Current Public Administration Magazine (March - 2016) - The Working of Panchayati Raj: An Analysis S.A. Palekar
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Human Rights Ombudsman: An Overview
So far as salient features and modus operandi are concerned,
Classical Ombudsman and Human Rights Ombudsman are almost identical, although,
in some respects there are a few differences. As noted above, originally the
main focus or emphasis of the Classical/Swedish Ombudsman was on redressing
public grievances and complaints against maladministration or bureaucratic wrong
doing, but at the same time the protection of somewhat vaguely defined
individual rights and liberties was also a less pronounced part of the
responsibilities of the Classical Ombudsman office. However, both the
responsibilities were rather intertwined or interrelated.
But since the end of the 20th Century the increasing awareness and forward
thrust of the human rights movement in the newly independent countries in the
developing world and especially in post-communist European nations have put this
issue on the front burner along with the redressal of public grievances. The
human rights issue has been the key factor in political process especially of
these European countries. Ivan Bizjack, the first Human Rights Ombudsman of
Slovenia, observes that “many new ombudsman institutions emerged in most newly
‘restored democracies’ in Central and Eastern Europe”.16 The first ombudsman in
former communist countries in Europe was appointed in Poland in 1988, even
before the fall of the Berlin Wall. “Due to the totalitarian past of these
countries, they (ombudsmen) are faced with some specific and . . . (complex)
problems (of how to promote and protect human rights), in comparison with the
related institutions in countries with a long democratic tradition”.17 History
of serious violation and abuse of human rights during communist totalitarian
rule has strengthened their desire to promote and protect these rights.
Moreover, they have been encouraged by some international and regional
organisations and by the vibrant human rights movement all over the world. The
excellent human rights record of their West European cousins next door has also
made them more conscious and aware of the significance and benefits of free
societies that also served as a great motivating and driving force for the East
and Central European countries. The term human rights has thus been the buzz
word or slogan or symbol around which entire political process in these
countries have revolved. Ivan Bizjack aptly points out that the “extraordinary
advance in the concept of the ombudsman in this region (thus) should come as no
surprise. Human rights were a guiding principle and a central issue of the
democratic changes in this part of Europe.”
He continues to say that “yet the people in these countries are now encountering many additional problems, inherited from the past and resulting from the extraordinary pace of change.” So, he concludes, “every serious thinking politician had to support the founding of institutions of this type which are inherited to resolve the problems of ordinary people on the one hand, and help the state to strengthen its democracy and the institutions underpinning the rule of law on the other”.18 Generally speaking, more or less at same time in most parts of the developing world somewhat similar situation obtained. Tyrannical or despotic regimes military or non-military – crushed new democracies in the post-colonial period and seriously violated and abused human rights during “most of the three decades from early 1960s through the 1980s”.19 Later the process of “re-democratisation” began in the early 1990s in many countries. In these “revived” but “tentative” and “fragile” democracies human rights have become a major issue, and efforts have been made to strengthen and establish these rights in varying degrees. However, although “for the near term, democracy is likely to continue and to manifest itself as a global phenomenon,... democracy will remain insecure and embattled”.20 A “realistic assessment thus must be that despite the evidence of extensive re-democratisation... these less developed nations exhibit continuing persistent traits of political instability and imbalance”. But, at the same time, such changes, developments, uncertainties, and “moves toward greater democratisation” increasingly and continuously revive and keep alive the human rights issue.
As a result, in the developing world and in the post-communist Europe the human rights issue has assumed an independent status or identity. A good number of ombudsman offices have been given the responsibility of “a ‘national mechanism’ for the implementation of a state’s international human rights obligations”.22 As a result, in relatively recent times, “there is now a large and increasingly important category of ombudsmen, variously described as Human Rights Ombudsmen, Civil Rights Ombudsmen, or ‘hybrid’ offices—‘hybrid’ in the sense that they are ‘classical’ ombudsman with an additional (or special) ‘human rights’ dimension added to their more conventional ‘maladministration’ mandate”.23 Such addition or development was considerably influenced, especially in Latin America, by the Spanish “Defensor del Pueblo”, established under the provisions of the Spanish Constitution of 1978.24 Human Rights and Civil Rights Ombudsmen focus exclusively on human/civil rights violations. In fact, the “human rights protected by these...ombudsmen are broad in scope and include rights in virtually all the senses in which the term is now used.”
They, thus, cover the following three categories of human rights: “’first generation’ human rights, that is civil liberties and political rights in the traditional western sense of human rights,” the “second generation” rights, namely “economic, social and cultural rights,” and finally a limited number of ombudsman offices also cover “’third generation’ of collective (or special group) rights too: for example the rights of ethnic minorities,” “the right to a good environment”, the rights of the handicapped people, elderly people, juveniles/children, and the like.
Many of the offices established in recent times in the countries in the post-communist East and Central Europe and Latin America, and some in Sub-Saharan Africa, Pacific and East Asia have been provided with this additional or sole responsibility. Hence, there are both “all purpose” ombudsmen with jurisdiction over human rights issues and also “special purpose” human rights ombudsmen. The impact of this development was also felt in developed, mature and old democracies in the continents like Europe, North America, and Australia. The salient features and modus operandi of most Human Rights and Civil Rights Ombudsmen are usually similar or identical to the classical/legislative model.26 However, as we will see below, there are some Human Rights Ombudsmen who are, in fact, Executive (not Legislative/Classical) Human Rights Ombudsman. Here let us briefly look at the differences between the classical/ legislative and executive ombudsman institutions. By the early 1980s the International Ombudsman Institute (IOI) clearly identified and differentiated between Legislative and Executive Ombudsman schemes in various parts of the world.
While the former is directly or indirectly appointed by the legislature, the latter is appointed by the executive authority such as president/prime minister, governor, mayor, chief administrator of an institution/organisation/agency (e.g., Environmental Protection Agency/ EPA in the USA, an university, etc.) and the like.28 Another key issue is whether the ombudsman is an independent authority or not. “The value reflected here is...that of independence from executive interference and hence of impartiality.”29 In sum, a Classical/Legislative Ombudsman, “once appointed, serves for a fixed term (and) ... (is) independent of the appointing agency (i.e., legislature),” the Executive Ombudsman does not have that kind of independence from the appointing (i.e., executive) authority.30 Like general/all-purpose and special purpose Classical Ombudsmen, there are also two types of Human Rights Ombudsmen: (i) general/all purpose and (ii) special purpose ombudsmen. TWO CASE STUDIES The following two case studies further illustrate and elucidate the above points, and indicate at least some aspects of the Ombudsman for Children and family in Tennessee, USA.
First Case Study: A referral was made by a case manager of the DCS. A school administration wanted to prevent a child in state custody from attending the last few weeks of the school year. The problem began when the case worker arranged a trial stay for the child in the home of the parent to determine if the reunification of the child and the parent would work. The prospect of separating this child from school peers and the foster family caused some minor behavioral problem. Based on these problems the school administration had threatened to expel the child from the school for the remainder of academic year. The school wanted to forbid the child from returning to school because the parent’s home, unlike the foster home, was not located in the same school district. The case worker failed to convince the school administrators to allow the child to complete the school year in the present school, and then to enter another school in the parent’s school district at the beginning of the next academic year. The school administration seemed more interested in getting rid of a “problem child” from their “overcrowded” school. As a result, the child was on the verge of losing an entire year of school work as well as delaying the previously agreed upon decision to allow the child to return to her home from foster family. After having received the referral, the ombudsman verified the above facts and set up a mediation process to encourage and persuade all the parties to work together toward resolving their differences.
He played a crucial role in mediating, negotiating, persuading, and bringing all parties together for this purpose. As an outsider without any direct involvement or vested interest in the matter, he was in an advantageous position to discuss issues more convincingly and impartially, and also to separate and address the emotional aspects of the crisis. The ombudsman was able to convince and assure the school authority that the child had not officially changed residences and was technically still living in the foster home. He was also successful in making the school administration realise that expulsion or transfer at that point in the academic year would jeopardise and negatively impact the fragile reunification process. Finally, the parties involved came to an agreement in the light of all the circumstances. The child agreed to a strict behavioural conduct and was allowed to complete the school year in that school.58 Second Case Study: A referral was made by a Juvenile Court Judge. Serious differences and disagreement between the child’s parent (mother), the DSC case worker, and the service provider had erupted into a heated and acrimonious argument in the courtroom during a hearing to examine and consider the child’s return to home.
The parent was very angry and agitated and could have continued to make comments that could create a situation where the judge would refuse to hear the case and take some legal action against the parent. The Judge called the ombudsman and told him about the matter. They started discussing the highly complex and time pressed matter over telephone. It was a difficult situation for the ombudsman in view of the fact that the “work of days or weeks had to be done in one phone call. Trust in the TCCY ombudsman’s neutrality had to be achieved immediately, with the help of the juvenile court judge.” From the ombudsman the “phone (not a speaker phone) was transferred ... | to) the probation officer to the parent to the judge many times during an hour and a half.” Each party wanted to place the child at home, but each had “concerns about the ability of the parent to articulate what could be done to preserve the home placement.”
At the beginning the parent was antagonistic and hostile. Through the mediation the ombudsman convinced the parent of his neutral role, and explanation to her that each party was interested in the welfare of the child and in placing him in the parental home. The ombudsman reported to the judge the specifics of the mediation agreement with the parent and convinced him that the parent understood the implications and ramifications of the case, as well as her responsibility and required level of appropriate conduct in the matter. The parent apologised for her initial hostility, indicating that she was not adequately familiar with the nature of the court hearing and proceedings. The child was allowed to return to the parent home “for a trial stay with the understanding that it would become permanent if all went well.”
Later, the parent reported back to the ombudsman and the DCS worker also followed up the case. It was a successful resolution of the matter. In the second case study, the ombudsman’s effort can be summed up as follows: (i) “fostering an understanding that everyone can work together for the same goal”; (ii) “allowing each to share his or own opinions and suggestions freely”, and (iii) “encouraging a process that promotes trust and apprehension”.59 CONCLUSION In sum, this article has briefly looked at the origin, development, significance, and modus operandi of the human rights ombudsman institution. Although, relatively speaking, it has a short history, it has emerged as an influential, effective and useful institution that usually plays a significant role in protecting and promoting various types of human rights in both developing and developed worlds. There is a general perception that this institution is needed especially in the developing world. To a certain extent it may be true. But, as we have noted above, in the developed world also there is a need for such an institution that can further contribute to the democratic process, and social justice. Especially the underprivileged or underdogs may find help, support and protection in this institution. Recent trend clearly indicates that with the passage of the time, with increasing political consciousness, and with democratisation and restoration of democracy in various parts of the world, this institution will be welcome and will gain further momentum and strength.
(Courtesy : NAJMUL ABEDIN)
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