, include: –

  1. Over a period of time the legislature delegated more powers to the administration. The increase in the discretionary powers given to the executive, led to a need for additional protection against administrative arbitrariness. In particular, it was felt that there was often no redress for those aggrieved by administrative decisions.

  2. The welfare state models in many countries from the 1930’s onward led to very large government bureaucracies. The development of diverse and intricate structure resulted in citizen confusion as to what governmental jurisdiction has the authority to resolve their problems or provide the needed services. Whatever actions, which were taken by the Governments to improve or reorganize their administrations it always, resulted in increase in the size and power of the executive. There was growing concern that a simple independent mechanism of redress needed to be evolved for the individual citizen. Professor D C Rowatt has neatly expressed this concern in an article suggesting an Ombudsman Institution in Canada: –

“It is quite possible nowadays for a citizen’s right to be accidentally crushed by the vast juggernaut of the government’s administrative machine. In this age of the welfare state, thousands of administrative decisions are made each year by governments or their agencies, many of them by lowly officials; and if some of these decisions are arbitrary or unjustified, there is no easy way for the ordinary citizen to gain redress”.

  1. The transition of many countries to democracy and democratic structures of governance over the past two decades has led to the establishment of many more ombudsman offices. While commenting on the usefulness of the institution with respect to transition countries, Sir, John Robertson[xx] has written: –

“The Ombudsman institution is seen in those countries as a valuable insurance against falling back into old habits, and an influential oversight organization to ensure that the bureaucracy has a more human face”.

  1. Concern for the protection of human rights , and the growth of public education and participation has also been major elements in the acceptance of ombudsman concept globally.[xxi]

  2. Another important factor in the spread of ombudsman institution is growing public demand for greater transparency in the process of government. Presently, it is getting impossible that people elect a government and then allow them to govern until the next election. “Complexity in government business, and the wish of people to participate more in decision making processes, which affect the direction of their life, means that citizen need access to information and that governments have an obligation to facilitate transparency and consultation, and to give adequate reasons for their action”[xxii].

  3. In October 1991, United Nations held First International Workshop on National Institutions for the Promotion and Protection of Human Rights in Paris. The workshop ended up with conclusions, known as Paris Principles. The Principles recognized that there should be such national institutions which can receive and act on complaints of human rights violations. These institutions may seek amicable settlements, inform complainants of their rights and how to seek redress, hear complaints or refer them to competent authorities, and make recommendations to solve human rights problems including by amending laws or other acts that obstruct the free exercise of rights. These Principles have been extremely helpful for governments around the world to understand how to create an independent and impartial institution.

The Ombudsman concept provides the safeguard that every citizen will be provided an avenue to voice his concerns and grievances and permit opportunity for resolution prior to seeking remedy within the costly, cumbersome and backlogged judicial system. The informality, low cost, rapidity of action, flexibility, ability to enforce new policy, freedom from elaborate rules and of evidence are the important qualities, which make the ombudsman institution an ideal for the common man to seek relieve against administrative excesses and to get his grievances small or great, redressed without spending money. The role of the ombudsman is to ensure that all public officials perform their duties with justice, honesty and public responsibility. Thus, the ombudsman became a unique instrument to represent the interests of citizens, protect basic human rights and improve quality of public administration.

The ombudsman concept is one which has grown rapidly in a variety of constitutional settings throughout the world. According to Roy and Giddings, “Ombudsman nowadays takes many different forms, they work in different ways, and they dwell in variety of habitats”. In early 1980s, Caiden et al observed in an ombudsman study in the following manner: –

“It is found in old countries and new countries, rich countries and poor countries, capitalist economies and socialist economies, unitary states and federal states, civil regimes and military regimes, states with strong administrative law system and states with week administrative law systems, presidential and cabinet systems, political systems where legislators enjoy constituents’ case work and political systems where they do not”.[xxvi]

By the year 2004, the ombudsman office, exists in approximately 120 countries around the world.[xxvii] Some countries have ombudsman offices at the national and sub-national levels, such as Australia, Argentina, Mexico, Pakistan, Spain and UK, while other nations have ombudsman offices only at the subnational government level, as in Canada, India and Italy. Another interesting aspect of the institution can be seen from the way this public sector institution has been ‘‘flatteringly copied’’ by the private sector.[xxviii]

Various Titles used for Ombudsman

A variety of names have been used to represent the ombudsman office in different countries. The titles adopted by various countries connote diversity of shades and focus of ombudsman office. For example, Defensordel Pueblo is the title of the ombudsman office in a number of Spanish-speaking countries i.e. Spain, Argentina, Peru and Colombia. Parliamentary Commissioner for Administration in Sri Lanka, United Kingdom, Médiateur de la Républiquein France, Gabon, Mauritania, Senegal, Public Protector in South Africa, Protecteur du Citoyen in Québec, Volksanwaltschaft in Austria, Public Complaints Commission in Nigeria,Provedor de Justiça in Portugal, DifensoreCivico in Italy, Investigator-General in Zambia,Citizen’s Aide in Iowa, WafaqiMohtasib in Pakistan, LokAyukta in India and Board of Grievances in Saudi Arabia, are the titles of some other ombudsman offices around the world. In a number of countries, the protection of human rights is one of the major purposes of the ombudsman office, and this is often reflected in the name of the office. For example, in Guatemala ombudsman is known as Procurador de los DerechosHumanos (Counsel of Human Rights), in El Salvador as theProcurador Para la Defensa de los DerechosHumanos(Counsel for the Defence of Human Rights), and in Mexico as ComisiónNacional de DerechosHumanos (National Commission of Human Rights). Other national level example includes, Plenipotentiary for Human rights in Russia, the Commission on Human Rights and Administrative Justice of Ghana, the Civil Rights Protector of Poland, the Human Rights Ombudsman of Slovenia and the Parliamentary Commissioner for Human Rights in Hungary. The modus operandi of ombudsmen, therefore, varies enormously from impartial investigator to enabler-facilitator and broker-negotiator to citizen-advocate.[xxix]

The original Swedish concept of ombudsman has proved remarkably flexible and adaptable. It has been constantly adapted and modified to suit a wide variety of sectors and organizations. There are public sector ombudsmen, created by statute, and private sector ombudsmen, created as voluntary schemes, legislative ombudsmen and executive ombudsmen, all-purpose ombudsmen and specialized ombudsmen. Some ombudsmen can investigate on their own initiative while others can only respond to complaints. Apart from classical ombudsmen, several ombudsmen like institutions exist in private sector. In North America, there are about 100 ombudsman offices in colleges and universities, an estimated 200 in corporations. Three dozen newspapers have an ombudsman. Nearly 4,000 hospitals have patient ombudsman offices and a great many businesses have client or consumer complaint offices. Each state has a nursing home/long-term cafe ombudsman structure, and there appear to be about 1,500 part-time and full-time ombudsmen attached to those offices.

The vast majority of ombudsmen operate only within a national jurisdiction. European Community Ombudsman, created under the Maastricht Treaty in 1995, enjoys the unique status of being one of the supranational ombudsmen in existence. The European Ombudsman is responsible for investigating complaints of maladministration in the activities of Community institutions or bodies.  The World Bank’s Inspection Panel provides another example of an international ombudsman-style system. The Inspection Panel was created in 1993 to provide an independent forum for private citizens who believe that they or their interests have been or could be adversely affected by a project financed by the World Bank and to investigate any failures by the Bank to follow its policies and procedures.

 Characteristics and Objectives of Ombudsman Institution

With the spread of ombudsman concept and its utility, several surrogate institutions have emerged in the private sector, which claim the title of ombudsman. Some scholars drew distinction between, “classical” ombudsman and other kinds of “quasi” or “executive-ombudsman”. However, Gellhorn made clear distinction between classical and other agencies performing the ombudsman function. Professor Larry B Hill has enumerated the following characteristics of the pure ombudsman: –

  1. Established as separate entity that is functionally autonomous.

  2. Operationally independent of both the legislature and the executive.

  3. Ombudsman is a legally established governmental official.

  4. A monitoring specialist.

  5. Administrative expert and professional.

  6. Non-partisan.

  7. Normatively universalistic.

  8. Client-centered, but not anti-administration.

  9. Popularly accessible and visible.

  10. High status institutions

  11. Have extensive resources to perform his mission.

Functions of Ombudsman

The core business of public sector ombudsman remains receiving, investigation and redressal of citizen’s complaints related to mal-administration of government agencies or their functionaries. An interesting feature of ombudsman institution is that it does not compete with the courts, or act as a further body to which those unsuccessful in the courts can appeal. The primary function of the Ombudsman is generally to examine:[xxxii]

  • A decision, process, recommendation, act of omission or commission which is contrary to law, rules or regulations, or is a departure from established practice or procedure, unless it is bona fide and has valid reason; is perverse, arbitrary or unreasonable, unjust, biased, oppressive or discriminatory; based on irrelevant grounds; or, involves the exercise of powers or the failure or refusal to do so for reasons of corrupt or improper motives such as bribery, jobbery, favoritism, nepotism, and administrative excesses; and,

  • Neglect, inattention, delay, incompetence, inefficiency and ineptitude in the administration or discharge of duties and responsibilities.

     

     

     

     

     

     

     

     

     

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