The Ombudsman in the Achievement of Administrative Justice and Human Rights in the New

The Ombudsman in the Achievement of Administrative Justice and Human Rights in the new Millennium*

Victor O Ayeni

*Published: International Ombudsman Journal, Volume 5, 2001, pp. 32-53. The original version of the paper was presented at the VIIth IOI Congress, Durban, South Africa.

The Ombudsman in the Achievement of Administrative Justice and Human Rights in the new Millennium

Victor O Ayeni

Abstract

With the ever-increasing attention worldwide to the relationship between individuals and government, the issues of administrative justice and human rights protection are certain to remain at the fore of contemporary governance for many decades to come. Although barely known thirty years ago, the ombudsman is set to play an increasingly central role in promoting and protecting these essential values of contemporary society. Human rights and administrative justice issues have indeed become inextricably linked, and rightly constitute the contemporary core business of the institution. What will be the nature of this role, and will it make new demands on the institution than we have been used to? The paper explores the various dimensions of this question and the challenges it presents in regard to institution development and reform. Inevitably, the ombudsman’s future survival will depend on how effectively and efficiently it implements the combination of functions. Furthermore, change will be a pervasive phenomenon in the next several decades, and the ombudsman must understand this and learn to deal with it competently. The paper concludes with recommendations for developed as well as developing ombudsman institutions.

Introduction

By the beginning of this millennium, at least 102 countries around the world had established an ombudsman office. Classified by region, this means: 26 in Africa, 9 in Asia, 8 in the Pacific and Australia, 38 in Europe 20 in southern America and the Caribbean, and 2 in North America. There were close to 400 individual offices in countries around the world. Thirty years ago, there were probably no more than 10 countries with an office. In Africa, for example, the number of countries with the office increased about four-folds in the last decade alone. The experience was the same in other continents as the growth and spread of the ombudsman has been clearly phenomenal. All indications point to the fact the institution is set to grow even further in the future. The ombudsman is not only popular but also held in high regard and, sometimes fear, by those in authority. For instance, in a rather extreme form of paranoia, Mexico imprisoned one of her senior army generals in 1993 for daring to call for the establishment of an Ombudsman for the Military.

As rightly observed in a recent publication edited by Michael Harris and Martin Partington, “the changing nature of administrative powers and their impact on the citizens requires a fresh look at how administrative justice may be achieved”. This has obvious implications for society’s future organisational requirements. Similarly, because people are increasingly interested in easily accessible and flexible ways to solve their problems, ombudsman and ombudsman-like bodies are certain to continue to be in strong demand. Concomitant with this popularity, however, the ombudsman will face more intense pressures to deliver on its popularity, and live up to public expectations about its traditional role to protect and promote fairness and the rights of ordinary individuals in administrative processes.

While the ombudsman has played a critically important role as both an instrument of administrative justice and for the promotion and protection of human rights, it is only in the last two decades that the institution assumed a prominent role in the latter area. However, this situation is certain to grow in importance in the future, none the least because human rights and administrative justice issues are now so intricately linked. These functions rightly constitute the contemporary core business of the institution. Even more, the next couple of decades will witness important departures from familiar experiences. Motivated by several of the developments already evident in the global environment, changes in how the ombudsman role has been performed hitherto will become increasingly noticeable and inescapable. My contention is that the key to understanding this future role of the ombudsman is in coming to grips with the changes that are taking place in the institution’s domestic and international environments.

The next section of this paper develops the main issues impacting on the governance of contemporary societies, and which by implications are re-shaping the nature and operation of the ombudsman office. As said, not only are these changes giving new meaning to the concepts of administrative justice and human rights, but the manner by which they are assured are being re-worked and re-defined in accordance with the realities of the twenty-first century society. A better appreciation of what is happening here is critical to future institutional success and survival. Building on this, the third section of the paper expatiates the changing nature and contemporary role of the ombudsman institution. The ombudsman is not just important to securing justice and human rights in the emerging socio-political and economic terrain it is also now required to go about its work differently. The final part concludes the paper.

Administrative Justice, Human Rights and Contemporary Governance Imperatives

The concepts of administrative justice and human rights are a fundamental part of the relationship between the individual and the modern state. An administrative system that is perceived by all to be just is inevitably one of the important pre-requisite of good governance. As H. A. L. Hart has suggested “the terms most frequently used by lawyers in the praise or condemnation of law or its administration are the words ‘just’ and ‘unjust’”. Similarly, in a lucid study of citizens’ relations with administrative institutions, Norman Lewis and Patrick Birkinshaw underscore the place of ‘justice’ in modern social organisations. “A ‘just’ system”, the two authors contend “would provide a fairness agenda that would seek to ensure that adequate redress was provided for each citizen wishing to contest decisions taken by the state in their name. Now in essence this would amount to an exploration of the systems and procedures by which a just or democratic society would seek to deliver on its promises”.

Justice is inevitably an all-encompassing concept. By the same token, the issue of administrative justice necessarily cuts across all aspects of how an agency organises and delivers a service to the public. It can be defined in terms of its procedural elements or as an end in itself, commonly referred to as substantive justice. It is, indeed, misleading to imagine that individuals in a state are only content with processes and procedures without regard to quality and outcomes. Lewis and Birkinshaw expatiate this point: “….since social structures come into existence in order to cater for the happiness of human beings, it may be worth saying that a just society is an end in itself…justice may well be regarded as the highest goal to be achieved.” Peter Schuck on his part stresses the inextricable link between these two dimensions of justice. According to him, “only a system perceived as procedurally just is likely to command the respect of the governed, but even a fair procedure will not be tolerated for very long if it is too cumbersome or unreliable to produce effective decisions”. Of course, it should not go without saying that the situation in reality is often less straight forward because the pursuit of justice could at the same time run in conflict with other administrative values, such as economy and efficiency.

Taken together, administrative justice implies, among others, that administrative bodies commit to the following main ideas:

(a) the action taken or not taken by them is legal according to the law;

(b) they act in such a manner that treats one individual as equal to another;

(d) they do not cause injury to the individual, and in the event that this happens redress and or compensation should be available;

(e) they act in a reasonable manner at all times;

(f) that they give to every individual concerned what is deserved.

The doctrine of administrative justice underpins the role of structured administrative bodies on which every modern state invariably depends to protect society, and to produce and provide the range of services that a government is obliged to make available to its citizens. As a legal doctrine, it is traditionally applied to institutions that are created by the state and funded entirely from the public pursue. While this would have been an adequate characterisation under the law several years back, it is clearly no longer so because administrative institutions created by private individuals under some agreed rules of incorporation are increasingly used by government to meet its established obligations to society. Evidently, this understanding of how the state works represents a conception of administrative agencies that is wider than is traditionally adopted in administrative law. Two points develop from this.

The first is about the extent to which the concept of administrative justice as a legal instrument has moved with time. There is a growing consensus among legal scholars that administrative law no longer provides sufficient remedies in view of the increasing use of non-governmental organisational forms to provide public services. The problem is compounded by the so-called ‘exclusivity rule’ in common law whereby only questions of public law may be decided under the application of judicial review. There is probably a need to review the matter further but stopgap measures are required in the meanwhile. Institutions such as the ombudsman obviously come in handy in this circumstance.

The second point is that the human rights field increasingly provides a useful source of complementary legal principles against which the work of contemporary administrative institutions may be judged. As suggested by David Roberston, human rights refer to those rights and privileges held to belong to any person, regardless of any provision that may be or may not exist for them in their national legal systems, simply because, as human beings, there are certain things which may not be forbidden by any government. Although previous thinkers on the subject have often not agreed on what exactly the lists of these rights are, the last half-century has slowly witnessed an international consensus around a sets of issues, many of which can now be enforced through both international and domestic court systems. Obviously a remarkable outcome of this consensus is the various constitutional reforms that have accompanied the widespread democratisation of recent years. In the main, these have included specific provisions on promotion and protection of human rights and for combating problems of corruption and mal-administration. Hence, the Bills of Rights incorporating the Universal Declaration of Fundamental Human Rights as well as rights to economic and social development are now familiar features of state legislations.

The impact of the work of administrative agencies and officials on individuals invariably touches on human rights issues as well. For instance, the due process issue as guaranteed in the national constitution is inevitably a human rights problem. As Linda Reif has concluded, so long as “the conduct of the administrative branch of government towards individuals is under scrutiny, larger issues of human and civil rights may be raised”. In fact, other leading authorities on the subject have gone as far as characterise administrative justice as an aspect of the rights that citizens are entitled to in a democratic state. This inextricable link between administrative justice issues and human rights is very well established in the Namibia and South African constitutions, among others. In the case of South Africa, the Bill of Rights provides that:

(a) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair

(b) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons

(i) provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal

(ii) impose a duty on the state to give effect to the rights (stated above)

(iii) promote an efficient administration.

In any event, international human rights norms and standards are now an important part of the measures for evaluating any government and its agencies. Governments around the world fully recognise that the extent of their commitment to human rights values is one criterion by which they will be judged or can expect to receive assistance and support from others. Of course, this fact is not any longer limited to developing countries alone as the recent experience of the United Kingdom attests. As part of its commitment to the European Union project, and in spite of its peculiar constitutional experience, the regional human rights regime was eventually extended to all UK’s domestic laws with effect from the year 2000. All these add to the list of demands now being placed on UK government and, underscore the need for appropriate policy and institutional mechanisms to meet those demands. Clearly, this is not just about how a genuinely democratic government should function but also about cost and economy in an increasingly competitive world. This important point of principle provides foundation for the ombudsman’s transcendence from its traditional remit in administrative law into a more active human rights role that is consistent with the new demands being placed on it.