The Diversified or Strict Role of an Ombudsman:
A
Comparison in the Roles of the Ombudsman in Vanuatu and Fiji
by Renee Lal
Student
University of the
South Pacific
ABSTRACT
The Ombudsman of Vanuatu has been described as a
"Superwoman" with too much power. She is under constant attack by Ministers and
politicians, for having too much power. This paper examines the role of the
Ombudsman in Vanuatu, and compares it to the role of the Ombudsman in Fiji, as
Fiji has adopted the classical style of an Ombudsman.
The classical role
of an Ombudsman is to investigate grievances against government administration.
However the Ombudsman in Vanuatu has a wider role. In addition to the
responsibilities of maladministration and breaches of human rights provisions by
public officials, the Ombudsman is also responsible for: multilingualism; and
administering the Leadership Code.
This paper illustrates how the law
regulating the Ombudsman in both countries is essentially the same. The
Ombudsman in Vanuatu simply has a wider role and a greater means of having her
recommendations followed. But in essence both Ombudsmen only have powers of
recommendation.
If the law regulating the Ombudsman in Vanuatu is largely
similar to the law regulating the classical Ombudsman, as in Fiji, then why the
constant attacks on the Ombudsman in Vanuatu, to the effect that she has too
much power? This paper seeks to answer this question.
1.
INTRODUCTION
This paper is the result of research into the role of
the Ombudsman in Fiji and Vanuatu. Minor adjustments have been made to the
original research proposal. Discussion in the third section of the paper, on
areas of interest, relating to the scope of public officials subject to enquires
by the Ombudsman has been excluded. This approach has been taken for two
reasons, firstly due to the word limit imposed on this research and secondly my
inquiry did not produce much of interest.
Adjustment has also been made
to the fifth section of the paper. The discussion on the advantages and
disadvantages of the roles of the Ombudsman in Fiji and Vanuatu has also been
excluded. It has been replaced this with a conclusionary section, which draws
together the research and gives the necessary latitude to express my own
sentiments on the role of the Ombudsman. This brings the paper to a more
appropriate end.
This paper is in five sections. The first section
discusses the classical role of the Ombudsman, as in Fiji. This role is
found in s 135 and s 138 of the Constitution of the Sovereign Democratic
Republic of Fiji 1990. (Hereafter referred to as the Constitution of
Fiji) From these sections of the Constitution it becomes apparent that the
role of the Ombudsman in Fiji is restricted to the investigation of
maladministration public officials, although there is scope for investigations
as to breaches of Chapter II of the Constitution that deals with the Bill of
Rights. The second section of this paper discusses the role of the Ombudsman
in Vanuatu. This role is found in s 62(1) of the Constitution of the Republic
of Vanuatu. (Hereafter referred to as the Constitution of Vanuatu)
Additional functions of the Ombudsman can be found in s 14 of the Ombudsman
Act No. 14 of 1985. (Hereafter referred to as the Ombudsman Act
Vanuatu.) From these provisions it becomes apparent that the role of the
Ombudsman in Vanuatu is fourfold, as follows:
(i) To investigate the maladministration of certain public officials;
(ii) To enquire into the defects in any law or administrative practice from any matter being enquired into;
(iii) To enquire into any case of alleged or suspected discriminatory practices;
(iv) To enquire into any case of alleged or suspected breach of the Leadership Code of the Constitution by a leader.
The
third section of this paper will compare the roles of the Ombudsman in Fiji and
Vanuatu. From the comparison becomes clear that the role of the Ombudsman in
Vanuatu is wider as compared to the role of the Ombudsman in Fiji. However the
comparison reveals that the powers of the Ombudsman in Fiji and Vanuatu are
essentially the same, being recommendatory in nature. Although the Ombudsman in
Vanuatu can exercise this power in more ways then the Ombudsman in Fiji. The
fourth section looks at two areas of interest in the role of the Ombudsman in
Fiji and Vanuatu respectively; firstly the issue of enforcement by the
Ombudsman, with particular emphasis on enforcement by the courts. This provision
of enforcement by the courts does not exist in Fiji but is found in s 30 of the
Ombudsman Act Vanuatu. From this provision it appears that the Ombudsman in
Vanuatu can have the role of both the judge and the jury. It has the role of
initially investigating the complaint then recommending the remedy. If this is
not complied with the Act permits the Ombudsman to apply to the Court to enforce
the Order. This provision will be examined to see whether it gives the Ombudsman
too much power in Vanuatu.
Secondly the issue of own motion
investigations as provided by both the Constitutions. The Ombudsman’s
Reports of Vanuatu reveal that, the Ombudsman exercises this power alot more
often then the Ombudsman in Fiji. The Ombudsman appears to exercise this power
as a matter of practice and not law. Consequently this has affected the types of
cases that are investigated. They are usually more politically contentious in
comparison to the cases investigated by the Ombudsman in Fiji. The fifth part of
this paper is conclusionary in nature. It draws the discussions together to show
that the law regulating the role of the Ombudsman in both countries is largely
similar. It then discusses the concern that the Ombudsman in Vanuatu has too
much power.
I have stated at the law at 6 June 1997, and at this date the
Ombudsman of Fiji is Sailosi Kepa. The Ombudsman of Vanuatu is Marie Noelle
Ferrieux Patterson.
2. THE ROLE OF THE OMBUDSMAN IN
FIJI
2.1 Source of law
Matters relating to the
Ombudsman in Fiji are found in the Constitution of the Sovereign Democratic
Republic 1990, the Ombudsman Act (Cap 3) (hereafter referred to as
the Ombudsman Act Fiji), and the Ombudsman Decree 1987, (hereafter
referred to as the Ombudsman Decree Fiji.)
Chapter X of the
Constitution of Fiji deals wholly with the Ombudsman. It establishes the office
of the Ombudsman and provides for his or her functions and powers. The Ombudsman
Act Fiji contains procedural provisions with regard to the Ombudsman. The
Ombudsman Decree Fiji was promulgated in 1987 after the abrogation of the 1970
Constitution to re-establish the office of the Ombudsman. This Decree appears to
now be unnecessary as the 1990 Constitution made the necessary constitutional
provisions for the Ombudsman.
2.2 Office of
Ombudsman
Section 134(1) of the Constitution of Fiji
establishes the office of the Ombudsman, as a public office. The Ombudsman is
appointed by the President on the advice of the Prime Minister the Leader of the
Opposition and any other leaders of parties in the House of Representatives for
a term of four years. The Ombudsman cannot hold any other public office, be a
member of the House of Representatives or the Senate or a member of any local
authority. Neither can he or she without the approval of the Prime Minister hold
any other office of emolument or engage in any other occupation for
reward.
2.3 Function of the Ombudsman
The Constitution of
Fiji does not set out the functions of the Ombudsman in clear terms. However
these terms can be deduced from careful reading of sections 135 and 138 of the
Constitution.
2.3.1 Section 135(1) sets out the basic function of
the Ombudsman. It states:
[T]he Ombudsman may investigate any action taken by any officer or authority to which this section applies in the exercise of administrative functions of that officer or authority.
The key phrases here are "any
action" taken by "any officer or authority" covered by this section, in the
exercise of the "administrative functions" of that officer or authority. The
phrase "any action" does not require much explanation but it does include any
failure to act.The phrase "any officer or authority" is defined in s
135(2)(a)-(h) of the Constitution of Fiji. It is worth noting that paragraph (h)
of this subsection allows Parliament to prescribe by another Act other "officers
or authorities" which are not covered by this section. Thus the actions of the
Ombudsman are limited to these officers and authorities only. Note however that
section 135(2)(i)-(x) further lists the officers and authorities that the
actions of the Ombudsman are exempt from. "Administrative functions" is a
flexible term that covers any administrative action taken in the exercise of
executive power. The term has also become defined by the practise of the
Ombudsman, both in Fiji and all over the world.
2.3.2 It appears
that under s 135(6)(b)(ii) of the Constitution of Fiji that the Ombudsman
has the additional responsibility of investigating breaches of any fundamental
rights protected by Chapter II of the Constitution of Fiji, in relation
to administrative action.
2.3.3 According to the Reeves
Report, s 138(2) of the Constitution of Fiji, in setting out the
conclusions which the Ombudsman may reach to justify stating an opinion and
making recommendations, indicates that "action" means "any act, omission,
decision" or "recommendation". These are then the main forms of administrative
action and this indicates the types of actions that an Ombudsman may
investigate. This thus can be included in determining the function of the
Ombudsman in Fiji.
2.4 Persons who may lodge complaints and the
beginnings of investigations
Under s 135(3) of the Fiji
Constitution any individual or body of persons whether incorporated or not
may make a complaint to the Ombudsman if he has suffered injustice as a
consequence of an administrative action. This is the first way ie under a
complaint that an investigation by an Ombudsman can begin. Under s 135(1)(b) the
Ombudsman can also begin an investigation if is invited to do so by any Minister
or member of the House of Representatives or the Senate. Further still under s
135(1)(c) the Ombudsman can begin an investigation under his own
initiative.
2.4.1 Investigations
Section 136 of the Fiji
Constitution provides the procedure for investigations. Briefly, under ss 1
the Ombudsman is to put the allegations to the principal officer of the
department or authority concerned, as well as to any person who is alleged to
have taken or authorised the action in question. These parties are to be given
the opportunity to comment on the allegations in line with the principles of
natural justice. Subsection two provides the way that all the investigations
should be conducted. Investigations should be in private, in accordance with the
procedures of the Constitution, any Act passed by Parliament, and in accordance
to a manner that the Ombudsman finds appropriate (This is however subject to the
Constitution and any Act).
Under s 137(1) of the Fiji Constitution
the Ombudsman can request a Minister, officer or any member of any department or
authority concerned or any other person to furnish him with information or
produce documents relevant to the investigations. Section 137(2) of the Fiji
Constitution expressly gives the Ombudsman the same powers of the High Court in
relation to attendance and examination of witnesses.
2.4.2 Proceedings
after investigations
Section 138 (1) of the Fiji Constitution
states that after the investigation is complete and the Ombudsman is of the
opinion that the action that was either: contrary to law; based wholly or partly
on a mistake of fact or law; unreasonably delayed; otherwise unjust or
manifestly unreasonable, then he is empowered to report his opinion and make
recommendations to the principal officer of the relevant department or authority
as to the course of remedial action that should be taken. Section 138(2) of
the Fiji Constitution specifically empowers the Ombudsman to give the
principal officer an opinion as to the remedy that the officer should take. The
Ombudsman can ask the principal officer to notify him within a specified period
of the remedial steps that are proposed. Under s 138(2) of the Fiji
Constitution the Ombudsman then has to send a copy of his report and
recommendations to the Prime Minister and the Minister concerned.
2.5
Ombudsman’s reports
2.5.1 Annual reports
Under
s 139 (3) of the Fiji Constitution the Ombudsman has to make an annual
report to the President concerning the discharge of his functions. This report
has to be laid before the House of Representatives and the
Senate.
2.5.2 Additional / periodic reports
The Ombudsman
can make periodic reports which might be needed. However these reports do not
have to be presented to the President or to the Parliament unless within a
reasonable time after the report is made no action is taken which seems to be
adequate and appropriate.
2.6 Ombudsman’s discretion and
immunity from review
Section 139(2) of the Constitution of
Fiji gives the Ombudsman the absolute discretion to determine whether to
initiate, continue or discontinue any investigation. It gives the Ombudsman the
power to determine whether a complaint has been duly made in accordance with the
constitutional requirements. The Ombudsman also has the limited discretion under
s 135(6) and (8) to decline to investigate a complaint. It is however
interesting to note s 135(9) which states that the Ombudsman is not to conduct
an investigation if he is given notice by the Prime Minister that the
investigation of that matter would not be in the interest of Fiji. Does this
mean that the investigative powers of the Ombudsman are subject to the approval
of the Prime Minister? The Ombudsman under s 139(1) of the Fiji
Constitution has immunity of review from a court of law. Thus the actions of
the Ombudsman are not subject to any legal review, including judicial
review.
This brings the first section of the paper to an
end.
3. THE ROLE OF THE OMBUDSMAN IN VANUATU
3.1 Source
of law
Matters relating to the Ombudsman in Vanuatu are found in the
Constitution of the Republic of Vanuatu and the Ombudsman Act No. 14
of 1995.
Chapter 9 Part II of the Constitution of Vanuatu deals
wholly with the Ombudsman. It establishes the office of the Ombudsman and
provides for his or her functions and powers. The Ombudsman Act of
Vanuatu provides the powers, procedures and immunities of the Ombudsman in
addition to those provided for by the Constitution. It also adds a dimension to
the Constitution by appointing the Ombudsman as the person responsible for the
enforcement of the Leadership Code that is established in Article 66 of the
Constitution.
3.2 Office of Ombudsman
Article 61(1) of the
Constitution of Vanuatu establishes the office of the Ombudsman, as a public
office. The Ombudsman is appointed by the President after consulting with the
Prime Minister, the Speaker of the Parliament, the leaders of political parties
represented in Parliament, the chairman of the National Council of Chiefs, the
chairman of the Local Government Councils and the chairman of the Public Service
Commission and the Judicial Service Commission.The Ombudsman cannot hold any
other public office, be a member of Parliament or a member of any local
Government Council.He cannot be a member of the National Council of Chiefs or in
a position of authority in a political party. He cannot engage in politics, a
business trade or profession.
Section 5(3) of the Ombudsman Act of
Vanuatu provides an interesting qualification for the appointment of the
Ombudsman. It states:
The Ombudsman must be a person of high integrity with a university degree or similar educational level and suitable experience in the public or private sector, politically independent, capable of discharging his constitutional duties without fear or favour, independent of mind and of high standards in the eyes of the community.
This requirement is extremely
difficult to determine. Who is of high integrity or politically independent,
capable of discharging his constitutional duties without fear or favour. It is
equally difficult to determine who has an independent mind and of high standards
in the eyes of the community. These are all subjective tests and very to
difficult to determine. What one views as being of high integrity, independence
of mind and of high standards will vary from the next person. The issue being
whose standard of integrity etc. This makes this qualification requirement open
to much interpretation, which in turn will cause many problems. To save such a
situation it is best to have qualification requirements such as a university
degree or similar educational level and suitable experience in the private or
public sector.
3.3 Function of the Ombudsman
The
Constitution of Vanuatu and the Ombudsman Act of Vanuatu set out
the functions of the Ombudsman in fairly clear terms. Articles 62, 64 and 66 of
the Constitution of Vanuatu and s. 14 of the Ombudsman Act Vanuatu state
the functions of the Ombudsman.
3.3.1 Article 62 of the
Constitution of Vanuatu sets out the basic function of the Ombudsman. It
states:
[T]he Ombudsman may enquire into the conduct of any person or body to which this article applies.
However Article 62 is not clear as
to the type of conduct that the Ombudsman may enquire into. Section 14(1)(b) of
the Ombudsman Act Vanuatu states that the Ombudsman may enquire into any defects
of any law or administrative practice appearing from any matter being enquired
into.
3.3.2 Article 64 of the Constitution of Vanuatu states an
additional function of the Ombudsman. It provides a citizen of Vanuatu the right
of being served in the official language that he chooses from the administration
of the Republic of Vanuatu. If this provision is breached the citizen may
complain to the Ombudsman who shall conduct an enquiry in accordance with
Articles 62 and 63 of the Constitution of Vanuatu.
3.3.3 According
to the Ombudsman of Vanuatu Article 66 of the Constitution of Vanuatu
extends the jurisdiction of the Ombudsman to the enforcement of the Leadership
Code. It allows the Ombudsman to enquire into the conduct of leaders and assess
if there has been misconduct or breach of duties and responsibilities under the
Leadership Code. There is however a view in Vanuatu that this function of the
Ombudsman is not expressly stated in the Constitution of Vanuatu. But stated in
s. 14(1)(d) of the Ombudsman Act Vanuatu, which states that the Ombudsman
may enquire into a case of alleged or suspected breach of Chapter 10 (Leadership
Code) of the Constitution by a leader. The later view brings to the forefront
the question, as to whether there is a conflict of the laws, between the
Constitution of Vanuatu and the Act. The argument being that the Constitution
is supreme, making the Ombudsman Act void. Thus not giving the
Ombudsman the jurisdiction to enforce the Leadership Code. However from the
Ombudsman’s position and that of the Government of Vanuatu it appears that
the accepted view is that the Ombudsman through the Constitution has the
function of enforcing the Leadership Code. This power can be found in Article 68
of the Constitution of Vanuatu which states that Parliament shall give effect to
the principles of this Chapter. (This chapter being Chapter 10 on the Leadership
Code) This means that the Ombudsman Act gives effect to the principles of
the Leadership Code. This Act has been provided by Parliament. Therefore the
power of the Ombudsman to enforce the Leadership Code comes from the
Constitution.
3.3.4 Section 14(1)(c) of the Ombudsman Act
states that the Ombudsman may enquire into any case of an alleged or suspected
discriminatory practice. This provision allows the Ombudsman to deal with human
rights violations by public officials.
3.4 Persons who may lodge
complaints and the beginnings of investigations
Under Article
62(1)(a) of the Vanuatu Constitution which states that any member of the
public who claims to have been the victim of an injustice as a result of a
particular conduct may complain to the Ombudsman. This is the first way ie under
a complaint that an investigation by an Ombudsman can begin. Under Article
62(1)(b) of the Vanuatu Constitution the Ombudsman can also begin an
investigation if requested to do so by any Minister or member of Parliament, or
member of the National Council of Chiefs or member of a Local Government
Council. Further still under Article 62(1)(c) the Ombudsman can begin an
investigation under his own initiative.
3.4.1
Investigations
Article 62(3)-(5) of the Vanuatu Constitution and s.
16(3)-(4) of Ombudsman Act provides the procedure for investigations.
Briefly, under s. 16(3) of the Ombudsman Act the Ombudsman is to inform
the person or body which is the subject of the enquiry of the intention to make
the enquiry. Section 16(4) provides that a hearing is not necessary and no
person has the right to be heard. However the Ombudsman must give the Head of a
service body or authority, complained of, the opportunity to comment on the
subject of the enquiry. The Ombudsman must give a person complained of the right
to reply to the complaints made against him. Under Article 62(5) of the
Constitution of Vanuatu enquires of the Ombudsman should be in private,
in accordance with the procedures of the Constitution, any Act passed by
Parliament, and in accordance to a manner that the Ombudsman finds appropriate
(This is however subject to the Constitution and any Act).
The Ombudsman
can request any Minister, public servant, administrator, authority concerned or
any person likely to assist him to furnish him with information and documents
needed for his enquiry. Although not expressly stated the Ombudsman in Vanuatu
appears to have powers of a court of first instance in relations to attendance
and examination of witnesses.
3.4.2 Proceedings after
investigations
Article 63(1) of the Constitution and s 22(2) of the
Act respectively state that after an enquiry if the Ombudsman concludes that
the complaint was unjustified, he has to inform the complainant and the Prime
Minister and the head of the public department or authority concerned. Under
Article 63(2) of the Constitution and s 22(1) the Act, if the Ombudsman
concludes that the conduct was contrary to the law, based on error of law or
fact, delayed for unjustified reasons, or unjust or blatantly unreasonable and
that consequently the decision should be revised, he has to forward his findings
to the Prime Minister and to the head of the public authority or department
concerned.
Under s. 23 of the Ombudsman Act if the Ombudsman was
conducting an enquiry under Chapter 10 (the Leadership Code) and the Ombudsman
is of the opinion that a leader has breached the Code imposed under Article 66
of the Constitution the Ombudsman has to forward the report (with
appropriate recommendations) to the Prime Minister and the President, if the
leader is an elected and identifiable member of the Government. If it is a case
of an elected leader identified to be a member of the Opposition, the report
(with appropriate recommendations) has to be forwarded to the President and the
Leader of the Opposition. If the leader is unelected, the report (with
appropriate recommendations) has to go the President, the Prime Minister and to
the appropriate appointing authority.
Under s. 25(1) of the Ombudsman
Act if after an enquiry the Ombudsman is of the opinion that the
commencement of criminal proceedings or other disciplinary action should be
taken, he should inform the appropriate authorities with the supporting
documents.
Section 25(2) of the Ombudsman Act provides that the
Prime Minister or the person incharge of the relevant public authority has to,
within a reasonable time as specified by the Ombudsman decide on the findings
and notify the Ombudsman of the steps that he proposes to take to give effect to
the Ombudsman’s recommendations.
Section 30 of the Ombudsman
Act gives the Ombudsman the power to apply to the Court for an order to give
effect to the recommendations of the Ombudsman. This can only occur if the
following three requirements are met. Firstly if the person responsible has
failed to respond to the Ombudsman’s report within a reasonable time, or
the response was in a manner that failed to resolve the problems identified by
the Ombudsman’s report, or that there has been a response to the
Ombudsman’s report but there has been a failure or refusal to carry out
the decision communicated in response after been given reasonable opportunity to
do so. Secondly the breach was of a fundamental right or of the Leadership Code.
Thirdly the application for the order has to be made within 24 months of the
date of the recommendation.
3.5 Ombudsman’s
reports
3.5.1 Annual general reports
Under Article
63(5) of the Constitution of Vanuatu and s. 26(1) of the Ombudsman
Act the Ombudsman has to present a general report to Parliament
annually.
3.5.2 Additional reports
Also under Article 63(5)
of the Constitution of Vanuatu and s. 27 of the Ombudsman Act
Vanuatu the Ombudsman can present additional reports to the President for
presentation to Parliament as he considers necessary to the discharging of his
functions and actions taken on his findings.
3.5.3 Report on
multilingualism
Under Article 64(3) of the Constitution of
Vanuatu the Ombudsman has to make a special annual report to Parliament
concerning multilingualism and the measures likely to ensure its respect.
Pursuant to Article 63(3) of the Constitution of Vanuatu and s. 24 of the
Ombudsman Act the reports of the Ombudsman are to be public unless they
concern matters of public security and public interest.
3.6
Ombudsman’s discretion and immunity from review
Article 65 of
the Constitution of Vanuatu states that the Ombudsman is not subject to
the direction or control of any other person or body in the exercise of his
function. Section 29(2) of the Ombudsman Act gives the Ombudsman
discretion as to the determination of his proceedings. The Ombudsman also has
the limited discretion under s. 16(1) of the Ombudsman Act to decline to
investigate a complaint. The Ombudsman under s. 33(1)-(2) of the Ombudsman
Act has immunity from any proceedings either criminal or civil from the
performance of his functions. Thus the actions of the Ombudsman are not subject
to any legal review.
4. COMPARISON OF THE ROLE OF THE OMBUDSMAN IN
FIJI AND VANUATU
4.1 Source of law
Matters relating to
the Ombudsman in Fiji and Vanuatu are primarily located in the Constitutions of
each respective country. The Constitution of each country establishes the office
of the Ombudsman and provides for his functions and powers. The Ombudsman Act of
each country contains the procedural provisions with regard to the Ombudsman.
However in Vanuatu the Ombudsman Act adds to the provisions of the Constitution.
It provides for the immunities of the Ombudsman. It also adds a dimension to the
Constitution by appointing the Ombudsman as the person responsible for the
enforcement of the Leadership Code that is established in s 66 of the
Constitution
4.2 Office of the Ombudsman
The Constitution
of both countries establish the office of the Ombudsman as a public office. The
Ombudsman is appointed by the President in both countries after the advice or
the consultation of a certain group of people is sought. In Fiji this consists
of the Prime Minister, Leader of the Opposition and any other persons who appear
to be leaders of parties in the House of Representatives. In comparison, Vanuatu
requires the consultation of an extensive group of people. In addition to those
in Fiji, the list includes the Speaker of the House, chairman of the National
Council of Chiefs, the chairman of the local Government Councils and the
chairman of the Public service Commission and the Judicial Services Commission.
With such an extensive group of people to consult it could take a long time to
appoint an Ombudsman. This could have had something to do with the vacancy of
the Office of the Ombudsman in Vanuatu continuing for fourteen years before the
present Ombudsman was appointed.
Both Fiji and Vanuatu have a list of
positions that the Ombudsman cannot hold. They are fairly similar, ie the
Ombudsman cannot hold any other public office, cannot be a member of Parliament
or local authority, or engage in a business or trade for reward or emolument. In
addition the Ombudsman in Vanuatu cannot be a member of the National Council of
Chiefs or in a position of authority in a political party. The Ombudsman cannot
engage in politics. Thus there doesn’t appear to be a substantial
difference in the positions that the Ombudsman cannot hold while in office,
however Vanuatu has an express prohibition for the Ombudsman to engage in
politics.
Vanuatu has the unusual qualificational requirements in s
5(3) of the Ombudsman Act stating amongst other things that the Ombudsman
must be of high integrity, politically independent, independent of mind and of
high stand in the eyes of the community. This requirement is difficult to meet
due to it’s subjectiveness.
4.3 Functions of the
Ombudsman
The function of the Ombudsman in Fiji is that of the
classical Ombudsman. He basically investigates the maladministration of certain
public officials and the breaches of the fundamental rights and provisions of
the Constitution. The function of the Ombudsman in Vanuatu is wider. The
Ombudsman’s function in Vanuatu is fourfold. He is responsible for:
maladministration by public officials; alleged or suspected discriminatory
practices; alleged or suspected breaches of the Leadership Code; and the
observance of multilingualism.
4.4 Persons who may lodge complaints
and the beginnings of investigations
An investigation by the
Ombudsman can begin by three ways in both countries. Firstly by complaint of a
person or member of the public. Fiji also allows a body of persons that has
suffered injustice to make a complaint. Both countries have requirements that
the complaints have to meet before the Ombudsman is able to begin an
investigation. These are similar except that each country has one or two
peculiar requirements of it’s own. In Fiji, the Ombudsman may not
investigate any action which the Prime Minister certifies in writing was taken
personally by a Minister in his or her own deliberate judgement. In Vanuatu
there must not be complaints more worthy of attention and secondly the Ombudsman
must have adequate resources for an enquiry. These two provisions are wide and
can be used by the Ombudsman to avoid an investigation. This brings to mind the
reasoning for such a provision as it can drastically reduces a persons rights to
relief under the Ombudsman’s powers.
The second way in which an
investigation can begin is if the Ombudsman in Fiji is invited to do so by any
Minister or member of the House of Representatives or Senate. In Vanuatu a
similar provision exists, except that the Minister, or Member of Parliament, or
the National Council of Chiefs, or of the Local Government Council have to
request that the Ombudsman conduct an investigation. The third way in which an
investigation can begin is by the of the Ombudsman in both
countries.
4.4.1 Investigations
The procedure for
investigations by the Ombudsman in Fiji and Vanuatu are similar. The Ombudsman
in both countries has to give a person or body the right of reply to an
allegation. The enquires in both countries are held in private. The Ombudsman in
both countries has the constitutional power to request information from persons
that can assist in the investigation. However one difference does appear, in
that the Ombudsman in Fiji has the powers of a High Court with regard to the
attendance and examination of witnesses. The Ombudsman in Vanuatu only has the
power of a court of first instance.
4.4.2 Proceedings after
investigations
After an investigation is complete the Ombudsman in
Fiji reports his opinion to the principal officer of the department. This could
include recommendations as he sees fit. The Ombudsman also has the power to ask
the principal officer to notify him within a specified time of the steps
proposed to be undertaken to give effect to the recommendations. A copy of the
Ombudsman’s report is also sent to the Prime Minister and the Minister
concerned.
In Vanuatu the proceedings after investigations seem to give
the Ombudsman a variety powers. If the Ombudsman feels that the decision taken
should be annulled or changed, the Ombudsman has to forward his findings to the
Prime Minister and to the head of the public authority or department directly
concerned. If there has been a breach of the Leadership Code then the Ombudsman
is required to make a report to the required person, usually the President and
either the Prime Minister or the Leader of the Opposition. If the Ombudsman is
of the opinion that the commencement of criminal proceedings or other
disciplinary action is justified, he is to refer the matter to the appropriate
authority.
In all the Ombudsman’s reports he can give the Prime
Minister or the authority concerned a specified period (that is reasonable)
within which to respond to the report. The response must contain the steps
proposed to give effect to the recommendations of the report.
The
Ombudsman of Vanuatu’s ultimate weapon is his power to apply for court
enforcement of his recommendations.
Thus from the comparison it is
apparent that the powers of the Ombudsman are varied in Vanuatu as compared to
the Ombudsman in Fiji. The Ombudsman in Vanuatu has many more avenues to have
his recommendations followed. The Ombudsman in Fiji has less methods to have his
recommendations followed. However both Ombudsmen only have the powers to
recommend.
4.5 Ombudsman’s reports
The
Ombudsman’s reports in Vanuatu are to be made public unless they concern
matters of public security and public interest.
4.5.1 Annual general
reports
The Ombudsman in Fiji and Vanuatu are required to make an
annual report to the President to be tabled in Parliament in the discharge of
his functions.
4.5.2 Additional reports
The Ombudsman in
Vanuatu can also make reports to the President for presentation to Parliament as
he considers necessary. This a very good power particularly for pressing and
important matters that need to be addressed. We have seen the Ombudsman in
Vanuatu exercise this power over and over again. This is particularly useful in
a country like Vanuatu where there is considerable political instability and
corruption amongst public officials.The Ombudsman in Fiji has this power to make
additional reports but not to the President, for presentation to Parliament
directly. He has to first give the report to the principal officer of the
authority concerned with a copy to the Prime Minister and the Minister
concerned. He can only make a report to Parliament if within reasonable time
after the report is made, no action is taken which seems to be adequate and
appropriate.
4.5.3 Report on multilingualism
The Ombudsman
in Vanuatu has to make a special annual report to Parliament concerning
multilingualism and the measures likely to ensure its respect. Fiji has no such
report as the Ombudsman is not charged with the function of
multilingualism.
4.6 Ombudsman’s discretion and immunity from
review
The Constitution of both the countries state that the
Ombudsman is not subject to the direction or control of any other person or body
in the exercise of his function. The Ombudsman in Fiji has the absolute
discretion to determine whether to initiate, continue or discontinue any
investigation. It gives the Ombudsman the power to determine whether a complaint
has been duly made in accordance with the constitutional requirements. The
Ombudsman in Vanuatu appears not to have this wide discretion but the limited
discretion (as in Fiji) to determine his proceedings. The Ombudsman in both
countries also have the limited discretion to decline to investigate a
complaint. Thus it appears that the Ombudsman in Fiji has more discretion in
comparison to the Ombudsman in Vanuatu.
5. AREAS OF
INTEREST
5.1 Enforcement provisions in Vanuatu
The
Ombudsman in Vanuatu has the unusual power to seek a court order to give effect
to a recommendation. However this power is not unlimited. There are three
qualifications that the recommendations must fulfil before an application can be
made to the court to enforce the recommendation. Once the application is made to
the court does not simply grant the order. The court uses it’s powers to
give the person responsible the opportunity to be heard and can re-open issues
decided by the Ombudsman, examine witnesses examined by the Ombudsman or other
witnesses and generally conduct the proceedings in a manner required to do
justice in the case. Once these procedures have been complied with the court
"may" enforce an order.
On the outset when one speaks of enforcement
powers of the Ombudsman, there is a little uneasiness. To give the Ombudsman the
unilateral power of judge and jury could open up areas of gross injustice.
However the legislation has given the Ombudsman the power to seek the
enforcement of recommendations in certain instances. However the courts have the
overriding power to decide whether to grant the order or not based on the merits
of the case. This gives the Ombudsman of Vanuatu some credibility. Public
officials and authorities that are investigated have to take the Ombudsman
seriously as the Ombudsman has the power to seek enforcement of a
recommendation. In comparison to Fiji where this power does not exist the
persons and bodies concerned do not seem to take the role of the Ombudsman as
seriously. It is also worth mentioning that the Ombudsman in Vanuatu has never
used this power in her time in office. It could thus be implied that, threat of
the exercising this power may cause some public officials to comply with the
Ombudsman’s recommendations.
5.2 Own motion
investigations
The Constitutions of both countries allow the
Ombudsman to begin investigations under his own initiative.Upon examination of
this power it becomes evident that the Ombudsman in Vanuatu exercises this power
more often than the Ombudsman in Fiji. The statistics for Vanuatu show that for
the 1996 period, 34% of investigations of the Ombudsman were on her own
initiative. For the same period in 1995 the figure stood at 25%. In Fiji the
Ombudsman appears never to exercise this power. The Ombudsman’s reports up
to 1996 show that the Ombudsman never ever exercises this power.
This has
resulted in a marked difference in the types of cases that the Ombudsman
investigates in Vanuatu as compared to the Ombudsman in Fiji. The Ombudsman in
Vanuatu is often involved in more contentious and sensitive investigations
compared to the Ombudsman in Fiji. For example the Ombudsman in Vanuatu has
investigated, "The Provision of Bank Guarantees Given in the Sum of
US$100,000,000.00", or the "Nabawan Bottle Shop Case". These investigations
involved top level parliamentarians, including the Prime Minister and Ministers
of the Government of the day. The Bank Guarantee investigation was extremely
sensitive as the whole scam had the potential to bring the country to it’s
knees, making it bankrupt.
In stark contrast the Ombudsman in Fiji never
investigates such volatile issues. His investigations are rather low key and if
little importance and interest except for the parties concerned. A peruse of the
Ombudsman’s reports in Fiji reveals such investigations as, "Case 7595 -
Cow dies of fright", or "Case 7509 Police fail to return suspect’s
property".
6. CONCLUSION
The role of the Ombudsman in Fiji
is that of the classical Ombudsman. He is responsible for maladministration and
breaches of human rights provisions by public officials. The Ombudsman in
Vanuatu has a wider role. In addition to maladministration and breaches of human
rights provisions, she is also responsible for administering the Leadership Code
and guarantee of multilingualism from the Administration of Vanuatu. It is
therefore clear that the role of the Ombudsman in Vanuatu has been widened from
the role of the classical Ombudsman, as in Fiji.
If there is a breach of
one of these constitutional guarantees, then the Ombudsman has the power to
investigate the breach. However more importantly the Ombudsman in both countries
only has the power of recommendation upon completion of the investigation. These
recommendations cannot be enforced in either country, although in Vanuatu the
Ombudsman may seek a court order for enforcement. Thus there isn’t any
significant difference in the laws of both the countries. In essence the role of
the Ombudsman is the power of recommendation.
If the law is the same, and
the Ombudsman in Vanuatu has essentially the same role as the classical
Ombudsman, then why the constant attack. Why the constant remarks referring to
the excessive power of the Ombudsman?
This attitude could be attributed
to:
(i) The Public Reports of the Ombudsman in Vanuatu;
(ii) The administering of the Leadership Code;
(iii) The funding of the Ombudsman’s Office in Vanuatu;
(iv) The character of the Ombudsman of Vanuatu.
Public
Reports
The Constitution provides that the reports of the Ombudsman
are to be made public unless they concern matters of public security and public
interest. As a matter of practice the Ombudsman of Vanuatu always releases the
reports to the public. She takes a very strong stand on this. She feels that the
public has a right to the reports. Also a matter of practice she gives the
reports to the Government at about the same time that she releases them to the
public. As a result the Government are often not adequately prepared to answer
questions regarding the report. This puts the Government in the "hot seat"
especially if the press is hounding them. This puts a strain on the relationship
between the Ombudsman and the Government, resulting in the constant calls for a
reduction in her powers. This issue could be easily resolved. A compromise could
be reached and the Ombudsman could release the report to the Government prior to
releasing it to the public. This would give the Government time to respond to
the report and this would improve the relationship between the two
parties.
The improvement of the relationship between the parties is
important, since the Ombudsman only has the power of recommendation. If the
relationship between the parties is good then there is a better chance that the
recommendations would be followed.
The Leadership Code
The
Ombudsman in Vanuatu is in the unique position of administering the Leadership
Code. This Code governs leaders of the Country Often these outbreaks are
retaliation by these leaders who simply do not want to adhere to such a strict
code of behaviour.
Funding of the Ombudsman’s
Office
The Ombudsman’s Office in Vanuatu had a budget of 21
million vatu in 1996. The Ombudsman in Fiji had a budget of F$231, 200. The
Ombudsman’s Office in Vanuatu had a staff of 17, as compared to 10 in the
Ombudsman’s office in Fiji. Vanuatu has a population of approximately
170,000 as compared to Fiji which has a population of approximately 800, 000.
The Ombudsman’s Office in Vanuatu has a higher operating budget, with more
staff members and less people to cater for.
In addition to this the
Ombudsman’s Office is heavily funded by overseas donors. The budget of the
Office is substantially increased by aid from overseas. This aid comes in many
forms: financial; equipment; and staff from overseas. This also increases the
resources of the Office, making it able to deal with more matters. However more
importantly the Ombudsman becomes less answerable to the Government, giving the
Office latitude in their investigations and the ability to "tread on peoples
toes" without having to really worry about their funding.
The Personal
Character of the Ombudsman of Vanuatu
The current Ombudsman of
Vanuatu has a very strong character and personality. She is a very determined
and assertive person, with extremely strong convictions. She has no qualms in
"rocking the boat". Nothing appears to daunt her, not even the thought of her
own safety! It is obvious that her character contributes to the repeated calls
to reduce her powers. Marie Noelle Ferrieux Patterson sees herself in a watch
dog role in a country where administrators are largely not educated and
corruption and politics have become a synonymous term. She is out to clean up,
and its no wonder there are repeated calls to reduce her powers.
This
paper clearly shows that the role of the Ombudsman in Vanuatu has been widened
somewhat, from that of the classical Ombudsman. However the powers of the
Ombudsman in Vanuatu have not been substantially widened. The Ombudsman in
Vanuatu still only has recommendatory powers, as do all Ombudsmen who follow the
classical style. Therefore any calls for a reduction in powers of the Ombudsman
are unjustified.
7. STATUTES
The Constitution of the Sovereign Democratic Republic of Fiji 1990
The Ombudsman Decree 1987 (Fiji)
The Constitution of the Republic of Vanuatu
The Ombudsman Act No. 14 of 1995 (Vanuatu)
8.
BIBLIOGRAPHY
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First Annual Report 1995 to Parliament.
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Multilingualism to Parliament.
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Second Special Report on the Observance of Multilingualism
1996.
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Provision of Bank Guarantees Given in the Sum of US$ 100,000,000.00, 3rd
July 1996.
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Complaint on The Alleged Misappropriation of Funds by the President of the SHEFA
Province and Maladministration of SHEFA Provincial Council, 23rd July
1996.
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Bottle Shop Case, 20th August 1996.
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9.
APPENDIX
9.1 Profile on the Ombudsman of
Fiji
NAME: Sailosi Wai Kepa
BORN: November
1938
MARRIED: Adi Teimumu Tuisawau
CHILDREN:
4
EDUCATION: Draiba Fijian School, Lelean Memorial School, Nasinu
Training College, Sydney University (Diploma in Teaching of English
1966)
Called to the Bar, Middle Temple 1972
Barrister and
Solicitor, Fiji, 1974
Joined Judicial Department as Magistrate 1969;
served Suva, Northern Div, Sigatoka, Nadi
Chief Magistrate July
1980
Director of Public Prosecutions November 1980
High Court
Commissioner for Fiji in London, 1985-1988
Attorney General and Minister
for Justice, Fiji 1988-92
Rugby player ( rep. Fiji, Australia in 1961)
Coach, Manager, Administrator. Chairman, Fiji Rugby Union
1983-85
President, Suva Rugby Union 1989
Ombudsman since
1996
9.2 Profile on the Ombudsman of Vanuatu
NAME:
Marie-Noel Ferrieux Patterson
BORN: In Grenoble, France, not
inclined to disclose the date
MARRIED: Douglas Patterson, Scottish
husband of a successful real estate business.
CHILDREN: 2 young
children
EDUCATION: Bachelors Degrees in: English; English Law;
Linguistics; Masters in Urban and Rural Planning and Sociology; Diploma in
Banking and Accounting.
Ombudsman since July 15th 1994.