From: Artenis Peka
The Role of the Ombudsman in Our Democracy National Ombudsman Erinda Ballanca.

The attention of the public opinion in Albania has once again turned to the Ombudsman. In the course of recent political upheavals in Albania the People’s Advocate became part of a political agreement between the Opposition and Government in the McAllister+ deal. To many eminent jurists this was disturbing news, as the deal made a public figure who is designed to stay above party lines and protect the interests and integrity of the people vulnerable and defenseless. The moment that an important office as that of the People’s Advocate becomes part of a greater political scheme between two opposing political parties, it should become a genuine concern; this directly effects and infringes the effectiveness, the functions and the responsibilities of the People’s Advocate. In the light of these new developments I will explain briefly the role and importance of the Ombudsman in a society as fragmented and politically divided as ours. Information is power, the more we have information regarding the responsibilities and duties of the Office of the People’s Advocate the more we will all be able to use this office in the beneficence of a people who is tramped by governmental abuse every day.

The introduction of the Ombudsman legal profession is an important constitutional development and an added value of our young Albanian democracy. The Ombudsman is seen primary and principally as a citizen’s defender, whether against state and its institutions or other powerful groups. He is seen as a mechanism and alternative for settling grievances in a dispute resolution scenario.(1) An ombudsman’s office’s secondary role is to ensure the protection of legal standards, awareness, or advice on good practice. The legal services provided by a People’s Advocate is better seen as part of a regulatory framework of legal profession rather than a mechanism for settling grievances.

In our heavily amended Constitution the office of the People’s Advocate has an important significance which sometimes is not adequately acknowledged. The key thing to know is that when people are having problems with the government departments or with the local authorities, and if they feel that they have been treated unfairly or discriminated in any grounds, then they have the right to turn to Ombudsman for help. The office investigates complaints against public bodies and helps to raise public service standards. Individuals, businesses or organizations that feel they have been unfairly treated by a public body within its jurisdiction, can turn to the Ombudsman’s office and make their voice heard.

The Ombudsman is independent from the government, it’s impartial, and its services free for everyone. What makes the ombudsman’s office an important contributor to our democratic standard of governing is not the emphasis on regulation and the law, but rather the fact that ombudsman deals with a different level, the level of fairness. Fundamentally the People’s Advocate is around to ensure that the ordinary law-abiding citizen is treated with dignity and respect by the governmental authority and to ensure that no breaches or felonies are committed against them.

To investigate a complaint the ombudsman has the power to demand any information, document or file from a governmental public body and require any official to give its information. Who can you complain to the ombudsman about? The ombudsman service covers bodies such as the government departments and the local authority. The service of the ombudsman is free of any charge, this is one of the key points which essentially differentiates the Office of the People’s Advocate form the rest of the Legal system. The Ombudsman’s services are within easy reach, informal and completely free.

It is important to know on what grounds an appellant can go and complain to the ombudsman office. He can complain for a public body in a number of grounds(2):

  1. If a responsible governmental body delays providing service
  2. If it refuses to award a benefit or a service
  3. If it fails to provide a promised service
  4. If fails to follow approved procedures
  5. If the institution causes communication difficulties
  6. If an institution makes unfair decisions
  7. If an institution gives misleading advice
  8. Or an institution fails to correct mistakes

At the heart of democratic theory rests a cardinal premise: the dignity and the individual rights of man. In addition, constitutionalism demands and requires that the actions of the government be in accordance solely with the rule of law. However, such motions would simply be meaningless without a method of redress to the people. The Ombudsman despite the current availability of judicial checks, legislative review and executive controls, remains a powerful Constitutional device in safeguarding the rights of an individual by a less formal process.

Under the Ombudsman Law the office can examine all issues involving maladministration which includes any action which(3):

  1. Is taken without proper authority
  2. Is taken on irrelevant grounds
  3. Results from negligence or carelessness
  4. Is based in incorrect or incomplete information
  5. Discriminates improperly
  6. It’s based on administrative practice that is not acceptable
  7. Goes against fair or sound administration

The Ombudsman is elected by parliament and selected among the candidates who meet the constitutional and legal requirements. The People’s Advocate is elected by three-fifths of all members not later than 30 days from the mandate termination or the date of dismissal. He can remain in office for a 5-year period, with the right of re-election.(4) The work of the ombudsman can sometimes be dangerous, especially considering the difficult waters an Albanian ombudsman has to go through. In order to ensure the protection and integrity of his office, the People’s Advocate enjoys legal immunity from the High Court.

It is crucial to Constitutional government that an individual who feels wronged by the very agencies set up to help him, should be able to appeal quickly and efficiently without cost to a political independent and impartial service. Thou the Ombudsman practically provides a governmental official “to whom the average humble citizen may go to state a grievance against the abuse or misuse of governmental administrative power.”(5) Above anything, the goal of People’s Advocate is not to displace the existing remedial legal machinery of the courts. Rather, the concept of the Ombudsman reinforces existing legal, political, and administrative processes of control.

Sweden was the first country to adopt an Ombudsman idea, an idea that aimed at creating a representative or agent of the Parliament so that it can protect citizens from governmental abuse. The Swedish ombudsman was “available to hear the complaint of any citizen against erroneous, unfair or even impolite action by government officials, having the power to investigate a complaint, to publicize any abuse, to recommend corrective action and to report to the legislature.”(6) The whole world would latter develop on the notion of the ombudsman taken from the Swedish model.

The Swedish system had several characteristics regarding the Ombudsman which were later borrowed by the Albanian model. He had supervision on the observance of law including both the court as well as bureaucracy. It also had the power of supervision to national, regional as well as local levels of governance. However as in the Albanian model he had only advisory opinion and in no way, was allowed to take any action against the king, his parliament (Riksdag) or any other private citizen.

When looking to the office of the Ombudsman one needs to remember the supreme sacrifice and dedication of hundreds of years of law clerkship as well as political thought that developed and introduced new means of approach towards protecting the people from, as John Locke famously said “The Leviathan” the frightening unlimited power of the state over his subjects. The office of the Ombudsman remains a firm guardian and protector of the highest liberties and rights enshrined in the testament of time.

Notes

1. Seneviratne, Ombudsmen in the Public Sector (Buckingham: Open University Press, 1

2. Law No.8454, dated 04.02.1999, supplemented by the law no. 8600, dated 10.04.2000, amended by the law no. 9398, dated 12.05.2005, added to and as amended by the law 155/2014, dated 27.11.2014, “ON THE PEOPLE’S ADVOCATE”.

3. Law No.8454, dated 04.02.1999, supplemented by the law no. 8600, dated 10.04.2000, amended by the law no. 9398, dated 12.05.2005, added to and as amended by the law 155/2014, dated 27.11.2014, “ON THE PEOPLE’S ADVOCATE”.

4. Law No.8454, dated 04.02.1999, supplemented by the law no. 8600, dated 10.04.2000, amended by the law no. 9398, dated 12.05.2005, added to and as amended by the law 155/2014, dated 27.11.2014, “ON THE PEOPLE’S ADVOCATE”.

5. Joseph L. Marino, “A Detailed Study of the Need for the Office of Public Protector,” Report to the Special Advisory Committee of the Board of Supervisors, Nassau County, N.Y., November 1966 (unpublished report

6. U.S. Congress, Joint Committee on the Organization of Congress, Hearings on the Organization of Congress, 89th Cong., 1st Sess., Part 1, 1966, p. 83, cited as the Joint Committee.