The citizens of the developed, the developing and the underdeveloped countries in so many occasion see the need to lend their voice for and/or against existing or proposed government policy. This is usually aimed at stimulating effective governance from the representative of the masses in the government.
The expression of the popular view by the masses against some of this existing or proposed government policy is by demonstration. It is more convenient at this stage to use the word protest because notwithstanding the purported positive intendment behind the said protest in most cases same degenerates into violent and bloodletting demonstration.
The seeming harmless resort by the masses in driving home their displeasure against the government and its policy is the industrial action also known as strike action. The resort to strike may seem better but not without its damaging effect on the economy of the country and the world at large as shown by various statistics and news report.
In efforts to forestall the obvious health and economic hazard inherent in the resort to protest any form of strike or industrial action is the creation of Ombudsman.
The creation of Ombudsman (though not so recent) has gone a long way to mitigate the health and economic hazard highlighted above.
Ombudsman as being the topic of this study shall be discussed in the following light:
- Meaning of Ombudsman
- Nature of Ombudsman
- The roles and relevance of Ombudsman in Administration and Democracy
- The Jurisdiction of Ombudsman
- The Banking Ombudsman Scheme in India.
Meaning of Ombudsman
Having briefly stated a perceived basis for the advent of Ombudsman, it is important to render a working definition or explanation of the topic, ombudsman. The creation of ombudsman is obviously due to the growing gap between the government and its agency and the masses which has resulted in a lot of unpleasant but avoidable conflicts between the government and the masses.
An Ombudsman is formally defined as an appointee of the government, mandated to inquire and make findings based on complaints against ineffective administration, with emphasis on public office holder.
Where there are lapses in the functioning of any part of the public sector, the masses have the inherent powers to lodge complaints against the erring authority.
Nature of Ombudsman
Ombudsman has its roots from Sweden and it is an institution created to defend individuals from the injustice and maladministration from any Arm or Tier of government.
Ombudsman operates independently of the organs of the State. Upon creation of the organs of State, it is divested of the powers to determine how it works and it is open to serve all the citizens. It has the mandate to conduct an investigation into the complaints of the masses, and enter a verdict based on its findings.
The Roles and Relevance of Ombudsman in Administration and Democracy
- An important function of Ombudsman is to protect and preserve the rights and other constitutional safeguards of the citizens, which is the foremost reason for the creation of Ombudsman.
- Owing to the prevalent Autocracies in the 19th and the 20th centuries in many European states and even the bureaucracies actively participated in the abuse and gross violation of the rights of the masses or the citizens; the deplorable state of affairs characterized by crimes and total disregard of rights bugged the mind to seek a possible solution to the rising menace. This consequence culminated into ombudsman.
- In the Scandinavian countries comprising of Iceland, Finland, Norway, etc., the ombudsman is vested with further powers and duty which is the supervision of the entire Civil Administration. Flowing from the above, the duty of the ombudsman is akin to public administration.
- Public administration, just as Ombudsman, focuses on the protection of freedom, execution of policies. Another falls within the jurisdiction of public administration and whether these are properly performed or not that requires to be examined. Ombudsman does this job.
- A common experience is that people’s rights and freedom are not properly protected and public administration does not always take care of it.
In this regard, the Ombudsman has a lot of duties to perform. In many states, the problems of common men are neglected and the general administration does not always rise to the occasion.
In class society, the public administration is controlled by the economically powerful class and the grievances of common men generally go unheeded. In such cases, Ombudsman performs yeoman service.
- In many states, the Ombudsman performs general surveillance of the functioning of the government. This is an important function. Particularly in the Scandinavian States, the Ombudsman or person of this type performs this function. In these countries, the Ombudsman has been found to undertake tours for inspection.
- In some countries, the Ombudsman enjoys enormous power. For examples, in Sweden and the Scandinavian countries generally, the Ombudsman has been empowered to investigate cases bothering on corruption which may take any form or manner against all public office holder including judicial officers in the Apex court of the country.
Without prejudice to the enormous powers of the ombudsman in Sweden, such powers do not operate to make the judiciary as an arm of government subsumed under the ombudsman, the independence of the judiciary is still unfettered by the powers of the ombudsman.
The judges are prosecuted or fined for corruption, negligence of duties, or delay in delivering judgment.
- In the U.K., the Parliamentary Commissioner (British type of Ombudsman) also acts as a Health Commissioner. The British parliament had enacted laws geared towards enhancing the jurisdiction of Ombudsman to be the same with a local government. The local councilors can lodge complaints against the local body and can seek redress of grievances.
- An important function of Ombudsman is the exercise of discretionary powers. The discretionary powers are really vast and how to use these powers depend upon the person concerned. The exercise of the discretionary powers extends to the investigation of corruption, negligence, inefficiency, misbehavior or misconduct.
As earlier stated an Ombudsman is an independent Officer of the Parliament. It is a universal truth and a very difficult or near impossible task for an ombudsman to satisfy all expectations of all the general public who are having different forms of disputes with government administration.
The Ombudsman in furtherance of the objective of its establishment which succinctly is the receipt and settlement of disputation emanating from maladministration between persons and an arm of the government.
First, ombudsman receives complaints from the general public. Investigates into the complaint so received is for the purpose of resolving the cause of the complaint.
In exercise of the mandate vested on the ombudsman, it may perform quasi-judicial functions which includes gaining access into a building for the purpose of conducting search or any other applicable form of inquiry. Also, it issues and serves summons on person who may be further led in evidence to testify under oath on the state of fact or on the facts upon which they are conducting investigation.
On the conclusion of the hearing on the complaint received by the ombudsman, recommendations are made to the relevant regulatory agency which they are expected to reasonably enforce subject to some slight modification if need be.
However, the powers of the ombudsman which seems so broad cannot be exercised in the following cases:
- The ombudsman lacks the jurisdiction to receive complaints and investigate into ministerial decisions.
- The ombudsman is divested of the competence to receive complaints and investigate the decisions of persons operating judicially particularly actions of a Magistrate or Justice/judge.
- The ombudsman cannot inquire into the powers and functions of the Attorney General which in some cases exercised by the Director of Public Prosecution.
- The enormous powers of the ombudsman do not extend to counsel and legal opinion rendered by a legal advisor(s) to the government.
- The powers of the ombudsman are also ousted from employment-related disputes where the person making the complaint is an employee in the service of a government department or statutory authority.
- The actions of private individuals or businesses (especially insurance or telephone companies).
- Also, the ombudsman shall in most cases not exercise jurisdiction over matters which:
- The complainant has knowledge about the problem for more than 12 months prior to the complaint,
- other rights of review available to the complainant are not exhausted,
- there is no attempt at the amicable resolution of the dispute between the complainant and the agency concerned.
The Banking Ombudsman Scheme in India
This form of the ombudsman is in force in India Since 2006 with a sector-specific mandate which is to hasten the speedy resolution of disputes between banks and their customers. The specific form of banker-customer dispute resolved by the ombudsman includes but not limited to the following:
- Unnecessary delay in the payment or collection of cheques as well as other instruments.
- Failure to accept without sufficient reason, small denomination notes.
- Charging of excessive bank charges on the transaction with the bank.
- Failure and continued refusal to accept coins without sufficient cause.
- Failure to furnish a good explanation with regards to the excessive bank charge.
- Delay in payment of inward remittances.
- Failure to comply with the prescribed working hours.
- Failure to honor a letter of credit commitments.
- Failure to provide or delay in providing a banking facility (other than loans and advances) contracted in writing by a bank, its authorized agents and privies.
- Refusal to open deposit accounts without any justification for the refusal.
- Levying of charges without prior notice to the customer.
- Closure of a customer’s account without customer concern.
- Refusal to close or delay in closing the accounts without any justification.
- Failure to adherence to the fair practices code as adopted by the bank.
- Where a customer incurs a financial loss incurred owing to wrong information supplied by the bank official.
Great time and resources had been put in place in this study to expose the meaning, nature, mode, and operation of Ombudsman in general. While this study appears to center on the numerous benefits of the activities of the ombudsman, the same is not without its shortcomings.
The most prominent perceived shortcoming of the ombudsman is its radical assumption of (almost) all the powers and functions of the three (3) Arms of Government. This, at the moment, may seem to bring the much desired radical change expected in the society.
It is pertinent to observe that instead of further creating and empowering ombudsman, it will be more appropriate if the time and resources expended to arrogate the Ombudsman can of truth be used in making a substantial positive impact in the sectors where the government policies easily agitate the masses.