There are, to my mind, few preconditions that are indispensable for establishing an Ombudsman institution. If some desired preconditions are lacking – or only existing to a lesser degree – then in many cases the work of the Ombudsman, even if made more difficult, may in itself contribute to the realization of more favorable conditions for the Ombudsman and for society in general.
My own institution is an example of this. One would think that democracy is a fundamental precondition – that an effective ombudsman institution only could be established and perform its work in a democratic society. Historically however, democracy has, as the Swedish example shows, not been a pre-requisite for a successful Ombudsman institution. In 1809, when the new Swedish Constitution provided for the election of a Parliamentary Ombudsman, Sweden could not be characterized as a truly democratic state.
I think it is fair to say however, that the concept of parliamentary ombudsmanship, even in those early days, to some extent was the expression of the democratic ideal – and to some extent contributed to the advancement of that ideal.
Firstly, the Parliamentary Ombudsman contributed to the observance of the principle of the rule of law in its narrow sense. This principle implies that the citizens should not be subject to the arbitrary whim of the ruler – be that the King, the self-acclaimed President or the Central Committee. Instead, the State should be governed by general norms issued by a legislative body. Such norms should be generally applicable to everyone and known to the citizens who thus may foresee the consequences of their actions. It goes almost without saying that general norms emanating from a parliamentary assembly also will have a greater degree of legitimacy than orders given by a ruler.
In the late 1700’s Sweden suffered from a period of royal autocracy, of absolute powers in the hands of the King. 1809 we experienced what amounted to an almost revolutionary situation. The King was dethroned and the new Constitution was founded on the idea of a division of power between, primarily, the King and the Parliament. The laws of the land were to be enacted by Parliament and the Ombudsman was to supervise the King's judges and the King's public officials and to make sure that they acted in accordance with the norms decided by Parliament.
Secondly, the Parliamentary Ombudsman contributed to the democratic ideal by upholding an older administrative tradition of personal accountability on the part of the public officials. During the first one hundred years of the existence of the Swedish Office of the Parliamentary Ombudsmen, public officials were held accountable by the Ombudsman in the sense that he could act as a special prosecutor and bring those who misused public office to justice.
In the travaux préparatoires of 1809 it was stated that the duty of the Ombudsman was “to exercise supervision of the observance of the laws by judges and officers of the State, and to prosecute, with due process of law, those who in discharging their duties, through violence, personal considerations, or for some other reason, act unlawfully or fail to fulfil the duties pertaining to their office.”
Consequently, at a time in our history when the parliamentary assembly was not elected by universal and equal suffrage but nevertheless acted as representatives of the people, the Ombudsman contributed to the democratic ideal by strengthening the role of Parliament vis-à-vis the King, by advocating the rule of law and by upholding the principle that it should be possible to hold those who have the power to exercise public authority responsible for their actions and omissions.
This is, of course, history. Modern Ombudsmen are, and should be, elected by a democratically elected Parliament – even if, in some traditions, the election is confirmed by the Head of State. The Ombudsman's authority is to a large degree based upon the fact that he or she is elected by the representatives of the people. This is also how the modern Ombudsman is generally perceived. A large number of the Ombudsman Offices existing today have been established precisely as a measure to safe-guard a well-functioning and stable democracy after a period of authoritarian rule.
We may conclude that democracy, at least in the sense that the legislature is elected by equal and universal suffrage, is a precondition for an effective modern Ombudsman institution. My point here is that the work of an Ombudsman may contribute to the strengthening of an imperfect democracy.
Democracy, however, is not enough. It is also important that the parliamentary assembly devotes sufficient effort to find the right man or woman. There is no educational and professional background common to all Ombudsmen. Some are lawyers, some are political scientists, some are former State officials. Since the Ombudsman has to interpret and apply legal norms, it is necessary for him to have access to legal expertise, but I do not find it necessary for him to be a lawyer himself. What really matters is for Parliament to search for an honest man or woman of sound judgment and unquestionable integrity. I would suggest that this is the most important precondition of all for an effective ombudsman institution.
When conducting its search, it is necessary for Members of Parliament to leave party politics behind. If they want the Ombudsman of their choice to be trusted by all citizens, the candidate cannot be closely associated with any of the political spheres in the country. If he is affiliated to the parliamentary majority, there will always be those who suspect that he defends, or at least hesitates to criticize, government. If he is linked to the opposition, there will always be those who claim that he criticizes government without just cause. In order to help Members of Parliament to put their political preferences aside, or force them to agree on a candidate by consensus, most legal orders require a qualified majority decision for the election of an Ombudsman.
We may conclude, that a certain degree of what we, for the lack of a better term, could call political maturity – that is an ability to put the wider interests of the State and its citizens before the interests of a certain political party or grouping – may be regarded as a precondition for an effective Ombudsman institution.
Furthermore, the Ombudsman needs to be independent from other State organs. Of course, the election procedure, which we have already discussed, will provide him with some degree of independence, so will certainly his or her personal integrity. But he will also need some financial independence – firstly in the sense that he must be given adequate means to perform his tasks. He needs to have sufficient resources to employ qualified staff, to temporarily hire expertise, to travel, to make his existence and mission known to the citizens and to give publicity to his findings. It should never be an alternative to require the citizen to pay a fee in order to have his complaint treated by the Ombudsman. It is one of the essential characteristics of an Ombudsman that the citizens should have free and easy access to his Office.
There is, secondly, a need for financial independence also from the perspective that the Ombudsman should not allow himself to be funded by any authority under his supervision. Such funding will risk giving rise to suspicions that the Ombudsman will not bite the hand that feeds him. This means that it is desirable for the Ombudsman to have his resources attributed to him directly by Parliament.
We may conclude that a precondition is political maturity in yet another sense. Members of Parliament need to understand that it is in their best interests to generously finance a vivid critic of the State administration. Firstly, such a critic may improve State administration, to help it serve the citizens better. Secondly, to have an effective watchdog will further public confidence in State administration and its organs and thus contribute to the stability of society.
Financial independence is not enough, however. The Ombudsman also needs to be independent with regard to the objects of his investigations. He should not, when choosing what matters to investigate, be governed by anything else than the complaints filed by the citizens and, if it is within his power to start investigations on his own initiative, ex officio, by his own sound judgment. State organs, including Parliament, should refrain from ordering – or even asking – the Ombudsman to investigate specific matters. Such requests will only risk compromising the Office of the Ombudsman in the eyes of the public.
This requires a certain amount of political maturity too. Members of Parliament must realize that from the fact that the Ombudsman reports to Parliament they cannot, or at least should not, derive a power to instruct their Ombudsman what to investigate and what to leave aside.
Another aspect is that the Ombudsman must be given adequate means to investigate cases thoroughly, not only with regard to money and personnel. It is of crucial importance that he is given access to any documents or information in other forms possessed by the government and the state administration. It should, in principle, not be possible to hide anything from the Ombudsman, regardless of whether a certain piece of information is classified or not. To me, this is essential – first of all because otherwise the Ombudsman cannot make a correct and proper assessment in the case before him. And, secondly, it is certainly difficult to ask the citizens to put trust in his work if he cannot claim to know all the relevant facts.
Indeed, it could be argued that it is of special importance that the ombudsman, when necessary, may study confidential information and is given access to otherwise closed premises. When certain information is – and must be – closed to the general public, there is a particular need for a trusted person to have insight on behalf of the citizens, at least when there are claims put forward to the effect unlawful, unfair or otherwise improper actions have occurred. A specific problem in this area is that, since a decision of the Ombudsman should not be kept confidential, the Ombudsman may, when dealing with matters of State security, not be in a position to fully state the reasons for his findings like he would in an adjudication concerning non-confidential matters.
We may conclude that, while it of course has to be accepted in any State that there may be compelling reasons for confidentiality – for example for reasons related to state security, foreign relations or the right to privacy, a precondition for the establishment of an efficient Ombudsman institution is that such confidentiality is kept to a necessary minimum and that there is an awareness of the fact that even the most secret corners of society needs to be supervised. A culture of secrecy without any possibility of control from the outside may create a state within the state, with its own values and practices which risk running contrary to the ideals underpinning the rest of the society.
I would like to make two final points.
The essence of the duty of most ombudsmen is to uphold the respect for the rule of law and for the fundamental rights and freedoms of the individual. An essential precondition in order for him to be able to do so, is that the society in which he works is governed by norms. It is precisely when a State administrative body, or a public official, deviates from these agreed norms that the Ombudsman should intervene. Consequently, to facilitate the work of the Ombudsman there needs to be good administrative procedural law, regulating, for example, the right to be heard, the obligation on the part of the public authorities to state reasons for their decisions and the right to appeal.
There should also, on the constitutional level, be a Bill of Rights for the Ombudsman to use as a living instrument. In the area of Human Rights it is, of course, also possible for the Ombudsman to adjudicate cases with reference to a number of international treaties, in our part of the world most notably the European Convention on Human Rights.
The next point concerns the readiness on part of the public authorities to follow the recommendations made by the Ombudsman. As we know, his decisions are essentially nothing more than recommendations. They lack the legally binding force of a court's judgment or a decision issued by a public authority. Their strength lies exclusively in the convincing reasoning, in the persuasive force of the legal argument. And, hopefully, in the authority of the Ombudsman as an institution and in the respect for the person holding the office.
A precondition for a culture of sensitiveness to the recommendations of the Ombudsman – apart from, of course, the diligent work of the Ombudsman himself – is that the Ombudsman receives the firm support from Parliament, its individual members, from Government and from the Director Generals of various public authorities. It is, of course, possible to disagree with the conclusions of the Ombudsman. But at least the highest officers of the State need to refrain from showing disregard for the authority and independence of the Ombudsman by, for example, questioning his motives or attacking the person holding office.
Finally, there is no Shangri-la in the real world. None of the existing Ombudsmen work in Paradise but in States with varying degrees of shortcomings. Especially in countries with more recently established Ombudsman Offices it may take some time for the citizens to realize that they have access to an independent elected official who will investigate allegations of unlawful, unfair or otherwise improper decisions, actions or behavior on the part of the public authorities and the civil servants. Equally, it may take some time for the public authorities to fully comprehend that such a figure, while interfering with their work and thus making a nuisance of himself, in the longer perspective will serve their best interests too. In the meantime, as I touched upon at the outset, the Ombudsman may, through his existence and daily work, contribute to a society with better conditions or at least with a lesser degree of imperfection.
