Having a ‘Lokpal’ or an institution of ombudsman to probe citizens’ complaints against the Government is a concept that has its origin in Scandinavia. Sweden is the first country to have an institution of ombudsman set up by legislature in 1809. Austria, Denmark and other countries in Scandinavia started following the Swedish model almost after a century. More than 130 more countries set up similar institutions of ombudsmen over the next 100 years.
In India, the world’s largest democracy, however, a debate on Lokpal – a term coined by eminent jurist L M Singhvi in 1963 to Indianize Ombudsman – has been on for the last five decades. With the Government’s talks with Anna Hazare led civil society unlikely to lead to a consensus over powers of the proposed Lokpal, Peter Kostelka, Secretary General of the International Ombudsman Institute (IOI), a global organization of ombudsmen, tells Anirban Bhaumik of Deccan Herald that while Prime Minister or Head of the Government should come under the purview of the Ombudsman, most of the countries have kept judiciary out of it. Kostelka, who now chairs Austrian Ombudsman Board, says that it is also necessary to keep under control immanent tendencies of supervisory institutions to expand powers.
Question: Can you please give us a brief overview about how the institutions of ombudsmen are functioning around the world?
Answer: The majority of the Ombudsman institutions around the world have been established on the basis of the Danish model. They are typically laid down in law and appointed by the Parliament to control the public administration. First and foremost, an Ombudsman is supposed to stop unfair treatment of citizens by the authorities. However, around the globe and from country to country, we encounter considerable variations in terms of the legal basis, the mandate and the general constitution of the institutions. In Asia, for instance, the main emphasis is frequently placed on the fight against corruption, whereas, in Latin America, human rights tend to be the focal issue.
Q: India has since long been debating on a proposed legislation to set up Lokpal or Ombudsman. What should ideally be the role of an ombudsman in a large democracy like India?
A: Currently, there are Ombudsman institutions in about 135 states. They have rarely ever come about before the end of a discussion process that lasted 10 years or longer. From a historical perspective, one can observe that these constituent processes vary considerably according to different conditions and the characteristics of the particular country.
In the early stages, Parliaments were the driving force in the introduction of an Ombudsman institution, particularly with a view to strengthening the separation of powers. Later on, citizens’ rights were given centre stage while another tendency consists in emphasizing the promotion of democratic structures in general. For the Indian model it is, thus, crucial to define the specific needs and requirements of the Ombudsman for the individual case of the country. I, therefore, consciously refrain from giving specific guidelines.
The process of discussion and then establishment of the Ombudsman institution itself is of vital importance to its efficacy and popularity. I am, for instance, convinced that the strong entrenchment of the Austrian Ombudsman Board in the population is a result of such a discussion process of ten years. Besides, the motives for the introduction of an Ombudsman institution can be quite different. There are monarchies, for example, where the king himself established an Ombudsman in order to put pressure on his administration hoping to increase its’ efficiency.
It has come to my attention that India has recently ratified the UN Convention against Corruption. It will be interesting to observe which implications this will have institutionally since the public debate about corruption has been going on for a while. But, as I said, different countries go about the topic in different ways in accordance with their specific needs and objectives.
Q: How are the institutions of Ombudsmen working in Austria, Sweden and other countries in Scandinavia, where the concept has its roots?
A: It is true that the roots can be found in Scandinavia. However, only 125 years after the innovation in Sweden, Finland followed with the introduction of its own Ombudsman. With the beginning of a worldwide process of democratization after the end of the Warsaw Pact, the development intensified for good. Most commonly, judiciary control is excluded from the mandate. It is particularly in Asia, that the fight against corruption has become the predominant feature but the developments in one region, certainly, have an influential impact upon the rest of the world.
The question remains, how efficient the various institutions operate in this respect as they frequently lack the necessary set of tools. In Austria and many other countries, this particular function is vested in public prosecution institutions and does not fall under the jurisdiction of the Ombudsman. The Austrian Ombudsman Board’s mandate of examination is broad. It examines the entire public administration, i.e. all authorities, administrative offices, and departments. Whenever citizens have the impression that they are not being treated correctly by an administrative authority, they can turn to the Ombudsman Board. The ombudspersons examine the case, make enquiries on their own, and inform the persons concerned of the result of their efforts.
The ombudspersons can also act on their own if they suspect grievances or irregularities. They can challenge ordinances and issue recommendations. However, the Board is not competent for judiciary control and problems resulting between individuals or between individuals and enterprises. Most investigative proceedings concern the area of social concerns as complaints frequently originate from problems with unemployment benefits or pension insurances.
In the field of justice, the duration of legal proceedings often give rise to complaints, and the number of cases in the sector of internal affairs has been going up for years. The latter typically concern the law relating to aliens, the police, passport matters, citizenship, and questions relating to civilian service. Criminal offences, on principle, are a matter for the public prosecutors.
However, if the Ombudsman Board has reasonable cause for suspicions, it collects as much data as possible and forwards the matter to public prosecution without delay. This is only seldom the case though.
Q: Do the ombudsmen in Austria have investigative powers or capabilities?
A: The Ombudsman Board has been independently monitoring and controlling Austria’s entire public administration since 1977 by order of the Federal Constitution. It has full investigative powers and does not depend on any other agencies. Conducive to its work and a major aspect of its powers is the fact that principles such as administrative or official secrecy and state secrets do not apply when the Ombudsman Board investigates and can therefore not be used in defence.
Since the Ombudsman Board is not an institution for criminal prosecution, its mandate does not include police powers like phone tapping. I would rather compare its powers with those of the Court of Auditors. Its primary purpose consists in exercising control over whether the citizen is treated fairly by the administrative authorities.
Q: What are the checks and balances you think could be introduced to address the concerns over concentration of powers in the institution of ombudsman?
A: In Sweden, we encounter a particular case owing to a very unique situation 200 years ago, when an extremely weak king was confronted with an unusually strong Parliament. Still, in most cases, Parliaments represent the interest of intensified control over the administration - and usually meet strenuous opposition of the latter. Therefore, the most important precondition for a strong ombudsman institution can be found in the parliamentary process and a healthy public debate. Normally, the administration can hardly ignore a parliamentary campaign, especially when it is well supported by the media.
As for the checks and balances: in many a state there are limits to the investigative powers – sometimes, for instance, related to issues of military security, often with regard to the judiciary. It is definitely necessary to stay conscious of the immanent tendency of supervisory institutions to expand their powers and prevent this to get out of hand.
Q: A key issue in the debate in India is if the purview of the ombudsman should include the Prime Minister’s Office and judiciary. What is your view?
A: In most cases, Prime Minister is not exempted from the mandate of the Ombudsman – not even with respect to financial issues. It is important to bear in mind that the administration begins at the top level and goes all the way down to its lowest parts.
The judiciary is not subject to the control by the Ombudsman, neither in Austria, nor elsewhere. Sweden represents a notable exception in this regard. However, the administration of justice is normally included. Moreover, some institutions have certain rights of initiative of control proceedings in this field. In Austria, this is the case with ordinances. But predominantly Ombudsmen do not have such powers.
The private sector is not part of the mandate as a general rule. It is difficult though, to draw the line, where private companies are responsible for fulfilling tasks of public interests. We can observe different ways to deal with it and it seems to crystallize that the Ombudsman has jurisdiction wherever public money is spent.
Q: In India, some feel that the creation of an institution of ombudsman with absolute powers will reverse the direction of the reforms in the governance, from right to information, public scrutiny and social audit to probe by a singular top heavy institution. What is your view?
A: In many countries – Ireland, for example – the Ombudsman is also by statute designated the highest supervisory authority with regard to freedom of information, access to documents, and the right to good governance, which indeed makes sense. In Austria, enforcement, ultimately, depends on the Courts, which can entail a lengthy process.
Q: Finally, do you think an institution of ombudsman can alone be a cure-all against the menace of corruption?
A: No, I am afraid there is no cure-all solution to corruption.