* The World Bank 21254 APRIL P UMBER 19 PUBLIC SECTOR pubRc affichis An ombudsman investigates complaints, makes recommendations, and tries to ensure that those recommendations are followed. But simply establishing such an office is no panacea for administrative excesses. Public officials do not always obey the law and tries to have its recommendations or follow government policy. To provide a adopted by the administration. In most cases remedy, ombudsman offices have been complaints are lodged by an individual, group, established throughout Eastern and West- or legal entity about an act or decision by a What ensures ern Europe and the Commonwealth. The minister, agency, or other public body, with European Union has established its own the act or decision alleged to be illegal or an effective ombudsman. In several new European improperand affectin some significant man- democracies, such as Hungary and Poland, ner the rights or interests of the complainant. ombudsman? such an office is required by the constitu- An ombudsman may also investigate more tion and is well established. Georgia, Roma- general matters raised by the complaint, and nia, Russia, Spain, Ukraine, and Uzbekistan in some instances may initiate an investiga- have established such offices, and Bulgaria, tion without a complaint. An ombudsman the Czech Republic, Estonia, and the Slo- should be created by law, as an institution vak Republic are doing so. independent of the government, adminis- Sweden's ombudsman has long histori- tration, courts, and all other public and pri- cal antecedents and has inspired many recent vate bodies, while being accountable to creations. But the Swedish model is coun- parliament. try specific, deeply rooted in constitutional An ombudsman normally has a duty to and historical factors that are not easily repro- investigate any complaint that, after an ini- duced elsewhere. When transplanted to other tial inquiry, appears to raise a real issue. The countries, the concept of an ombudsman public authority being investigated has a needs to be reconfigured to local condi- duty to cooperate with the investigation and tions-including its relationship with other to produce documents and other relevant forms of administrative regulation. Moreover, evidence. If the investigation reveals that there is often confusion about the relation- there are grounds for the complaint, the ship between an ombudsman and other insti- ombudsman has a duty to recommend to tutions (such as human rights commissions). the public body how it should be remedied. How should such an office be established, An ombudsman may recommend revo- and how can it be made effective? cation or change of an act or decision or some form of restitution. Such recom- bDNhIt does n11 ombIudm1$ n doe? mendations are usually not backed by legal An ombudsman investigates complaints sanctions. Although the minister or pub- against the administration, makes recom- lic authority is not legally required to adopt mendations concerning those complaints, the recommendation, the government is FROM THE DEVELOPMENT ECONOMICS VICE PRESIDENCY AND POVERTY REDUCTION AND ECONOMIC MANAGEMENT NETWORK likely to be under strong political pressure administration that go beyond illegality- to do so-and may negotiate the specifics including carelessness, unfairness, undue of implementation. The ultimate sanction delay, lack of cooperation, and procedural for nonimplementation is normally a report irregularity-although illegality is also an by the ombudsman to the legislature. example of maladministration. The mal- administration model may greatly increase Tailoring to local conditions the range of complaints to investigate, impos- The administrative faults or failures covered ing heavy burdens on an ombudsman. by an ombudsman vary, and can include ille- The trigger for a maladministration inves- gality, constitutional and human rights tigation can vary. An ombudsman's investi- Good administration abuses, or maladministration. gation is usuallytriggered by a complaintabout an administrative action, but the office may requires much more Illegality have powers to initiate an investigation on According to the classic Swedish model, its own initiative. The trend in Western coun- than acting legally an ombudsman investigates complaints alleg- tries is to allow the ombudsman to take the ing law-breaking by the administration. Ille- initiative only in limited and special cases. gality means that the administration has Methods for rationing scarce investiga- breached a statute, regulation, court-made tion time also vary. Among well-established law, the constitution, or international law. ombudsman systems, practice varies between The idea that an ombudsman should con- those that allow anyone to lodge a complaint centrate on the legality of actions of the directly with an ombudsman and those administration has been influential in new requiring that a complaint be made to a European democracies. Poland created an member of parliament who may then pass ombudsman in 1987 to investigate violations it on to the ombudsman. The second ap- by the administration of the law and of prin- proach supports the traditional role of a ciples of community life and social justice. member of parliament in investigating com- The success of Poland's ombudsman has plaints, but it is also a rationing device, inspired other new European democracies. because many complaints will be dismissed or dealt with by the member of parliament. Constitutional and human rights abuses Among new European democracies, how- Some new European democracies have cre- ever, the tendency is to allow direct access ated ombudsman offices to deal specifically to the ombudsman. withcomplaintsconcerningtheabuseofcon- Other rationing devices include the stitutional and human rights. For example, requirement that alternative forms of Hungary's constitution provides for a sepa- recourse-such as internal complaint pro- rateombudsmanforcivilrights,ethnicminor- cedures and external appeals to special ity rights, and other constitutional rights. courts or tribunals-be exhausted before Romania and Russia offer similar protections. approaching an ombudsman, or the require- ment that a small fee be paid when mak- Maladministration ing a complaint. A different model of ombudsman has The range of authorities subject to an emerged in some parts of Europe and the ombudsman also varies. In awell-developed Commonwealth. The mediateurin France system the presumption should be that all and the European Union and the parlia- public bodies will be subject to an ombuds- mentary commissioners in England, Wales, man unless-as with parliament, the head Australia, and New Zealand are guided by ofstate, and courts-there are good grounds the notion of maladministration rather than for exemption (though courts are an excep- illegality. The idea is that good administra- tion in Sweden). Beyond these, claims for tion requires much more than acting legally. exemption should be examined carefully. Maladministration is not easy to define. One approach is to have a general ombuds- It includes improprieties on the part of the man to investigate all executive and admin- PREMNorE 19 istrative bodies. Another approach is to have * If their authority derives from control different ombudsman's offices for different over appropriated funds and from their public bodies-the police, the health ser- proximity to the head of government or vice, prisons-though such proliferation ministers, they can be seen as executive can create confusion in knowing which regulators, in that they are regulating ombudsman to approach. on behalf of the government. * Sector regulators are executive regula- Em powering an ombudsman tors but with more clearly circumscribed The constitution should provide for an authority; they include health inspec- ombudsman, and an implementing law torates or boards of major state-owned should specify the powers of the office. Con- trading bodies. Budget stitutional entrenchment signals the impor- An ombudsman is an autonomous reg- tance of the office and removes itfrom the ulatory body in that its authority derives arrangements political sphere. That does not mean that from the law and (ideally) the constitution without constitutional entrenchment there and it reports to the legislature. Itis legally can help ensure can be no ombudsman-several countries protected from interference from the exec- havewell-established ombudsman's offices utive, though not entirely impervious to an ombudsman"s created by law alone. executive pressures. So how does an The crucial factor is that an ombudsman ombudsman fit with other autonomous independence should be independent of other branches regulators? of government and administration. This can be achieved with appropriate provisions Ombudsman and courts in the law concerning appointment, dis- Because courts are important autonomous missal, powers, and budget. An ombudsman regulators of official behavior, there is poten- is usually closely associated with parliament, tial for overlap with an ombudsman. Both but in its daily operations it should be inde- entities deal with complaints, though there pendentofit. Still, accountability should be are fundamental constitutional and insti- to parliament, normally in the form of an tutional differences (table 1). The general annual report supplemented by special principle is that challenges to the legality of reports as requested. administrative actions are made to courts or Budget arrangements can help ensure special tribunals. To the extent that the an ombudsman's independence and effec- ombudsman becomes involved in matters tiveness. Different approaches to setting the of legality, it is as an adjunct to the courts. budget are possible, but the key factor is that it should not depend on the executive. The Ombudsman and audit bodies simplest approach is for the ombudsman to Audit bodies inquire into and assess the propose an annual budget directly to par- performance of public bodies according liament, in a manner similar to that for courts and other vital institutions (such as Table i Features of courts and offices of ombudsman the supreme audit institution). Feature Courts Offices of ombudsman The ombudsman and other Definition Judicial bodies with ultimate Nonjudicial bodies with responsibility administrative regulators responsibility for adjudicating for investigating complaints against Administrative regulators that constrain the questions of law the administration Powers Can impose remedies-such as Can only recommend that certain behavior of public officials can be grouped declarations of nullity or liability- action be taken into three categories: that are legally enforceable * If their authority derives from the con- Can inquire into and rule only Can investigate and make stitution or from the legislature, they can on the case before them recommendations that go beyond be seen as largely autonomous in that they the specific complaint Accessibility Require legal representation and Are generally easier to access than are largely impervious to the short-term typically entail high costs courts designs of the executive. APRIL 1999 to stated criteria. They have investigative * Functional competence-the ombuds- powers similar to ombudsman's offices and man must be effective in receiving, inves- make findings and recommendations. tigating, and resolving complaints against However, audit bodies are not complaint the administration. Functional compe- bodies and typically have both manda- tence depends on institutional design, tory and discretionary powers to investi- administrative capacity, and professional gate the administration at their own expertise, independence from the exec- initiative. utive, and procedures for dealing with government, ministers, and departments. Ombudsman and human rights commissions As an illustration of problems that arise, Concern for human rights has generated the ombudsman for Georgia received The ombudsman a range of regulatory bodies exercising a 100,000 complaints within a few months mixture of functions-including investi- of its creation. Because the office can- should fit gating complaints, conducting inspections, not cope with this volume, most of the offering mediation, launching civil and complaints will not be considered. with existing criminal actions, and educating civil ser- * Regulatoryvalue-the ombudsman should vants. Though these hybrid bodies are fit with existing arrangements for admin- arrangements often considered as ombudsman's offices, istrative regulation. The regulatory value the core ombudsman function is only one of an institution depends on the overall for administrative of several functions. There are significant system of administrative regulation within dangers of confusion due to a combina- a country and on how a new institution- regulation tion of-and even contradiction in- in this case an ombudsman-fits into it. responsibilities. In creating such bodies, Regulatoryvalue also depends on an insti- it is wise to limit their scope to clearly tution enduring for a significant period. defined areas of constitutional and human Taken in isolation, the idea for an ombuds- rights. man always looks compelling. But unless it fits into the current and future admin- Conditions for an effective istrative context, it will likely fail. ombudsman The key indicator of an ombudsman's effec- This note was written by Nick Manning (Senior tiveness is how readily a minister, department, Public SectorManagement Specialist, Public Sec- or agency accepts its recommendations. This torManagementDivision, PREMNetwork) and depends significantly on intangible variables D. J. Galligan (Director, Center for Socio-Legal such as personality and public reputation, Studies, University of Oxford, and Barrister, Gray's the historical moment, and the credibility Inn), with assistance from Rick Messick (Senior of the office-holder. More specially, effec- Public SectorManagement Specialist, Public Sec- tiveness rests on: tor Management Division, PREM Network). * Political support-from parliament, gov- Ifyou are interested in related civil service top- ernment, administration, and courts. ics, considerjoining the Civil Service and Admin- * Adequate resources-a proper budget istrative Reform Thematic Group. Contact system must provide adequate resources BarbaraNunberg, x37487. TheLegal andJudi- for the job. cial Reform Thematic Group is also active in * Public perception-the public must be addressing constraints on executive action. Con- aware of and understand the ombuds- tact Rick Messich, x87942. Details of both the- man's office and its functions. matic groups can be found on PREMnet. This note series is intended to summarize good practice and key policy findings on PREM-related topics. PREMnotes are distributed widely to Bank staff and are also available on the PREM website (http://prem). If you are interested in writing a PREMnote, email your idea to Asieh Kehyari. For additional copies of this PREM- h="ul mb note please contact the PREM Advisory Service at x87736. Prepared for World Bank staff