‘The Ombudsman can bring the lamp of scrutiny to otherwise dark places even over the resistance of those who would draw the blinds.’
Judicial review is not the only option available to a person adversely affected by action of a statutory tribunal or government officials. The Ombudsman is an independent institution with power to examine governmental abuses affecting the members of the public. The office of Ombudsman is originally meant ‘Representative’ of the public and at the same time, it operates as a watchdog looking at the work of administrative law.
Until the Second World War, individuals were reasonably content with the machinery of resolving disputes. It was simply no longer possible to say that every person adversely affected in an unfair manner by action of a governmental official, would have the resources or competence to engage a prosecutor to take action. Court procedures generally could be both lengthy and expensive. The rights of an individual such as to consult their individual Parliamentary representative, to organise a petition or could all be considered reasonably difficult to undertake.
History reveals that the Romans established “a Tribune” an official who protected the rights of the members of the society. Later the Swedish constitution introduced the office of Ombudsman to handle the complaints against the maladministration of officials and judicial actions. Consequently, all Scandinavian countries including Sweden adopted the concept of Ombudsman to supervise public officials. The Ombudsman plays a vital role when it comes to disputes in administration. The Ombudsman concept is based on the idea that the citizens are entitled to complain against particular acts of officials, and that their complaints should be independently investigated.
The Ombudsman is a statutory creation because the legislature has purposely limited the powers of the office of Ombudsman and not given wide discretionary powers though it is impartial and services are free and available to all. Investigations conducted by the Ombudsman do not interfere with the normal process of government administration, because the office operates informally. No public activity lies outside the scope of the Ombudsman. In some countries, the office of Ombudsman more formally referred to the Ombudsman as the ‘Parliamentary Commissioner’ (Eg New Zealand referred as the ‘Parliamentary Commissioner’ and the United Kingdom still refers as ‘Parliamentary Commissioner for Administration’).
The Ombudsman’s Jurisdiction
As everybody is well aware, it is very difficult for an ombudsman to satisfy the all expectations of all the members of public who have disputes with government administration. ‘The office should be legally established, functionally autonomous, external to the administration, operationally independent of both the executive and legislature, specialist, expert and non-partisan, normatively universalistic, client centred but not anti-administration, and both popularly accessible and visible.’.
The Ombudsman is granted wide powers such as to enter and inspect premises, to require anyone to produce documents or furnish information, to summon and examine under oath anyone possessed of relevant information, to conduct hearings and must give notice of the investigation when it is required to do so. If maladministration is discovered, the Ombudsman can recommend but not order a governmental official to remedy the wrong. An Ombudsman can report bureaucratic abuses to the legislature, which may then take remedial steps. Generally, the Ombudsman is not accountable to any external authority. If the parties involved dissatisfied with Ombudsman’s decision, on their complaint may seek judicial review, though it is rarely succeed. Judges do not normally overturn decisions of Ombudsman, but can require the Ombudsman to reconsider a decision.
This system has now been followed in many common law countries. This research will consider the role of the ombudsman in the Canada.
Due to the limited ability of members of the legislature to secure redress of the public grievances with the administration, the majority of provinces in Canada followed suit. By 1996, nine provinces and one territory had legislated Ombudsman offices in place for the purpose of administrative supervision, which was taken up from the common law in the late 1960s and 1970s.
This essay will be dealing with the facts of a leading Canadian case of RE BRITISH COLUMBIA DEVELOPMENT CORPORATION AND FRIEDMANN (1984). The facts as follows;
British Columbia Development Corp (B.C.D.C.) and its subsidiary First Capital City Development Company limited (F.C.) were involved in a major waterfront redevelopment project in the City of New Westminster. The property in question was subject to a lease held by King Neptune Restaurant due to expire in a few months. King Neptune had operated a restaurant on the property for several years and wished to continue doing so. B.C.D.C however planned to build a hotel where King Neptune stood. B.C.D.C, First Capital and King Neptune entered into a negotiations concerning King Neptune’s participation in the redevelopment scheme. No agreement was reached by both parties. Ultimately, B.C.D.C. refused to renew the King Neptune’s lease. The restaurant owner King Neptune did complain to the Ombudsman.
Ombudsman acting on the complaint from King Neptune that B.C.D.C. and First Capital had dealt with it unfairly, the Ombudsman attempted to investigate the matter.
B.C.D.C. and First Capital jointly filed a petition for judicial review in the court of First Instance in British Columbia seeking:
- An order quashing the direction to produce documents;
- A declaration that the ombudsman was without jurisdiction to investigate the complaints made by King Neptune against B.C.D.C. and First capital;
- An interim injunction prohibiting the ombudsman from examines the documents pending the determination of the merits of the petition.
Esson J in Court of First Instance granted an order prohibiting the Ombudsman from making any use of the documents pendent elite. The office of ombudsman appealed to the Court of Appeal and they allowed the appeal stating that Ombudsman has the power to investigate the document. However, the British Columbia Development Corporation appealed to the Supreme Court against the decision of the Court of Appeal. The Supreme Court dismissed the appeal.
Chief Justice McEachern in British Columbia Supreme Court pointed out “the real contention was whether the conduct which the Ombudsman proposed to investigate was with respect to ‘matter of administration’; and he decided it was.” In his opinion, “the term of ‘administrative’ could be interpreted as limiting the Ombudsman’s jurisdiction in either two ways:
- It could refer to the non-judicial adjudication of legal rights;
- It could describe the management procedures by which an organization governs itself and carries out its function.”
In the view of the majority, the legislation was intended to enable the citizen to request that a complaint of unjust conduct on the part of the government be investigated by the Ombudsman; from this perspective, so long as the impugned conduct was with respect to a matter of administration, its characterisation as a business decision was simply irrelevant.
The Canadian Supreme Court stated in the above-mentioned case “The Ombudsman represents society’s response to these problems of potential abuse and supervision. His unique characteristics render him capable of addressing many concerns left untouched by the traditional bureaucratic control devices…. On the other hand, he may find the complaint groundless, not a rare occurrence, in which case his impartial and independent report, absolving the public authority, may well serve to enhance the morale and restore the self confidence of the public employees impugned.”
The issues arise in this case is whether the Ombudsman has jurisdiction under Sec 10 (1) of the Ombudsman Act 1979 to investigate the above-mentioned dispute. As everyone knows that Ombudsman is a statuary creation so therefore his powers to investigate complaints depends upon the meaning to be given the language the Legislature has used to define the ambit of his jurisdiction.
Section 10 (1) states, “The Ombudsman, with respect to a matter of administration, on a complaint or on his own initiative, may investigate:
- A decision or recommendation made;
- Act done or omitted; or
- A procedure used;
by an authority that aggrieves or may aggrieve a person.”
This section of the Ombudsman Act 1979 mainly focuses on the investigation procedure of the Office of the Ombudsman. The Ombudsman is obligated to report the details found against government authority. The Supreme Court of Canada has adopted a “pragmatic and functional” approach to determining the level of scrutiny a Court should exercise when reviewing the decision of a statutory decision maker.
The court saw the Ombudsman as an instrument to discover the maladministration and to resolve conflicts with flexibility. However, the individuals can appeal to the court for judicial review but it costs lot and more time consuming. On the other hand, the office of Ombudsman is a precaution of avoiding more complaints from the public and Ombudsman explains to citizens how the administration operates. Though the Ombudsman has no power to compel resolution, he can effectively encourage the institution to take action, considering his recommendations report.
In Re Alberta Ombudsman Act, (1970), 10 D.L.R. (3d) 47 (Alta. S.C.), Milvain CJ stated that “the basic purpose of an ombudsman is to be a “watch dog” designed to look at the entire workings of administrative laws, and includes the role of scrutinizing the work done by various administrative tribunals.”
However, the Ombudsman scheme is only a poor substitute for administrative courts. The Ombudsman is clearly not a judge, so it is necessary to determine the extent to which Ombudsman may legitimately be compared, because on one hand it will not help further development of public law in a country. On the other hand, day by day, more and more cases have been referred to the office of Ombudsman. The Ombudsman lacks the statutory powers and can only make recommendations because Ombudsman does not have power to initiate legal proceedings or prosecution on the grounds of a complaint. Therefore, the office of Ombudsman would only delay the reforms of public law. One might possibly argue that when an office of Ombudsman is necessary, it means that the judicial system is no longer able to protect the citizen.
Further, when an act done by officials may not be just, he may misinterpret a regulation or may exercise discretionary power based on insufficient information. Therefore, the legislature should give wide powers to the office of Ombudsman to investigate the matter and to implement its recommendations made on a matter without only making the recommendations because still they do not have powers to make legally binding decisions.
In conclusion, every Ombudsman should stand high in public respect and at the same time the office of Ombudsman can be a valuable institution, then it will no good when governmental authorities do not follow the recommendations made by the Ombudsman. Because when Ombudsman makes recommendations for a particular matter, always apply the principles of natural justice and administrative fairness consisting with statutory mandate given. The office of Ombudsman should be given more statutory jurisdictions. The more independent, the Ombudsman is, the more effective the Ombudsman may be. It will either help prevent the reoccurrence of maladministration in a particular situation that led to its creation. Therefore, Ombudsman can conduct meaningful investigations and find a good solutions for maladministration occurred because the office of Ombudsman is treated as the last resource. If these standards were developed to provide advice and guidance to the public, so the Ombudsman would better fulfil the functions of the position. Moreover, to ensure the office’s accountability Ombudsman should issue a report summarising the findings and recommendations given, then it will more gain public confidence about the office. The object of the office of Ombudsman is to assist in good governance, to inspire public confidence and transparency in government actions affecting the public.
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