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The Ombudsman story: A case study in public oversight, natural justice

and State transformation

Working Paper · August 2007

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The Ombudsman story: A case study in public oversight, natural
justice and state transformation

Mariteuw Chimère Diaw1

(Draft August, 2007)

Introduction

The Ombudsman, an institution headed by a high level public official with

independent authority to oversee public administration, has become a feature -
and standard- of the modern democratic state. Instituted in modern law at
the beginning of the 19th century in Sweden, ombudsman institutions have
spread to virtually all corners of the planet, ramifying into myriad forms of public
oversight and corporate accountability. As such, the Ombudsman is an
interesting and integral part of the story of state edification and state
transformation in the twentieth century. It parallels the globalization of
ideas and norms of bureaucratic normality, while raising key issues in legal
and ethical theory about administrative justice, natural law and conflict
transformation in state organization and practice.
This case study looks at the ombudsman story from the comparative standpoint
of verification systems. At its core, verification is an investigative process by
which a claim is substantiated, validated or falsified; it is strongly associated, in
contemporary policy arenas, with issues of legal compliance. On the global scene,
verification systems are primarily a post-war, post-cold war emergence, designed
to verify and enforce compliance with multilateral and international agreements.
Attempts to establish global control regimes on major, high-stakes environment
and trade issues, from nuclear proliferation and greenhouse gas emissions
to “blood diamonds”, endangered species and “conflict timber”2, mark
today’s global political economy of verification.
In the forest sector, verification is a barely nascent field of theory and policy. It
links up to global processes mainly through the Forest Law
Enforcement, Governance and Trade (FLEGT) agenda, which took shape in
the early years 2000 under the impulse of G8 countries. Illegal logging and
tropical timber trade have been FLEGT’s central focus and main entry
point into tropical/ACP countries governance, but the drivers for this
process are multi-layered and complex. The numerous questions they raise,
from ownership and sovereignty to issues of independence, credibility, legality
and environmental justice, will be hard to address through ordinary normative
frameworks.
This paper approaches this nexus of questions by looking at the case of the
ombudsman from a wide historical and comparative perspective. Among the

1
Center for International Forestry Research, CIFOR
2
See, e.g., Brown, 2005; Brown, D. and E. Swails, 2006; Persbo et al., 2006; Smillie, 2006; de Koninck,
2007

1
cases addressed by the VERIFOR project 3, it is the only one that, in addition to
having a national scope outside the forest sector, is loosely tied to international
processes through horizontal networks, as well as self-spreading.
We were originally drawn to the ombudsman case by the issues of independence
and effectiveness in the design of verification systems: how is independence
achieved (or not achieved) when personal attributes or having been “an insider”
are part of the verification scheme? How effective is the mode of operation of an
ombudsman?
Through the process of uncovering the story, we discovered that there was much
more to it in reality. We realized that a well functioning ombudsman is a
verification institution in its own right, with all the generic attributes
of verification systems. The case addresses many of the questions raised by
the study of verification systems, notably, issues of ownership, independence,
legality standards, impacts and influence. We address these questions in
six major sections; first (sections 1-4), with the historical conditions that
gave rise to ombudsman institutions and that explain its spread and
diversification, as well as its meaning for the broader story of state edification.
The fact that there are not one but several ombudsman models reflects the
difference in the ways issues of legality, ethics, and natural rights play out
differently in different political contexts and normative systems of law. This is
a question, largely subsumed by the FLEGT framework, from which important
lessons can be drawn.
Section 5 describes the basic modes of operation of an ombudsman, including its
mandate, functions, powers, and rules of procedure. We use concrete illustrative
cases around the world, highlighting the diversity of “ombudsman types” in the
process. The last section explores the difficult question of the performance and
effectiveness of different ombudsman types and realities, drawing from the
preceding sections and from the procedural and substantive stakes of
verification. We conclude by highlighting a broader, more essential parallel
between ombudsmen and forest verification systems: their relation to self-
strengthening systems of democratic governance and to questions of “institution
building” and state accountability, whether in the forest sector or in the wider
public space.

What is an ombudsman?
There are several types of ombudsman. Generally speaking, however, an
ombudsman is an independent official appointed to receive, investigate and
address complaints about unfairness in the administration of public services. An
ombudsman works on behalf of the public and usually has the authority to launch
investigations on its own initiative. Corporations, universities, media
organizations, and government agencies also have ombudsman or in-house
complaints officers to serve the interests of employees, consumers, or other
constituencies. This is the case, for instance, of the Public Press ombudsman of

3
[Link]
Sweden, the Mediator of Radio France International, or the Canadian
Banking Ombudsman, an industry-wide customer service agency. “However,
many offices which title themselves ombudsman, particularly in private
sector corporations, do not meet the test of independence and impartiality
and the use of the term "ombudsman" to describe institutions lacking in
any of these features is questionable… In some jurisdictions, such as in New
Zealand, the use of the title is controlled by legislation” (Ombudsman Ontario,
1999:2).

Genesis: a multi-secular origin

The Justitieombudsman (Ombudsman for justice) was created as a new
independent institution of Parliament by the Swedish constitution of 1809. It is
the most direct origin of the modern ombudsman. However, systems in
which people were appointed to control government have existed for
millennia; they were part of “the Ottoman administrative tradition as well
as the Koran, and [go] even further back in the shades of history” (Orton,
2001)4. The Swedish ombudsman was a produce of these historical influences.

The Swedish Ombudsman and the Qadi al-Qadat

In the primitive legal order of Germanic tribes, convicted wrongdoers could
be outlawed - and, thus, fair game to kill; or their family could pay blood
money (wergild) to the family of the victim. To avoid direct contact and
further feud between the two families, a neutral person was appointed to collect
the fine. This person was called the om-buds-man, “the man about the fine”
(Anderson, 1969).
It is King Charles XII of Sweden who first used the term to name a public organ
of government. He did so after observing the Islamic institutions of the Ottoman
Empire during a five-year self-exile in Turkey. King Charles signed the ordinance
establishing the “King’s Highest Ombudsman” in October 1713 from the castle of
Timurtasch where he was under house arrest5. The role of this new official was to
ensure that the judges, military officers and civil servants in Sweden were
observing the laws of the country and the rules laid down for them6.

4
Franck Orton was the Human Rights Ombudsman of Bosnia and Herzegovina in 2001 and a former
Swedish Ombudsman against Ethnic Discrimination].
5
Charles XII went into self-exile to recruit the Ottoman Empire into a grand alliance against Russia. After
welcoming him and covering his expenses and those of his 10,000 troops, the Ottoman eventually tired of
his endless scheming for war. They ordered him under house-arrest in July 1713, after he refused to leave
under escort to Poland. He wrote his Ombudsman ordinance during his house-arrest, from where he also
studied the Turkish navy and had two Turkish style war-ships built in Sweden. See Orton, 2001, Hagman,
B., n.d. Sequel to Poltava: Diplomacy to contain Russia, [Link]
See also: [Link] December 10, 2006;
[Link] December 10, 2006;
6
The King’s Highest Ombudsman was renamed Chancellor of Justice, Justitiekanslern, after the death in
battle of King Charles and the weakening of the Swedish monarchy. The Constitution of 1809 definitively
established the Parliamentary Ombudsman of Sweden as an independent institution of Parliament, while
maintaining the Chancellor of Justice as a distinct part of the Swedish constitutional framework (Orton,
2001).
This first type of ombudsman thus preceded the parliamentary Ombudsman by
almost a century; it was inspired by tribal Germanic traditions of intermediation
and molded after the Qadi al-Qadat, first instituted under the Caliphate of Umar
Ibn Khatab, second Caliph of the prophet Muhammad (634-644). The Qadi was a
magistrate ruling in accordance with Islamic law, shari’a, as well as ijma, “the
consensus of the ummah”, the community of Muslims7. He could independently
ask the Caliph to account for any error, and, at the height of its institutional
strength, he could have a Caliph removed within hours for violating the Shari’a.
He played a central role in the system instituted by the Ottoman Empire to
monitor, detect and repress administrative abuses and excesses of power.
The ombudsman model of administrative ethics and public oversight has even
earlier roots or parallels in the ancient civilizations of Africa, Europe and Asia.
We give a brief account of these in the Egyptian, Roman and Chinese antiquity as
well as in historic Korea8.

Ma’at, justice and class: ancient Egyptians and the Roman Tribune
There are similarities and differences between the complex system of checks and
balances that characterized ancient Egyptian government and the reliance on a
single magistrate, which we find in the case of the Roman tribune.
The magistracy of tribunus plebis was created around 495 BC in the
Roman Republic, after a plebeian secession that forced ruling patricians into
creating an office to protect the people. The tribune, chief representative of the
plebs, lasted more than 400 years9 and had vast powers. He had
legal immunity (sacrosanctity), rights of veto (or intercession) on any act or
proposal of other magistrates, and power of capital punishment against any
person who interfered in the performance of his duties. He was elected by the
Council of the Plebs and had exclusive right to propose legislation before it;
he could also summon the senate and lay proposals before it. The powers and
immunity of the tribune were limited to the city of Rome and his first obligation
was to keep his house open to all at all time, day or night.10

7
For this and other historical references, see, e.g.: [Link] TI, 2000; Jacoby,
1993. Lundvik, 1982; and Acka, 2000
8
Volio (2003) makes interesting additional references to other oversight bodies such as the Eflore and
Euthynoi in Sparta and Athens (700-500 BC), the “Eye of the King” in the Persian Empire (560-529 BC),
the “Defender of the City” in Byzantium (395-1453 AD), and the “Council of the Ten” in 15 th century
Venice. In the Inca Empire, the Trucuyricuy, “the one who sees all”, was in charge of overseeing the
operations of the Imperial council. Later, a “Protector of the Indian” was created by the Spanish after their
conquest
9
Roughly until the dictatorship of Julius Caesar around 49 BC and the advent of the Empire later; the
powers of the tribune were first curtailed under the short-lived dictatorship of Sula around 82 BC.
10
See, e.g.: [Link] 29 January, 2007
The tjaty, anachronistically referred to as ‘vizier’, was the closest precedent11 to
the tribune in ancient Egypt. The tjaty supervised ministers and officials and was
at the center of the ancient Egyptian administration. In the Old Kingdom (2650-
2575 BC), he assumed no less than 21 titles covering administrative,
executive and oversight functions, including the judiciary (Dolinger, 2005)12;
he “was in control of the law courts and held the title ‘priest of Ma’a’t” (Mc
Dowell, 1999, in Van Berk, 2006). Ancient Egyptians were, in fact, far “more
interested in justice (ma’at) than in law (hpw)”. Ma’at contained all concepts
of natural law and fundamental justice inherent to the ombudsman idea
and ran through all dimensions of Egyptian life and ethics. It guided the
courts, and the state derived authority and stability from it. “To be just
meant to protect the weak from the strong”13; principles of “good rule
and sound administration were forever imbued with ma’at” (Van Berk,
2006).
The ancient Egyptian system, then, tells more about the founding principles of
ethics and administrative justice that have been carried through to modern times
than about a single independent figure such as the ombudsman. Such principles
included checks and balances between various branches of government and
society, as well as a principle of equality of all before the law and the right to
appeal a decision or to petition higher officials 14. They were further refined in the
long course of ancient Egyptian history15 and were introduced into modern law
through Egyptian influence on the Greek and Roman legal systems16.

From yu-shih to Sinmun: oversight institutions in dynastic China and Korea

Of all the ancient ombudsman prototypes, the office of the Yu-shih is the only one
that survived to this day, in the form of the Control Yuan in the Republic of China
(Taiwan). Instituted with the Chin and Han dynasties (246 BC – AD 220)17, the
Yu-shih controlled and supervised the government and had posts instituted in the
capital and the provinces (pu-tzu-shih). It flourished through more than
2000 years of dynastic succession, splitting into separate branches and
changing

11
According to Jacq, 2001, there was no opposition between the tjaty and the Pharaoh, who was “the only
landowner, the only priest, the only judge and the only warrior in ancient Egypt”. See also Parsons, M.,
2005. Ancient Egyptian Government and Bureaucracy, A Feature Tour Egypt Story
[Link]
12
Dollinger, A., 2005. [Link] ancient Egyptian [Link]
13
Assmann, 1989, in Van Berk, 2006; See also Assmann, 2001
14
The Tale of the Eloquent Peasant (e.g., Van Berg, 2006) is one of the best illustrations of this.
15
King Horemheb, for instance, introduced legislations, dating back to the 18th Dynasty (circa 1330 BC),
under the New Kingdom, which enshrined public freedoms and rights for the first time. He also
emphasized the concept of public posts as a means to serve rather than overpower the people. See:
[Link] 28 January, 2007
16
The Greek lawgiver Solon visited Egypt in the 6th century BC, studied their law and adapted many
aspects of it into the legal system of Athens. Egyptian law further influenced the Greek and Roman legal
system during Egypt's Greek period and the later occupation of Egypt by the Romans.
17
For these historical references, see [Link] 28 December 2006
names18, before being merged and separated again. This process gave rise in the
middle of the 14th century to the tu-cha-yuan control and supervision
system, which lasted until 1911. The tu-cha-yuan was strengthened with
additional responsibility to supervise government ethics. The number of local
provincial offices was also increased from 13 to 20. “They were responsible for
conducting investigations in various areas and reporting cases of impeachment to
the throne. Their goal was to commend good officials, condemn bad ones
and enforce discipline in the officialdom” (ref cited).
The Chinese political system had a lasting influence on korea. The Joseon (Lee)
Dynasty, which lasted five hundred years and set the bases of modern day Korea,
massively imported elements of Chinese culture and political practice19. It is
during this period that Korea established a centralized system of administration,
streamlining the essential functions that helped Korea turn later into a modern,
functioning state. The establishment of the Sinmum office was part of a 14-15th
century movement to rationalize the state20. Though less sophisticated than
its Chinese counterpart, the sinmun was installed in that period as a branch of
the government. It was dedicated to receiving and investigating cases in
which aggrieved subjects felt that they had been exploited or that government
officials or aristocrats had taken unfair actions against them.

The Global spread of the Ombudsman institution

There are now ombudsman offices in more than 120 countries, at the
national, regional and local levels, as well as in corporations, universities, and
the media (IOI, 200521). Precise statistical data on this growth are sparse
and difficult to locate. As illustrated by the elongated S curve of figure 1, they
converge, however, to document the extremely slow beginnings of this
institution and its spectacular growth from the mid-1970s onward.

18
During the Sui and Tang dynasties (581-904), for instance, one of the branch -Tai - took charge of
supervising civil officials and military officers, while another - Chen - became responsible for counseling
the emperor; provincial posts supervised officials in the provinces.
19
While entrenching Confucian ideals and a strict, sometimes ruthless, cast system at the bottom of which
was the bulk of the laborer population and hereditary slaves For these historical references, see:
[Link] , 29 January, 2007
20
King Taejong started this movement by abolishing the privilege of the upper echelons of government and
the aristocracy to maintain private armies. He also doubled state revenues by making more transparent land
ownership records and taxation system and introduced population surveys and identification – the
precursors of Korean social security and resident identification system. These reforms, as well as the
reorganization of state administration centralized state power with the king while ending old administrative
monopolies and court ministers’ and advisors’ custom of negotiating decisions among themselves.
21
See: [Link] 15 April,
2006
A difficult start
For more than a century, the Swedish parliamentary ombudsman remained
an isolated figure in the European landscape. It was received with great
reluctance in Scandinavia and, sometimes with hostility, elsewhere in the world.
Finland did not adopt it until 111 years later, after its independence from
Russia. It took another 34 years for Denmark to follow, and yet another decade
for New Zealand and Norway to join the movement. By 1963, more than 150
years after the birth of the institution, only five countries had instituted an
ombudsman office to oversee their national public administrations.
Figure 1 – The ombudsman institution: fifty years of growth

140
number of countries with ombuds

120

100

80

60

40

20

This slow beginning was due, at least partly, to ideological resistance. During its
first global surge, in the second half of the 1960s, the concept stirred up debates
and controversies in many countries. Accepting the idea of an independent
oversight institution seemed to admit, somehow, that the constitutional frames –
and political practices- of Western democracies were not perfect. There
were talks of “ombudsmania”. In the United States, both opponents and
proponents downplayed the idea by assimilating it to “an unspectacular and
relatively minor governmental reform” (Gwyn, 1968), [which] “function is to
remedy marginal defects in a basically sound system” (Anderson, 1969). This is
why US promoters seemed warmer to the idea of a “global ombudsman” who
would intervene “in the primitive world community” to protect individual
rights (Anderson, ibid). In France, “the general opinion was that such an
institution had no place in a State
which had the most sophisticated system of jurisdictional control
of administration in existence” (Garant, cited in Acka, 2000). There were debates
in other countries as well. The Canadian ombudsman drive became
successful because of very favorable circumstances and strong championing from
influential elites of the provinces’ political and legal systems22. Nonetheless,
both Canada and the USA lack to this day a federal public sector ombudsman. In
Great Britain, it is only in 1967 that a mellow version of the ombudsman was
instituted under the label of Parliamentary Commissioner for Administration.
In Bangladesh, no less than twenty five years of debates and motions passed
by between the fist passage into law of the institution and its effective
establishment in 2002.

Spanning out: the planetary growth of the ombudsman institution

A visual representation of the ombudsman spread, from its timid beginnings in
Scandinavia to its blooming in Eastern Europe – the last of the world regions to
join the movement – is given in figure 2. We see a pattern where
successive development waves along regional networks of influence
culminate into a worldwide, horizontal adoption movement at the end of the
century. This bears interesting lessons for the study of global networks.
Four distinct ‘moments’ can be distinguished in the growth of the ombudsman:
The first moment of containment within Scandinavia has already been
described. A point worth noting, however, is that the Scandinavian ombudsman
coexisted throughout the 19th century with its Chinese equivalent, the
Control Yuan, which had direct and much deeper continuity in history. Why,
then, did the former break through its regional containment and not the
latter? This is an interesting question for understanding global patterns of
institutional diffusion or replication. In this case, the role of colonial histories
and European influences in the global geopolitics of ideas and institutions is
particularly salient.
The second moment is a movement of regional diffusion – from the mid-
1960s to the end of the 1970s, roughly –, primarily through the Commonwealth
network. All major political regions of the world, except Latin America and East-
Central Europe and Central Asia, are touched during that period. This includes
nations and provinces in the Caribbean and Africa (following the early lead
of Guyana, Tanzania and Mauritius), as well as the Pacific and Canada. But
this implantation is sketchy; India and Israel, for instance, are the only
Asian and Middle East countries concerned. Western Europe joins the
movement only at the end of this period, with a handful of countries such
as France and post- revolutionary Portugal and Spain.
The 1980s are a period of stabilization and slow growth, touching Latin
America –at last- through Chile and Guatemala, as well as 14 other
countries, particularly in Europe and Asia. Africa does not move beyond the
initial group of four Anglophone countries of the previous period.

22
This is very well documented in a number of publications, including Hyson (2004) and Ombudsman
Ontario (1999)
The horizontal globalization of the ombudsman movement takes place
in the 1990s and 2000s, in close connection with democratic changes in Africa,
Latin America, Asia-Pacific, and East-Central Europe and Central Asia. Next
to 70 countries from all world regions establish ombudsman offices in that
time. The political and social context of this mushrooming affects significantly
the form and mandate of the institution, and requires further elaboration.
23
Figure 2: A rough sketch of the ombudsman’s spread across time and regions

Ti Scandinavia Commonwealth & Pacific Africa Asia Western Europe Latin America East-
m Dynastic China & and C
1809 Sweden
eli Caribbean
ne Finland (1919) 1931RoChina,
Control Yuan
Denmark (1953)
1963 Norway 1962- New Zealand
1966 British Guyana
1967 United Kingdom;
1966- Most Canadian provinces 1968 Tanzania
Mauritius
1979 1969 Québec, Hawai (USA)
1970 Nova Scotia
1971 Fiji,Israël 1971 India
1972-1979 Australian states
1973 Zambia 1973 France,
1975- Papua New Guinea 1975 Portugal 1977 Puerto Rico,
1975 Nigeria
1976- Australia – Federal 1977 Austria Trinidad &
1978 Switzerland Tobago 1978
1978 Solomon Islands Spain (law: 1981) Jamaica
1980s 1980 Ireland 1979 St Lucia
1980 Ghana 1981 Sri Lanka
1981 Netherlands
1984 Cook 1983 Pakistan 1982 Germany 1981 Barbados
Islands
1987 Philippines
1987 Iceland
1988: Samoa 1988 Hong Kong 1985 Guatemala, (Chile*) 1

1990 Namibia 1990-Nepal 1990 Mexico, Colombia

1990s 1990 Italy
1991 Senegal 1991 Cyprus 1991 El Salvador, (Brazil*)199
South Africa 1992 Costa Rica, Honduras 199
1994 Vanuatu
1992 Gabon, Tunisia 1993, Argentina199
Madagascar 1993 Mauritania
1994 Korea 1994 Bolivia199
Seychelles 1994 Burkina-Faso 1995 Antigua/Barbuda
1995 EU, Malta
Nicaragua
Belgium 199
Greenland 1996 Peru (law 93),
1995 Côte d’Ivoire, Malawi Botswana Lesotho 199
Panama
1996 Zambia 1997 Haiti, Ecuador
1997 Mali, Gambia 199
1998 Congo, Sudan 1999 Venezuela Belize
199
1998 Gibraltar
Ethiopia 1999: MacauAndorra
1999 Djibouti 200
Malaysia 2000 Greece
Years 2000 Zimbabwe 200
2000 Indonesia
2001 Tonga 2001 Paraguay (law 92)
2000 2001 Mozambique 2003 Dominican Republic O. 200
Morocco 2002 Bangladesh was not appointed (2000 law).
2003 Togo *Chile, Brazil, Uruguay did
2004 Rwanda not yet have the 200
2005 Swaziland, Angola pertinent laws in 2003
2006 Benin 2005 Bermuda

23
The global historical data on the ombudsman is sparse, scattered and, sometimes, inconsistent. There are
discrepancies; in particular, concerning the dates on which the institution was passed into law and the dates
it became effective, not mentioning the many changes in its legal statute in various countries. We did our
best to reconstruct this sketch from multiple sources, none of which is telling the entire story.
Types of ombudsman: the plurality of ombudsman institutions
There are key features common to all ombudsmen24 but also several ways
to distinguish between ombudsman institutions. Table 1 highlights six areas,
which structure a first line of distinction between different ombudsman figures.
Table 1: Main lines of distinction between ombudsmen

1) Denomination: Different names carry

5) Line of accountability
different connotations and meanings, in relation
mainly to variables 4 and 5 [Link] Ombudsman: (i) reports
to parliament; (ii) reports to Board
2) Public status: of corporation or institution
a. Public sector ombudsman [Link] Ombudsman: Reports to
b. Private or corporate sector ombudsmen executive chief (i) ‘Presidential
3) Coverage/Scope: ombudsman’ (e.g., African, French
Mediators); (ii) Executive
[Link]-purpose ombudsman (transversal ombudsman reporting to CEO of a
oversight charge on public administration) corporation
[Link] or single-purpose ombudsmen (public
and private sectors) 6) Powers: ombudsman powers and
effectiveness differ following the
4) Oversight mandate (public):
above and a number of other
a. Maladministration, administrative justice variables (see tables 2, 3)
b. Human rights

This paper is mainly about public sector ombudsmen, which have been the
central actors and inspiration of the global spread of the institution. It is
also mainly about general-purpose ombudsmen but takes into account specialty
and single-purpose ombudsmen in the public sector. There are hundreds,
probably, thousands of specialty and single-purpose ombudsmen in the world
today25. In a review of Gregory and Giddings 2000 book, Rowat (2002) regrets
that specialty legislative ombudsmen are not fully recognized as legitimate
classical schemes, despite being created by law and reporting to the legislature.
The US and Canada have several such ombudsman at the federal level, but
“neither has a general federal ombudsman”26. Specialty schemes include the
military ombudsman in Sweden and South Africa, the health service
ombudsman in the UK, the federal Commissioner of Official Languages in
Canada, and the ombudsman for gender

24
Ombudsman is a singular-plural, gender-neutral word in Nordic languages; the use of the plural is
acceptable at times. We use indefinite pronouns to refer to ‘it’ in order to reflect this gender-neutrality.
25
In both the public and private sector; but the review of private, corporate sector ombudsmen is beyond
the scope of this paper.
26
This statement seems to assimilate the Canadian provincial ombudsman with specialty ombudsmen. This
is not our understanding. Canada’s provincial ombudsmen have general mandate over the whole of their
provincial government; they played a major role in the growth and credibility of the institution both inside
and outside Canada. Australia had general-purpose ombudsmen at the state level years before instituting a
federal ombudsman - the ‘Commonwealth ombudsman’. The specific characteristic of a general purpose
ombudsman is to oversee public administration in general, within a particular jurisdiction. This can happen
at federal as well as state or provincial levels of government.
equality and for children in Croatia, for instance. We will now look at types of
general public sector ombudsman at their broadest level of differentiation.

Names and meanings: public sector ombudsmen in different world regions

There is some basic truth in names. The way ombudsman institutions are named
in different parts of the world reflects their history and important differences in
their mandate and ‘institutional insertion’. In many countries, the constitutional
fit of the institution has been a contentious point. The very principle of an
oversight institution of this nature had to be resolved; decisions had to be made
about which branch of government to report to and ways found not to upset the
balance of powers between different state branches and political interests. Three
major types of general public sector ombudsman came out of this: (i) the
parliamentary ombudsman; (ii) the Médiateur de la République and (iii) the
defensor del pueblo, a variant of which is the ombudsman for human rights. A
fourth type, not typically considered an ombudsman, is the Control Yuan in the
Republic of China.

The classical model: the parliamentary ombudsman

The parliamentary ombudsman is the basic model from which derive all the other
ombudsman figures. It was propelled worldwide by the basic similarity of
parliamentary forms between Scandinavia and the Commonwealth network.
Countries with both ombudsman and parliamentary systems of government
include much of continental Europe, former British colonies in Africa, Asia and
the Caribbean, Israel, Japan, Canada, Australia and New Zealand.
There is an obvious correlation between the ombudsman’s public profile and its
constitutional insertion. In a parliamentary system of government, the legislature
holds supreme power. The executive and the legislature are elected through the
same poles, have the same electoral constituency, and are fused into a
unified system of accountability. The prime minister and other cabinet
members are members of Parliament and are directly accountable to that
body. As a public officer appointed by constitutional or legislative
provision to monitor the administrative activities of government, the
ombudsman had also, logically, to report to the legislature. In the UK
Westminster system, considered one of the strongest forms of
parliamentarianism, public access to the ombudsman is even restricted to
Members of Parliament, “the so-called MP filter, which made explicit the
notion that the British Ombudsman was intended to be an instrument
in the hands of Parliament and its Members” (Giddings, 2001). To strike the
point home, the ombudsman was titled Parliamentary Commissioner for
Administration, variants of which - such as the Public Complaint
Commissioner of Nigeria – were adopted in other countries.
The parliamentary ombudsman is generally referred to as the classical
ombudsman model - the logical starting point for describing the basic
characteristics of an ombudsman. In reality, there is, within the parliamentary
model itself, an earlier distinction between a “classic” - Swedish and Finish –
model and the version that spread later from Denmark to become the general
blueprint for parliamentary ombudsmen. In Sweden and Finland,
the ombudsman has very broad supervisory mandate over state and municipal
public administrations and over the courts’ procedures and administration. It
has also the power to seek prosecution of civil servants before a court of law for
criminal offences. By contrast, the general “Danish model” concentrates
“only on public administration, leaving out the judiciary from its
mandate” (Vangansuren, 2002)27.
In general, the ombudsman acts independently to investigate and
handle complaints of maladministration about governmental ministries,
boards, agencies, and commissions, but only on behalf of parliament. It is also a
place of last resort - an impartial agent that can intervene when complaints
directed to the agency involved have not been adequately addressed or that
procedures have not been properly followed28. In classical parliamentary
schemes, there are in fact many things that an ombudsman is not or is not
allowed to do.
An Ombudsman assists elected representatives in ensuring
responsible government but it is neither an elected representative nor a parallel
authority to governmental agencies. It reports to Parliament and to the
public but does not have the power to force an agency to comply with a
recommendation. It is not a substitute or duplication of appeal rights to
courts or administrative tribunals and cannot make binding orders. For these
very reasons, however, ombudsmen can address issues that are outside the
scope of an appeal; they can proceed with less formality and without the
adversarial hearings and costs associated with court cases. The Ombudsman's
role is not to assign blame or penalty – though it sometimes do so -, but to
resolve complaints in a fair, just and practical manner. The Ombudsman
complements the work of administrative tribunals both by dealing with
cases that are not appropriate for a tribunal, and by dealing with
complaints about the administration of tribunals themselves
(Ombudsman Ontario, 1999). As we have seen, however, some ombudsman
can investigate tribunals while others can’t.
Thus, in its most basic form, the ombudsman conducts its investigations in a way
that is informal, non-threatening, independent, and impartial. He is an expert in
government who is universally accessible and empowered only to
recommend and publicize. It has the power to investigate, discover the facts
of a case and determine an appropriate resolution. It can criticize and publicize
administrative actions but can’t reverse them. It is not an advocate for
complainants; often the results of an investigation will find no grounds to
support a complaint. “This underlines the critical importance of
independence, so that complainants will trust that they have been heard and
fairly treated” even when the outcome does not support their case (Ombudsman
Ontario, 1999).

27
Vangansuren’s analysis is inspired by Donald Rowat’s comparative reviews of ombudsmen in The
Ombudsman: Citizen’s Defender (Allen & Unwin, London, 1965) and The Ombudsman Plan: The
Worldwide Spread of an Idea (2nd ed. Lanham, University Press of America, 1985)
28
See Owen, 1993; Ombudsman Ontario, 1999; and Garner, 1981, in Hossain, 2002
The Médiateur de la République
Except the UK, France was the first Western European country to adopt an
ombudsman, a decade after the institution started moving out of
Scandinavia. However, since the Fifth Republic Constitution of 1958, the
French system of government is a hybrid presidential system in which the
President - the dominant political figure - is elected separately from the
parliament. Executive and legislative powers are separate and both branches of
the state can push their own bills through the legislature. The President
has the power to dissolve the parliament and to call for new legislative
elections but he is not assured of a majority in Parliament. By custom, the
President appoints the chief of the executive, the Prime Minister, from the
ranks of the parliamentary majority.
When they created the office of the ombudsman in 1973, French politicians
brought an important change to the institutions. They made it a “Republic’s
Mediator”, Médiateur de la République, appointed by the President in the council
of ministers to mediate ‘disagreements between citizens and the administration’.
The Mediator was given the status of a high administration official,
with additional mandate to propose reforms to the Government and
“participate in international promotion of human rights”. To alleviate potential
credibility issues stemming from its link to the executive, it was legislated that
the Mediator “does not receive or accept orders from any authority”, is
nominated for a unique term of six years, cannot be removed from office, and is
protected by a parliamentary form of immunity. As in the UK, members of the
National Assembly screen public access to the Mediator. The Mediator’s lines
of reporting and accountability to the President, the cabinet, the parliament,
and the public are essentially fuzzy; its status was not enshrined in constitution.
The institution of the Republic’s Mediator developed mainly in former
French colonies of Africa and the Indian Ocean. These countries had practically
identical institutional and legal constructions as France and had started
adopting a string of ‘independent administrative authorities’ in the wake of
early 1980s (Senegal) and 1990s (Benin, Mali) democratic transitions and
other political transitions and adaptations (Côte d’Ivoire, Congo, Burkina
Faso, etc.). African legislators adapted the French Mediator prototype in two
major ways. Except for a few countries, such as Côte d’Ivoire and Togo, they
gave it a constitutional status and organized for direct citizen access to the
Mediator, by law or through informal means (case of Djibouti). The major
characteristics of the institution remained the same, particularly, its key link
to the executive and its strong administrative focus. In Tunisia, it was even
called “Médiateur Administratif” to remove any ambiguity about its exclusive
administrative mandate.

El Defensor del pueblo

The defensor del pueblo, with its variant, the ombudsman for human rights, has
become the hegemonic model for the new democracies of Latin America, Eastern
Europe, parts of Africa and the Caribbean. The Latin American ombudsman was
directly inspired by the post-revolutionary constitutions of Spain (1978) and, to a
lesser extent, Portugal (1975). The main innovation the Spanish constitution
brought to the ombudsman institution was to name it ‘Defender of the
People’ and give it “enlarged mandate to include the protection of fundamental
freedoms before the State administration” (de Noriega, 2000).
As in the cases of the Commonwealth and Francophone ombudsmen,
the historical, linguistic and political continuity between Spain and its former
Latin American colonies provided the impulse for a similar institution
in South America. Starting with Guatemala in 1985, Defender of the People
institutions were written into the constitutions of 16 Latin American
countries29, now regrouped with Puerto Rico, Portugal, Spain and Andorra in
the IberoAmerican Federation of Ombudsman (FIO). In terms of
institutional insertion, the main difference between the Latin American
ombudsman and its classical and Francophone counterparts comes from
the fact that it is a Parliamentary ombudsman (nominated by and
reporting to Congress) in presidential systems of government. We will see later
some of the implications of this institutional setup.
Besides colonial and international influences, there is another common driver of
the ombudsman movements that emerged in the 1990s and years
2000. Adoption of ombudsman institutions was not just mimetic; it
reflected a worldwide push ‘from within’ for democratic freedoms and better
governance. In Africa, Latin America, Asia, and in former communist ‘bloc
countries’ of Eastern Europe and Central Asia, there was often direct
continuity between issues of administrative rights and problems of human
rights violations. A few years ago, a survey30 of former ‘bloc countries’
documented this continuity between civil rights (freedom of expression,
assembly, or religion; the right to vote, family life, the right to fair trial,
equality before the law, etc.), fundamental rights (life, personal freedom and
security, protection from torture, etc.), and rights of minorities (e.g.
national groups in the former Yugoslavia and Gypsies in Central and Eastern
Europe) (Vangansuren, 2002).
Such concerns were of a global nature in the early 1990s and are still very much
relevant today. It is thus no surprise that the post-authoritarian ombudsman
of Spain found much wider echo during that period than the classical
model; it became the blueprint for the human rights schemes that
dominate the ombudsman scene since the end of the century. In that sense,
the Francophone Mediator, with its limited maladministration mandate,
appears almost as an anachronistic exception. It should be noted, however, that
some of the Mediators, such as the Wali Al Madhalim in Morocco, have
consultative voice in National Human Right Commissions.

29
Argentina, Bolivia, Columbia, Ecuador, Spain, Panama, Paraguay, Peru, and Venezuela. In other
countries it is called differently: Defensor de los Habitantes (Costa Rica), Procurador de los Derechos
humanos (Guatemala, Salvador, Nicaragua), Comisión Nacional de los Derechos Humanos (Mexico,
Honduras), etc. Uruguay still lacked an ombudsman in 2006; Puerto Rico had an ombudsman before Spain
in 1977. CAROA, the Caribbean Ombudsman Association regroups ombudsman from Caribbean countries.
30
Bizjak, 2000; cited by Vangansuren, 2002.
By 2005, 23 ombudsman offices had been created in the former “bloc countries”
of East-Central Europe and Central Asia (figure 2). Provisions for an ombudsman
had also been written in the 1992-1994 constitutions of Yugoslavia, Armenia, and
Tajikistan and in the 2002 Ombudsman Bill of Serbia. Practically all had strong
human rights mandate, with such evocative names as People’s Advocate
(Albania), People’s Attorney (Croatia, Macedonia), Public Defender
(Georgia), Human Rights Commissioner (Azerbaijan, Czech Republic, Russia),
Ombudsman for Human Rights (Kosovo, Bosnia-Herzegovina, Slovenia), etc.
In Africa, most non-francophone ombudsmen still follow the classical model but
most also have additional competence over corruption issues; some
collaborate with separate Human Rights Commissions, as in South Africa.
Nonetheless, the Ombudsmen of Namibia and Seychelles, and the Commission
on Human Rights and Public Administration of Swaziland have very wide
mandate and powers over both maladministration and human rights issues (see
tables 2, 3). Created much earlier, in 1980, but without adequate
enforcement powers, the Ghanaian ombudsman was absorbed in 1993 by
the Commission on Human Rights and Administrative Justice (CHRAJ).
Created in the wake of the 1992 transition from single-party authoritarian rule
to constitutional democracy, the CHRAJ has extended powers and
competences for “promoting, protecting and enforcing fundamental human
rights and freedoms and administrative justice for all persons in
Ghana”31. Next to this form of radical absorption, extension of classical schemes
into human rights competences is found in other regions. Caribbean
ombudsmen deal nowadays with cases of police brutality, torture, mistreatment
of detainees or children, and other human rights violations (Thomas, H., 2003).
This concerns offices instituted 30-25 years ago along classical lines, as well as a
more recent office, such as the Citizen’s Defender of Haiti32.

The Control Yuan

Loosely associated to the International Ombudsman Institution (IOI) created in
1978, the Control Yuan is not considered an ombudsman, mainly because of its
enforcement powers. It is a distinct oversight institution, with powers
of impeachment, censure and audit. As such it offers interesting points
of comparison with the ombudsman.
As with all ombudsmen, Control Yuan activities are based on verification and
fact-finding. The Control Yuan investigates facts contained in people’s written
petitions and can carry out own motion investigations; it can also commission
cases to other organizations. It can initiate remedial action only after the facts
have been found out. Investigation is thus central to its powers of control. The
Control Yuan’s main activity is to control the executive (Executive Yuan) but it
can also investigate itself (as, e.g., the Papua New Guinea ombudsman), as well as

31
See the CHRAJ site [Link] and Human Rights Watch, 2001.
Les Commissions Gouvernementales des Droits de l’Homme en Afrique. Protecteurs ou Prétendus
Protecteurs ? HRW Online Report [Link]
32
Quebec also has a Citizen’s Defender, Le Défenseur du Citoyen. Jamaica has a Public Defender.
the judiciary and other organs of the state. These investigative powers are larger
than those of most ombudsmen, but, at their core, they are essentially the same.
The fundamental difference between the Control Yuan and the Ombudsman lies
with the doctrinal bases of state organization itself. The organization of the
modern state is based practically everywhere on the three power system invented
in the West. All the political systems we have reviewed so far reflect some balance
of powers between the legislative, executive and judicial branches of the
state. The model founded by Sun Yat-sen in 1928, in the aftermath of the
Chinese revolution, is radically different. It is a five-power system that adds two
Chinese traditional powers of Examination and Oversight (Control) to the
Western model. Earlier, we described the former’s roots in the history of dynastic
China.
The Control Yuan was formed in 1931 “to serve as the highest supervisory organ
of … Government by exercising the powers of auditing and impeachment”33.
It was given additional powers of censure and recommendation in 1937 and
became a constitutional organ of Taiwan in 1948. At the difference of the
ombudsman, it is a collegial entity, which used to be elected by
representative councils. Since 1992, it is constituted of 29 members, all of
whom are appointed for a term of six years by the President of the Republic with
the consent of the Parliament.
The Control Yuan’s powers of investigation, correction (aimed at administrative
bodies), censure and impeachment (aimed at people) are exercised following
various procedures of rotation (on investigation assignments), secret ballots and
deliberations. For instance, the procedure of impeachment, which can be
exercised on the President, the Vice President and other public functionaries, is
the Control Yuan’s highest power of sanction. However, it must be initiated by at
least two members and reviewed by another nine members before the case can be
established in a secret vote. Cases of censure require a review by three members.
Only two situations fall within the remit of the Control body: violation of the law
and neglect of duties. After being decided, cases can be referred to the competent
organization of the employee, to a committee of discipline, or to the relevant law
court or court martial, if the case involves violations of the criminal code or
military law. In principle, the Control Yuan cannot investigate a case pending in a
law court; it is also not a quasi-judicial body, as it does not settle directly the
cases that he decides upon.

Verification and the ombudsman: forms and functionality of

ombudsman institutions

What do ombudsmen do and what are the central features of their intervention in
the public space? We reviewed several dozen cases in preparing this paper and we
see a fundamental similarity of ethics and principles among all ombudsmen. We
also see a staggering amount of differences - minute and more essential - relating
not just to the six variables outlined in table 1 but to a host of other variables as
33
For this and other references on the Control Yuan, consult: [Link]
well (tables 2 and 3). Together, they define the powers, style of intervention, and
effectiveness of different ombudsman figures.
As evident from table 3, verification, the ‘ethics of investigation’, is a core working
principle shared by all ombudsmen. This is logical; the primary job of an
ombudsman is to receive and act on citizens’ complaints against public authority.
It must do so in a way that is – or at least strives to be – impartial, fair,
and expeditious. From the Ombudsman’s Verification Chart (figure 3), we
see that, whatever the breadth and width of its mandate, an ombudsman
has to make a series of verification decisions in the course of discharging
its responsibilities. Based on the facts, it must first decide whether there is
substantiated ground to justify an intervention. If so, it has then to decide
whether to conduct a full investigation or to choose another form of
intervention. To resolve disputes at that early stage34, ombudsmen resort
increasingly to Alternative Dispute Resolution (ADR) techniques, a growing
field of theory and practice (Morris, 2004), and to other mediation
traditions35.
Once the basic facts are found and the scope of the problem identified, there is
typically a stage where some interaction with the parties give them the possibility
to comment and, eventually, have a say in the remedies envisioned. Then follows
a series of actions that can lead to early settlement by the institution or to
a negotiated agreement; otherwise, more formal action is undertaken,
particularly, when there is serious or systemic maladministration involved.
This is when the range of functional differences between various
ombudsman figures comes mainly into play. All ombudsmen have the
authority – and, sometimes, the obligation – to issue case reports and
recommendations wherever relevant; but only some have the power to initiate
the full range of remedial actions illustrated in figure 3. Tables 2-3 present the
structure and functionality of these differences.

Structural Independence
We have seen that ombudsmen’s mandates vary considerably; a host of
other structural variables also condition their independence and effectiveness.
In table 2, I present indicators of this around five variables. Independence, the
ability to think and act within the realm of a mandate without interference
from vested interests, is a theoretical attribute of all ombudsmen. In practice, it
is not always the case; the way an ombudsman is appointed, its legal statutes
and security of office, the institutions to which it is accountable, as well as the
possibility to hire staff and control its budget – all affect its ability to act - and to
act independently.

34
, For instance, the Nigerian Public Complaint Commissioner (Yaro, 2006) describes this as his main
intervention method. In 2001, following a huge increase in the volume of complaints, the England and
Wales Prison and Probation Ombudsman established faster and ‘smarter’ processes requiring new skills
(interviewing, mediating, etc.) for his team. The expectation was that cases will be resolved informally (or
restoratively) and that full formal reports will be more exceptional. See Shaw, 2002
35
In the case of Africa, see ,e.g., Bah, T., 2006 – Les mécanismes traditionnels de prévention et de
résolution des conflits en Afrique noire; and Konaté, D., 2006 – Les fondements endogènes d’une culture
de la paix au Mali : les mécanismes traditionnels de prévention et de résolution des conflits :
[Link] 29/12/2006
Figure 3: Ombudsman’ Generic Verification Flow Chart
Complaint received

First verification decision

Examination of file documents
Request of explanation from public official(s)
verification that ”normal” appeal procedures are exhausted

Eligibility decided

Eligible; Decision to pursue the matter Ineligible; no matter to pursue

Second and Third verification step

Formal Investigation/Fact finding
Review of information, official records, witnesses

Identification of the nature and scope of the problem

Opportunity for the parties to comment on preliminary findings

Fourth verification step; Second verification decision

First decision about appropriate remedial actions
(within mandate & powers granted)

Settled by the
Friendly or negotiated Maladministration found
institution
solution Case report

Brief report or letter

Brief report or letter Recommendations for corrective measures
(apology or some
acknowledgment) or informal, personal
explanation
Not settled by Finding that ‘local’ Settled
institution solution is not enough

6th Verification step

Decision for further
remedial action

Referral to other authorities,

including Comprehensive audit or Case involves unjust
Prosecutor General or Tribunal review of systemic or unconstitutional
(where mandated) issue laws or regulations

Special Report ,with

statement of
reasons
Special report to Special report to Recommendation to
Parliament Parliament Parliament for
and/or Authorities and/or Authorities legislative action

Annual Report to Parliament

and/or Authorities
Publicity
Implementation check
Table 2. Structural Independence
Scope/strength of independence
Key variables Restricted/weak/low Intermediate Large/strong/hi
Institutional Status
Scope of mandate Specialty ombuds; specialized complaint- General purpose, coexisting with other All-purpose, one-st
handling agencies complaint-handling agencies (UK) (Sweden, Ghana, Me
Oversight mandate Strictly Maladministration Maladministration with openness to Maladministration an
related civil rights cases Ghana, Malawi, LA, f
Legal statute Presidential or administrative authority (Most Officer of parliament (most Independent constitu
mediators) ombudsman)
Creation; Constitutional statute Presidential Decree – weakest form (Côte In constitution (vast majority of Direct constitutional
d’Ivoire). Not in constitution (e.g. France). ombudsman, Mediators, Protectors)

Appointment process
Selection/Nomination President (Mediators, SADC countries) Parliamentary majority Parliamentary conse
Appointment Presidential decree (Mediateurs) Chief of executive (British Columbia) Parliament (Ontario)
Accountability
Institutional (reports to whom?) President Parliament (most LA, SADC countries) Reports to parliamen
Public (answerable to whom?) President (rare: OPREM, Côte d’Ivoire) Parliament (UK; revocable ombuds) Public; General acco
Security of office
Term of office Indeterminate; renewable indefinitely (Côte Fixed; vulnerable to political influence Fixed; protected fro
d’Ivoire) (e.g. shorter than election terms) than election terms);
Revocability Discretion of nominating authority (OPREM, Impeachment for negligence, failure to Cannot be removed f
Côte d’Ivoire); as any civil servant (Mexico) fulfill its duty (most LA ombudsmen)
Incompatibilities Can have other roles or jobs No other private or elective function No state function eve
Immunity No immunity; indeterminate General legal protection Immunity similar to M
Exclusivity of office All cases reviewed include conflict of interest provisions excluding another job or charge; in some cases, the o
job for months after leaving office
Organizational independence
Remuneration Set by the President (Cote d'Ivoire) or the Negotiated with MPs or executive; Set Set by law: E.g., ali
cabinet by the Lieutenant Governor in Council court (BC) or Suprem
(Ontario)
Funding & budget No provision; undefined Provision but uncertain, vulnerable to Provisioned; indepe
pressure (Zimbabwe Justice Ministry) decisions; can rent fa
Staffing “Lone ranger”; no staffing provision; no Authority to hire, but only public Legislated authority
power to recruit (Nigeria) service officers (Mali, Senegal) service (Ontario, Gh
In a comparative study of six Latin American countries36, with mentions of
four additional ones, Frederik Uggla (2004) identifies the appointment and
budget allocation processes as critical ‘moments’ when the independence of an
ombudsman is threatened. In El Salvador, the appointment of an incompetent
and corrupt ombudsman in 1998 nearly destroyed the institution and plunged it
into chaos for several years. In Peru, following the ombudsman’s resignation in
2000, it was not possible to elect a replacement for several years due to political
conflicts within the Congress.
Similarly, an ombudsman whose funding depends on the executive can be
highly vulnerable. Terms of office can be up to five years but budget is annual. In
2000, in Nicaragua, there was a ‘punishing’ cut of 40 % of the ombudsman’s
budget In 1999, following the Hurricane Mitch disaster and a critical report
by the Honduran ombudsman on deficient planning and corruption in the
handling of international aid, the government struck back with violent
“revanchism”. A bill to curb the institution was thwarted by a national and
international outcry, but “in its stead came a starvation budget for the institution
for the following year” (Uggla, 2004).
Many ombudsman offices in the world enjoy stable finances, shielded from political
interference, but the situation describe above is by no means peculiar to Latin
America. A motion introduced in Seanad Éirean, the Irish senate, in
198837, “deplores the savage staff cutbacks imposed on that office at no overall
saving to the Exchequer; and rejects any attempt to remove the affairs of
Telecom Éireann from the remit of the Ombudsman and calls for a restoration of
proper funding to enable the Ombudsman to continue to provide justice and
fairness to ordinary citizens.” In the hot adversarial debates following the
motion, most saw the 50 % cutback as politically motivated. Even where the
ombudsman is appointed by parliament, as is the case in Latin America and
Ireland, budget allocation and staffing provisions can expose the office to
executive or partisan interference. In some cases, such budgetary provisions do
not even exist. Sometimes, as with many of the francophone Mediators, the
ombudsman budget comes outright from the President’s coffers.
An ombudsman’s appointment and budget is also a complicated matter in
former communist countries of Eastern Europe. Vangansuren (op. cited, 2002)
reports, for instance, that the first People’s Attorney of Croatia (1993-
1996) remained “completely unknown to the public” despite a budget of around
one millions German marks. “He was absent from the media, did not make a single
address to the Croatian Assembly and did not make any public assessments”
during his whole term. By contrast, “the Russian Ombudsman Oleg Mironov
was criticized by human rights groups during his appointment in 1998. However,
he has worked remarkably well in assailing the Russian government for different
human rights violations such as the war in Chechnya, the death penalty, labor
security and others” (Vangansuren, ibid).

36
For Latin American cases, see also Volio (2003) and de Noriega (2000)
37
Seanad Éireann - Volume 118 - 10 February, 1988. Office of Ombudsman: Motion.
We took the subject of funding and appointment merely to illustrate the diversity of
cases at hand and the structural complications that can arise from setting an
ombudsman office. This does not mean that other indicators of structural
independence are not important. When an ombudsman is set as “Presidential Organ
of Mediation”, directly answerable to, and revocable by the executive – as in the case
of Côte d’Ivoire –, independence is just not achievable. By contrast, most Mediators
cannot be removed from office at all; many are not allowed to renew their term of
office in order to reduce their vulnerability to political pressure. As suggested by the
examples cited in table 2, such stories could make up books on virtually all aspects of
ombudsmen’s statutes, from the presidentialism of the institution in Côte d’Ivoire to
its exceptional powers in Papua New Guinea. For lack of space, we will just
emphasize, for now, the indicative nature of these examples.

Functional independence: a review of ombudsmen’s powers and authority

The structural issues that we just glimpsed are also found in the ways different
ombudsmen are allowed to discharge their mandate. The powers and authority
vested in different ombudsman figures vary enormously (see table 3). They also
affect their independence and effectiveness, including when applying the core
investigative principles described earlier.
Ombudsman offices differ in what and who they can investigate as well as in their
capacity to follow up the cases they investigate. For instance, the
Botswana ombudsman has constitutional jurisdiction over human rights
violation, but is not allowed to investigate matters related to ‘state security’ and
‘criminal investigations’, as well as “action taken with respect to orders or
directions to the … Police Force” Berg (2005)38. In Malawi, the Constitution
empowers the ombudsman to investigate “any and all” cases of injustice where
other recourses have not been successful. Berg reports, however, that the police do
not cooperate with the ombudsman’s attempts to investigate police torture and
offending officers and to provide victim compensation; “at one stage, the
Inspector General had ordered police not to appear before the Ombudsman
after condemnation, by the Ombudsman, of police brutality. The Minister of
Home Affairs had to resolve the situation” (Berg, ibid).
Similarly, Namibia’s ombudsman has far-reaching powers “to access
information, issue subpoenas, and fine or imprison those not cooperating with
investigations”; he can also refer issues to the Prosecutor General or Attorney
General or initiate legal proceedings. Such powers are rare among ombudsmen.
But complaints against the police were referred back to internal police disciplinary
units; thereby “negating the independence of the Ombudsman” (Berg, 2002). The
Commonwealth Ombudsman of Australia also has jurisdiction over the police
telecommunication interceptions and controlled operations, the Defense Force
(ADF), and immigration detention facilities. ADF accepted and took “action to
implement the 72 recommendations”39 of the Ombudsman 2004-2005 report, but
it is not clear how other agencies have reacted.

38
See also Government of Botswana: [Link]
39
Commonwealth Ombudsman Media Release, 28 October, 2005
ctional Independence (powers and authority)
Restricted/weak/low Intermediate Large/strong/high
l remit
vestigated? Only administration. EU: EC bodies Not the courts, not municipalities (Denmark, New Power to oversee: the courts (Sweden, PNG, Fin
only; not state security (Botswana) or Brunswick, NB); not the cabinet (NB); America); quasi public & professional bodies (BC
defense force, prisons, presidential presidential decrees and legislative acts (Estonia
staff, judicial officers (Zimbabwe) defense forces (Australia, South Africa)
nvestigated? Maladministration, legal violations Rights of detainees (Antigua & Barbuda, France), Even the constitutionality of laws & the legality of
only (classic Ombudsman); no royal immigrants (Australia) ; corruption (most SADC), regulations, actions, decisions (Poland & other bl
prerogative matter (Swaziland) the environment (Namibia), land, social, political countries, Ontario, BC, Swaziland; Ghana); enfor
conflicts (Benin, B-Faso) the leadership code (PNG)
powers
Not legally defined and/or protected Defined and protected by law Protected by constitution
Reactive, only based on complaints Reactive, complaints extendable into new issues Proactive, Own motion investigation
ns ‘Normal’ investigations involving Can conduct inspections; can supervise official Can conduct ex-officio investigations (Eastern Eu
audition of officials and witnesses and activities (e.g. use of surveillance devices by Comprehensive investigation projects (Hungary);
review of records and documents police in Australia) Comprehensive audits (Australia)
Through “MP filter” (UK, France) Direct access from the public (most cases) Universal access, including by detainees and not
but registered persons
only legal residents (EU)
access Only through written motions Can be taken orally All means, including oral, webpage & others
cial information Informal; no binding mechanism Legal; but there are loopholes or lack of binding Legal and enforceable: thru courts (PNG), can is
means subpoenas (Ghana); same powers as Supreme
can also inspect premises (Seychelles)
cials Informal; not enforceable Legal; through administrative hierarchy (EU) Legal and enforceable (thru courts, PNG); court-l
to witnesses (Wales judicial review, 2001; Seych
issue subpoenas (Namibia, Swaziland, Ghana)
stigation
In all the cases reviewed, ombudsmen investigations are conducted in private/in camera
method In all the cases reviewed, ombudsmen have considerable autonomy of investigation methods (within their scopes of means)
ocedure Similar procedures in all cases: (i) falls within jurisdiction; (ii) normal appeal mechanisms exhausted; (iii) formal investigation starting with fact fin
(process/decision) Discretionary, no obligation to explain self-imposed transparency to the parties Obligation to notify decision and consequential re
Brunswick)
ress/remedy
ers of arbitration Purely advisory; Cannot order Recommendations for remedial action carry Decisions consistent w/ constitution supersede A
remedial action significant legal or moral force, but final decision parliament (PNG); Parliament cannot change an
rests outside the remit of the ombudsman the ombudsman (CHRAJ, Ghana)
Legal scope of Consensual; decision not binding indirectly binding to those w/ enforcement power; Can refer issue to Prosecutor General or Attorne
ions (Nigeria) no mechanism to deal with lack of cooperation or initiate legal proceedings (Namibia, Swaziland
from executing agencies (Malawi, Namibia) pursue contempt charges in the courts (Ghana, N
blicity Only cases reports & annual reports Case reports; Special reports; public statements Public campaigns, media outreach & education i
range of reports
Investigative powers are a key constituent of an ombudsman’s effectiveness.
In that regard, the UK and France, despite their anteriority and political
influence, have had far less ‘advanced’ schemes than most of their
counterparts in the Americas, Africa or Eastern Europe. In particular,
complainants have still to go through a member of parliament before they
can access the ombudsman; this latter, in turn, can act only in a
reactive mode; that is, after receiving a complaint40. By contrast, most
ombudsmen today deal directly with the public and can initiate cases on their
own motion; this has become the standard. Several can conduct ex-officio
investigations or carry out comprehensive audit projects, as in Australia, for
instance (NSW Ombudsman, 2005). As we have seen, several ombudsmen also
have the power to subpoena witnesses and documents, despite occasional
limitations in matters of state security. Notwithstanding its very broad powers,
the Ombudsman Commission of Papua New Guinea, for instance, cannot obtain
documents likely to prejudice the security, defense or international
relations of the country (Ila Geno, 2005). Transparency International also made
the case that the ombudsman ‘lacked the teeth’ to effectively prosecute corruption
cases (Bird et al., 2007). We have seen that this, in particular, is one of
the strengths of the Control Yuan41.
This said, we must be careful not to confuse the legal statutes and theoretical
powers of ombudsmen with the actual process of achieving independence.
Independence is also not synonymous with effectiveness. What matters at the
end is not the theory of ‘ombudsmanship’, but the judgment of reality. The
following section is thus guided by four questions: how effective is the
ombudsman institution? What correlation, if any, can be established between
independence and effectiveness in the case of the ombudsman? What dynamic
factors seem to account most for the independence and effectiveness of different
ombudsmen? How does this all relate to the raison d’être of ombudsmen and to
different concepts of justice in the transformation of states and societies?

Achieving independence: theoretical lessons for verification

The ombudsman’s story clearly is a success story. An ineffectual institution could
not have strived across the continents in the way the ombudsman did. This fact is
reflected in the numbers as well as the practical stories surrounding the work of
ombudsmen. This, however, is in no way univocal or linear.

Ombudsman’s effectiveness: from stats to practices

The Nigerian Public Complaint Commissioner - maybe not the
wealthiest ombudsman - reports that between 1975 and 2004, the cases referred
to the PCC more than doubled from 6,777 to 14,873 cases a year. The cases
resolved, mainly

40
This was the case until the mid-2000s; we have not been able to see from recent data if the numerous
motions made over the years to the French and British Parliaments have been able to change the state of
things.
41
Actually, both organizations display impressive statistics on individual prosecutions resulting from their
investigations (under the leadership code in PNG). See Ila Geno, 2005 and [Link]
through amicable settlements, also went up from 4,103 to 9,730, with an annual
rate of resolution that increased slightly from 60.5% to 65.4%. At the same time,
we must recognize the modesty of such numbers for Nigeria, an immense country
of 133.5 million people (in 2005). Similarly, the Mediator of Mali, a woman as in
Burkina Faso, was reporting an increase of 68 % in the complaints she received
between 2004 and 2005. However, this amounted only to 228 cases, eight years
into the existence of the office. It also appears that only 12 cases were found fully
justified (5.2 %) while 31 Were declared ‘not justified’ (13.6 %)42.
Another example is the work of the European Ombudsman, created with the 1995
Maastricht Treaty and widely hailed since. By 2002, the office had handled over
10,000 grievances from citizens, companies, organizations and public authorities.
Between 2000 and 2002, the complaints handled by the EU Ombudsman
increased, from about 1,700 to 2,500 cases a year. Requests for information over
the Internet also doubled to reach 2,335 between 2000 and 2001. As indicated in
table 2, however, the Ombudsman can only investigate EC bodies; he cannot deal
with complaints about national, regional or local authorities, even when the
complaints are about Community law. This may account for the relatively
low number of cases for a body covering Europe. It must be noted also that,
between January 2000 and June 2002, the Ombudsman examined 5,076
cases but opened inquiries on only 552 of them (11%). The outcome of these
investigations for 620 cases shows that, ‘no maladministration’ was found in
nearly half (288) of them; 34 % of the cases were ‘settled by the institution’
while 22 % lead to ‘critical remarks’ or ‘draft recommendations accepted by
the institution’. Only four Special Reports went all the way to the European
Parliament (The European Ombudsman, 2002).
Ombudsmen all over the world report similar trends, and sometimes better
complaint-handling performances. Ombudsman Ontario, for instance, reports a
“steady increase in complaints and enquiries received” between 2001 and 2005,
following a record high of 26,495 cases in the fiscal year 2000-2001. Seventy six
percent of these were received by telephone and the rest by letter, fax, via
Internet or in personal interviews with Ombudsman Ontario staff. Less than one
percent was received from a Member of Provincial Parliament or initiated by the
Ombudsman as an own motion investigation. Following a standard of diligence
sought by most ombudsmen, the office strived to close most cases (66 % in 2003-
2004) within a month, or in less than a year. In 2004-2005, 15,744 complaints
and enquiries were closed during the year, 15 % ‘in favor of the Complainant’ and
6.7 % ‘in favor of the Government’. The bulk of the cases (65.7 %) related
to inquiries, referrals, and resolution facilitated on behalf of the parties.
An additional 7,646 ‘non provincial’ cases was dealt with in that year
(Ombudsman Ontario, 2005).

42
There is a dearth of data in the official sites of most Mediators, which makes detailed assessment
difficult. In the case of Mali, see: [Link] and
[Link] With regard to the
Nigerian case, see the PCC’s article (Yaro, 2006) published in Sun News and already cited.
In Australia, the Commonwealth Ombudsman reports to have investigated
105 Government departments and agencies and to have finalized 17,441
complaints in 2004-2005 (similar to previous year). In that period, it also
handled 12,013 ‘other approaches’ (up 33 % from previous year), provided
telephone assistance to 39,000 people and completed “five own motion and
major investigations, with all Ombudsman recommendations being accepted
by agencies”. These are quite impressive achievements; yet, they do not
consider added responsibilities related to the supervision of police surveillance
and immigration detainees, outreach activities, and a 3-year study on whistle-
blowing protection laws across Australia.
New Brunswick is an interesting case for analyzing an ombudsman’s effectiveness
against the backdrop of its complaint-handling performance. In 2004,
Steward Hyson (op. cited) raised methodological questions about ‘how best
to study complaining’. These questions were triggered by the paradox of a
very efficient office and a dramatic and steady decline of the complaints it was
receiving from the public over the years. Between 1996 and 2003, the
complaints received by New Brunswick’s Ombudsman went down from 2,552
to 795 (69 %). The yearly decline was in the order of 25-30 % for three of the
five fiscal years concerned. At the same time, the efficiency of the complaint-
handling system was undeniable; 67 % of its cases got closed within 30 calendar
days and 93 % within 90 days; 81
% of non-complaint items were processed within seven days. The Ombudsman
was also a remarkably cost-efficient mechanism, handling hundreds of grievances
each year at relatively little cost. The fundamental question is thus the following:
was this decline the result of a qualitative transformation of the public service
into smooth, respectful and efficient delivery machinery – thus making true the
suggestion that “a good ombudsman is one who put itself out of job”? Or was this
a sign of ‘democratic deficit’ – “the public’s disillusionment with and alienation
toward traditional…democratic governance in Canada” – which was a point of
debate following declining voter turn-out rates and civic engagement in the
province? It is unfortunate that Hyson does not really answer the question raised
by his paper; but these latter have the merit of bringing to the fore key issues of
context and bureaucratic transformation in the analysis of the ombudsman case.

‘Dynamic independence’: autonomy, influence, and style in Ombudsmen’s work

In his analysis of the Latin American ombudsman, Frederik Uggla (2004) made
the point that, while the cases he was considering had basically the same
legal and institutional bases, their reality and impact on state and society were
quite different. He thus organized a typology along two dimensions,
‘autonomy’ and ‘ability to influence’, to try to account for this difference.
On this basis, four different types of ombudsman could be identified: (i) a
‘proper ombudsman’, strong in both dimensions; (ii) a ‘political instrument’
– powerful, but lacking independence and servicing the goals of other
actors; (iii) a ‘dead-end street’, autonomous but lacking in influence and
ability to affect public decisions and policy; (iv) a ‘façade’ - “an elevated
dustbin for complaints against the state” - lacking in both independence and
political influence. Figure 4 is an adaptation of Uggla’s typology.
Figure 4. Ombudsman types (adapted from Uggla, 2004)

Ability to influence
+ Political instrument Proper Ombudsman

Façade Dead-end street

- +
Autonomy

The cases, cited earlier, of Croatia in 1993-1996 and of El Salvador’s 1998

appointment, could be cited, respectively, as typical cases of façade and political
instrumentation. The rather “bleak” case of the Columbian ombudsman,
who, according to Uggla, stayed virtually silent for eight years in the face
of the country’s civil war and massive human rights violations could be
another example of façade. In the last years, however, the office has been
reinvigorated, publicly criticizing the military and questioning the damages
of the pesticides used to eradicate coca plantations. It can be suspected
that a number of ombudsman or mediators could also have been set to create
a democratic image for external consumption rather than a genuine
independent mechanism to keep in check state behavior. Conversely, the
Guatemalan ombudsman, a clearly autonomous figure, had little ability to
influence state behavior; Uggla reports that he was being increasingly
disregarded and, perhaps, persecuted by other state organs in the mid-2000s.
Earlier, we saw a couple of southern African cases where security services –
among the least responsive institutions in Latin America as well – defied
the ombudsman with impunity. These are not typical cases of ‘dead-end
streets’ but they highlight the nature of the problems an ombudsman can
face when he does not possess real ability to weight in a country’s
political game. Among the six country cases studied by Uggla, three
appeared to command more respect and influence than the others,
Honduras, Peru and Bolivia; they were also highly autonomous, thus matching
the figure of a ‘proper ombudsman’.
Looking closer, however, the four types of figure 4 are more ‘ideal types’, that is,
theoretical reference points against which to measure reality, than fixed identities
in which all cases must fit. The cases we have seen actuality exhibit a fluidity
characteristic of political situations and struggles. Some ombudsmen may enjoy
particularly stable and predictable work environments, but this cannot be the
rule. Uncertainty and unpredictability are inherent to real life and political
situations; the political underpinnings of the ombudsman institution should not
be underestimated. To understand how independence and influence can be
achieved – or not achieved – in the work of ombudsmen, we must thus
look, beyond Uggla’s ideal types, into the nexus of ‘essential conditions’ within
which all ombudsmen have to evolve. These conditions are (1) external, (2)
internal, (3) structural, and (4) dynamic (figure 5).
Figure 5. Key conditions determining the outcomes of an ombudsman’s work

External Conditions

Rule of law Legal Standing

Structural
State of the Rule of Law Strength of the Conditions
Stability of the country’s Ombudsman’s Legal
institutional framework standing and functional
Authority
Politics Style

Dynamic
Conflict history Ombudsman’s Work Style,
Conditions Political Sensitivity Ethics, Independence
State behavior and Integrity
Political culture and
ideology

Internal Conditions

Together, the rule of law, the ombudsman’s legal authority, and the behavior and
political culture of state actors form a set of ‘contextual’ or ‘enabling conditions’
within which an ombudsman has to operate, struggle, maneuver, and adapt
in order to achieve something meaningful. A ‘proper ombudsman’ is
structurally conditioned by these factors; it is not a mere outcome of the related
processes; its ethics, organization and work style constitute dynamic internal
conditions that interact with the other three dimensions to produce certain
kinds of outcome. The ‘ability to influence’ is not an attribute of the
ombudsman, as such, but a result of these four dimensional interactions. In
the Guatemalan and Namibian cases, for instance, the data available to us are
insufficient to determine whether it is the political system (state, security
services) that needs to be made more accountable or if it is the
ombudsman that is not adequate to the situation. In both cases, the
ombudsman was given strong formal standing and the rule of law was an agreed
upon state standard. It remains that both these countries emerged in the 1990s
from severe civil conflicts and human rights violations and it is not clear how
much of this still permeates political and security behaviors. It is also not clear
whether it is the ombudsman’s work style (too aggressive? too lenient?) that is
at fault. What we know is that, in those cases, dynamic internal and
external conditions interplayed to limit the effectiveness of the ombudsman. The
following figure provides theoretical simulations of these dynamic interactions.
Figure 6. Simulation of Key Interacting Conditions

Simulation 1 Simulation 2
Rule of lawLegal standing
Rule of law Legal standing weakweak
Strong Strong

Conflicts; Ability to improve standards Dead-end; no ability to improve governance

Politics Style PoliticsStyle

Uncooperative Strong UncooperativeStrong
Simulation 4
Simulation 3
Legal standing
Rule of law weak Rule of law Legal standing
weak weak strong

Cooperation; Ability to improve governance & Façade; instrumentation no ability to improve

standards governance

Politics Style Politics Style

Cooperative Strong Uncooperative weak

The simulations hypothesize that ‘cooperative politics’ and the strength of the
ombudsman are the key interactive conditions that can translate the mandate of
an ombudsman into improved governance and administrative standards. Even
where all other conditions are ‘strong’, ‘uncooperative’ administration and
political actors will result in a lower ability of the system to lean on the
ombudsman in order to improve itself. Similarly, a weak, unprincipled
ombudsman will fail in its mission no matter the strength of the other
institutional and political factors.
The simulations assumed initial conditions where the four dimensions
are independent from each other and interact only thereafter. The reality is
more nuanced; the two external conditions, for instance, political culture
and rule of law, have a degree of correlation. Similarly, a strong legal
standing for the ombudsman (simulations 1 and 4) presupposes some level
of political will and cooperation from state actors. We did not simulate strong
structural and political conditions with a weak ombudsman, as such a
configuration is bound to self- regulate after a while. We left out other
possible simulations for similar reasons. Nonetheless, all four simulations
correspond to a level of reality. Uncooperative politics can coexist with stable
institutional and legal frameworks (as the Irish
case showed earlier) or can appear in relation to particular political conjunctures
or sensitive cases. Issues of immigration detainees and aboriginal people
are example of such sensitive human rights issues in many ‘advanced’
democratic states. For instance, the UN Human Rights Commission reported
in 2005 that Canada's top 10 ranking on the UN's human development
scale would drop to 48th if the country were judged solely on the economic
and social well-being of its First Nations people. Reflecting this somehow, the
Canadian ombudsman for federal prisons later called the routine
discrimination against Aboriginal people by the corrections system “a national
disgrace”43.
In Australia, Aboriginal deaths in Custody in the early 2000s prompted a Royal
Commission investigation and the development of a Strategic Direction
(2003- 2006) to address root causes of the NSW police chronic conflict with
aboriginal communities. Implementation of the Strategic Direction by the
police was the subject of a Special report of the NSW Ombudsman in 2005 (op.
cited). The audit report was thorough and addressed a host of issues, ranging
from frontline police induction programs and cultural awareness training, to
Aboriginal recruitment, community liaison officers, and partnership with
Aboriginal communities in fighting crime. Two elements stand out from
this report in relation to our discussion of ombudsman independence
and effectiveness: The reporting approach and style, and the implied
relational dynamic between the investigator and the institution investigated.
Obviously, in spite of some local achievements, the structural and relational
problems at the origin of the Strategic Direction were still in place at the time of
the audit. The report was not shy to highlight those; for instance, a rate of
imprisonment of the indigenous population 16 times higher than the population
as a whole and a chronic under representation of Aboriginals in the police force.
The ombudsman’s reporting style, however, was extremely pedagogical. The
report had a clear human right stance, but made no denunciation or overt
advocacy; rather, it used detailed knowledge of the fact to spur institutional
actors into renewed corrective action. For example, official claims that an annual
target of 20 Aboriginal recruitment was ‘being met’ also indicated a high attrition
rate given a total number of only six additional Aboriginal officers; this led to new
operational specifications of the policy. The reporting style was based on positive
criticism. Case studies and analytical comments were shaped to emphasize
positive outcomes and ‘Case studies’ as well as observed behavioral changes.
A good deal of the correctives suggested was backed from example from within
the institution itself. The independence and credibility of the report is visible.
Direct and detailed fact-based criticisms were made in all the area investigated;
but the care taken to avoid offensive comments and to gain support
within the organization subject to criticism is also telling. It emphasizes the
ombudsman’s consciousness of the sensitivity of the relational dynamics at
play (including elders and members of the Community) and of the
importance of style and pedagogy in inducing behavioral change in this kind of
context.
43
Jail conditions for Canadian aboriginals a 'disgrace': ombudsman. CBC News Monday, October 16, 2006
Not all ombudsmen work in this way, and different cases may require different
approaches. The case of Quebec’s Citizen’s Defender, Daniel Jacoby, which could
have been among our earlier examples of appointment controversies,
expresses this diversity of style (Box, below). It can be noted for the record that
the Quebec Defender has been a successful office handling some 25,000
cases a year, and that Jacoby’s successor in 2001, Pauline Champoux-
Lesage, did essentially the same job, with similar effectiveness but without the
controversies.

A marked man (Excepts)

Ombudsman Daniel Jacoby is hated by all political parties. Good for him.
by PHILIP PREVILLE
Daniel Jacoby likes it here. He doesn't have much choice in the matter. Jacoby, Quebec's ombudsman, didn't get here by
screwing up; he got here for doing his job right. He actually seems to think of this place as something of a pinnacle. "As
ombudsman, you don't make many friends with the government," he says. "In fact, you're pretty much there to make
enemies."
Last week the Bouchard government, fed up with the succession of embarrassments Jacoby has caused, relegated him to limbo by
announcing that it would not renew his five-year term when it expires in September. They intend to replace him with Rita
Bédard, president of the agricultural appeal tribunal. But Jacoby may prove harder to depose than they think.
This is the battle-hardened Jacoby's second tour of duty through limbo, and the circumstances that have brought him back here are the
stuff of legend. Up until 1987, Jacoby had been a senior civil servant in both the Liberal and Péquiste governments. He was … a
"good bureaucrat," reliable, competent, clean fingernails, not particularly prone to bursts of moral outrage. This last qualification
made him the perfect fit for the post of ombudsman, whose job is, by definition, to berate the government for being negligent or
abusive toward its citizens. Jacoby seemed like the type who wouldn't cause a ruckus; Premier Robert Bourassa gave him the job.
Jacoby started investigating complaints with vigour, ruling against the government and talking to reporters. Less than four years later,
Bourassa had seen enough and ordered Jacoby gone. Limbo beckoned.
But the appointment of a new ombudsman requires a two-thirds majority vote in the National Assembly. Jacques Parizeau's Péquiste
opposition happened to enjoy watching Bourassa's Liberals squirm with embarrassment over Jacoby's revelations and blocked the
government's attempt to unseat him. Bourassa, unable to name a new person to the position, refused to re-appoint Jacoby. For two and
a half years, Jacoby served as "interim ombudsman" until he was finally reappointed by Parizeau in 1994.
Now, sweet irony, the shoe is on the other foot. Lucien Bouchard, an ill-tempered politician if ever there was one, wants Jacoby gone,
too, but the opposition Liberals have no intention of helping the Premier pull the thorn from his side.
The specific ruling that landed Jacoby in hot water this time around is a particularly damning one. Back in 1989, the government set
up tax shelters for people investing in research and development projects, and the scheme turned out to be a popular one. Thousands
of people--at least 8,000, possibly more--bought into the scheme.
In 1993, the government got skittish about all the tax money it was foregoing through the shelters. On a technicality, it started
reclaiming the money, telling investors they owed thousands of dollars in back taxes. Personal bankruptcies and even suicides
resulted. Jacoby intervened and last December told the government to give the money back. Estimates suggest the government owes
investors somewhere around $50 million.
In so doing, Jacoby has made a once-proud government look like a two-bit operator desperate to get out of hock, and its zero-deficit
initiative looks like the world's biggest going-out-of-business liquidation.
For the record, Premier Bouchard says the move to oust Jacoby is an affirmative-action initiative: he simply wants to appoint a woman
to the job for a change. Bouchard also criticized Jacoby for stating that the R&D tax shelter ruling is costing him his job; Bouchard
says Jacoby is playing politics by going public with the contents of a "private conversation" between Jacoby and Bouchard's chief of
staff, Hubert Thibault.
Jacoby begs to differ. "That conversation contained information that was of intense public interest. I'm being replaced because of a
ruling I made that the government simply doesn't like. Once the government deems an ombudsman's decision unacceptable, what
message does that send to my successor? That's political interference. Had I kept the 'secret,' then I would have been playing petty
politics." …
This document was created Wednesday, June 25, 1997. ©Mirror 1997

Rule of Law and natural justice: verification, engagement and state transformation
By and large, different ombudsman models and work styles have yielded
significant results and have contributed to improved democratic governance and
reduced conflicts between citizens and the state; controversies, shortcomings and
localized failures do not put that fact into question. As table 4 illustrates, the
cases addressed by the ombudsman tend to cluster around different types of
issues in different world regions. This reflects different mandates and also
sharply different social and political contexts. It is inevitable that these contexts
will change, particularly with regard to issues of economic and political rights in
certain countries, and that the focus of the ombudsman will evolve accordingly.

Table 4. Most frequent complaints processed in six selected cases 44

EU Ontario Romania Latvia Russia 98- Albania

2002 2004-05 97-99 1998 99 2000-01
Due process failures
information/communication x x
Unreasonable delays x x x
legal error, wrong interpretation x x
negligence/omission x x
denial of service x
failure to fulfill obligations/ follow
own guidelines x x
procedural error, rights of
defense x x
unfair judicial decision x
insufficient reasons for decision x
failure to keep record x
improper investigation x
other maladministration x
Corruption x
Civil rights
discrimination x x
unfairness, abuse of power,
coercion x x
harassment, bias x
press freedom x
Other human rights
Political rights
human rights violations x x
former political prisoners x x
asylum-seekers and non citizens x x x
police, militia, security bodies x x
children protection x
protection of disabled x
veterans rights x
Economic rights
pensions and social benefits; x x x
work conditions & labor relations x x x
property & housing x x
consumer rights x

44
Sources: EU Ombudsman, 2002; Ombudsman Ontario, 2005 ; Vangansuren, 2002
Vangansuren (2002) notes that, in East-Central Europe and Central
Asia, ombudsmen have anchored the reforms of public management
sectors and increased public participation in policy and law-making
processes in countries such as Poland, Hungary, Lihania, Romania, Croatia,
Uzbekistan and Slovenia. They have applied to relevant courts for reviews of
the constitutionality of laws and the legality of regulations, actions, and
decisions. For instance, between 1995 and 2001, the former Hungarian
Ombudsman for Civil Rights, Katalin Gönez, made 786 legal proposals and
suggested modifying or repealing 250 laws proper, which was done in a
majority of cases. In line with their “primary constructive role” in
consolidating democracy and the rule of law through the defense of human
rights, “the ombudsman institutions were a kind of legal factory”
(Vangansuren, ibid).
The raison d’être of the ombudsman, therefore, goes beyond the mere application
of existing laws or the checking of boxes to verify if laws and regulations
have been properly followed. Some ombudsmen do limit their verification
duty to a strict version of maladministration. As defined by the European
Ombudsman (2002), maladministration occurs “when a public body fails to act
in accordance with a rule or principle which is binding upon it”. This, indeed,
could be seen as checking boxes. We note, however, that the European
Ombudsman contributed to the EU Charter of Fundamental Rights and
promoted the inclusion in the Charter of European citizens’ ‘fundamental
rights to good administration”. The Ombudsman also drafted the European
code of good administrative behavior and has been active in inserting various
protections against discrimination and for freedom of expression in the body
of codes and administrative practice of the Union.
In Ontario British and Columbia, the ombudsman is required by statute to state
its “opinion” when an investigation uncovers maladministration or illegality
as well as when an “act or omission” was made under a rule of law or
statutory provision that is “unjust, oppressive or improperly
discriminatory”. Gregory Levine’s (2005) commentary of these statutes
describes them as “codes of immense moral magnitude”. Champoux-
Lesage’s first Ombudsman’s report to the Quebec parliament in 2002 Was
entitled ‘Above and Beyond the Law’ to underline administrators’ obligation
not to “summarily dismiss facts justifying an exemption or merely an
adaptation of the rule” for a range of cases including psychologically at-risk
citizens.
Generations of legal and ethical theorists have debated the relationship between
law and justice. We saw that thousands of years ago, this question was at the
heart of the social and administrative organization of ancient Egypt. Closer to us,
the positivist legalist tradition sees the law as supreme while various versions of
classical natural law theory have held that laws have social value only insofar as
they respect certain fundamental principles of natural law 45 or human rights.
Henry David Thoreau’s civil disobedience campaign against slavery and the US

45
Concepts of ‘natural law’ vary according to different theories and legal traditions. In this paper, we take
it to refer, simply, to the continuum of ‘natural rights’ described in figure 7.
war on Mexico and its emulation by historic figures such as Mahatma Gandhi and
Martin Luther King were practical and far-reaching demonstrations of this
hierarchy of values. Modern analyses of legal pluralism have emphasized the
relative and socially-constructed nature of law as well as the plurality of legal
orders in a society. Ombudsmen, everywhere, are required to work within the
Law, but the ‘righting of wrongs’46, inherent to their work, inevitably leads them
to this difficult question of law and justice.
Figure 7 illustrates the continuum of rights – and corresponding duties of the
state – that make up a universal corpus of reference to justice in contemporary
societies. Different ombudsman mandates may spread at different points across
this continuum but, in essence, the movement of societies is to make laws and
practices converge to meet these basic standards. Ombudsmen have been created
as institutions to help bring about this convergence.

Figure 7. Natural law continuum

Human Rights

Civil Rights Fundamental Extended Rights

(to) Rights (to) (not to be)
Due process Freedom of speech,
life, liberty Subject to torture,
opinion, religion, security cruel, inhuman or
Right to movement; degrading punishment
Be informed, heard, & dignity… slavery, arbitrary
treated without bias & violation of personal
(not to be) life; Detained
with respect ; Respond
discriminated
to, & present evidence; arbitrarily; Denied
Basic against on the
not be unduly denied cultural & collective
basis of race,
fairness services, entitlements
religion, sex, age,
rights; denied basic
or reasonable benefits economic rights
Right to handicap, political
of laws, policies & ...
Be heard opinion …
Natural regulations...
Rights

Procedural Fairness Substantive Rights

Administrative Justice

46 See, e.g., O’Reilly (2005) and Gregory and Giddings (2000)

Conclusion
This work was undertaken primarily as a means to inject additional comparative
perspective in the way questions of law, governance, and verification
are addressed in the forest sector. In that process, we have seen the spread
of the ombudsman institution as a major phenomenon of the 20th century as
well as its roots in a social demand for accountability and justice across the
millennia.
The ombudsman movement is a particularly successful international horizontal
network47. We saw potent post-colonial influences in the ways it took shape in
different world regions; but we also saw that it essentially self-spread in response
to profound democratic demands within societies. Of late and reflecting post-
authoritarian reconfigurations in various parts of the world, People’s Defenders
and other human rights ombudsmen have been a dominant and successful form
of diffusion of the institution. Signs of reverse influence of this model on older
ombudsman types reflect the originality of this kind of international network
where ideas and patterns of influence circulate horizontally rather than vertically.
For the forest sector, this vindicates the utility of self-spreading horizontal
networks for sharing ideas and best practices 48, particularly in matters of
governance and verification.
The ombudsman story is also a lesson on the relationship between ownership and
independence in the sustainability of institutional innovations of the
kind promoted by the FLEGT agenda. The forest sector cases studied by the
VERIFOR research49 broadly represent two types of situations: (1)
nationally-based verification systems, such as the Latin American and
Malaysian systems and the Forestry Board of British Columbia; (2)
external monitors such as the Independent Observer in Cambodia,
Cameroon, Ghana and the Democratic Republic of Congo50. Of these cases,
the ombudsman is closer to the Independent Observer and to the BC Forestry
Board; all are schemes relying on a personality or an organization external
to the system subject to verification. The ombudsman, however, departs
from the Independent Observer in one major way. While the latter is
essentially a foreign organization linked to donor conditionality, the
ombudsman is always a national of the country concerned51. As with the BC
Forestry Board, verification, in that case, is nationally owned and internal to the
dynamics of society. As a national institution, the ombudsman also demonstrates
a long-term capacity to protect its independence and mandate, despite
inevitable political entanglements and the tokenism of some transient cases.
This is interesting for the broader question of how self-sustaining and
internationally relevant forms of governance can exist and strive in the national

47
Public sector ombudsmen are regrouped into the International Ombudsman Institute (IOI) and in various
regional networks. The International Association of Ombudsman regroups private sector ombudsmen.
48
The International Model Forest Network, [Link] is one example of such networks.
49
See [Link] for related references
50
Where it is an ‘Independent Expert’ with more limited mandate than Independent Observers
51
With the remarkable exception of post-civil war Bosnia-Herzegovina where the Dayton agreements
specified that the ombudsman had to be a foreigner
contexts of tropical forests. It is worth noting that a few ombudsmen have
authority over forest and environment matters. In Papua New Guinea, for
instance, the ombudsman Commission strongly questioned the constitutionality
and legality of state acquisition of timber rights under Forest Management
Agreements with landowners and their subsequent allocation to licensees
(Ila Geno, 2005; Bird et al., 2007); this, in its view, was “tantamount to
‘equitable fraud’ in respect of landowners’ rights” (Bird et al., ibid).
At its core, the ombudsman is a verification institution driven by a set of ethical
principles. Some schemes rely considerably on the quality of the ombudsman as
an insider in public administration while other rely more on the independence of
the ombudsman. However, beyond the many models, contexts, and styles of work
differentiating them, all ombudsmen share the basic working principles of
verification. This and all the related processes of publicizing findings and
reviewing practices, laws and procedures are meant to develop adaptive
feedbacks into, and thus strengthen an institutional framework. The goal of the
ombudsmen in all countries is to improve the system not to expose it. Exposure,
wherever needed, is to be part of broader ethical codes recognizing legitimate
state interests as well as the roles of information and civil society in achieving
certain standards of state accountability.
In that line, we have seen that enforcing legality is not, as such, the prime mover
and rallying point of ombudsmen. The job of an ombudsman is not just to check
boxes to see if administrative practices respect existing legal standards. Rather,
the main concern of ombudsmen is justice. Ombudsmen are required to look into
the legality of both state actions and citizens’ claims but from the broader
standpoint of administrative justice and conflict resolution. In that process, they
are bound to uncover failings in the institutional and legal framework itself. Strict
adherence to laws and procedures assumes perfect or perfectly self-adjusting
codes, which exist nowhere. No system is perfect and some do not necessarily
have ‘just laws’. This is why ombudsmen and other checks and balances are
needed in the first place; they are part of the system and contribute to making it
robust enough to correct its flaws through self-adjusting mechanisms. To do so,
many ombudsmen are required by statute to make judgments and to voice their
opinion. Some, as we have seen, have even been compared to a “legal factory”.
What then guarantees the impartiality and credibility of an ombudsman and its
universal recognition as a non-partisan institution that is neither an advocate nor
a substitute to elective representatives or administrative judges? There is, first,
the verification ethics mentioned earlier. Ombudsmen’s investigations must be
based on procedures that are transparent, creative and congruent with their
received mandate; they have to operate on rules of fairness and natural justice in
both the cases they investigate and the way they conduct their investigations;
their opinions and recommendations must be seen as non complacent and
relying on facts and substantiated arguments. It is only through that process that
the personal integrity of an ombudsman – its ‘style’ and the second key to its
credibility - is confirmed and reasserted.
This paper shows that solid institutional frameworks are structurally important
to an ombudsman’s authority, independence and effectiveness. But we also saw
that these structural conditions are not sufficient. The style and ethics of an
ombudsman is the dynamic key to its independence. To effectively influence state
behavior, particularly in sensitive policy or security areas, cooperation must also
rate relatively high in the choice of means mobilized by political actors to achieve
societal objectives. This translates in the jargon of modern forestry in terms
participatory thinking and collaborative natural resource management.
The ombudsman movement is clearly part of a broader move of
contemporary societies to institute transparency, ethics, administrative justice
and respect for human rights in the everyday practice of the state. It could
never be understood as a standalone bearer of justice; it is a building block in a
broader architecture of checks of balance52 to which traditional state
institutions as well constitutional courts, audit institutions or
decentralization processes contribute significantly. This is in no way free of
contradictions, setbacks and instrumentations. As an example, Prosecutor
General offices in the US and in South Africa were set as democratic
responses to the Watergate and Information scandals in the respective
countries. Later, the whole world watched the political controversies
surrounding the prosecutions of former US President Clinton and Vice President
Jacob Nzuma in South Africa with foreboding and a sense of déjà vu. We have
seen in this paper that ombudsmen can be routinely confronted to this
kind of situations in their work. Debates, dissent, and the demand for
transparency are part of an everyday struggle for democratic governance in all
parts of the world. Institutional systems evolve to try meeting this challenge.
This is true of the forest sector as well as the broader public space.

52
Such as the one illustrated by Transparency International and Global Integrity Systems, which rate
countries by the standing of a range of oversight and audit institutions, including the ombudsman. When we
went to look at a few National Integrity scorecards in the course of this research we were struck, however,
by the measurement (subjectivity, reliability and consistency) issues apparent from the reliance on the
personal appreciation of a commentator and a peer-reviewer for each case.
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