2.

4 The traditional roles of the ombudsman

While there are different interpretations of the ombudsman concept and the institution
cannot be precisely defined, the roles common to all ombudsmen are usually
understood to be resolving complaints and improving administrative practice. These
two roles are normally discussed together in the ombudsman literature as ‘redress and
control’ or ‘firefighting and fire watching’. The word “role” as used here implies both
the overall functions and the procedures which the ombudsman operates in attempting
to perform his roles.

Carol Harlow and Richard Rawlings, Law and Administration, Butterworth, London,
1997, pp. 423- 455.

2.4.2 Resolving individual complaints

Many ombudsman offices have the core role of investigating individual complaints
against the state. This role has been reflected in a number of descriptions of the
ombudsman institution formulated by ombudsman associations around the world. For
example, the International Ombudsman Institute’s By laws identify the classical
legislative ombudsman as “The office of a person … whose role is to investigate
citizen complaints concerning administrative acts or decisions of government
agencies…”.

The definitions and the ombudsman practice noted demonstrate that an ombudsman
operates in the sphere of public administration, a task which fundamentally involves
the translation and application of broad legislative policy to individual situations. This
raises a complex challenge for the ombudsman as it is widely recognised that the
office generally does not have the right to intervene in the exercise of executive
discretion or interfere with the merits of differing social and economic policies or the
adjudication of cases, issues which are the remit of the legislature and the courts.

Stephen Owen, “The Ombudsman: Essential Elements and Common Challenges‟, in

Reif (ed.), The International Ombudsman Anthology, n. 9, pp. 51-71.
Characterised by its roles, the ombudsman therefore functions to supplement pre-
existing mechanisms of remedial justice by which citizens can assert their individual
interest against the administration. The ombudsman is capable of performing such
roles because it yields three major effects: increased access to justice; effective
dispute resolution and review of improper administrative practice. Each of these areas
are discussed in turn below.

Increased access to justice

It is telling that the purpose of adopting the ombudsman system in many countries
was to supplement existing provisions, such as parliament, the court, and internal
complaints procedures in protecting citizens against expanding administration. It was
deemed necessary since governments were having an increasing impact on citizens
lives. The political process does not always provide a practical way by which an
individual citizen can obtain a remedy for an administrative grievance. Litigation is
too often associated with complicated procedures, high cost, and the length of time
consumed. Conversely, filing complaints through the internal dispute resolution route
provided by departments of administrative entities offers a more economical and
convenient way forward than judicial proceedings, and can work effectively in
dealing with administrative faults. The internal complaint system, however, is
inevitably hampered by intricate human relationships and the perception that it lacks
independence.

George V Carmona, “Strengthening the Asian Ombudsman Association and the

Ombudsman of Asia”, in Asian Development Bank, Strengthening the Ombudsman
Institutions in Asia, Asian Development Bank Economics Research Paper Series,
Asian Development Bank, Mandaluyong City, 2011, p. 7.

Stephen Owen, “The Ombudsman: Essential Elements and Common Challenges”, in

Reif (ed.), The International Ombudsman Anthology, n. 9, pp. 51-71.

Contrary to other approaches, the ombudsman system possesses the benefits of being
independence, procedural convenience, the inquisitorial method and wider admissible
scope. In theory, an ombudsman's ability to employ inquisitorial investigation to
examine complaints can minimize the inequality of power, — particularly as regards
technical knowledge — that generally exists between a complainant and government
agencies. The fact that disputants are not equally matched in terms of power could
advantage the stronger party, disadvantage the weaker one, and result in injustice. The
inquisitorial process, together with the powers that the ombudsmen possess to gain
access to information, gives the ombudsman an advantage of finding the sort of
evidence needed to resolve administrative complaints. In this way the complainant is
assisted too in terms of gaining access to information, since in most cases it is the
ombudsman who takes the burden of gathering evidence and the ombudsman who
prepares the argument and shapes conclusions. Further, where the office is connected
to the legislature, in principle parliamentary support gives the ombudsman a status to
level the playing field between public authorities and an individual citizen. Therefore,
the ombudsman can more effectively counter any inequality of arms that might
otherwise diminish the fairness of the process.

Before their introduction, it was often argued that there was no need for an
ombudsman in countries that possess strong administrative courts and legal systems.
However, France’s introduction of the ombudsman system in the early 1970s is
typical of the generally accepted relationship between the courts and the ombudsman.
In France the ombudsman was established to complement the work of the Conseil
d’état. The process of the ombudsman’s investigation is informal and flexible. The
complainant pays no fee and there is an element of personal touch. In essence, an
ombudsman and the administrative court, while their roles may overlap to some
extent, operate in quite different ways and hence fulfilling a different need. An
argument for the parallel existence of the court and the ombudsman is that in general
it is unrealistic to expect people to pursue complaints in the courts. It was even argued
that in many cases, the citizen bore with injustice because he could not afford or does
not wish to pursue litigation. There is no doubt that a certain amount of jurisdictional
overlap with existing administrative or judicial recourses is inevitable but in general
the ombudsman has discretion to refuse to investigate complaints before all
administrative recourses have been exhausted or if the matter is before the courts. For
this the office of ombudsman was introduced to fill that deficit: to ensure that public
members in dealing with government departments have the right and opportunity to
obtain an independent review of administrative decisions and in turn increase the
opportunities for redress.

Frank Stacey, Ombudsman Compared, Clarendon Press, Oxford, 1978, p. 92;

Edwards B Jolliffe, The Inevitability of the Ombudsman, Admin. L. Rev. 99, 1966-
1967, p. 101.

Effective dispute resolution mechanism

As well as improving the capacity for citizens to access justice, ombudsman schemes
can offer a remedial service much more in tune with the needs of the complaint. In
much recent work in the UK, this goal has been referred to as proportionate and
appropriate dispute resolution. In recognition of the fact that many complaints are
resolved without the need for investigation and recommendation; during the 1970s
many ombudsman offices began to develop a more flexible approach to complaint
handling. This approach diverged significantly from the “investigation and report”
mode of operation which had characterized the office in earlier years, and has been
referred to as “the intervention method”. Owen emphasized that the primary role of
the ombudsman is „to strive for the mutually acceptable resolution of a problem rather
than necessarily finding of faults or the absence of it, the office should attempt to
provide informal mediation services wherever such an approach may be productive‟.

Ombudsman offices have increasingly focused on the possibility of conciliation, and

on facilitating a solution satisfactory to the complainants and the agencies concerned
as quickly and informally as possible. This function may not be explicitly stated in
legal provisions in most countries, but through a range of techniques the ombudsman
nowadays plays an important role in mediating conflicts between individuals and
government agencies. For example, in may ombudsman scheme today, in the cases
where the complaints can be resolved satisfactorily by a telephone call, the
ombudsman will not usually conduct, or continue with, a formal investigation. The
UK Ombudsman under Ann Abraham made it clear that the office seeks to achieve a
solution without full investigation in order to bring a satisfactory and more flexible
response to a complaint. Reflecting this evolution of practice, the British Columbia
Ombudsman has been given a statutory mandate to consult with an authority to
attempt to settle the complaints at any time during and after investigation.

Often cases are resolved by telephone calls and with minimum formality, and not so
much on the investigation and the identification of what has gone wrong. Citizens
generally do not understand workings and policies of the government. The
ombudsman can assist with the complainants by gathering facts for both parties and
let the parties communicate with one another and find resolution. The ombudsman
intervenes to facilitate communication between these departments and the citizens.

Such an approach is particularly appropriate with administrative disputes that do not

require complex presentation of evidence. In the Netherlands, this “intervention
method” can solve the problems such as delay and difficulties in getting in touch with
a government official, which constitute 80 per cent of the complaints received by the
Netherlands National Ombudsman. Asian ombudsman offices emphasizing this
alternative dispute resolution role include Japan, South Korea, Indonesia, Pakistan,
the Philippines, and Thailand.

Reviewing improper administrative practice

As its mandate is rarely restricted to legality review, securing individual rights in the
area where the court cannot provide sufficient redress is generally considered to be
one of the main advantages an ombudsman has over other existing review
mechanisms. While performing reviews beyond a study of strict matters of legality is
part of the task of parliament, auditor-generals, and internal administrative
supervisory authorities, the ombudsman can play a role alongside such mechanisms
by emphasizing matters that go beyond the political, financial or efficiency aspects of
the complaint. In other words, ombudsmen are well placed to pronounce on good
administration. The following description of the Ombudsman of the European Union
illustrates the important aspect of an ombudsman. The EU Ombudsman’s task is to
supplement the legal rights available to the individual against the [European]
Community with legitimate political pressure where the individual suffers an instance
of unjust treatment from a Community authority but is left without a legal remedy.
In this respect, the ombudsman normally looks at standards of proper administrative
practice that do not - or do not yet - lie within the competence of the courts, but
support expectations which any public member of contemporary modern society can
rightly expect their government to observe, articulate and support. To illustrate the
form of expectation being covered here, there are many examples of the role the
ombudsman can play in resolving injustice, where there is a loss but no legal remedy.

In France, case No. 670 is cited as an example of how the French Mediateur found
that the government had acted according to the law but in an unjust manner. This case
concerned the acceptance by the complainant of a refund in full and final settlement.
Under the terms of the agreement, the acceptance meant that the complainant was
forced to give up the right to contest any further the matter under dispute. The French
Mediateur found this to be an example of how the government had acted according to
the law but in an unjust manner.

Similarly, in the UK, in the A Debt of Honor report, the Ombudsman found that there
had been a real loss suffered by a number of complainants due to problems caused by
the inconsistent eligibility criteria developed by the government to manage the
compensation scheme concerned. But there was no legal error that the complainants
could rely upon, as found in a court case which ran parallel to the Ombudsman
investigation. Nevertheless, the Ombudsman recommended that the government
apologies to those affected, review the operation of the scheme, and, if appropriate,
reconsider the position of the complainant and those in the same position. The reason
being once again is that there had been a failure in administrative practice,
notwithstanding the lack of clear breach of a legal standard. For the Parliamentary
Ombudsman, the Ministry of Defense were expected apply a degree of care and
attention, transparency and foresight of the consequences for affected parties that
went beyond mere observation of basic legal standards.

Likewise, in Canada, in Haymour Holding Ltd. v R. In Right of British Columbia, the

British Columbia Ombudsman recommended the government to make ex gratia
compensation and legal expenses totaling over 160,000 dollars, with an apology to an
individual who suffered from government actions which the court had previously
found to be “discriminatory, misleading, highly improper, unfair and bad faith”. The
court may have found in favour of the individual, but did not award personal damages
or punitive damages against the crown because there was no remedy at law for such
loss.

The previous examples make it clear that the ombudsman’s work goes beyond the
enforcement of law – and goes beyond legal questions, which allows investigation of
injustice and fairness. The remedy recommended by an ombudsman also frequently
extends beyond the sort of redress that a complainant could normally expect to obtain
from the court and tribunal process. Therefore, it is often argued that one important
reason for establishing ombudsmen is to deal with grievances for which no remedy is
available in court, because as no legal right has been infringed, the matter is not
actionable. As it has come to realise that the criteria exclusively focused on the
question of legal rights do not always provide an adequate remedy. It is now widely
accepted that an ombudsman has a role to play alongside courts, tribunals and other
bodies in providing remedial help to people who have suffered injustice from
defective administration.

2.4.3 Promote good administration

Increasingly, concentrating only on complaint-handling is not seen as a sufficient

objective for the ombudsman. Ombudsmen have been urged to make more use of their
capacity by using their complaint role to identify areas of public administration that
are a common source of complaints from the community. With such knowledge it is
argued ombudsmen can analyse the underlying causes of administrative problems and
assist agencies in remedying the flaws in their processes in order to prevent mistakes
from occurring in the future. In this move, many ombudsmen have introduced a
systemic approach by taking a proactive role of being concerned that administrative
failures are rectified to prevent mistakes from occurring in the future, in addition to its
primary individual complaints handling role.

One strong feature of the ombudsman is the depth and quality of its investigatory
power which aids the expansion of this new role. During investigations, the
ombudsman can gather all the facts and all of the necessary and useful considerations
in order to identify evidence of systemic faults within an administrative process that
leads to unlawful, unfair or wrong actions/decisions. Such evidence can then be
compiled into a report that includes his findings, together with constructive advice
and recommendations that direct the body concerned as to how to correct such
procedure, regulation or legislation on the basis that it is the
procedure/regulation/legislation that is the underlying cause of administrative faults
and leading to injustice. Uncovering systemic weakness, therefore, can result in the
government changing how it operates and a collective effect for all citizens. As an
ombudsman has put it: “A single and well-written report can be more effective in
triggering political and departmental change than a decade of oversight by courts,
tribunals and investigating agencies.”

While there are other means by which system deficiency in government agencies can
be checked, such as internal/external audit and an array of specialised bodies, review
by an ombudsman is deemed necessary for a number of reasons. Unlike the review
conducted by other constitutional watchdogs, the ombudsman has a broad
investigatory power that can cover wide areas. Further, although mechanisms such as
public enquiries or commissions can be set up to conduct comprehensive studies and
make conclusions on a particular issue, the ombudsman is a permanently established
body with long-standing body of residual knowledge and possesses an arguably high
standing in the constitution. It is a body capable of making findings and
recommendations based on thorough investigation and understanding of
administrative process resulting from constructive engagement with the agencies
being investigated.

This ability to identify systemic problems is what makes the ombudsman considered
as an important mechanism in the quality control of administration which calls for a
more detailed scrutiny of an administrative decision-making process than a simple
examination of the final decision or action undertaken. This role also brings the
ombudsman closer to the centre of public policy making as an analyst, as well as a
critic and counsellor. It is now accepted among ombudsmen that their core role is
primarily concerned with complaints about specific decisions, but that they are also
obliged to fulfil the wider role of improving procedures and bringing about desirable
changes to legislations and policy. In fact, there is now widespread evidence that
ombudsman systemic investigations have resulted in changes in administrative
procedures or practices, or even policies, in many countries.

Because of its wider impact, systemic investigations have been strategically used to
raise the profile of several ombudsman schemes. For example, the Ombudsman of
Korea from 2004 began publicising statistics recording its systemic impact. However,
caution has been expressed that systemic investigation is intended more to identify
and correct substantive problems within public bodies and administration and can,
arguably, lead to a reduction in efforts to redress the grievances of individual
complainants. In this respect, if the balance between these two roles can be struck, the
ombudsman office can be a mechanism for resolving individual complaints and at the
same time serve as a resource for government institutions in identifying and
preventing administrative unfairness. Care needs to be taken, however, to ensure that
a focus on systemic work does not reduce the capacity of individual complainants to
pursue their grievances.