Obtaining relief for injustices caused by executive and administrative decisions | Daily News

Obtaining relief for injustices caused by executive and administrative decisions

Office of the Parliamentary Commissioner for Administration [Ombudsman]

An aggrieved person who has been adversely affected by a decision of the executive arm of the Government is entitled to seek relief through court by way of filing a Writ application, or by filing an application in the Supreme Court, if it amounts to a violation of a fundamental right or a language right declared and recognized by Chapters III and IV of the Constitution.

Although this is a form of redress that is well known among members of the legal fraternity, due to reasons such as the lack of money or the difficulties in accessing the court process, most members of the public are wary of pursuing this cause of action. As a result, many erroneous executive and administrative decisions continue to be in force, often causing severe hardships, including financial losses, to the people who are affected by the implementation of such decisions.

The Office of the Parliamentary Commissioner for Administration, commonly known as the Office of the Ombudsman is an institution that has the authority to intervene and facilitate obtaining relief in such situations. It has been observed that the Office of the Ombudsman plays a crucial role in ensuring a stable administrative system in Sri Lanka. A notable feature of this avenue of redress is that an aggrieved person who wishes to seek relief, by way of reversing orcorrecting an erroneous decision, does not have to incur any expenses to makean application to the Ombudsman.

EVOLUTION

The evolution of the concept of Ombudsman dates back to the early 19 th century. In 1809, the Swedish Parliament (Riksdag) decided to appoint an Ombudsman to supervise the King and his office, as well as the Courts. However, the Ombudsman’s responsibilities go far beyond this supervisory role. The principle behind the establishment of the office of Ombudsman is to ensure the delivery of justice to citizens, by creating an easily accessible body, that is authorized to supervise public administration and to initiate investigations into individual complaints. Prof. J. F. Garner [The University of Toronto Law Journal Vol. 18 No. 2 (Spring 1968) pg. 158] describes the Ombudsman as:

“An officer of Parliament, having as his primary function, the duty of acting as an agent of Parliament, with intent of safeguarding citizens against abuse or misuse of administrative power by the executive.”

The concept of having an independent body with the power to examine the decisions of public administrators has been recognized world over and has been incorporated into the legal systems of many countries. The Ombudsman institutions established worldwide have collectively formed the International Ombudsman Institute (IOI), which works with 147 public sector member organizations in 87 jurisdictions from all the continents.

Even though there is no universally accepted definition for “Ombudsman,” the general understanding is that the institution is tasked with receiving, investigating and reporting on complaints concerning actions or omissions of public administrators.

The need to establish an Office of the Ombudsman in Sri Lanka was proposed at the South East Asia Conference of Jurists held in January 1966. Consequently, in terms of Article 156 of the 1978 Constitution of the Democratic Socialist Republic of Sri Lanka, the Parliament made provision to establish the Office of the Parliamentary Commissioner for Administration (Ombudsman). Thereafter, the Parliamentary Commissioner for Administration Act, No. 15 of 1981 was enacted describing the functions and duties of, and limitations associated with the Office.

OBJECTIVES

Supervising administrative action is a core function of the Ombudsman, and it often includes a human rights component. Although the Swedish Parliament did not particularly focus on human rights at the beginning, over time, the Office of the Ombudsman came to be known as a watchdog and a guardian of human rights. This became evident when the concept of Ombudsman was adopted in other parts of the world, and there was greater awareness about the probability of maladministration causing the infringement of human rights.

The UN High Commissioner for Human Rights once commented on the important role played by the Ombudsman towards the promotion and protection of human rights, even though the Ombudsman is not explicitly mandated to do so. The UN General Assembly Resolution 63/169 on the role of the Ombudsman refers to the human rights standards that should be taken into consideration when formulating the mandate of the Ombudsman. The Resolution emphasizes the importance of the autonomy and independence of the institution, and refers to the proactive role the institution could play in advising the Government with respect to bringing national legislation and national practices in line with international human rights obligations.

While reiterating the observations made in Resolution 63/169, the UN General Assembly Resolution 67/163 on the role of the Ombudsman, notes with satisfaction that institutions such as the International Ombudsman Institute, encourage states to consider strengthening the Office of the Ombudsman to operate with independence and autonomy, and in accordance with the “Paris Principles,” as appropriate.

These Resolutions also refer to the role that the Ombudsman plays in promoting good governance in public administration. The term “good governance” refers to a transparent, fair, inclusive and representative process of decision making and implementation by an administration. The Ombudsman plays a crucial role in monitoring the implementation of decisions taken by such public administrators.

Further, the Office of the Ombudsman helps to overcome the limitations seen in traditional court systems. Seeking relief or redress from a court or tribunal today may raise two concerns – issues of affordability and delays in the court process. It is in this context that one must view the Office of the Ombudsman. The Ombudsman is often more effective than a court or tribunal in addressing administrative shortcomings, as the Ombudsman has the power to point out systematic issues based on the complaints received over the years. It has a flexible and cost-effective dispute resolution mechanism and unlike a traditional court system, the Office generally maintains a low-threshold in terms of access, to facilitate greater participation, especially among members of the public who are considered vulnerable.

RELEVANT LEGAL PROVISIONS

I. Constitution of the Republic of Sri Lanka

The legal basis for the establishment of the Office of the Ombudsman is found in Article 156 of the Constitution of the Democratic Socialist Republic of Sri Lanka read with Articles 41A and 54 as amended by the 20 th Amendment. Article 156 stipulates that the Parliament shall provide for the establishment of the office of the Parliamentary Commissioner for Administration (Ombudsman) charged with the duty of investigating and reporting upon complaints or allegations of the infringement of fundamental rights and other injustices by public officers and officers of public corporations, local authorities and other like institutions, in accordance with and subject to provisions of such law.

In terms of Article 41A(1) of the 20 th Amendment to the Constitution, His Excellency the President is required to appoint a person to the said position upon seeking observations from the Parliamentary Council established under the Constitution. The manner in which the Ombudsman may be removed from office by the President is stipulated in Article 156(4) of the Constitution and that is on account of ill health or physical or mental infirmity or after an address of Parliament. However, as per Section 2 of Act No. 16 of 1991, which amended the Parliamentary Commissioner for Administration Act, the Ombudsman in office shall retire from service upon reaching the age of 70 years.

II. Parliamentary Commissioner for Administration Act, No. 17 of 1981

Parliamentary Commissioner for Administration Act, No. 17 of 1981 (‘the Act’) was enacted establishing the Office of the Ombudsman and it stipulates the powers, duties and functions of the Ombudsman. This Act was subsequently amended by Act No. 26 of 1994, by which Section 10 was amended to enable the Ombudsman to entertain complaints relating to or allegations of infringements of fundamental rights or other injustices, directly from members of the public. Before the 1994 Amendment, the Ombudsman was only empowered to inquire into the applications referred to it by the Public Petitions Committee of Parliament.

The Ombudsman shall not be a member or an officer of Parliament or of any public corporation, local authority, or other like institution. Section 3 of the Act stipulates that the Ombudsman shall be appointed by the President and under Section 8 therein, the President also is empowered, upon consultation with the Ombudsman, to appoint one or more Deputy Ombudsmen. The Ombudsman may, by writing under his hand, delegate to a Deputy Ombudsman any of his powers, duties and functions. A Deputy Ombudsman may, subject to any restriction or condition contained in the instrument of delegation, exercise, perform and discharge all the powers, duties and functions of the Ombudsman in relation to any delegated matter. Under Section 9 of the Act, the Ombudsman may, by instrument in writing, subject to such restrictions or conditions as he deems fit, authorize any officer appointed under the section, to exercise, perform or discharge any of the powers, duties or functions conferred or imposed on, or assigned to the Ombudsman by the Act. Where a delegation of any power, duty or function is made under Section 9, the Ombudsman may, notwithstanding such delegation, exercise, perform or discharge such power, duty or function.

In terms of Section 10 of the Act, the Ombudsman is required to investigate and inquire into allegations and then determine whether the decision, recommendation, act or omission of the public officer complained of, was contrary to law, unjust, oppressive or improperly discriminatory or made in the improper exercise of the discretion of the officer concerned. Where the Ombudsman is satisfied after due investigation that a person’s fundamental rights have been violated by a public officer or that such person has suffered an injustice at the hands of such officer, the Ombudsman is authorized to make a determination, accordingly. As relief to the person affected, the Ombudsman may recommend that the act of the public officer concerned, be reconsidered, rectified, cancelled or varied and require the Head of the institution to which the public officer belongs, to notify within a specified time, the steps which he/she proposes to take to give effect to the recommendation.

Section 11 of the Act stipulates the matters that are not subject to investigation by the Ombudsman, which includes any allegation of an injustice that does not amount to an infringement of a fundamental right, relating to matters of public security; matters under the authority of the Attorney General; the institution of civil or criminal proceedings or the conduct thereof; the appointment, transfer, dismissal or disciplinary control of public officers; any decision, recommendation, act or omission of the Auditor General, and of the Commissioner of Elections. The Ombudsman may also discontinue an investigation when a complainant has been guilty of unreasonable delay in making the complaint.

INTERNATIONAL RELATIONS

The Ombudsman currently holds membership of the International Ombudsman Institute (IOI). For the first time in 1997, the then Ombudsman attended its meeting of the Board of Directors held in Copenhagen in Denmark from October 13 to 15 1997. Since then, Commissioners have been attending conferences of the IOI, representing Sri Lanka. The Ombudsman in Sri Lanka is a founder member of the Asian Ombudsman Association as well.

However, due to the unavailability of allocated funds, Sri Lanka could not participate at the conferences of the IOI and the Asian Ombudsman Association held in 2018 and 2019. The Annual Conference of the IOI that was scheduled to be held in May 2020 was postponed due to the Covid–19 pandemic.

Joanna Kempkers, High Commissioner for Sri Lanka representing the Government of New Zealand, met with the Ombudsman on August 7, 2019 at the Ombudsman’s Office in Colombo. As a result, the Ombudsman was given a valuable opportunity to understand the measures taken by the Ombudsman’s Office in New Zealand and to work towards fostering a close institutional relationship. Subsequently, upon an invitation extended by the Chief Ombudsman in New Zealand, we received an opportunity to attend a programme organized by the Office, to understand the role played by the Ombudsman in New Zealand and the valuable insight we gained at the programme, continues to inform our thinking when discharging our functions.

PROCEDURE ADOPTED UPON RECEIVING A COMPLAINT

The functions of the Office are discharged by an Administrative Officer, 15 Public Management Assistants, 2 Translators and 4 members of the minor staff.

Each and every complaint or petition received by the Office is entered into a separate register, after which a unique number is assigned to each complaint. Thereafter, complaints are classified based on the following subject areas - Pensions, Land, Unauthorized Constructions, Reinstatement in the Office, Promotions, and Admission to Schools etc.

Once a complaint is registered, it is referred to the respective Public Management Assistant (subject clerks). It is their duty to open a file for every complaint. The selection of the topic is done by the Chief Public Management Assistant in the Office. Once a file is opened in respect of a particular complaint, the subject clerk makes a journal entry in the file summarizing the contents of the complaint. Thereafter he/she having discussed the nature of the complaint with the Administrative Officer, meets the Ombudsman and seek his advice and guidance about the steps that need to be taken in connection with the complaint.

At this meeting, the Ombudsman carefully considers the contents in the complaint, along with the annexed documentation. The Ombudsman first looks at the details to ascertain whether the complaint or allegation falls within the jurisdiction of the Ombudsman. In order to determine this, the Ombudsman carefully considers Sections 10, 11 and 17 of the Act. If the complaint does not fall within the ambit of the Act, the complainant is informed forthwith of the decision and the reasons for the refusal to proceed with the matter.

When the Ombudsman decides to proceed with a complaint, he makes appropriate orders regarding the steps that should be taken in connection with each and every complaint. If the Ombudsman feels that it is necessary to obtain more information, on matters such as the relief sought and the person against whom the complaint is made, such information is requested from the applicant.

This is done by way of sending a specific form [Form OMB 01] to the applicant requesting him/her to furnish the information mentioned therein.

Once a decision is taken to proceed with the matter, observations are called for; generally, from the head of the Institution where the officers against whom the allegation has been made are working. There have been instances where the authorities have decided to grant relief soon after receiving the letters by which observations are called. There have also been several instances where the Office has had to send multiple reminders to get observations on an issue. In a fair number of cases however, the Ombudsman was able to see a meaningful outcome, after several rounds of correspondence. In the event, the Ombudsman is unable to reach an acceptable solution, the parties are summoned to the Office for an inquiry. All parties concerned are given a fair opportunity to present their respective cases in the presence of the other parties and principles of natural justice are followed when the inquiry is conducted.

As mentioned before, whenever a violation of a fundamental right or an injustice is proved, the Ombudsman makes every effort to grant relief to the victim.

If he fails to reach an acceptable solution by resorting to such a cause of action, the matter is fixed for inquiry. If the Ombudsman is unsuccessful even after pursuing these avenues, he makes a determination on the issue and informs the respondent party of the decision, requiring that the decision be implemented within a given period of time. If no action is taken within the stipulated time period, the Ombudsman is empowered to forward a copy of his report to the President and the Speaker for appropriate action.

It must be noted that the Office of the Ombudsman always maintains confidentiality, when following this process. It has been observed that in relation to many of the complaints that were inquired into, it was essential for the relevant department or statutory authority to act in accordance with the laws enacted by Parliament. Further, it is to be noted that these complaints often relate to the failure to act according to subsidiary rules & regulations and directives embodied in the Establishment Code and in the circulars issued time to time by the Government. It has also been observed that procedures prescribed in manuals had not been followed.

There were some cases where the injustices faced by complainants had occurred owing to the negligence of administrators and authorities, or because governmental policies and procedures have not been implemented fairly, without discrimination. Additionally, it has been observed that there is a lack of understanding and an inflexible severity when policies and procedures are followed or implemented. The Ombudsman exercised the powers vested in him under the Parliamentary Commissioner for Administration Act and subsequent amendments to inquire into the complaints that fell within the ambit of the law. In doing so, all reasonable steps were taken in order to remedy the alleged injustices that were referred to the Office. When matters could not be settled amicably, the Office made appropriate recommendations after considering the merits of each case.

When settling disputes, the Office endeavoured to settle matters expeditiously, by writing to the officers concerned and even by contacting them over the telephone.

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CONCLUSION

The Office of the Ombudsman provides a forum for citizens to have access to an independent, impartial and inexpensive dispute resolution mechanism, which can help people to resolve their grievances, protect their fundamental rights, and restore their dignity. The work of the Ombudsman contributes towards building public confidence in democratic processes.

An effective system of administration is a basic tenet in modern society. In order to achieve this goal, the government machinery that is responsible for discharging administrative functions is vested with substantial powers to perform such functions and fulfill duties effectively, in the best interest of the public. The powers vested do not mean that such powers can be exercised in violation of rules, regulations, and against rules of natural justice and equity.

The Office of the Ombudsman is always open for the purpose of identifying, investigating, redressing and rectifying injustices caused due to maladministration. The Office of the Ombudsman sets out to look into and rectify situations created due to the arbitrary exercise of powers, refusal to act duly, corrupt or biased motivations, and the use of tactics to delay the discharge of official obligations.

In the present-day context, seeking redress from courts has become an expensive exercise.

It is not an exaggeration to state that quite often; the Ombudsman has been far more effective than courts in correcting administrative errors, particularly because the Ombudsman has the required experience and power, having dealt with a large volume of complaints over the years. It is certainly a more flexible and cost-effective system.

Moreover, as mentioned before, the Office of the Ombudsman has been able to provide its services, especially to persons belonging to vulnerable groups in society, as they could access the process subject to minimal, if not, zero expenses, which is comparatively advantageous than the traditional court system.

When inquiring into allegations, the institution affords ample opportunities to both parties to present their cases after studying the matters pertaining to the complaint in detail. Further, it is imperative to note that the institution does not allow lawyers or an agent to appear on behalf of an applicant.

It may be deemed a failure on my part, if I do not comment on the attitude of the responsible officials, towards achieving the mandate of the Act. Based on the documentation available, I have observed that there have been instances where certain public officials have made decisions according to their own whims and fancies, ignoring laws, regulations and rules or giving them their own interpretations. Officials executing their duties in such a manner often fail to understand that they are responsible for violating fundamental rights, and for depriving people of their legitimate expectations, while causing mental suffering.

I have observed that certain officials are unable to settle matters in a conciliatory manner. This practice of not settling issues in a cordial manner stems from the attitude of treating a complainant as an adversary, as well as their unwillingness to accept official fallibility. Further, it has been evident that some officials are not competent, or are unable to deal with issues brought before them.

While noting these systemic issues, I consider it equally necessary to note that most officials have extended their utmost support and shown a considerable degree of cooperation, enabling me to discharge the duties and functions of the Office of the Ombudsman in an effective and timely manner.

Note:

Author is the present Parliamentary Commissioner for Administration [Ombudsman] Sri Lanka. He had been a member of the Judiciary in Sri Lanka for nearly 4 decades and retired as the Acting Chief Justice in the year 2018. He is presently functioning as a Judge of the Supreme Court in the Republic of Fiji having joined the Court of Appeal in that country in the year 2008.

Justice Chitrasiri also chaired the two important Presidential Commissions of inquiry, namely the Commission appointed to investigate, inquire and report the issuance of Treasury Bills by the Central Bank of Sri Lanka (Bond Commission) and the Commission to investigate and inquire into the alleged wrongdoings, irregularities and malpractices in connection with ETI Finance Limited.

He has immensely contributed towards the development of the law in Sri Lanka having delivered many land mark judicial pronouncements particularly in the commercial law area.