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Growth of the Ombudsman Concept (Article) [1999] JSPL 10; (1999) 3 Journal of South Pacific Law

Article 1 of Volume 3, 1999

Growth of the Ombudsman Concept1

by Judge Anand Satyanand*

 
 Introduction

Two seemingly different notions are involved in this paper. The first is that of constitutions setting out clear parameters and rules, within which states are required to operate. The second is that of Ombudsmen undertaking their work despite, or beyond, the usual legal frameworks, and of being called upon to act, when no legal or administrative recourse is ordinarily available or practicable.

If one looks at this part of the world - and in particular at the Pacific - it can be stated firmly that the Ombudsman concept is one which has grown rapidly in a variety of constitutional settings throughout the region. At the time of writing in 1998, Ombudsman offices are operational in New Zealand (where there are two Parliamentary Ombudsmen), Australia (both federally and in each state), Papua New Guinea (where there is an Ombudsman Commission of three), Solomon Islands, Vanuatu, Fiji, Cook Islands and Samoa. Consideration of installation of such an office is proceeding in Tonga, Niue and Tuvalu. My aim in this paper is to convey a briefing regarding the essential nature of what an Ombudsman office may accomplish. I will also describe the versatility with which problems registered by citizens about government maladministration may be dealt with, by an Ombudsman office, particularly when the formal structures of the legal processes may have failed or be inappropriate. I will do this, in order to suggest that consideration of such an office deserves its place in any contemporary discussion of institutions of governance. In the Pacific it may be observed that the need for versatility on the part of Ombudsmen is particularly necessary. The present Fiji Ombudsman, Justice Sailosi Kepa put the matter in this way in a paper for a 1998 Ombudsman Conference for the Australasian and Pacific region. He said that in the Pacific ‘improvising is a way of life so that if you do not have all the milk you need to make a custard, you water down the milk you have or you make a custard using coconut cream’.

The term ‘Ombudsman’ is Scandinavian, meaning something in the nature of ‘entrusted person’ or ‘grievance representative’. The part word, ‘man’, is taken directly from the Swedish (the old Norse word was ‘umbodhsmadr’) and does not connote any necessity that the holder be of the male gender. Indeed, if one was to survey the present Ombudsman community world-wide, it would be seen that there are many women holding office. My tracing of the office will start with the Scandinavian, because of the name. I do acknowledge at the outset, however, and will show that there are a number of precedents from Asian (and other) settings of people, in former times, undertaking office to provide relief and redress to citizens adversely affected by government action. For reasons that will perhaps be understandable to the reader, matters of practical example will refer, more than once, to the position in New Zealand.

 
Definition

An Office provided for by the Constitution or by action of the Legislature or Parliament and headed by an independent, high-level public official, who is responsible to the Legislature or Parliament, who receives complaints from aggrieved persons against Government agencies, officials and employees, or who acts on [his] own motion, and who has the power to investigate, recommend corrective action, and issue reports.

This contemporary definition of the term ‘Ombudsman’, compiled by the Ombudsmen Committee of the International Bar Association (IBA), is not agreed to universally, but it does serve as a starting point in defining the role. The Scandinavian ‘grievance person’ model is also said to set a standard. In earlier times it is recorded that the Romans installed an officer called the ‘tribune’, such being a person appointed to protect the interests and rights of the plebeians from the patricians. There are also writings in both India and China which suggest that three thousand and more years ago, special officials were designated to function in the manner of Ombudsmen. In China for example during the Yu and Sun dynasties it was the duty of the incumbent, who was called the 'yuan', to ‘report the voice of the people to the Emperor and to announce the Emperor's decrees to the people’ and to undertake thereby a similar kind of role.

During the last century, Sweden appointed an official entitled the ‘justitieombudsman’ in 1809, this person having the ability to enquire into actions undertaken by the government administration, including the military, the courts and otherwise, and whose installation was said to be a reaction ‘to state absolutism and an assertion of individual rights and dignities of the citizen’. Nearly 100 years later, Finland appointed a similar person and Denmark followed likewise in 1954.

During the post World War II period, there was considerable discussion in many countries outside Scandinavia, regarding the establishment of a process to examine things undertaken by governmental administration, alongside and beyond the formal means of redress available through the courts or through Parliament itself, or by means of the Press. The welfare state models in many countries from the 1930’s forward had produced very large government bureaucracies. There was concern in many quarters that a simple independent means of redress needed to be provided for the individual citizen. There are many descriptions of this but the matter was neatly put in the following way by Professor D C Rowatt in an article suggesting an Ombudsman Institution in Canada in 28 Can J Econ & Poli Sc at p 543:-

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.

In that country, and elsewhere, it was simply no longer possible to say that every person adversely affected in an unfair manner by action of a governmental official, would have the resources or means or ability to engage a lawyer to take action. Court procedures themselves could be both lengthy and expensive. The right of a person to do such things as consult their individual Parliamentary representative, write to the newspaper, organise a petition or raise a deputation to see a Government Official or Minister, could all be considered equally difficult to undertake. In England a committee of the International Commission of Jurists (ICJ), chaired by Lord Whyatt, a former Chief Justice of Hong Kong, had suggested, towards the end of the 1950s, the establishment, for the United Kingdom, of some kind of parliamentary commissioner.

In New Zealand, a similar debate was under way in a number of quarters - political, academic and among those with the task of formulating policy. There was quickening pace in that area after the abolition, at the beginning of the 1950’s, of the Upper House of Parliament. Consideration was being given to such things as an Administrative Court. The establishment in 1954 of an Ombudsman responsible to the Danish Parliament or ‘Folketing’ was observed in New Zealand with interest.

In 1962, New Zealand became the first English speaking Commonwealth (and indeed common-law) country to enact this kind of legislation, although there were a number of other jurisdictions in which Bills had been introduced, or where the matter had been canvassed. The succeeding 36 years have seen Ombudsmen installed in a great many more countries, with the international Ombudsmen community now numbering 150 in some 86 countries because, as will be known, the office has been created in both federal and provincial situations.

The diagram that follows gives some broad idea as to how far the concept has been embraced in a variety of constitutional settings.

The political science writer, Professor Larry B Hill, in ‘The Model Ombudsman’ (1976, USA: Princeton University Press), set out to develop what he called a ‘comprehensive definition’ of the classic ombudsman model. ‘The Office’, Hill wrote at p 12:

should be legally established, functionally autonomous, external to the administration, operationally independent of both the executive and legislature, specialist, expert and non-partisan, normatively universalistic, client centred but not anti-administration, and both popularly accessible and visible.

Put more simply, but with perhaps more charm, one of the Pacific region's long-serving Ombudsmen, Sir Moti Tikaram, Ombudsman of Fiji in the 1970s and early 80s, observed that the Ombudsman was one of the few people entitled, in a modern context, to sign off correspondence with the phrase, ‘Your obedient servant’.

 
Scope of Jurisdiction of the Ombudsman

When describing the jurisdiction conferred upon the individual Ombudsman, it must first be emphasised that the term ‘Ombudsman’ may itself be somewhat misleading. Close analysis of what may be undertaken (and the manner of it) is often required, to see what the individual office holder may do. For an immediate example, in many jurisdictions, including the United Kingdom, the citizen may not approach the Ombudsman directly. In Australia and New Zealand direct contact is the norm. In the United Kingdom and Northern Ireland, a citizen approaches the local Member of Parliament, who in turn makes a case to the Ombudsman. In many jurisdictions, there is an emphasis on the Ombudsman being the person who redresses breaches of human rights. Several Latin American countries such as Mexico do this, whereas in New Zealand since 1977 that function has been undertaken by a separate Human Rights Commission. In a number of other countries, and Papua New Guinea furnishes an example, the Ombudsman may be charged with a specific responsibility of enquiring into allegations of corruption. Additionally, the question of appointment, and therefore tenure, from a constitutional point of view, bears attention. Whilst a New Zealand Ombudsman is appointed by Parliament and receives funding from that source, in many jurisdictions the appointment may be by the erstwhile governing party and funding for activity may become dependent upon a determination of the Government of the day. Some Ombudsmen are responsible to Parliament (in unicameral States such as New Zealand) or to the Lower House, where there may be two Houses of Parliament, such as in the United Kingdom.

Mention of jurisdiction leads immediately to the observation that from the classic state Ombudsman role as described above, there have developed, here and elsewhere, different kinds of ‘Ombudsmen’, some of whom use similar investigative methodology, but whose role may be limited by circumstances or area. If one is to describe the essence of the Ombudsman role as defending an individual citizen against the unfair administrative actions of the State, Human Rights Commissioners can be seen as undertaking a kind of Ombudsman role, but are restricted to alleged breaches of human rights. In this quadrant also, one can observe that there are separate persons such as Commissioners for Children, Health and Disability Commissioners and Police Complaints Authorities who may be undertaking Ombudsman-like work, but whose work is confined within a specific area.

Alternatively, if one defines the role of the Ombudsman as being a person who investigates complaints, that model has led to the development of industry Ombudsmen, for example in the fields of banking and insurance. It has recently been observed by the former Ombudsman for Northern Ireland, Dr Maurice Hayes, that the Ombudsman concept is one of the few to have passed from the public sector to the private sector at a time when the tide of ideas is flowing in the opposite direction. There has also developed the notion of ‘organisation Ombudsmen’. In some countries, such as the United States, if one has a dispute with a department store, university or a local authority, the person designated to deal with that complaint may be termed an ‘Ombudsman’.

The foregoing brief summary is not complete, because there may be other anomalies. In Australia, for example, some Ombudsmen may deal with complaints about behaviour of the Police and others not because of there being in place a separate stand-alone Police Complaints Authority. In Sweden and Finland, complaints about the conduct of the courts are dealt with by Ombudsmen, whilst in most countries where there is a separation of powers - legislative, executive and judicial, the Ombudsman has jurisdiction only with regard to actions of the executive. There are a number of sources in which descriptions of these various kinds of Ombudsman activities are to be found, one recent and notable publication being ‘The Ombudsmen Concept’ (Reif, LC, (ed), 1995, Canada: International Ombudsman Institute, University of Alberta).

To meet the matter of proliferation in New Zealand, it was thought important that the term ‘Ombudsman’ should not be seen to lose its currency. Accordingly legislation was passed in 1993 restricting use of the term ‘Ombudsman’ unless the particular industry which uses the term, is able to guarantee certain kinds of delivery of service and is able to gain the approval of the erstwhile Chief Ombudsman.

To sum up the question of jurisdiction and its extent, New Zealand barrister and writer, Dr Graham Taylor, in a paper published in ‘Judicial Review of Administrative Action in the 1980s’ (Taggart (ed), 1986, Oxford: OUP) described administrative review in New Zealand as being available by three broad means - first in the courts, secondly due to coverage under the Official Information Act (New Zealand has freedom of information legislation) and thirdly by referral to the Ombudsmen. If the jurisdiction of the third of these is to remain meaningful, it is generally accepted in the Ombudsman community that there be regular review and reappraisal of the role, by way of ensuring that the Ombudsmen are able to operate in an independent fashion, that they are encouraged to be flexible in resolving items - particularly where dispute has occurred - and thirdly that they retain credibility both with the public and with those organisations subject to coverage. It seems also, that one of the keys to maintaining credibility for the Ombudsman office is that the holder of office should never be seen to become an advocate for either complainant or organisation. Rather he or she should be seen to undertake a separate and distinct review. If there is a role for advocacy, then it should be restricted to the Ombudsman advocating the particular recommendation in a particular case following an independent review.

 
Legal Description of the Ombudsmen's Role

By undertaking a task which affects rights and involves examinations of organisations’ powers and responsibilities, a question arises as to whether the Ombudsman office itself should be subject to judicial scrutiny if the individual investigation and recommendation itself breaches appropriate procedural or jurisdictional limits. In most jurisdictions familiar to the present writer, the answer is in the affirmative. This susceptibility of the Ombudsmen to judicial review, which some would say is a discipline of its own, has led to a number of contemporary statements about the nature and efficacy of the role. Although many citations abound, the following examples suffice.

In 1984 in Canada, Justice Dickson delivering the unanimous decision of the Supreme Court of Canada in British Columbia Development Corporation and another v Friedmann [1984] 2 RCS 447, 460, 463 said:-

The limitations of Courts are also well known. Litigation can be costly and slow. Only the most serious cases of administrative abuse are therefore likely to find their way into the courts. More importantly, there is simply no remedy at law available in a great many cases.

Read as a whole, the Ombudsmen Act of British Columbia provides an efficient procedure through which complaints may be investigated, bureaucratic errors and abuses brought to light and corrective action initiated. It represents the paradigm of remedial legislation. It should therefore receive a broad purposive interpretation consistent with the unique role the Ombudsman is intended to fulfil.

The judgment is also authority for the proposition that the phrase ‘matter of administration’ - which frames the Ombudsman's area of jurisdiction, is to be construed widely ‘encompassing everything done by governmental authorities in the implementation of government policy’, see p 474. The judgment held that only the activities of the legislature and the courts should be excluded from the Ombudsman's scrutiny.

Earlier in that country when the role of the Ombudsman was challenged in 1970 in Alberta, Chief Justice Milvain said in Re Ombudsman Act (1970) (72 WWR 176, 190 and 192):-

... the basic purpose of an Ombudsman is provision of a 'watchdog' designed to look into the entire workings of administrative cases. ... [he] can bring the lamp of scrutiny to otherwise dark places even over the resistance of those who would draw the blinds. If [his] scrutiny and reservations are well founded, corrective measure can be taken in due democratic process, if not no harm can be done in looking at that which is good.

In Australia, the judgment of the Federal Court Aboriginal and Torres Strait Islander Commission v Commonwealth Ombudsman ((1995) 134 ALR 238) (frequently being cited as ATSIC v Ombudsman) undertook a thorough review of the actions of the Ombudsman and contains a number of statements making distinction between the judicial function and the Ombudsman function, the former being for making determinations on identified issues and the latter being to ‘investigate, report and make suggestions’. A number of other Australian authorities from superior Courts have also delineated the Ombudsman role. In Ainsworth v Ombudsman (1988) 17 NSWLR 276, 283, Justice Enderby of the New South Wales Supreme Court said:

It has always been considered that the efficacy of the [the Ombudsman] Office and function comes largely from the light [he] is able to throw on areas where there is alleged to be administrative injustice and where other remedies of the Courts and the good offices of Members of Parliament have proved inadequate. Goodwill is essential. When intervention by an Ombudsman is successful, remedial steps are taken, not because orders are made that they may be taken, but because the weight of its findings and the prestige of the office demand that they be taken.

In Botany Council v The Ombudsman ((1995) 37 NZWLR 357, 363), a decision of the New South Wales Court of Appeal delivered by its President, Justice Kirby also traversed the difference between judicial and Ombudsman function and said the following:-

[The] Ombudsman lacks the powers to make orders as a Court may do. But the sanction of the provision of a report to the responsible minister and to parliament and the requirement upon the Minister to respond promptly to any such report also affords significant sanctions. These have proved effective in all jurisdictions in which the Office of the Ombudsman has been created, to obtain reconsideration of administrative action found by the Ombudsman to be unlawful, unreasonable, mistaken or wrong ...

In New Zealand, the Ombudsman's authority has also been challenged in the Courts on a number of occasions and there are a number of citations to be mined, describing the jurisdiction. Most of the leading cases, namely Police v Ombudsman ([1988] 1 NZLR, 385); TVNZ v Ombudsman ([1992] 1 NZLR, 106), Queenstown-Lakes District Council v Wyatt Co NZ Ltd ([1991] 2 NZLR 180) and Attorney General v Davidson ([1994] 3 NZLR 143) have been connected with the scope of the Ombudsman's authority within freedom of information legislation (for which the New Zealand Ombudsman office is the arbiter) and are therefore outside the strict framework of this present paper.

 
Is the outreach sufficient?

A question often posed to Ombudsmen world-wide is whether the redress offered by the service is sufficiently understood by the ordinary community. This is not any area for complacency. In New Zealand, although the legislation has been in force for more than 35 years, and the jurisdiction has been extended to cover local government, state owned enterprises and schools, and whilst the daily workload of the two Ombudsmen sees several hundred cases open at any given time and some thousands dealt with each year, there needs to be a continuing emphasis upon publication on the work of the office. This can be in the media, through the country's ethno-minorities, in school publications and by receiving the benefit of public airing in Parliament and before its Select Committees. The New Zealand office continues to handle more complaints. In 1965 the annual total was 743; in 1975, 1163; in 1985, 1994, in 1995, 4707 and in 1998, 5149.

The issue of publicity being undertaken by the Ombudsman office is interesting, because the notion of the office being one of last resort for the community must be preserved. It also seems appropriate to ensure that the office is reactive to wishes expressed by individuals and is not engaged in what might be termed ‘artificial solicitation’ of complaint. It seems to be generally agreed that low key but regular publicity and dissertation regarding its services meets the matter best.

 
What is the future for the Ombudsman Office?

It might be thought that the notion of an Ombudsman office, by having grown incrementally for over 30 years, all over the world, would have an assured position in the framework of every modern state, and that nothing has emerged which might replace it. It is interesting to note two recent developments - the installation of an Ombudsman (entitled the Public Protector) in the new South African Constitution and the provision for an Ombudsman in a new Constitution for Fiji with entrenched constitutional provisions for the office. There is no room for complacency regarding ongoing growth though, because whilst the office can certainly be said to have been growing through two generations (taking 1960 as a baseline), government administrations of the late 1990s can be of a far different size and style and with a much different influence on contemporary life in whatever country. In New Zealand, because of widespread economic reform and restructuring of government enterprises, numbers in the civil service are fewer. Many of those people are working under contract and for shorter periods. Additionally, successive Governments have adopted the managerial approach of what maybe termed ‘a funder/provider split’ with many of the providing functions being delivered by the private sector rather than by government departments. In terms of the above it can in a New Zealand context be argued that the need for an Ombudsman service has been lessened. But it is a matter of record that the numbers of complaints referred to the New Zealand office continue to increase.

 
 Is it worth the citizen's while to seek redress against maladministration?

This is an intriguing question because the term 'redress' usually connotes the ability to obtain an order against or some kind of sanction against a department or organisation. That ability to bring down sanctions is one reserved to judicial tribunals. The Ombudsmen have, at least in New Zealand, never been granted such powers and neither have any ever been sought. Professor Larry Hill, in his book ‘The Model Ombudsman’, op cit, has described the matter as ‘ ... one of the institution's most interesting puzzles is its apparent effectiveness, despite minimal coercive capabilities’.

The emphasis has rather always been on the Ombudsmen's ability to persuade the parties to some kind of resolution. It can certainly be said, from a New Zealand standpoint, that Ombudsman recommendations in that country, have developed an enviable record over the years of being adopted, even if not in the short term, then certainly in the medium and longer terms. In a slightly different but still relevant context, the Fiji Constitution Review Commission in its August 1996 Report chaired by a New Zealander, Archbishop Sir Paul Reeves, said (para 15.45):-

The Ombudsman is authorised to make a finding generally as to the legality, reasonableness or justice of the matter complained of, and to make recommendations as to the appropriate remedial action which should be taken. The findings and recommendations are usually given to the state servant responsible for managing the relevant department or agency of the government. Unlike a Court or tribunal, the Ombudsman has no power to order or direct. Although his or her recommendations are not mandatory, in the event that they are not followed, the Ombudsman has the power to report the matter to Parliament. The Ombudsman’s power is therefore rightly described as the ‘power to persuade.

 
How can citizen's redress be better facilitated in the future?

For citizen's redress to be delivered where appropriate, it seems important, first, for the viability of the Ombudsman Office to continue to be something dependent upon Parliament and in being responsible back to that body. In other words, the citizen may perhaps be best served, in the long term, so long as there is some immutable kind of guarantee of individual consideration of grievance. Successive administrations have, at least in New Zealand, confirmed that the Ombudsman office should be aside from any matter dependent upon the individual Government of the day. Secondly, a question arises as to whether the Ombudsman office should only be one that is reactive to people's complaints. It seems, at least to this writer, to be suitable to suggest that the Ombudsman office continue to receive encouragement to pursue a more pro-active role, say by publishing of guidelines and articles and by undertaking of seminars and discussions among the professional communities as well as among the lay public. Likewise it seems, that so long as those pro-active measures are based upon an understanding of the principles which should underpin any administrative organisation - and particularly the government - then the community can benefit. An Ombudsman office, likewise, will benefit from keeping as close as it can to the community. The current practice in New Zealand has been for the Ombudsman of recent times to adopt this kind of pro-active stance and this practice has been supported by Parliament through its Officers of Parliament Select Committee.

The challenge to be met was perhaps put best more than three centuries ago, by the English poet, John Milton in ‘Areopagitica’ when he wrote:-

For this is not the liberty which we can hope, that no grievance should ever arise in the Commonwealth, that let no man in this world expect; but when complaints are freely heard, deeply considered and speedily reformed, then is the utmost bound of civil liberty attained that wise men looke for.

 
Conclusion

States, both old and modern, demonstrate that their constitutional arrangements are completed when there is put in place, alongside the formal structures of Courts, Parliament and the Executive, a further and less formal means of ensuring that gaps are filled and ensuring that the individual citizen is afforded what may be called a ‘safety net’ or a ‘safety valve’, whichever may be the more appropriate for the occasion.

As to efficacy of operation and a description of what should happen in an optimum situation, may I conclude my description by quoting from three contemporary sources: two of which are Asian, and one from my own country, each furnished during the modern era.

An Ombudsman has a difficult job. [He] has to maintain [his] independence and impartiality, not an easy task as many issues become more and more politicised. And a good Ombudsman should always try to strengthen the relationship between the public and the government. It is only too easy to find fault in a way that will adversely affect the credibility of the government and demoralise staff. It is all the more difficult to make constructive criticisms that will enable civil servants to understand how they can do their jobs better, thereby improving the standard of service to the community, and at the same time enhance the public understanding of why a government takes the decision it does. An Ombudsman needs courage, intelligence, determination and sensitivity to do [his] work successfully.

(The Hon Mrs Anson Chan, Deputy to the Governor of Hong Kong, 1995)

The basic foundation of the institution of Ombudsman is to ensure that citizens should not be the victims of actions of the bureaucracy or other functionaries. The central feature of the institution is that the investigation and association of administrative conduct would confirm the basis for proposals as to future conduct of the bureaucrats. The purpose of investigation is not only the redress of individual complaint, but prevention of future ones. Thus an Ombudsman is able to make suggestions for improving performance and better service to the citizens in the light of experience gained while investigating into public grievances. The institution has to be quite alert to prevent maladministration. To put it precisely, the institution of Ombudsman is a device by which the state provides free service of an independent investigator for looking into citizens’ complaints and submits its own decisions and suggestions for remedial action.

(Justice H H Kantharia, Ombudsman of the State of Maharashtra, India, 1995).

The Ombudsman is Parliament’s person - put there for the protection of the individual, and if you protect the individual, you protect society. I am not looking for any scapegoats or embarking on any witch hunts. I shall look for reason, justice, sympathy and honour, and if I don’t find them, then I shall report accordingly.

(Sir Guy Powles, first New Zealand Ombudsman, upon taking office in 1962).

 
ENDNOTES:

1. Gilling, B, The Ombudsman in New Zealand, 1998, New Zealand: Dunmore Press.

* The author, Anand Satyanand (54), is one of New Zealand’s two Parliamentary Ombudsmen, currently un2. dertaking a five year term. Of Indian background, his grandparents migrated from India to Fiji in the 1870’s and his parents from Fiji to New Zealand in the 1920’s. Born and raised in Auckland, he qualified as a lawyer; working as a Crown prosecutor and then in private practice, before being appointed a District Court Judge in 1982. He served in a number of areas in New Zealand, principally as a jury trial judge in criminal cases, before being appointed by Parliament to his present role, which commenced in 1995. This is a reviewed and updated paper originally delivered to the LAWASIA Comparative Constitutional Law Third Biennial Conference in Macau.