Confronting the Challenges to Democracy in the 21st Century
Second World Assembly
November 12-15, 2000
São Paulo, Brazil
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Fernando Henrique Cardoso
President of Brazil
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The Role of Ombudsmen in Securing Transitional Justice
Organizer:
Forum of Federations (Canada)
Rapporteur:
Shane Levesque (Canada)
Forum of Federations
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Moderator:
Celine Auclair (Canada)
Forum of Federations
Presenters:
Shin Dae-kyun (South Korea)
Citizens' Coalition for Better Government
Sergei A. Kovalev (Russia)
State Duma of Russia
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Observations:
The term "ombudsman" originated in Scandinavia. It described a man who held special status in the community with the capacity to serve as a citizen's rights advocate for those members of society whose rights were infringed upon by the community's leaders.
Today, the traditional, or narrow, interpretation of ombudsmanship adheres very closely to this original concept. The ombudsman's authority is strictly a function of the moral authority of his or her office, which is inherent in his or her status in the community; this is determined, in turn, by the decisions and recommendations the ombudsman makes.
A broader definition of ombudsmanship also exists, in which the authority of the ombudsman is mandated by law. In this case, the decisions and recommendations of the ombudsman can carry the weight of law, in addition to having a certain moral authority. This point is important because it is not sufficient for an ombudsman to be supported only by the rule of law in the technical sense; even under the broader definition, an ombudsman must be strengthened and supported by the righteousness of his or her office.
The workshop did not seek to make recommendations endorsing either one of these models of ombudsmanship as the most legitimate or appropriate. Like most other matters of democratic governance, only the citizens, within the context of their unique political situation, can decide the ideal form of ombudsmanship for their polity. The objective of the workshop was to discuss the important role that ombudsmen can play in the specific context of transitional states. It is sometimes the case that the mainstream mechanisms of the judiciary are either ineffective or nonexistent, due either to corruption or to the collapse of democratic processes as the result of conflict. The workshop participants discussed the potential role of an ombudsman as a quasi-judicial authority who can play an important role in securing transitional justice.
Recommendations:
- Civil society ought to play a greater role in bringing pressure to bear on governments and sectoral organizations to allow for and encourage the establishment of ombudsmen. The active participation of civil society in this effort would help to ensure that the protection of civil and human rights remains the focus of the ombudsmen's work, thereby enhancing the moral authority underpinning his or her office.
- Citizen and human rights groups should work diligently to ensure that ombudsmen offices are established autonomously, owing no allegiance to any other organizations or authorities than citizenries. Furthermore, ombudsmen offices should be established in non-profit or charity-based contexts that allow them to be financially self-sustaining. An ombudsman can only represent the people in a genuinely autonomous manner if he or she owes nothing to the government or any societal sector that he or she is intended to monitor.
- Citizen and human rights groups should work to ensure that nominations of ombudsmen are not achieved through political compromise since this would undermine their autonomy.
- Efforts should be made to ensure that ombudsmen are established at all levels of government and society. This is particularly applicable in diverse societies and decentralized political systems, and will enhance citizens' ability to ensure that their rights are protected against unfair government policies and decisions. The establishment of ombudsmen at all levels of society means sector-specific ombudsmen, such as those in labor unions, education, and law enforcement, among others.
- Prior to passing legislation creating an ombudsman office, it is necessary to define its specific functions and competencies relative to those of officers of the mainstream judiciary.
- Civil society at large, and ombudsmen in particular, should work to establish an association of ombudsmen within each country where they exist. This would facilitate the sharing of best practices pertaining to the unique character of their work. Domestic and international networks of ombudsmen associations should also be established to facilitate the sharing of best practices on a much broader scale.
Recommendation to World Movement for Democracy:
- The World Movement should establish a committee to assist civil society organizations in their efforts to promote and strengthen the "ombudsmanship movement" as an important means of securing justice in transitional states.
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