Ombudsman: A legal comparative study of the powers and functions of the Institution

 

Ombudsman-origin and overview:

The word ombudsman is derived from a Swedish word ‘ombuds man’ that means the grievance man/ representative/proxy or complaint officer. It is a quasi-judicial administrative authority for criminal justice system to protect the public from any mal-administration done by public servants or public agencies. This institution, however, is very old and originates from the Arab “Mohtasib” the roots of which go back to the times of the Prophet Muhammad (S.A.W.W) in the 7th century. When the second Caliph Hazrat Umar (R.A), who followed the Prophet in 640 as a guardian of public morals. Caliph Omar was ambitious to ensure the observance of religious principles one of them was Justice in routine life, gave the concept of Qadi-al-Qadat (judge of judges), and established an office of Diwan al-Mazalim. Sweden was the first country who establishes this institution in 1809.

In recent years, past 1990s, the ombudsman institution has developed in the democratic countries. The question as to why the ombudsman institution is developed so increasingly is that the complex governmental structures and impinging of bureaucracy in the lives of people and their livelihood. In early times, only the administrative functions are in the domain of the ombudsman for properly check and balance system.

The ombudsman’s priority is to investigate the matter regarding maladministration and to protect the right of the people. As mentioned above the ombudsman in the earlier times have only the power to exercise his jurisdiction over the administrative authorities but later on, as the maladministration may result in the violation of human rights, the domain of ombudsman’s jurisdiction was then extended. Cases regarding the human rights violation brought before the ombudsman that extended his jurisdiction in other matters too. Today, the mandate, role and scope of powers and functions of the Ombudsman differ from one country to another as they take into different political, institutional and historical contexts. The mandate of the institution has evolved based on country’s specific needs (e.g following civil wars, independence, consolidation of democracy, the evolution of international human rights law etc.).

“As countries have transitioned  towards  the  consolidation  of  democracy  and  the  protection  of  civil  rights,  OIs  have rapidly spread throughout the world. For instance, in Europe, the number of OIs increased after the Second World War to protect citizens against the violation of their fundamental rights (Ombudsman of the Czech Republic, n.d.). Later, in the 1960’s, OIs also expanded through North America and Oceania. In North America, the first OI was created in the United States as the country was exposed to government secrecy and scandal (United States Ombudsman Association, n.d). New Zealand was the first country in its region to establish an OI, which consequently inspired other countries within the Commonwealth (Olsen, 2011). Subsequently, in Asia, OIs began to emerge in the 1980s, while in Latin America, the majority of OIs were created in the 1990s as the region was going through a period of institutional reforms that aimed to enhance and strengthen participation, the rule of law, accountability and democratic governance (Uggla, 2004).African OIs experienced a dramatic increase in the same period, as several African states transitioned towards democratic forms of government (Reif, 2004). Lastly, most OIs in Central and Eastern European countries were established during or after 1990 during their democratisation process”.

Ombudsman and bureaucracy:

The institution of ombudsman was established as to look upon the administrative authorities (governmental and non governmental authorities). It may look upon the matter regarding private legal entities. The agencies/ bodies that somehow are in the domain of the state, giving public services or involved in the administrative matters may dealt by him. By the establishment of this institution, the general public is provided the bridge through which they may address their issues reading any grievance from the public/ private administrative bodies.

Overview and jurisdiction (analysis of different countries):

Belgium:

The Belgium ombudsman has the power to investigate upon the matters which are related to the public bodies or the private entities performing public functions.  Article 1 of the Federal Ombudsman Act gives the following power to the Ombudsman;

  1. examine claims relating operation of federal administrative authorities
  2. lead any investigation, on request of House of Representatives, on the functioning of the federal administrative services
  3. make recommendations and submit a report on the operation of administrative authorities based on observations made while implementing the duties referred in clauses I and ii.

The College of the Federal Ombudsmen is composed of two Ombudsmen, one French- and one Flemish-speaking. They have to act collectively (Art 1 of Federal Ombudsman Act, 1995), in order to ensure that proceedings are uniform. However, by collegial decision, the Ombudsmen can assign areas to each other (Art 19, Federal Ombudsman Act, 1995).  

The complaint to the Ombudsman is free of charge and it may be written or verbal (Art. 8). The judicial powers are generally excluded from the ombudsman’s jurisdiction (Art 13). The ombudsman may seek assistance for the investigation of matters and may also ask questions to the people presented before him (Art. 11). The Ombudsman of Belgium has no power to initiate proceeding upon any matter by its own (Art. 1 and 8) but if any matter is presented before him, he has to inform the authorities about the investigation (Art 10). Furthermore, he can not penalize any person/body but if the matter is related to the disciplinary offence, he may forward it to the competent authority for the maintenance of peace and justice. (Art. 12)

Canada:

The ombudsman institution was adopted from Norway and Newzealandin 1962. By 1997, 192 offices of ombudsman were established in 72 countries. Canada was considered as the world’s leader for adopting this institution. The first international ombudsman conference was held in 1976 in Edmonton. In 1978, the international ombudsman institute was established at the University of Alberta. Today, there are several specialized ombudsmen exist at both the federal and provincial level having powers to investigate complaints from public against administrative actions and to recommend a remedy. Unlike a court, an ombudsman does not have power to annul a decision, but in most cases recommendations to the administrative authorities are accepted. [1]

 Several mechanisms adopted for filing a complaint to the ombudsman has extended the role of the ombudsman in the Canadian landscape. The general mechanism followed, is filing of complaint in the written preview. The Canadian provincial ombudsman has the jurisdiction over the departments, agencies and ministries in the respective province. But there are some restriction imposed on the jurisdiction of the ombudsman as it can’t intervene in the acts of crown counsel or crown solicitors. Most of the provincial ombudsmen are restricted to investigate over members of cabinet, or the executive council or the ministerial staff that are directly answerable to their respective minister. The matters in which there is chance of appeal or the objection can be raise in the courts, the ombudsman is not competent to investigate or look upon the matter until and unless there is no chance for appeal is left over or it is elapsed.

Jurisdiction of the ombudsman is restricted in the matters of deliberation of executive council and where the matter is regarding any act of lieutenant governor in council and committees of the executive council. Rules of the evidence by Supreme Court also apply in the matters presented before ombudsman.

Greece:

Since 1991 (Laws No. 1735/87 and 1892/90), there have been Public Sector Controllers which were part of the Ministry of Public Administration. Institution of the Ombudsman as it exists today was established on 18 April 1997. The first Ombudsman took up office on 1 October 1998. The Office is organized in five departments: Human Rights, Social Welfare, Quality of Life and State-Citizen Relations as well as Children Rights and Equal Treatment. Every department is headed by one of the deputies.

The Greeck Ombudsman has the special task that is to promote the children rights and defend them. The ombudsman is the one with broad social acceptance. Art 101 and Art 103 of the Constitution of Greece, 2001 are the main articles that deals with the establishment and operation the ombudsman as an independent authority. he has no competency in courts and in case of any criminal act, he may call for the disciplinary action to the competent authority.

As a mediator, the Greek Ombudsman makes recommendations and proposals to the public administration. The Ombudsman does not impose sanctions or annul illegal actions by the public administration. [2]

India:

The Indian ombudsman was started in earlier sixties and was the result of the report published by the England, commission of jurists which focus on the strong case of the adoption of the ombudsman institution. The government has designated several ombudsmen (also called Chief Vigilance Officer) in the banking, insurance and other sectors. The main reason of establishing this institution in India is that the corruption was rapidly increasing in the states of India. The federal ombudsman was not yet established in India but at state level, the ombudsman institutions have established and gain the importance. The proceeding before ombudsman is considered as courts proceeding and has given the power same as the civil court in limited sense. The ombudsman has to submit the annual report to the government. The institution is recommender in nature but is empowered to punish the offender. The complaints to the ombudsman should be on prescribed form and may directly be approached by the general public.

Israel:

Israel’s Ombudsman, the State Comptroller and Ombudsman, is a national, parliamentary ombudsman-institution with the core mission of auditing the economy, property, finances, obligations and administration of the state (Art 2 (a) Basic Law: The State Comptroller). In addition, since 1971, the Ombudsman is competent to deal with complaints of individuals against acts of state administration. In this capacity the State Comptroller bears the title “Ombudsman” (Art 4 Basic Law: The State Comptroller). The Ombudsman’s control basically extends to government offices as well as to state enterprises and institutions, persons or bodies holding, managing or controlling state property, local authorities and entities in the management of which the Government has a share or which have been made subject to audit.

The Ombudsman has the same investigative powers as Commissions of Inquiry under the Commissions of Inquiry Act. Inter alia the Ombudsman may hear the complainant, the person or body complained against and any other person. Furthermore, any person or body may be required to provide information or documents likely, in the opinion of the Ombudsman, to assist in the investigation of the complaint.

Andorra:

             In Andorra, the ombudsman is known as citizen’s advocate/raonador (the one who reasons for the citizens). In 1998, the first ombudsman was elected but not through constitution. It was elected through law to create the position and order and the functions of citizen’s advocate. The ombudsman in Andorra is mono critically organized and it any assist in the nomination of any officer. The budget is firstly approved by the ombudsman and then presented in parliament. Ombudsman institution has its jurisdiction in all the departments of state unless some are exempted by the law in force i.e. judiciary and administration of justice. Time limit is provided to the ombudsman to complete the tasks given to him in any matter. All the parties and the relevant institutions involved in the proceedings before ombudsman shall be informed by him about the decision taken.

Azerbaijan:

The Government adopted the Constitutional law on the Commissioner for Human Rights (Ombudsman) of Republic of Azerbaijan on December, 2001. Mandate of the Ombudsman is to restore the human rights and freedoms enshrined in the constitution of the Republic of Azerbaijan and in the international treaties to wish the Republic as a party as well as to prevent violations of human rights in cases envisaged by the given constitutional law.

Uzbekistan:

The Ombudsman is an official empowered to ensure parliamentary control over the observance of legislation on human rights and freedoms by state bodies, enterprises, institutions, organizations and functionaries.

The institution of the Commissioner for Human Rights of the Republic of Uzbekistan complements the existing forms of protection of the human rights and freedoms. The Ombudsman as well contributes to the improvement of the legislation of the Republic of Uzbekistan on human rights and brings it into line with the international law, facilitates the international cooperation and promotes public awareness of citizens in the field of human rights.[3]

Luxembourg:

The Médiateur du Grand Duché de Luxembourg – Mediator of the Grand-Duchy – is Luxembourg’s national ombudsman-institution with a general mandate. No comparable institutions exist on a regional or local level. The Chamber of Deputies passed the Law in 2003 (Loi du22/8/2003 instituant un Médiateur,  and the institution began operating in May 2004.

The jurisdiction of the institution includes the administration of the state and of the communities, as well as public institutions created by the state or by a community with exception of their industrial, financial or commercial activities. However, there are restrictions in regard to the powers of control concerning matters of national defense, state security and foreign politics.

Italy:

There is no national, parliamentary Ombudsman in Italy but in most regions regional Ombudsmen exist. These institutions were established by laws of the regional Parliaments. In addition, Art 16 of the National Law No. 127 of 15 May 1997 (as amended Law No. 191 of 16 June 1998) states that regional Ombudsmen may monitor those national administrative organs which are decentralized and operate in the respective regions. Issues concerning national defense, public security and the judiciary are excluded. Besides, most local communities have not established their own ombudsman-institution, but entrusted the regional Ombudsman to also monitor their authorities as a community Ombudsman. The Ombudsman’s control criterion is good administration by identifying delays, irregularities and defects within administration as well as their causes and proposes solutions to the supreme bodies of the respective authorities. Local ombudsman also exists at community level in Tuscany. Both regional and local ombudsmen work in coordination with each other.

United Kingdom:

            The UK Ombudsman was legally established by the Parliamentary Commissioner Act 1967 and commenced activities in the same year. The idea to create an Ombudsman in the UK first came up in the context of the Chrichel Down Affair in 1954. The Ombudsman enjoys immunity only with respect to issues which are referred to in the reports to Parliament. The Ombudsman’s control basically extends to all administrative organs of central Government. Schedule 2 of the Ombudsman Act contains a list of all authorities and entities which are subject to the control (Sec. 4 (1) of the Parliamentary Commissioners Act, 1967). Schedule 3 lists matters which are not subject to investigations by the Commissioner. The control criterion is good administration. The Ombudsman investigates instances of maladministration. The term “maladministration” is not defined by law. Complaint is to be made to a member of the House of Commons and is then referred to the Commissioner with a request to conduct an investigation thereon (Sec. 5 (1 a & b)).

Portugal:

The ombudsman institution of the Provedor de Justiça was first introduced by decree on 21 April 1975 (Decree No. 212/75) and subsequently footed in Art 24 (now Art 23) of the new Portuguese Constitution of 1976. It basically states that an independent Ombudsman is to investigate citizen’s complaints about actions and omissions of state bodies and direct recommendations to the respective bodies to prevent and remedy instances of injustice. Further legal provisions on the Ombudsman are found in the Ombudsman Law, the Estatuto do Provedor de Justiça (Law No. 9/91 as of by Law No. 30/96). The Ombudsman took up office on 9 June 1976. The institution was founded during the democratization process after the revolution of 1974 and with the purpose of enhancing citizen rights. The Ombudsman is subject to the same incompatibilities that apply to judges and may not hold any functions in political parties or associations nor bee engaged in any public partisan activities (Art 11 OA).

The main task of the Ombudsman is to protect and promote the rights, freedoms, guarantees and legitimate interests of citizens and ensure that public institutions exercise their rights pursuant to justice and the law (Art 1 (1) OA). The control, therefore, extends to the services integrated in the central, regional and local public administration, Armed Forces, public institutes, public companies including companies whose capital is mostly public and concessionaires operating public services or exploiting state property (Art 2(1) OA). In addition, the scope of activity may also include relations between private persons provided that there is a special relation of dominion authority between them (Art 2 (2) OA). Complaints may also be lodged with the Public Prosecution Office that is to forward them to the Ombudsman (Art 25 (3)OA). There is no duty for the Ombudsman to examine every complaint received. Complaints may be submitted orally or in writing and are to include the identity and address of the complainant and, if possible, a signature (Art 25 OA).

Austria:

“The Austrian Ombudsman Board (AOB) has been monitoring the public administration since 1977 based on the Federal Constitution. Since 1 July 2012, the AOB has also been responsible by order of the Federal Constitution for protecting and promoting compliance with human rights as part of the UN mandate.

Monitoring public administration

The Austrian Ombudsman Board is one of the so-called supreme bodies of the Republic of Austria and has been monitoring the public administration since 1977 based on the Federal Constitution. It monitors all authorities, administrative bodies and departments of the state, the provinces and the local government authorities in the entire federal territory. The Ombudsman Board in Tyrol and Vorarlberg only examine complaints about the Federal administration as the state parliaments there appoint their own state ombudsmen.

The AOB investigates complaints from citizens and assesses whether the administration is acting within the law and complies with human rights standards. If the AOB suspects maladministration, it can also act ex-officio – in other words act without a specific complaint. More information on the subject of complaints to the AOB.

Protecting and promoting human rights

Since 1 July 2012, the AOB has also been responsible by order of the Federal Constitution for protecting and promoting compliance with human rights as part of the UN mandate. Since then, the AOB along with its commissions has been monitoring all institutions in which liberty is being or may be deprived or restricted. It also examines the institutions and programmes for people with disabilities as well as the exercise by the administration of direct authority and the use of force, particularly during deportations and demonstrations. For more information on the subject of preventive human rights monitoring.

The AOB supports legislative authority

The impact laws actually have on people’s lives is often only evident when regulations are applied by authorities. Breaking points or shortcomings of laws often become evident when they are monitored. The AOB incorporates these experiences into the ongoing legislative process by occasionally drawing up statements on draft laws for the evaluation procedure and submitting these statements to the Austrian Parliament or a state parliament.

The AOB also makes the legislative authority aware of existing legal provisions that are problematic and draws up suggestions for improvements in the form of legislative propositions.

The AOB is also authorised have the legitimacy of a regulation of a federal or provincial authority assessed in the event that concerns are raised. The board is in this case able to submit an application to the Constitutional Court. The AOB is also involved in petitions and citizens’ initiatives that are addressed towards the Austrian Parliament. It elaborates statements relating to the above and submits these statements to Parliament or the relevant state parliament”.[4]

Conclusion:

The ombudsman institution is the public grievance office where the public may lodge all the complaints regarding the matters in controversy with the governmental agencies and the private bodies having the same authority or performing same functions. If we compare the ombudsman institution in the different countries of world, we find that the ombudsman in developing countries has vast jurisdiction and had more powers as compare to the ombudsman in developed countries. In earlier years the function of this institution is to only administer the matters regarding maladministration but with the development of the institution, the area of its concerns also got broader and there were other matters which then fall in its ambit of jurisdiction. The institution from the time when it came into existence to now, has grown itself up having different branches and deeper roots.

“Since countries have different systems of government and legislation, the functions and power of ombudsmen can be varied in different countries. As Donald Rowat (1965 and 1985) describes, there are two major models of the ombudsmen in the world. The first model is based upon the Swedish (est. 1809) and Finnish (est. 1919) ombudsmen who are called the ìclassic ombudsmen.î This model allows ombudsmen to have a very broad mandate and strong powers. The mandate comprises not only the whole public administration, state and municipal, but also supervision of the procedural and administrative activities of the courts. The classic ombudsman also has the power to prosecute or decide that a civil servant should be prosecuted before a court of law for criminal offences. This option is used only a few times each year, but it gives more strength to the remarks and opinions that the ombudsman makes public.

The second model is the Danish (est. 1953) version which is concentrated only on public administration, leaving out the judiciary from its mandate. This model focuses especially on problems in the activities of public management. The Danish model is the most widely practiced in the world.

Also, the ombudsman institution can be divided into models depending on their mode of functioning: reactive and proactive ombudsman. The reactive ombudsman waits for complaints and acts on issues or concerns that have been brought forward. The proactive ombudsman seeks out matters of concern, undertakes inspections and initiates investigations without prompting. For example, the ombudsman in the UK is considered as reactive, while the one in Sweden keeps a watchful eye on the public administration and takes proactive measures to ensure that standards are maintained”.[5]


[1]. The Canadian Encylopedia, Article by Donald. C Rowat  

[2] Official website of Greek Ombudsman independent Authority https://www.synigoros.gr/?i=stp.en.rolemission

[3]  Official website http://ombudsman.uz/en/about/ombudsman/

[4] Official Website https://volksanwaltschaft.gv.at/en/about-us

[5] The institution of the ombudsman in the former communist countries, Ulziibayar Vangansuren

Reference Books:

  1. European Ombudsman Institutions

by Gabriele Kucsko Stadlmayed published by SpringerWienNewYork

  1. Linda C. Reif published by
  2. The European Ombudsman And Good Administration in the European Union

Nikos Vogiatzis by European Administrative Governance 

  1. The Ombudsman, Good Governance, and the International Human Rights System
  2. Linda C. Reif published by Springer
  3.  

[i] European Ombudsman, the role of ombudsman institution in open government: OECD Working Paper on public governance No. 29

Ombudsman: A legal comparative study of the powers and functions of the Institution

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