Publications

Dr. Roel Fernhout
National Ombudsman of the Netherlands

Establishment of the institution of Ombudsman

Conference on the Role and Institution of Ombudsman
Prague, 27-28 April 2000

After Sweden in 1809 and Finland in 1919, Denmark in 1955 became the third country in the world to acquire an ombudsman. And it was from Denmark that the institution gained a footing all over the world. By 1973, ten countries, including six in Europe, each had their own national ombudsman, and another four had opened regional offices. Ten years on - in 1983 - 21 countries, including the Netherlands, my own country, had appointed national ombudsmen, with regional offices operating in another six. From that point onwards, the institution underwent spectacular growth. Now, at the beginning of this new millennium, over 80 countries have ombudsmen at one or more levels of government. On 1 September 1995, the European Union appointed the first supranational ombudsman in the world. When we look at these figures, we can only conclude that these are impressive developments; in the space of only a few decades, ombudsmen have been appointed - sometimes under a different name - in all corners of the globe.

Over the past ten or fifteen years, ombudsmen have also been appointed for the first time in a number of countries - some in this region (in Central and Eastern Europe) others in Latin America - which, having seen the end of a period of totalitarian rule, faced the task of constructing a new democratic order. The existence and activities of an ombudsman can contribute significantly to the development of such young - and sometimes still vulnerable - democracies, and help build up public confidence in the government.

It is first and foremost the government's responsibility, of course, to ensure that public authorities make proper use of their powers in their dealings with the public. Modern governments are ever more aware of this, and realise that complaints from the public can help guide them towards ways of improving the quality of their actions. Important though such internal control mechanisms may be, however, experience has shown that the complementary role of external supervision is essential. The ombudsman contributes to that supervision from his own independent position, alongside the controls exerted by parliament and the judiciary. The ombudsman calls the government to account for the way it treats individual citizens.

The ombudsman is an institution set up for members of the public; its raison d'être is to help protect ordinary people from the government. Any other role it may fulfil, such as enhancing the quality of government, is subordinate to its primary task - to be the Defender of the People (Defensor del Pueblo), the institution's name in Spain. The government is - necessarily - invested with special powers, and possesses numerous monopolies. This makes people dependent on it in countless ways, a dependency that may vary according to social position and circumstances. Members of the public must therefore be able to count on the government performing its tasks correctly. Unfortunately, that governments cannot always be relied upon to do so is universally acknowledged as a fact of life.

This brings me to the central responsibility of every ombudsman: to stand up for the public's right to good governance. What this means is a government that respects and promotes the fundamental rights of its people, and acts in accordance with the laws of the land and the norms of international law. It also means a government that is free from corruption, and is committed to preventing - in the words of the United Kingdom's parliamentary ombudsman - "maladministration, leading to injustice".

In its modern form, the ombudsman is an element in the democratic system of checks and balances, a concept that derives from the American constitutional tradition. In a democracy, the public comes first. Democracy means a culture in which every individual matters and is respected. In a democratic system it is taken for granted that government bodies must account externally - in particular to parliament - for the way in which they perform their duties. For this, it is essential that open government should be safeguarded.

At this point I should like to bring in the concept of the rule of law: the idea that the government not only creates the law, but is itself subject to it. In a state governed by the rule of law, the government is expected to respect and safeguard the rights of individuals. This is most obvious in the case of human rights. Where the rule of law reigns, the exercise of government authority is not determined by tradition, or by the charisma of political leaders, but by the law. In short, in a democratic state governed by the rule of law, the state must be prevented from gaining absolute power without constraints, accountability or controls - history has shown what absolute power means.

If the public is to have confidence in its government, constraints must be imposed on the power it exercises. And conversely, a government needs legitimacy if it is to be effective.

I would emphasise here that the institution of the ombudsman presupposes a democratic, plural system of government. However, at the same time it can contribute to the quality of democracy, by making authorities account for the way in which they deal with the public in individual cases.

By linking the ombudsman and a democratic state governed by the rule of law, I certainly do not mean to imply that the ombudsman can only function in a country whose government displays no shortcomings. In such surroundings an ombudsman would be superfluous; but this notion, as we all know, is a mere utopia.

If the ombudsman is to fulfil his role properly, he must in any case be independent of the government bodies that fall within his sphere of competence. For it would be incompatible with the ombudsman's supervisory responsibility for the bodies he is intended to monitor to be capable of influencing him in any way. This goes further than the requirement that every ombudsman should have an impartial attitude; the ombudsman's independence means that he must not be subject to the instructions of others, that his legal status affords him protection, and that his office is given sufficient funds to do its work properly. Many ombudsmen are also authorised to launch investigations on their own initiative, which underscores their independence. This independence should also be reflected in the fact that the ombudsman's work is open to scrutiny. In addition, the legislature must ensure that the ombudsman's statutory powers are wide enough to permit him to fulfil his responsibilities effectively.

The ombudsman's independence must be safeguarded institutionally, and must be respected by all parties concerned, including, of course, the government itself. This is an important prerequisite for the confidence that the public must be able to have in the ombudsman. On the basis of this independence, the ombudsman must do his work in such a way as to acquire the authority that is essential if his decisions are to be acted upon.

Another prerequisite, if the ombudsman is to do his job satisfactorily, is that the public should have easy access to his institution. To maintain good relations with the public, the ombudsman must be effective. For it is essential that the public should have confidence in the institution. And to generate this confidence, it is essential that the ombudsman should maintain a high profile, and above all that his work should yield results. Without these results, the public will soon feel that there is little point in turning to him.

What do these general characteristics of ombudsmanship imply for the setting up of a new ombudsman institution? How can it be ensured that the ombudsman can fulfil his role in the system of checks and balances, if not from scratch, then at least as soon as possible, and in an adequate and confident way?

First and foremost, of course, adequate legislation must be processed. Preferably, the institution should be authorized in the constitution. The ombudsman must be firmly positioned as an independent authority and his position relative to parliament and the judiciary must be clear.

What should be included in the legislation? Without giving you an exhaustive enumeration, I can name you some aspects that must be covered. Legislation must take care of institutional matters, that is: how and by whom is the ombudsman to be appointed, is he to be an officer of parliament or an independent authority, what is his term of office, what is his legal position - for example, what are the grounds for his dismissal, and how is he to be remunerated (this should be on a par with high ranking government officials)?

Legislation should contain the precise task of the ombudsman, and in view of that, his power and authority and their limitations. What is the extent of the jurisdiction of the ombudsman? Will he be competent over central authorities only, or over local and regional authorities as well? Does his competence include the police, prison authorities, the judiciary? All these questions must be addressed. The ombudsman should be given explicitly the power to investigate and assess government actions within his competence, the right to make recommendations to government bodies and the right to investigate on his own initiative. Legislation must allot the ombudsman far reaching investigative powers, such as the right to access government buildings and government files. Without these, the ombudsman can not effectively function.

Legislation should also give the requisites for the admissibility of complaints and should include procedural regulations, for example, how a complaint should be filed (verbally or in writing), and the right of the complainant and of the government official concerned to be heard - an elaboration of the principle that both sides of the argument should be heard.

Safeguards must be put in place to ascertain the confidentiality of information put before the ombudsman. And it must also be made clear which of the ombudsman's documents will be public.

Apart from the processing of the legislation and, subsequently, the appointment of the first ombudsman, the organisation of the ombudsman office must be dealt with. It will be necessary to find adequate accommodation, and staff will have to be hired and trained.

Also, in this information-age, a computer-based case management system can not be missed.

In order to stress the independence of the ombudsman it may be helpful to seek accommodation in a building that is clearly separate from official government buildings.

Also, the requirement of easy access to the ombudsman must be kept in mind when choosing the location of the office. This should preferably be found not on the outskirts, but in the centre of the capital. If it is to be expected that a considerable number of citizens will want to file their complaint in person (and not in writing) it may be advisable to open branch offices throughout the country.

To make certain that complaints are handled in a uniform or consistent way, and according to the requirements of the law (and according to internal regulations), a manual must be drafted for staff to consult. Regular discussions between ombudsman and staff will help to educate the staff and to further develop working methods.

Clearly an ombudsman cannot function if his existence is not known outside his office. Therefore it will be necessary to inform the public and the government bodies within his jurisdiction of the start of the institution and of its task and powers.

As far as informing government bodies is concerned, I would like to point out that an ombudsman is seriously hindered in his work if government bodies do not cooperate. And a certain way for the ombudsman to deprive himself of their cooperation is to fail at making himself known to them in the first place. It may be helpful to establish a network of contact persons. Contact persons at each government institution within the competence of the ombudsman may act as intermediaries between that institution and the office of the ombudsman.

Of course the public must be reached, as the ombudsman is there for the people. The ombudsman should use the media in order to get this message out. He might do so for example by handling, at an early stage, a few potentially high profile cases, that are instrumental to attracting a lot of media-attention.

Furthermore it could be helpful to specifically address intermediaries, such as lawyers, legal aid or human rights institutions, who can hand on suitable cases to the ombudsman.

When it is not part of the culture of a country for the people to be vocal and to stand up for their rights, they probably will also be very hesitant towards placing their complaints before the ombudsman. It may very well be so that they need to be educated in filing complaints - when they have reason to do so - as an integral part of a general education in effecting their civil rights. The ombudsman may play an important role in this education. And it is ultimately up to him, by handling the complaints that are brought to him in an impartial and adequate way, to further win the confidence of the people.