Where is our Ombudsman? - 1

In 1978 our Constitution decreed that we should have a Parliamentary Commissioner, also known as an Ombudsman. Section 108(1) provides: "There shall be a Parliamentary Commissioner for Dominica who shall be an officer of Parliament and shall not hold any other office of emolument whether in the public service or otherwise nor engage in any other occupation for reward". It was not stated that there may be a Parliamentary Commissioner. The provision is that we shall have one. In other words, it was not a matter of choice. We were not free to decide whether or not our country should have an Ombudsman. The provision is mandatory. That is to say, the President was, then, and is, now, obligated to take the necessary steps to make the appointment. But the Constitution failed to set a time limit. And in so doing, it left the matter of selecting and appointing an Ombudsman to the whims and fancies of the President and the politicians.

Now, what are the functions of the Ombudsman? And, how much power is available to the Office in the exercise of its functions? First of all, the underlying function of the Ombudsman is to investigate matters believed to constitute injustice on the part of individuals or bodies in the service of government. There are three broad categories of such matters. The first is any kind of decision or recommendation made to a Minister of Government. And this includes any advice given to the Minister. The second category is "any act done or omitted" by a Government department, authority or body, or by officers or members of such department, authority or body. Among these bodies are those set up for purposes of the public service and local government.

Complaints may come from three sources: an aggrieved person, a Member of Parliament; or on the initiative of the Ombudsman. Any person who believes that he or she has been unjustly treated "as a result of a fault in administration", may lodge a complaint. Further, a parliamentarian may request that the Ombudsman undertake an investigation where he or she is of the view that one or more persons either have suffered or may have suffered injustice because of wrongdoing in the public service. And, the Ombudsman may set up an inquiry without intervention by an aggrieved person or a Member of Parliament, in any situation where he or she considers that public officers, as a body or as individuals, have treated a citizen or a group of citizens unfairly.

The Ombudsman, to properly conduct investigations, is invested with certain powers accorded to the High Court. The Ombudsman is empowered, for example, to summon witnesses to attend an investigation. Or, to compel them to give evidence on oath. Or, to require them to produce documents relating to the matter under inquiry. It is provided, further, that witnesses appearing before the Ombudsman are to have the same obligations and privileges as are enjoyed by witnesses appearing before the High Court. In addition, power is given to the Ombudsman to "enter and inspect" the premises of any Government department or any of the bodies or authorities referred to earlier. Following such inspections, the Official may call for, examine and, if necessary, take possession of any document kept on such premises. And, having done so, the Ombudsman is authorized to "carry out any investigation", there and then, "in pursuance of his functions". These powers are provided by Section 114 of the Constitution.

The Ombudsman is also given a wide discretion to refuse to commence an investigation or, if commenced, to discontinue inquiry into the matter. This may be done in four circumstances. One is where a person making a complaint to the Ombudsman more than twelve months after the complainant had prior knowledge of the subject matter of the complaint. Another is where the matter in respect of which investigation is sought is considered to be "trivial". A third circumstance is where it appears to the Ombudsman that the complaint is "frivolous or vexatious" or is not made "in good faith". In other words, the complainant's agenda is to create mischief, rather than to seek justice. And, lastly, the Ombudsman has discretion to refuse to start an inquiry, or to discontinue one that has already started, where it appears to him that the person lodging the complaint does not have "a sufficient interest in the subject matter of the complaint". Expressed differently, the complainant is not greatly affected by the action complained of.

The Ombudsman's capacity to act independently in the execution of his or her work is greatly assisted by three factors. One is the manner of the Official's appointment and removal. He or she is selected and appointed by the President "acting after consultation with the Prime Minister and the leader of the Opposition". The appointment of an Ombudsman is among the very rare situations where the President is not, called upon to act upon the "advice", that is to say, the order or instructions, of, the Prime Minister. Here only consultation is required. In effect, the President, after having listened to both the Prime Minister and his or her counterpart on the other side of the House, is not obligated to entertain the viewpoint of the one or of the other. By the Constitution the President is guided by considerations of his own. As to the Ombudsman's removal from office, this may be done only for inability to exercise the functions of the office or for misbehavior; his or her inability to perform may arise from poor physical or mental health or from "any other cause". And, a decision to remove is taken after a process initiated by the President, and in which the decision to remove or not remove is made by a tribunal appointed by the President, albeit after "consultation" with the Prime Minister and Leader of the Opposition.

The Ombudsman is also enabled to act on his or her own volition and on the side of justice by certain immunities and privileges granted under paragraphs 5 to 8 of Section 115 of the Constitution. For example, no court action, whether civil or criminal, may be taken against the Ombudsman for "anything" he or she may do or report or say in the course of "the exercise or intended exercise" of his or her duties. But this immunity does not apply where the Ombudsman is shown to have acted "in bad faith". Further, a court of law or other judicial body is not empowered to call an Ombudsman to give evidence before it in respect of any information that may have come to his or her knowledge in the exercise of the functions of the Office. Notably, any statement, information, document, paper or thing produced during an investigation before the Ombudsman is treated as "privileged", in the same manner as these things are treated in an inquiry or proceedings before the High Court. That is to say, they may not be used in proceedings elsewhere without permission from the person making them. And, as stated by Section 115(8) of the Constitution, an investigation or decision of an Ombudsman may not be challenged, reviewed, quashed or called or questioned in any court of law, unless the investigating Ombudsman did not have the power to hold the investigation or make that decision.

These powers may appear impressive. But, as we shall indicate in next week's YOU AND THE LAW, they are subject to severe limitations.

Copyright (c) William Para Riviere, June 2012.