OMBUDSMAN- A CRITICAL ANALYSIS

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BY SHIPRA & SOHAM BANDYOPADHYAY

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An ombudsman or public advocate is 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 of maladministration or a violation of rights. In some countries an Inspector General, Citizen Advocate or other official may have duties similar to those of a national ombudsman, and may also be appointed by a legislature. Below the national level an ombudsman may be appointed by a state, local or municipal government. Unofficial ombudsmen may be appointed by, or even work for, a corporation such as a utility supplier, newspaper, NGO, or professional regulatory body.

The typical duties of an ombudsman are to investigate complaints and attempt to resolve them, usually through recommendations (binding or not) or mediation. Ombudsmen sometimes also aim to identify systematic 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 (for example, 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.

A prototype of ombudsmen may have flourished in China during the Qin Dynasty (221 BC), and in Korea during the Joseon Dynasty. The position of secret royal inspector, or Amhaeng-eosa was unique to the Joseon Dynasty, where an undercover official directly appointed by the king was sent to local provinces to monitor government officials and look after the populace while travelling incognito. The Roman Tribune had some similar roles, with power to veto acts that infringed upon the Plebeians. Another precursor to the ombudsman was the Turkish Diwan-al-Mazalim which appears to go back to the second caliph, Umar (634–644) and the concept of Qadi al-Qudat. They were also attested in Siam, India, the Liao dynasty (Khitan Empire), Japan, and China.Use of the term in modern times began in Sweden, with the Swedish Parliamentary Ombudsman instituted by the Instrument of Government of 1809, to safeguard the rights of citizens by establishing a supervisory agency independent of the executive branch. The predecessor of the Swedish Parliamentary Ombudsman was the Office of Supreme Ombudsman (“HögsteOmbudsmannen”), which was established by the Swedish King, Charles XII, in 1713. Charles XII was in exile in Turkey and needed a representative in Sweden to ensure that judges and civil servants acted in accordance with the laws and with their duties. If they did not do so, the Supreme Ombudsman had the right to prosecute them for negligence. In 1719 the Swedish Office of Supreme Ombudsman became the Chancellor of Justice. The Parliamentary Ombudsman was established in 1809 by the Swedish Riksdag, as a parallel institution to the still-present Chancellor of Justice, reflecting the concept of separation of powers as developed by Montesquieu.

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.

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.

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 République in 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.

LOKPAL & LOKAYUKTA- OMBUDSMAN

A Lokpal is an anti-corruption authority or ombudsman who represents the public interest. The concept of an ombudsman is borrowed from Sweden. The Lokpal has jurisdiction over all Members of Parliament and central government employees in cases of corruption. The Lokpal and Lokayuktas Act was passed in 2013 with amendments in parliament, following the Jan Lokpal movement led by Anna Hazare. The Lokpal is responsible for enquiring into corruption charges at the national level while the Lokayukta performs the same function at the state level.The Lokayukta is an anti-corruption ombudsman organization in the Indian states. The Administrative Reforms Commission (ARC) headed by Morarji Desai submitted a special interim report on “Problems of Redressal of Citizen’s Grievances” in 1966. In this report, the ARC recommended the setting up of two special authorities designated as ‘Lokpal’ and ‘Lokayukta’ for the redressal of citizens’ grievances. The LokAyukta, along with the Income Tax Department and the Anti-Corruption Bureau, mainly helps people publicise corruption among the Politicians and Government Officials. Many acts of the LokAyukta have resulted in criminal or other consequences for those charged. Drafted by Justice Santosh Hegde (a former Supreme Court Judge and former Lokayukta of Karnataka), Prashant Bhushan (a Supreme Court Lawyer) and Arvind Kejriwal (an RTI activist), the draft Bill envisaged a system in which a corrupt person found guilty would go to jail within two years of the complaint being made and his ill-gotten wealth confiscated. It also sought power for the Jan Lokpal to prosecute politicians and bureaucrats without requiring government permission.

LIMITATIONS:

The controversial backlog of the Act involving State legislatures was the one that led to the rejection of a previous Bill which in turn brought a revised Bill providing an option of Article 252 to be invoked and option was given to the States to have their own Lokpal Act. The present Act mandates the setting up of Lokayuktas in each state within one year along with the provision that State legislatures shall have the authority to determine the powers and jurisdiction of the Lokayukta. This makes the situation crystal clear and the gives rise to the apprehension of inefficient Lokayuktas with restricted jurisdiction in the fetters of the state government’s stewards adversely affecting the poor and marginalized through raging corruption. One of the limitation of the Act is envisaged in the following words that the Lokpal “shall not inquire or investigate into any complaint, if the complaint is made after the expiry of a period of seven years from the date on which the offence mentioned in such complaint is alleged to have been committed.” Though unreasonable delay by the plaintiff in instituting a suit or filing a complaint is a ground for dismissal but the gist of the matter is that cases concerned with lokpal are usually high-profile scams of the government bringing under its garb the highest office bearers which are discovered with proper evidence only after one regime ends (five years or even seven years) and a proposal is made that in the presence of concrete and corroborative evidence, complaints should be entertained and worked upon by the Lokpal to ensure justice and so that the purpose of the Act is served.

CONCLUSION:

The most common criticism of the ombudsman system is that the function is not generally well understood. There is relatively limited documentation and information about their work, often confusion and uncertainty about their role, and with the proliferation of ombudsman offices in different sectors, the confusion can be exacerbated. In spite of the key characteristic of accessibility, ombudsman offices are frequently noted for their inaccessibility. Few citizens are aware of the different ombudsman schemes, how to reach them and how to process a grievance. Inaccessibility is the chief reason why ombudsman offices tend to be under-utilised, especially by the most disadvantaged who are less likely to know of the existence of ombudsman and have more difficulty in registering complaints or grievances. It seems that many ombudsman schemes, particularly in Britain, are hidden by bureaucracy and formality and lack a human face. The question of visibility is linked to more general criticisms of the operational mode of the ombudsman as too reactive, waiting for complaints rather than taking the office to the public or initiating investigations. The ombudsman office is also criticized for the fact that its effectiveness tends to depend upon the character and personality of the ombudsman officer(s) themselves rather than the system as a whole. Regardless of their organizational framework they are a highly personalized institution and success demands an individual or team who are perceived as independent and impartial, with relevant qualifications and in-depth knowledge of the sector, and can command respect and trust from all parties. Of course, such individuals are hard to find.

Since the ombudsman’s powers lie essentially in recommendation there is a genuine concern that the ombudsman lacks ‘teeth’. For instance, the annual report (for many ombudsmen the only public document issued) is often considered an inadequate instrument for influencing administration procedures and practice, informing mass media and educating the public. Moreover, the ombudsman is generally powerless to change or reverse decisions. In fact, some believe that the ombudsman’s powers as critic and reformer must be strengthened to influence changes in legislation and policy and not just administrative procedure. The ombudsman should be concerned not merely with laws or codes as they stand, but also as they might be.In order to make sure that a nation should prosper it becomes very important that the administrative wing of the nation is functioning properly and efficiently and at the same time one key point to be noted is that there is no corruption in the administrative department of the nation. Corruption is actually the deep rooted cause which is the biggest obstacle in the development of a nation. In order to tackle this problem of corruption the institution of ombudsman plays the most important role and in the Indian context this role is played by the Lokpal. The other point to be noted is that when the concept of ombudsman emerged at that point of time it was made to tackle the problem of maladministration and inefficiency with corruption just being a part of it but as time passed the problem of corruption grew to such an extent that now the institution of ombudsman is considered to be made only for the problem of corruption. This problem of corruption cannot be tackled only through legislation; a concentrated and unified effort is required from the society as a whole. For corruption to spread its root so deep into the system of any nation the citizens of the nation are equally to be blamed because it is not only the administrative officials who are at the wrong side.

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