Chapter 8 | Ombudsmen - 200 years of service

introduction

In 2009 we celebrate the 200 th anniversary of the creation of the modern institution of the ombudsman. The idea of an ombudsman–like office—someone to protect citizens against government mistreatment—is not new. Such institutions have been seen in one form or another in the Roman Empire, and in ancient Chinese, Indian and Islamic societies, to name a few. However, the concept of an ombudsman as an independent arbiter of disputes between the citizen and government, enshrined in law and in the context of the nation–state, is a more recent development. This chapter provides a brief overview of the development of modern ombudsman functions around the world.

Development of the office

The genesis of the modern ombudsman office is tied to the adoption of new national constitutions, commencing in Sweden in the 19 th century. Following the loss of Finland to Russia in the Napoleonic Wars, and a coup d'état in 1809 forcing the abdication of King Gustav Adolf IV, Sweden developed a new constitution in 1809. The constitution established a new constitutional monarchy and a separate judiciary. This is the oldest written European constitution and was approved by the Riksdag (parliament) on 6 June 1809.

The new Swedish constitution was based on ensuring a balance of power between the King and the Parliament, and preventing a return to authoritarian rule. It contained detailed provisions regarding the new institution of the Ombudsman ('justitieombudsman'—the Ombudsman of Justice) to ensure laws and statutes were obeyed. The Ombudsman was to be independent of the executive and the parliament. The first Ombudsman, Lars Augustin Mannerheim, was elected in 1810, and had jurisdiction over both civilian and military functions.

Spreading around the world

It was more than a century before the next ombudsman institution was created. Finland had been part of Sweden for around seven centuries, until it was ceded to Russia in 1809 following the Napoleonic Wars. In December 1917 the Finnish Parliament declared independence and, following a civil war, a new constitution was adopted in 1919. The constitution provided for the Parliament to elect an ombudsman, who also had jurisdiction over civilian and military authorities. The first Finnish Ombudsman, Mr Erik Elopaeus, commenced work in early 1920.

Events surrounding World War II provided the impetus for the much wider adoption of ombudsman functions in countries around the world.

Internationally there was a greater focus on the protection of human rights and freedoms following the depredations of World War II. At the same time the growth of the welfare state models in many countries meant government activities expanded in the social and economic fields, and reached into citizens' daily lives in new ways. This led to an increased desire to protect citizens from failings and maladministration of the bureaucracy, beyond what was offered through court processes. Finally, the move towards independence and democracy in many countries provided the opportunity to consider alternative forms of government that included systems of protections for citizens.

Denmark became the third country to implement a broad ombudsman system. Immediately after World War II a Constitutional Commission was appointed to draft a new constitution. The commission reported in 1953 and proposed that parliament elect one or two independent people to supervise civilian and military administration. The new constitution took effect that year and the first Ombudsman, Prof. Stephan Hurwitz, was appointed in 1955. Prof. Hurwitz soon began to write and lecture widely in English about his office, and is credited by many for popularising the idea of an ombudsman function outside Scandinavia.

The last of the Scandinavian countries, Norway, created an Ombudsman for military affairs in 1952. An Ombudsman for civil affairs, elected by the Norwegian Parliament, took office in 1963.

New Zealand became the first English–speaking country, and the first outside Scandinavia, to set up an ombudsman office. The ombudsman institution was established in New Zealand in 1962 with the appointment of Sir Guy Powles. Sir Guy served as Ombudsman until 1975 and then, following legislative changes, as Chief Ombudsman until 1977.

Countries in Africa and Central and South America also started to establish ombudsman offices, often as part of gaining independence from colonial powers.

In Africa, Tanzania established an ombudsman function in 1965, shortly after its creation as a separate, independent nation in 1964. Other African countries to establish ombudsman functions included Benin, Cameroon, Gabon, Ghana, Mauritius, Namibia, Nigeria, Rwanda, Senegal, Sudan, Togo, Uganda, Zaire (now Democratic Republic of Congo), Zambia and Zimbabwe.

In the Americas, Guyana became independent from the United Kingdom in 1966, and established an ombudsman function at the same time. Other countries that followed included Argentina, Barbados, Colombia, Costa Rica, El Salvador, Guatemala, Jamaica, Mexico, Peru, Puerto Rica, and Trinidad and Tobago.

The long–established democracies of Canada and the United States of America (US) did not adopt the model of an ombudsman at the national level (except for some specific functions such as an ombudsman for languages and an ombudsman for correctional facilities in Canada).

The first Ombudsman in Canada was appointed in the province of Alberta in 1967, followed less than two months later by New Brunswick. By 1981 all but one Canadian province had an ombudsman.

Hawaii was the first of the US states to establish an ombudsman office. Legislation was passed in 1967 and the first Ombudsman appointed in 1969. A number of other states have followed this lead.

The concept of an ombudsman has been adopted widely in the countries of the Pacific. The Cook Islands, which had been a protectorate of New Zealand, established an ombudsman institution in 1965 when it became self–governing. Fiji appointed its first Ombudsman in 1972 following independence in 1970, and Papua New Guinea in 1975 when it became independent. Samoa, Solomon Islands, Tonga and Vanuatu also have Ombudsman offices. Many of the smaller Pacific nations—Federated States of Micronesia, Kiribati, Nauru, Niue, Palau, Republic of the Marshall Islands and Tuvalu—have joined the Pacific Ombudsman Alliance and are exploring options for an ombudsman function.

The first Ombudsman in the United Kingdom, the Parliamentary Commissioner for Administration (now the Parliamentary and Health Services Ombudsman), was appointed in 1967. Many specialist ombudsman offices have since been established, including the Local Government Ombudsman, Energy Ombudsman, Pensions Ombudsman and Prisons and Probation Ombudsman.

Other non–Scandinavian European countries also established ombudsman positions: for example, France in 1973; Spain in 1975 following the end of the Franco dictatorship; Portugal in 1976 following its transition to democracy; Austria in 1977; Ireland in 1980 (although the first Ombudsman did not take office until 1984); and the Netherlands in 1981. In some European countries the ombudsman office was created at the provincial or regional level rather than at a national level, reflecting the nature of government administration. In Italy, for example, the first ombudsman office was created in the region of Tuscany in 1974; in Switzerland, the Canton of Zurich established an ombudsman function in 1977.

A European Ombudsman was established in 1995 to investigate complaints about maladministration in the institutions and bodies of the European Union. The Ombudsman is elected by the European Parliament.

In Asia, the first Indian Ombudsman, at the state level, was appointed in Maharashtra in 1972. National ombudsman offices have been established in countries including Hong Kong, Indonesia, Korea, Macau, Pakistan, the Philippines, Sri Lanka, Taiwan and Thailand.

The Ombudsman in Australia

Western Australia was the first Australian state to establish an ombudsman function, with legislation passing in 1971 and the first appointee taking office in 1972. Ombudsman offices were established later the same year in South Australia, in Victoria in 1973, Queensland in 1974, New South Wales (NSW) in 1975 and Tasmania in 1978. The Commonwealth Ombudsman took office in 1977. The Northern Territory (NT) Ombudsman commenced in 1978 with the introduction of self–government for the NT and the Australian Capital Territory (ACT) Ombudsman in 1989 when the ACT became self–governing.

A large number of industry ombudsman offices have since been established in Australia, sometimes by the separation of a function from a parliamentary (or public sector) ombudsman office. Two examples are the Telecommunications Industry Ombudsman, established in 1993, building on a function previously discharged by the Commonwealth Ombudsman; and the Energy and Water Ombudsman of NSW, established in 1998, building on the former role of the NSW Ombudsman.

Ombudsman model

By 2009, 200 years after the first modern ombudsman function was established, there were more than 140 statutory ombudsman offices at the national/sub–national level with oversight of public authorities.

The International Ombudsman Institute (IOI), a worldwide organisation of parliamentary ombudsman offices, sets the following criteria for a public institution to be eligible to be an institutional member of the organisation:

• it is created by enactment of a legislative body whether or not it is also provided for in a constitution
• its role is to protect any person or body of persons against maladministration, violation of rights, unfairness, abuse, corruption, or any injustice caused by a public authority
• it does not receive any direction from any public authority which would compromise its independence and performs its functions independently of any public authority over which jurisdiction is held
• it has the necessary powers to investigate complaints by any person or body of persons who considers that an act done or omitted, or any decision, advice or recommendation made by any public authority within its jurisdiction has resulted in maladministration, illegality, corruption or injustice
• it has the power to make recommendations in order to remedy or to prevent such conduct and, where appropriate, to propose administrative or legislative reforms for better governance
• it is held accountable by reporting publicly to the Legislature or other appropriate authority
• its jurisdiction is national, regional or local
• its jurisdiction applies to public authorities generally or is limited to one or several public authorities, or to one or several public sectors
• the Ombudsman (or similar officer) is appointed or elected, according to the relevant legislative enactment, for a defined period and can only be dismissed, for cause, by the legitimate and competent authorities.²

There is wide variety in the functions, roles and responsibilities of public sector ombudsman offices.

In some countries the ombudsman office plays a strong role in the protection of human rights, while in other countries, such as Australia, a separate body (the Australian Human Rights Commission) performs that role.

There is also wide variation in the jurisdiction of ombudsmen. Some of the main areas of difference are whether the ombudsman has jurisdiction over the courts, the police or the military. In addition, some ombudsman offices have special functions, such as the investigation of corruption. In Papua New Guinea, for example, the Ombudsman Commission is responsible for supervising the enforcement of the Leadership Code. This code applies to senior elected and public officials, and prohibits conflict of interest, use of a public office for private gain, and other similar behaviour.

2 From IOI website athttp://prejury.law.ualberta.ca/centres/ioi/Membership/Member–By–Laws.php

Conclusion

Since it was first established 200 years ago in Sweden, the modern concept of an ombudsman office has become a worldwide phenomenon. It has been adopted by newly independent countries, countries as they move to democracy, and countries that have had a long tradition of stable government. The focus, role, responsibilities and effectiveness of the ombudsman offices vary, in line with the form of government and the specific characteristics of the country. Nevertheless, the growth in ombudsman offices, and the adoption of the concept in other areas of human endeavour such as the private sector, show that it has stood the test of time.