OMBUDSMAN: AN INTRODUCTION

Origin and Evolution

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 paper1: -

“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.

Before the times of Prophet Muhammad (PBUH) there was no administration in

the proper sense of the word. It was the Prophet who first introduced
administrative authorities. He appointed governors of the provinces, judges and
tax collectors. They were all accountable to the Prophet. We have no report of
complaints about these institutions. As essential principles of government and
administration, the Prophet bequeathed trust, justice and effectiveness as well the
combination of authority with responsibility.

It was Omer, Second Caliph of Islam, who created the Institution of Mohtasib2.
He enjoyed complete independence and functioned within the framework of an
institution called ‘hisbah’. Its role was to ensure the observance of religious
principles in daily life. In Egypt this institution existed up to the middle of the 19 th
century. An interesting fact in this context is that the institution of ‘hisbah’ and its
functions was also adopted by the Cursaders in Jerusalem; they even used the
even used the Arab world ‘Mohtasib’ although they changed it into ‘Mathessep’.3
2. Hazrat Ali, forth Caliph of Islam, in his famous epistle to Malik Ashtar, the
Governor of Egypt, stressed the very fact in the following manner: -
1
“The Ombudsman and Administrative Reforms” by Dr. Pickl.
2
Mohtasib means a person, who conducts accountability. Its function was to be a guardian of public morals
in many fields of life, especially in the towns and above all in the market place. He was the market
supervisor, the Sahib as-sup, as well as the settler of disputes.
3
Quoted from Wafaqi Mohtasib (Ombudsman)’s Annual Report 1990 p.6-7

1
 “Out of your hours of work fix a time for complaints and for those who want to
approach you with their grievances. For this purpose you must arrange public
audience for them, and during this audience, for the sake of God, treat them with
kindness, courtesy and respect. Do not let your army and police be in the audience
hall at such a time so that those who have grievances against your government
may speak to you freely, unreservedly and without fear. All this is a necessary
factor for your rule because I have often heard the Prophet (Peace of God be upon
him) saying: “that nation or government cannot achieve salvation where the rights
of the depressed, destitute and suppressed are not guarded, and where mighty and
powerful persons are not forced to accede to these rights”.4
3. During the Abbasids era (750-847), complaint handling agencies called “Diwan-
al-Mazalim”5 were established. Its function was to examine complaints brought by the
public against government officials. The institution was headed by a senior judge
responsible for examining the grievances.

4. 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 people6. 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.

5. 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 Sweden7. In Sweden the office was institutionalized in 1809 with the title of
4
Mohtasib (Ombudsman)’s Annual Report. Almost all the reports have quoted this important excerpt of the
letter. Also see Nehjul Balagha, a collection of the speeches and writings of Hazarat Ali (AS)
5
Diwan means an office, secretariat or an official agency.
6
Satyanand, Anand, Growth of the Ombudsman Concept, Journal of South Pacific Law, article 1 of
Volume 3, 1999, School of Law, University of south Pacific. Also see Argentine Ombudsman website.
7
Wafaqi Mohtasib Annual Report 1998.

2
Justitieombudsman. According to Ibrahim al-Wahab8 “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”.

6. 'Ombudsman'9 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.10

7. 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: -

a. 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.
b. 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

8
Wafaqi Mohtasib Annual Report 1990.
9
An Ombudsman Overview, David Peppiatt, Project Researcher, Briefing Paper for The Ombudsman
Project Inter-agency Steering Group Meeting on November 21, 1997 at British Red Cross.
10
Satyanand, Anand Judge, Ibid.

3
 itself to some of the pressures that exist in any career and promotion based
bureaucracy.

Spread of Ombudsman Concept

8. The first Swedish ombudsman was Lars Augustin Mannerheim11. 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 schemes12. After assuming as the first Danish
Ombudsman, Professor Stephen Hurwitz, begin to write and lecture about his office in
English13. 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.14 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”.15

9. 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

11
Parliamentary Ombudsman of Finland’ website http://www.oikeusasiamies.fi/Resource.phx/eoa/english/ombudsman/...
12
Seneviratne Mary, Ombudsman 2000, professorial inaugural lecture, given on 17 April 2000.
13
Lundvik Ulf, New Zealand, International Anthology of Ombudsman 1983.
14
See S. Hurwitz, “Control of the Administration in Denmark: The Danish Parliamentary Commissioner
for Civil and Military Government Administration,” Journal of the International Commission of Jurists
(1958); 224-43; also printed in Public Law, 1958, PP 236-53.
15
Hill Larry B, “The Model Ombudsman, Institutionalizing New Zealand’s Democratic Experiment”,
Princeton University Press, 1976.

4
throughout the world16. 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.

10. 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.17 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.18 The ombudsman institution was established as a reply to the major
developments, taking place during the twentieth century. These developments, inter alia,
include: -

a. 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.

b. 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

16
Seneviratne Mary Ibid.
17
Kirchheiner H.H. “The Ideological Foundation of the Ombudsman Institution”. Ch.2, p.23.
18
Satyanand, Anand Ibid.

5
 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 Canada19: -

“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”.

c. 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 Robertson20 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”.

d. 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.21

e. 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
19
Rowatt, D C, No 28 Canadian Journal of Economics and Political Science. P.543.
20
The Ombudsman and the World by Sir John Robertson KCMG CBE, Twenty Years of Commonwealth
Ombudsman 1977-1997, Commonwealth Ombudsman, Canberra, June 1997. P.67.
21
D. Rowat, The Ombudsman Plan (University Press of America, 1985), at p. 131.

6
 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”22.

f. 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.

11. 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.23 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.

22
Sir John Roberson Ibid.
23
A Commentary on Ombudsman, Law, Scope and Prospects by Mobeen Ahmed Khan, Asia Law House
Karachi. 2001

7
12. The ombudsman concept is one which has grown rapidly in a variety of
constitutional settings throughout the world24. According to Roy and Giddings,
“Ombudsman nowadays take many different forms, they work in different ways, and they
dwell in variety of habitats”.25 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”.26

13. By the year 2004, the ombudsman office, exists in approximately 120 countries
around the world.27 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.28

Various Titles used for Ombudsman

14. 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, Defensor del 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,
24
Satyanand, Anand, Ibd
25
Gregory Roy and Giddings Philip, “The Ombudsman, The Citizen and Parliament”, A History of the
Office of the Parliamentary Commissioner for Administration and Health Service Commissioners,
Politico’s Publishing, 8 Artillery Row, London, SW1p 1RZ 2002.
26
Caiden, MacDermot and Sandler, ‘The Institution of the Ombudsman”
27
International Ombudsman Institute website “www.law.ualberta.ca/centres/ioi/eng/eng_home.html
28
H. Woolf, Protection of the Public – A New Challenge, Hamlyn Lecture (Stevens, 1990), at p. 87.

8
Difensore Civico in Italy, Investigator-General in Zambia, Citizen's Aide in Iowa, Wafaqi
Mohtasib in Pakistan, Lok Ayukta 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 Derechos Humanos (Counsel of Human Rights), in El
Salvador as the Procurador Para la Defensa de los Derechos Humanos (Counsel for the
Defence of Human Rights), and in Mexico as Comisión Nacional de Derechos Humanos
(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.29
15. 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.
16. 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

29
Mora Atonio, “El Libro Del Defensor Del Pueblo” Defensor Del Pueblo, Madrid 2003. P.185-189

9
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

17. 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 scholars30 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 ombudsman31: -
a. Established as separate entity that is functionally autonomous.

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

c. Ombudsman is a legally established governmental official.

d. A monitoring specialist.

e. Administrative expert and professional.

f. Non-partisan.

g. Normatively universalistic.

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

i. Popularly accessible and visible.

j. High status institutions

30
Hill, B Larry and Stanley Anderson.
31
“American Ombudsmen and ‘Wannabe’ Ombudsmen” by Larry B. Hill, Address delivered at the 1997
Spring Meeting of the American Bar Association Section of Administrative Law and Regulatory Practice,
Hotel Washington, Washington D.C.

10
 k. Have extensive resources to perform his mission.
Functions of Ombudsman
18. 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:32

a 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, favouritism, nepotism, and administrative excesses; and,

b neglect, inattention, delay, incompetence, inefficiency and ineptitude in the

administration or discharge of duties and responsibilities.

19. Professor Larry Hill33 has described the following six major objectives of the
ombudsman institution: -
a. To right individual wrongs.
b. To make bureaucracy more humane.
c. To lessen popular alienation from government.
d. To prevent abuses by acting as a bureaucratic watchdog.
e. To vindicate civil servants when unjustly accused, and
f. To introduce administrative reform.
19. Commenting on the role of Ombudsman, which was challenged in 1970 in
Alberta, Chief Justice Milvain said:-

32
Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order 1983, Presidential Order No.1 of
1983. (Amended and updated vide Ordinance No. LXXII of 2002)
33
Larry B Hill, The Model Ombudsman: Institutionalizing New Zealand’s Democratic Experiment
(Princeton, N. J.: Princeton university Press, 1976)

11
 “... 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”.34
20. Mr. Stephen Owen, former ombudsman of British Columbia as well as former
President of International Ombudsman Institute, maintains that in keeping with the
general principles that it is the proper role of the ombudsman office ‘to strive for the
mutually acceptable resolution of a problem rather than necessarily finding of fault or the
absence of it’. The office should attempt ‘to provide informal mediation services
wherever such an approach may be productive’. This approach, he argues, not only tends
to result in greater satisfaction among all parties, but frequently provides a more rapid
resolution than a full investigation oriented to a finding of right or wrong. Similarly, Mr.
Marten Oosting observes that it is important for the ombudsman to recognize that many
of the complaints made by the general public do not call for a full-scale investigation.
What people often want and expect, he suggests, is direct action geared towards solving
the problems that gave rise to the grievance. The ultimate responsibility for providing this
solution lies with the relevant government body itself. But, he says, the ombudsman can
make efforts to bring such solution closer.

Evolution of Ombudsman Functions

21. The increase in both the number and types of ombudsman offices across the
globe has also led to significant additions and modifications to its functions. Some of
the important changes in ombudsman functions are discussed as follows: -
a. In Sweden, where officials are responsible neither to the Crown nor to
Parliament, but are subject to the rule of law, the main functions of the ombudsman,
acting on his own initiative and empowered to take legal proceedings against civil
servants and judges for breaches of the law was designed to act as prosecutor. With
the passage of time the focus of the office became receiving and investigating
complaints related to maladministration. Ulf Lundvik, former Swedish ombudsman,
34
Read Ombudsman Act (1970) (72 WWR 176, 190 and 192)

12
pointed out, “the redress of grievances is not main concern of the Ombudsman”.
Their main task, he says, remains that of maintaining ‘a good standard within the
public service’.
b. In Denmark, the role of ombudsman, inter alia, was to safeguard law and
order for the individual as an appellate institution for citizens who came into conflict
with the administrative agencies. The ombudsman was meant to be “the protector of
the man in the street against injustice, against arbitrariness, and against the abuse of
power on the part of the executives”.35
c. With the introduction of ombudsman office in New Zealand and other
Commonwealth countries, the role of ombudsman began to undergo an important
change in focus. The principle duty of ombudsman was considered to investigate
complaints and where appropriate recommend some form of remedial action.
Therefore, the ombudsman’s function became primarily to redress grievances. This is
equally true about Pakistan. In UK, the statutory mandate of Parliamentary
Commissioner for Administration authorizes him to do no more than investigate and
report. Its primary functions have been to secure redress where complaints are
justified.
d. The shift of emphasis from a primary concern for the quality of public
administration to the provision of redress in individual cases of injustice, by no means
brought the evolution of the ombudsman’s function to an end. In the word of
Professor Kenneth Wiltshire, “the lot of the modern ombudsman is not simply to open
the door, the switchboard and the mail each day and respond to complaints which
waft in, many of which have common causes elements and generic causes”. He
writes, the emphasis of the office is to be “proactive, systemic, and preventative in its
orientation”.36
e. The ombudsman offices not only consider individual grievances but also
identify ‘systemic’ faults, thereby helping to secure improvements of a general nature
as regards working methods and administrative practices and procedures. Martin

35
Lars Nordskov Nielsen, Danish Ombudsman, International Handbook of Ombudsman Ch. 3, “Denmark”.
36
Kenneth Wiltshire, Report of the Strategic Review of the Queensland Ombudsman (Queensland
Government) 1998, p.32.

13
Oosting,37 has observed that a series of separate investigations occasioned by similar
complaints may raise questions about underlying causes. It is one of the
ombudsman’s functions to identify these causes, and where possible make
recommendations for their prevention.
f. Some ombudsmen have gone even further as regards the promotion of
good practice and published codes of offering general guidance to government bodies
as well as the officials. In Ireland, with the annual report for 1996, the ombudsman
issued a document bearing the title, “Ombudsman’s Guide to Standards of Best
Practice for Public Servants”. In 1990, the Ombudsman of British Columbia produces
an “Administrative Fairness Checklist”, which was to be used in consultation with
agencies to review their policies and practices regarding service to the public. Some
other examples include, New South Wales’ “The Right Stuff – Tips for making
complaints and solving problems – a Toolkit for consumers of community services in
NSW” (2004), the Commission for Local Administration in England’s booklet,
“Good Administration Practices: Guidance on Good Practice 2” (1995),
Parliamentary Commissioner’s document, “The Ombudsman in Your Files” (1995)
and European Union’s “Draft Code of Good Administrative Behaviour for European
Community Institutions and Bodies”.
g. Many ombudsman offices are empowered to start investigation on their
own initiatives, although this power of ‘system fixing’ has been used sparingly. Jacob
Soderman, the European Union Ombudsman, suggests that such ‘own motion’
powers of investigation may also be used where a number of complaints focuses on a
specific administrative authority, or a particular type of administrative activity,
providing grounds for thinking that a more general inquiry should be conducted.

h. The ombudsman offices have also provided advice to the agencies on

dealing with complaints properly. For example, the New South Wales Ombudsman
office issued a 293-page compendium entitled “The Complaint Handler’s Toolkit”
(2000), Australian Commonwealth Ombudsman document, “Good Practice Guide for
Effective Complaint Handling” and Commission for Local Government

37
Formerly President of the International Ombudsman Institute and National Ombudsman of the
Netherlands.

14
Administration in England’s publication, “Devising a Complaints System: Guidance
on Good Practice 2”.

i. Another extension to the range of ombudsman’s functions include its new

role in the promotion of ‘open government’. Most of the ombudsman offices have
been authorized to deal with complaints about the way in which public bodies have
handled requests for information under the code of practice or relevant legislation
operative in the country.

j. A number of ombudsmen have also added to their functions a role of

policing of codes. One aspect of the generalized task of uncovering instances of
governmental corruption assigned to ombudsman offices in the developing world
takes the form of responsibility fro policing the application of ‘leadership codes’. In
Papua New Guinea, Uganda and Vanuatu, the duty of ombudsman include applying
the rule of ethical conduct which senior politicians, judges and public officials are
required to follow.

k. The Australian Commonwealth Ombudsman and NSW ombudsman have

the responsibility for auditing telephone intercepts records. Both offices also have the
responsibility of protecting ‘whistle blowers’. The NSW ombudsman also have
witness protection function.

l. During the 1970s, the ombudsman offices began to develop an approach to

case handling that diverged significantly from ‘investigation and report’ mode of
operation which has characterized the office in earlier years. The ombudsman offices
have increasingly focused on the possibility of conciliation, and on helping to achieve
an outcome satisfactory to the complainant and the agency concerned as quickly and
informally as possible. Stephen Owen38 maintains that the primary role of
ombudsman is ‘to strive for the mutually acceptable resolution of a problem rather
than necessarily finding of faults or the absence of it’, the office should attempt ‘to
provide informal mediation services wherever such an approach may be productive’.

38
Former Ombudsman of British Columbia and Former President of International Ombudsman Institute.

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Jurisdiction of the Ombudsman

21. The operational mode of the ombudsman varies greatly according to the activity
and environment. However, in essence, there are two models: -
a. Reactive ombudsman who waits for complaints and acts on what has been
brought forward. In Britain, for example, ombudsmen tend to be reactive offices
that can only respond to complaints or grievances, the last port of call in a formal
complaints procedure.
b. Proactive ombudsman who seeks out matters of concern, inspects and initiates
investigations. In Scandinavia, an ombudsman may initiate action and has an
ongoing inspection role, such as the Public Justice Ombudsman who keeps a
watchdog eye on public administration and tackles action to ensure acceptable
quality and standards are maintained.

Criteria Used by Ombudsman to Judge the Official Actions

22. Ombudsman Offices around the world receive a bulk of complaints each year.
Out of these, a large number of complaints are rejected on the ground that they fall
outside the ombudsman jurisdiction. Ombudsmen have to operate within the jurisdiction
set out in their legislation. Common criteria for accepting or rejecting complaints largey
include the following questions:
a. Is the complaint within the Ombudsman’s jurisdiction at all? (A surprising
number are not.)
b. Has the person complaining exhausted the other remedies available to them?
(The Ombudsman should be a last resort, not a first port of call.) If not, is it
reasonable to expect them to have done so?
c. Has the complainant sufficient personal interest in the subject matter of the
complaint?
d. Is the matter already before the courts? If so, is it appropriate for the
Ombudsman to become involved?
e. On the face of the complaint, does it appear that the person complaining is not
acting in good faith?
23 Ombudsmen apply various criteria for making judgment whether a particular
conduct is proper or improper. Some of the important criteria are: -

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 a. Whether a particular government action concords or conflicts with statutes
and principles, Ideally, an Ombudsman approaches the action broadly and
reviews it both in the light of the provisions of the written law, and in the light
of unwritten legal principles, as well as, against the standards for good
governance.
b. Investigations of the action in view of the written law include such areas
relating to human and constitutional rights, definitions of competence, and
provisions governing from procedure and substance.
c. Investigation of the action in view of the unwritten legal principles (developed
in case law and legal doctrine) are equally relevant to the lawfulness of
government conduct, and include the principles of: equal treatment for equal
cases; reasonableness; proportionality between means and end; legal certainty
and of legitimate expectations; the requirement to provide reasons for
decisions; and, of certain duties of care.
d. An Ombudsman also uses standards or guidelines for good governance which
contribute to the decency of the way the executive authorities act. The
standards can be summed up as the imposition of a broad duty of care. These
are manifested in certain accepted standards for administrative processes and
the conduct of public servants in relation to the public. They include the
requirement to act without undue delay; to supply the individual with relevant
information; to treat people fairly and respectfully; and, to be unbiased and
helpful.
e. Finally, the Ombudsman sets standards for the government organization –
such as those of coordination, monitoring of progress, protection of the
individual’s privacy, and accessibility of the authorities.

Feedback on the quality of government services

24. The ombudsman office provides not only for individual redress, appeals and
dispute resolution, but also an auditing and accountability role. Ombudsmen office can
make the political system more responsive to citizens both individually and collectively 39

39
"Participation Through Hot-lines and Citizen's Advocates," by Drew Hyman in S. Langton, ed. Citizen
Participation Perspectives, Medford, Mass.: Lincoln Filene Center, (1979), P. 151.

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(Hyman, 1979, p. 151). An Ombudsman can also contribute significantly to the quality of
government, by providing feedback on the administrative performance. This is
particularly important for government organizations wishing to perform their functions in
a customer-friendly manner. Complaints are signals, constituting a valuable source of
information for quality assurance. This feedback can be of particular value for
government organizations as they often have a monopoly of their own and are rarely
exposed to the dynamics in the outside world. Observing the criteria for proper conduct
developed through the Office of the Ombudsman can, in short, contribute to the
rationality and legitimacy of public administration.

25. In this regard, a "negative feedback model of accountability" has been

developed40. The model explains that citizen's complaints are an important source of
evaluative feedback on public programs. Taking public laws and policies as statements of
community goals, they set out politically agreed upon quantity and quality of life in
specific areas. When citizens are disinterested in existing policies or regulations, or
service delivery systems fail or are inadequate, citizens are the first to know. In most of
the cases citizens have no way to communicate this information to responsible decision-
makers except through the very structures which are often root cause of the problems.
These structures, when dealing with citizens often exhibit self-servicing interests inimical
to resolving the problem. In addition, the bureaucracies are often the only source of
information about such issues available to elected representatives and officials. In
developed countries the interest groups and political parties identify major issues, but
insofar as the average citizen is concerned, particularly in developing countries, many
problems are effectively kept out of the decision-making process. In this situation citizen
complaints and problems are evaluative judgments that discrepancies exist between the
criteria established in public policy and the current operation of the system. Therefore,
the demands on a generalized complaint mechanism such as an executive ombudsman are
a form of negative feedback. For example, analysis of the data can provide specific "error
signals" about where community goals and aspirations are not effectively carried out. In
this regard, the negative feedback approach says explicitly: "let the system operate as
40
“Citizen Complaints as Social Indicators: The Negative Feedback Model of Accountability” by Drew
Hyman, The Ombudsman Journal, November 6, 1987. Website
“http://csisweb.aers.psu.edu/PUBLICATIONS/complaints.htm”

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long as it is working fairly well. We'll listen to the people who pay for it (taxpayers) and
those who need to use it (consumers), when they find the system fails them."

26. Furthermore, third-party complaint programs are typically called upon as a last
resort, a place to appeal when others fail (Best, 1981). And because they are open to the
general public, such mechanisms do not control the nature of their input. Attempts to bias
input by political elites and organized interest groups can easily be detected. Bureaucratic
obfuscation is avoided by establishing programs which are external to bureaucracies and
directly accessible by the general public. Thus, the character of demands is determined by
individual citizens. Patterns or trends in particularized contacting constitute error signals
or negative feedback at the system level. This approach creates a new channel for
political demand external to bureaucracies whereby citizens can provide inputs directly to
elected officials. Particularized participation mechanisms which operate in this fashion
can serve as people's gatekeepers to the general political and administrative channels of
the political system, and they can provide elected representatives with an external
"window" on the bureaucratic network. When these conditions obtain, a new open
channel for political demand is created. Third-party complaint programs become
gatekeepers to the political system. A brief example from one such programs follows
(Discussion of the advantages and limitations of executive Ombudsmen in this regard are
presented later.)

Critical Observations on Ombudsman Scheme

27. 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,

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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.

28. 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.

29. 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.

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