'In most countries, PMs come under the purview of ombudsman'

'In most countries, PMs come under the purview of ombudsman'

'In most countries, PMs come under the purview of ombudsman'

With the government’s talks with Anna Hazare-led civil society representatives failing to reach consensus over the powers of the proposed Lokpal, Kostelka tells Anirban Bhaumik of Deccan Herald that while the prime minister should come under the purview of ombudsman, judiciary should be kept out.

Kostelka, who now heads Austrian Ombudsman Board, says it is also necessary to keep under control immanent tendencies of supervisory institutions like that of ombudsman to expand their powers.

How are these institutions working around the world?

Ombudsman working in different parts of the world have been established on the Danish model. They are typically laid down in law and appointed by Parliament to control the public administration.

First and foremost, an ombudsman is supposed to stop unfair treatment of citizens by the authorities. However, around the globe, we encounter considerable variations in terms of the legal basis, the mandate and the general constitution of the institutions. In Asia, for instance, the main emphasis is on the fight against corruption, whereas, in Latin America, human rights tend to be the focal issue.

India has been debating on Lokpal for long. What should ideally be the role of an ombudsman in a large democracy like India?

There are ombudsman in about 135 countries. They have rarely ever come about before  discussion processes that lasted 10 years or longer, depending on different conditions and  characteristics of a particular country. For India, it is thus crucial to define the specific needs and requirements of ombudsman.

The process of discussion before its establishment is of vital importance for efficacy and popularity of the institution. I am convinced that the strong entrenchment of the Austrian Ombudsman Board in the population is a result of such a discussion process of over ten years.

How are they working in Austria, Sweden and other countries in Scandinavia, where the concept has its roots?

It is true that the roots can be found in Scandinavia. Almost 125 years after the innovation in Sweden, Finland followed with the introduction of its own ombudsman. The Austrian  mandate of examination is broad. It examines the entire public administration, all authorities, administrative offices, and departments.

Whenever citizens have the impression that they are not being treated correctly by an administrative authority, they can turn to ombudsman. The offices of ombudsman examine the case, make enquiries on their own, and inform the persons concerned of the result of their efforts. They can also act on their own if they suspect irregularities. They can challenge ordinances and issue recommendations. However, the Board is not competent to look into the functioning of judiciary or the problems resulting between individuals or between individuals and enterprises.
Do the ombudsman in Austria have investigative powers or capabilities?

The Board has been independently monitoring and controlling Austria’s entire public administration since 1977 by order of the federal Constitution. It has full investigative powers and does not depend on any other agencies. Conducive to its work and a major aspect of its powers is the fact that principles such as administrative or official secrecy and state secrets do not apply when the Ombudsman Board investigates and can therefore not be used in defence. Since the Board is not an institution for criminal prosecution, its mandate does not include police powers like phone tapping.

What are the checks and balances required to address concerns over concentration of powers in ombudsman?

The most important precondition for a strong ombudsman can be found in the parliamentary process and a healthy public debate. Normally, the administration can hardly ignore a parliamentary campaign, especially when it is well supported by the media.

As for the checks and balances, in many a state, there are limits to the investigative powers – sometimes, for instance, related to issues of military security, often with regard to the judiciary. It is definitely necessary to stay conscious of the immanent tendency of supervisory institutions to expand their powers and prevent this from getting out of hand.

A key issue of debate in India is whether to include the prime minister’s office and the judiciary under the ambit of ombudsman. What’s your view?

In most cases, the prime minister is not exempted from the mandate of ombudsman – not even with respect to financial issues. It is important to bear in mind that the administration begins at the top level and goes all the way down to its lowest levels. The judiciary is not subject to the control of ombudsman, neither in Austria, nor elsewhere. Sweden represents a notable exception in this regard. However, the administration of justice is normally included.

The private sector is not part of the mandate as a general rule. It is difficult though, to draw the line, where private companies are responsible for fulfilling tasks of public interests. We can observe different ways to deal with it and it seems to crystallise that ombudsman has jurisdiction wherever public money is spent.

Do you think ombudsman can alone be a cure-all against corruption?

No, I am afraid there is no cure-all solution to corruption.

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