The Transition of Government and its Consequences on Citizens (Gretta Chambers)

The Transition of Government and its Consequences on Citizens

There are two principal definitions of the institution of Ombudsman. The first is that of a mechanism sanctioned by law, to investigate citizens’ complaints against public and\or institutional authority…in other words…that of a kind of mediator of last resort for the citizen in the context of his or her relationship to the power of the state or of an institution in the public domain.

The second way of looking at the Ombudsman is as a kind of modern day Robin Hood…a citizen sanctioned to act in the interests of citizens, in this case, not outside the law of the land, but nevertheless unconstrained by the “bon vouloir” of the various powers that be, of official disapproval, regulations or convenience…in other words, as a mediator whose partiality is squarely on the side of the citizen.

That last perspective, the Robin Hood approach, is more than a picturesque identification, it constitutes the essence of what has given the Ombudsman strong roots despite its historical immaturity and the ambivalence with which it is still viewed in many executive circles. In his opening address to the Fourth International Ombudsman Conference held in 1988 in Canberra, Australia, the Director of the International Public Affairs Centre at the University of Southern California, Prof. Gerald Caiden, pointed out how entrenched the Ombudsman idea had become but also how vulnerable it remained to bureaucratization and circumscription, to having the efficiency of its operations override the effectiveness of its interventions and to being viewed as a thorn in the side of governmental administrators and corporate or institutional managers rather than as a civilizing force and dynamic source of popular confidence. In Prof Caiden’s view some 13 years ago, the institution of Ombudsman was already “beyond smothering but was still far from secure” and its primordial lasting power lay with in its “moral essence, its crusading mission to right official wrongs, to dampen officiousness and to defend the weakest individuals against collective vindictiveness.”

The same can be said today. Over a decade of development later, the Institution, as such, may be wider and more deeply entrenched but the issues surrounding the essence of its mission are still being questioned…in fact, the increasing complexity of modern society leads many people to question the indispensability of the role it is purported to play…I mean, who would notice in a properly functioning democracy…except relieved administrators… if the institution of Ombudsman ceased to exist? The cranks, professional fault finders and their ilk would be done out of a “feel good” venue for their complaints…Statistics and studies show that the vast majority of complaints addressed to the Ombudsman at the governmental level turn out to have little substance or are due to misunderstandings relatively easy to put to rights. This fact is often brought up to indicate that we are not badly administered and therefore do not require the expense of an Ombudsman’s office to keep the administration honest.

Unlike an Auditor General, the prime watch dog of administrative practice, an ombudsman has no carte blanche to examine management practices across the board. In each jurisdiction, into which an Ombudsman’s office has been incorporated, the parametres of the areas it is permitted to monitor are set out. These areas differ widely from government to government, institution to institution. An ombudsman at the Parliamentary level cannot examine complaints at lower levels of public administration and within each jurisdiction what is included in the Ombudsman’s brief encompasses various and varied areas of responsibility. More and more institutions, such as, for instance, universities, are inserting the position of Ombudsman into their management practices. Here again, the rules governing the Ombudsman’s jurisdiction and authority are internally arrived at. One could almost say that the concept of “Ombudsman” has been put into practice in many different ways, for many different reasons and with many different results. The role it was conceived to play has been diffused and in my view somewhat distorted by the very popularity of the concept itself. Justice and protection for the David, the citizen, against the government Goliath. What triggers an ombudsman’s inquiry is a direct appeal from a citizen for protection against an alleged abuse of power, unfair treatment or withheld justice. In a democratic society, who could possibly be against such a worthy principle. It is in putting the principle into practice that the Ombudsman can become the victim of its success. It has the defects of its qualities. In acting for the powerless, it does not and cannot act against the powers which is the seat of any rectification of abuse, unfairness or perceived discrimination. It can only persuade, inquire, make public or otherwise strategize to set the perceived wrong to rights. The imprecision and constant fluctuation of its diverse mandates raise questions as to the nature of its usefulness.

Its course must be carefully plotted as its margin of maneuverability, between the Scylla of ineffectualness by asking too little and the Charybdis of confrontational politics by demanding too much, is narrow. Without official collaboration, it will have little influence. Without providing a rigorous critique of official practices, it has little reason to exist at all. It is between these two poles, that it must navigate so that in shunning Scylla, it does not fall prey to Charybdis. There are those who do not believe that the Ombudsman can parallel Homer’s Ulysses in finding his way home. Some don’t even think the objective is worth the attempt.

The argument in favour of keeping the Institution as simply a symbol of people power is based on the belief that open democratic governments do not need the expense of endowing the institution of Ombudsman with the prestige of real power on the grounds that only the losers in society have need of the ombudsman crutch and that government programs are better able to shore up the weaknesses of the disadvantaged than the services of some Ombudsman’s office. The argument in favour of integrating the Ombudsman’s function into a government’s legislative and administrative operations, as is the case in France, for example, is based on the efficiency theory on the grounds that things get done more efficiently if government members and officials are part of the process rather than defenders of their own actions.

But all that begs the questions of effectiveness, relevance, influence, independence, prestige, ownership and potential which are the fundamental components of the Ombudsman’s raison d’être as they underlie an Ombudsman’s credibility.

The function of Ombudsman is certainly here to stay, but as an Institution, it is vulnerable. It is vulnerable to trivialization through over use of the designation itself to cover all manner of extra-administrative grievance procedures in contexts far removed from the citizen-government relationship. It is vulnerable to marginalization, under funding and over management by the powers from which it is meant to protect the citizen. It is vulnerable to public expectations that go far beyond what it can in the best of circumstances deliver on.

The creative tension generated by the Ombudsman’s role in society in relation to the government or institution that pays for its services must be managed in such a way as to empower rather than emasculate its primary mission. That is the challenge facing the future of the Institution.

To be effective, an ombudsman must enjoy a high degree of credibility. To achieve credibility, an ombudsman must be perceived as being effective, that is, of having both the ear and the respect of constituent government and the power of persuasion to affect governmental or institutional decisions. As the embodiment of the Institution, the Ombudsman must have to his or her credit, a certain body of success in dealings with the ultimate public or private authority of which the Ombudsman is both subject and critic. It must be stressed here that a great deal of the public credibility and private respect in which an ombudsman is held, above and beyond the circumstantial conditions under which the office of Ombudsman functions, is the real and perceived intellectual and administrative rigor with which the Ombudsman goes about its business. There is always a danger, in situations where justice and legality are not necessarily synonymous, of playing to the public gallery to gain politically sensitive points rather than building the case for justice on the mutual benefits to be obtained by taking the high road. The high road is rarely reached and never secured by slipshod tactics or unsubstantiated politically pleasing postures. So, the first criterion of effective ombudsmanship is rigor including an in depth understanding of and commitment to the political and administrative principles under which it is called upon to function. An ombudsman who took on the job in order to clean up what he or she saw as a corrupt government would be wasting everyone’s time, including his or her own. As the institution of Ombudsman can only function where democracy rules, one has to believe in the openness of the government process to be in the position of mutual trust which allows the Ombudsman to function freely and the government to benefit from the association. An ombudsman may often recommend action a government is loth to take but should never recommend a course of action a government cannot take or is in no position to take. In other words, an ombudsman’s credibility lies with how well its gets its way by getting on with the government, rather than in how uncompromisingly it stands up to the government on issues on which the government is not in a position to compromise. There will always be a delicate balance to preserve and its preservation lies as much with the rigorous competence of the Ombudsman as with the good and supportive intentions of the government. In this regard, the provenance of the person occupying the office of Ombudsman plays a part.

I have been using the context of public ombudsmanship because it is in the relationship of state to citizen that the official role and mission of Ombudsman was first conceived and developed. And it is in that same context that the future of the Institution will be decided in the long run. The credibility that comes with rigor is enhanced by the appearance of independence that comes with having the Ombudsman named from outside the public apparatus, someone with no direct connection to the power structure it will be called upon to monitor.

In institutions, it makes sense to name someone from inside the system, someone who knows and understands the intricacies of the related administrative terrain. But in the case of public ombudsmanship, the incumbent is better protected from the inevitable pressures that emanate from political power if he or she comes to the job with qualifications free of partisan coloration. A private or institutional Ombudsman must prove his or her independence of spirit through impartiality and the rigorous defense of fairness. The public Ombudsman, on the other hand, must be seen to have the attributes of “Caesar’s wife” from the outset in order to be viewed as an independent witness.

To be maintained, that appearance of independence must be constantly shored up by the prestige accorded the Office and the person occupying it. It is in the state’s interest, as well as the Ombudsman’s, that the Institution be viewed with the respect. To reflect well on the government, the Ombudsman must enjoy considerable prestige as the voice of the citizenry. Prestige depends on the seriousness with which the function is taken and the difference to government performance the carrying out of the function is perceived as making. It takes both the Ombudsman’s rigor and the government’s acknowledgement of its substantive contribution to secure the Ombudsman’s mission and allow the Institution to live up to its potential for having a humanizing effect on public administration. The relationship will always be difficult and delicate to maintain. If the Ombudsman, to do the job, must be allowed to act independently of government and to have no overt ties of partisan interest with the administration, the function itself has political implications that must be addressed. An ombudsman who plays to the gallery by being overly interventionist or assuming an activist anti-government position may gain notoriety but will inevitably lose his or her power of persuasion and any reputation for objectivity. The effectiveness of the function is diminished in consequence. The system of complaints must be devised to encourage public confidence while protecting public officials from false accusations, suspicion and petty nit picking.

Walking the fine line between trying to right public wrongs in the interests of citizens rights takes patience, perspicacity and relevance. The relevance of what an Ombudsman’s office undertakes is guided by the judgement of the incumbent and circumscribed by the parameters of the jurisdiction allotted to ombudsman overview. The wider the jurisdiction, the wider the scope for judging relevance. An ombudsman who oversees public administration in its entirety is better able to judge how the questions of the moment relate to government performance and operations. An ombudsman only responsible for certain sectors of public administration must not only judge the effects of his or her advice in a narrow jurisdictional context, but the function itself is less high profile for being hived off on its own and isolated from overall government performance. Another factor in an ombudsman’s jurisdictional territory that plays a part in defining the function in public opinion is the fact that the wider the jurisdiction, the greater the degree of esteem in which the Ombudsman is held. A government which employs an ombudsman sector by sector is setting up ombudsman fiefdoms that have the advantage of familiarity with each particular sector but they act quite independently of each other and thus deprive the state of a national or provincial watch dog of the citizen with the status and prestige that such a high ranking position carries with it. An ombudsman here, an ombudsman there, even an ombudsman everywhere can have the effect of trivializing a function that can and should be a dynamic democratic phenomenon that citizens trust and states benefit by. Judicious application of the Ombudsman function is the prime reason for winning the trust of the citizenry. But the state’s willingness to lay itself open to the complaints of the citizenry through Ombudsman auspices is also a crucial part of an ombudsman effectiveness and the potential of the Institution to have an influence on public policy. The Ombudsman’s office cannot be effective without political and official support any more than it can be effective unless it can take the credit when credit is due to its good offices when a case is won for ordinary people and the machinery of state is tuned up as a result. It is a vindication of what the Ombudsman’s function was conceived as representing…a mechanism for improving the relationship between state and citizen, keeping officialdom from allowing mistakes to take root and go uncorrected, providing a simple and non onerous channel for grievances and complaints and setting up an independent, objective and non-bureaucratized arbitration system.

There is nothing magical in an Ombudsman’s function. The Office possesses no magic wand. Its power of persuasion stems from the confidence it inspires in citizen and state, not in the threat it posses to government or the solace it holds out for ordinary people. It is a bridge between citizen and state that is in constant need of maintenance and reconfiguration to preserve a stable balance in a relationship that is as old as time but is, in our day and age, in continuous, rapid mutation. It is not surprising that democracies, where citizens enjoy wide legal and constitutional rights are also where the institution of Ombudsman has taken root, where it is the most valued but also where it can be most useful in bringing the citizen inside the daunting complexities of modern day government. As state intervention increases and the government regulates more and more of people’s lives, the ordinary citizen feels further and further removed from the source of power, and less and less included in the design of state decision-making.

Times change and the temper of the times affect people’s expectations. In the last 20 years, the Charters of Rights and freedoms have had a deep and irreversible effect on what Canadians view as their individual rights. Laws are now interpreted through the prism of charter rights. People are more aware and jealous of what they consider is owed them individually in the way of protection from abuse of power, even the concept of “abuse of power” has become more focused on protection of individual rights as opposed to the protection of the common good.

Democratic governments are owned by the people through their votes. Government services are owned by the people through their taxes. Our legal systems and courts of justice are not politically controlled. They are independent institutions set up to uphold the law of the land and provide justice for all. Nevertheless, the ordinary citizen has less and less say in more and more of the decisions that shape his or her society. Even the justice system, with all its complexities, invites suspicion and a certain skepticism. People find their control over even their immediate environments slipping away as villages are merged into larger more impersonal agglomerations, megacities take over from citizen-run municipalities and national governments get swept up in a globalization process that erodes their sovereignty. The demonstrations that accompanied the latest round of international summits held to plan and negotiate a new world economic order are as instructive as they have proved to be destructive. Violence apart, what the widespread and diverse movements protesting against the closed-circuit summit planning process have in common is a deep distrust of decision making by national governments with no reference to the priorities of the people for whom they are negotiating. No one is against economic development and prosperity but not everyone is indifferent to the price that will have to be paid for blindly joining the globalization parade. Ordinary citizens, many of whom claim to have been squarely in favour of free trade, now tell pollsters that they have serious reservations about globalization mostly because they believe they will be caught up in a process they do not understand and have no way of influencing. It is the feeling of being kept in the dark and having no avenues of enlightenment that puts them off.

The issues and problems arising from globalization are far removed from the issues and problems you have come together to explore, examine and consult about. I bring it up only because it is an extreme and dramatic example of how people, living in democratically run societies, expect to be participants in the drawing up and carrying out of the rules that govern their societies…be it on the level of the planet or the street where they live. The impression of being simply ciphers in an impersonal and highly bureaucratized world is an alienating one. In small but very real way, the Ombudsman function puts the citizen back in direct contact with the impersonal state machine that dictates much of life in society. That is a very valuable connection for both state and citizen. Even for citizens who may never feel the need of turning to the Ombudsman to redress perceived injustice, the very fact there is some means of recourse for an individual is a telling symbol that humanizes a state machine inaccessible to the ordinary mortal except through electronic barricades controlled by punching in numbers to get recorded answers to irrelevant questions.

One could perhaps sum up the strengths and pitfalls of the Ombudsman function by drawing the connection between ownership and power…the ownership of power and the power of ownership. One of its principal strengths is that, in practice, it is owned by the people and therefore enjoys their trust. Because it acts for the people at their instigation they have power over the form and content of the Ombudsman’s undertakings. It is their perspective, what they perceive as their good that is at stake. The power that goes along with this ownership, however, is neither institutionalized nor constitutionalized. It must be derived from public support, not by enforceable means. Its ultimate source is vox populi, which means that it must be constantly reinforced and reanimated through the use that is made of it. It is in the practice of its public pressure power that, as an institution, its strength is increased or eroded. Its modus operandi can therefore make or break it. It is how it is practiced over time that will legitimize it. A government perceived as bad, can be replaced. Inadequate, even corrupt administration can bring destitution on itself but it does not do away with constitutional state structures. With the Ombudsman, it is otherwise. Injudicious use of the function for any prolonged period of time endangers the whole species.

The ultimate source of power is the raw power of the state, with its courts of law and law enforcement mechanisms. The government adopts the law, the Supreme Court interprets the law and that law prevails, by force if necessary. The Ombudsman fits nowhere in this scheme of things. To draw a long bow, do you remember when the Pope went to Eastern Europe in the 80s and there was much rejoicing among optimists in western nations because of the democratizing effect his visit would have on the undemocratic east. The attitude of the cynics, however, was of a very different tenor, epitomized by the now famous question, “How many divisions does the Pontiff have?”

An ombudsman’s strength is that it has no divisions and therefore poses no direct threat to the state. But one of the pitfalls always before it is the ever looming presence of ultimate “divisional” power which it can buck but never break.

Forum of Canadian Ombudsman