JURIST Columnist Edsel Tupaz and Guest Columnist Joan Martinez, both of Tupaz & Associates, argue that the stalled anti-corruption legislation before the Indian Parliament should do more to fight corruption, particularly by creating a more powerful ombudsman position to hold government officials accountable...
hile India today envisions a "strong" and "independent" ombudsman to fight corruption, legal reform measures designed to institutionalize the anti-corruption body, or the "Jan Lokpal," have stalled in parliament
. The Lokpal bill has been criticized as too "watered down" from the original proposal, as the proposed functions and powers of the office of the ombudsman have been clipped following a series of political compromises. Will India's new ombudsman be equipped with only nominal anti-corruption functions in the form of advisory or recommendatory powers? Or will it be granted investigatory, prosecutorial or even quasi-judicial functions akin to perceptively "stronger" anti-corruption agencies such as the European Ombudsman and Philippine Ombudsman?
It remains to be seen how "real" or "nominal" India's new anti-corruption body will be. An even more critical question, really, would be whether, and how long, Indian society can sustain social pressure and push the Lokpal bill into formal enactment, given that India's lawmakers will not reconvene until March this year. Worse, Anna Hazare, the face of the movement against corruption in India, is in New Delhi to undergo a series of medical checkups for his precarious health. While the outcome of the Lokpal bill is far from certain owing to parliamentary recess, it may still be well for Indian jurists to turn to existing "best practices" so far perceived, in the design and institutionalization of any anti-graft body tagged as the "ombudsman." One ought to explore the origins and constitutional practices, if not international practices, of various "ombudsmen" among US states and elsewhere such as the EU.
A good starting point would be to look at the original conception of this office. The term "Ombudsman" is of Scandinavian origin which has been adopted into English. (The official translation is "Commissioner.") The Norwegian "ombud" originally meant "ambassador" or "delegate," a "messenger" from the King to the people. Contemporary practice however is increasingly the opposite, where ombudsmen are equipped by statute and at times by constitutional provisions with far-reaching powers, from investigatory and prosecutorial powers, recommendatory powers for policy and law reform, to quasi judicial functions.
In one of his addresses before the American Bar Association, Professor Larry Hill, a leading scholar on ombudsman jurisprudence and practice, is of the view that the ideal Ombudsman should be tasked
to generate complaints against government administration, to use its extensive powers of investigation in performing a post-decision administrative audit, to form judgments which criticize or vindicate administrators, and to report publicly its findings and recommendations but not to change administrative decisions."
The American rendition of the office of the Ombudsman therefore follows, more or less, the traditional and original conception of the office, that is, it is an agency in many instances a private entity designed to inform public opinion, to criticize governmental malpractice, to report publicly its findings and to suggest legal and policy reform. Like the Scandinavian conception, the Ombudsman is expected to be a "ambassador" or "spokesperson," mediating between and among individuals, groups and government, taking up complaints in whatever shape or form, and turning those grievances into concrete material and legal action. As a matter of fact, the American Bar Association has characterized
the Ombudsman as an alternative dispute resolution practitioner and sought to establish twelve standard guidelines in defining such an office:
(1) authority of the ombudsman to criticize all agencies, officials, and public employees except courts and their personnel ... ; (2) independence of the ombudsman from control by any other officer ... ; (3) appointment by the legislative body or executive authority ... ; (4) independence of the ombudsman through a long term, not less than five years, with freedom from removal except for cause ... ; (5) a high salary equivalent to that of a designated top officer; (6) freedom of the ombudsman to employ his own assistants and to delegate to them, without restrictions of civil service and classifications acts; (7) freedom of the ombudsman to investigate any act or failure to act by any agency, official, or public employee; (8) access of the ombudsman to all public records he finds relevant to an investigation; (9) authority to inquire into fairness, correctness of findings, motivation, adequacy of reasons, efficiency, and procedural propriety of any action or inaction by any agency, official, or public employee; (10) discretionary power to determine what complaints to investigate and to determine what criticisms to make or publicize; (11) opportunity for any public official criticized by the ombudsman to know of it in advance; (12) immunity of the ombudsman and his staff from civil liability on account of official action.
Elsewhere as in Europe, the office of the European Ombudsman was first established in the Maastricht Treaty
. While following the traditional conception of the Ombudsman, the functions of the European Ombudsman turned out to be more inclusive and has been characterized as one wielding "quasi judicial" functions. In particular, the European Ombudsman may initiate inquiries upon complaint by individuals and groups, unless the alleged facts are already subject of legal proceedings before courts. The European counterpart is then tasked to "inform" the erring institution or agency, which is, in turn, required to provide the Ombudsman an "opinion" in three months. Upon receipt of this opinion, the European Ombudsman is required to report to the European Parliament of his or her findings and likewise inform the complainant of the same.
The Philippine analogue of the Ombudsman is markedly stronger: under Republic Act No. 6770, the Ombudsman has the power to investigate and prosecute any public officer whenever it finds probable cause that the act or omission complained of appears to be "illegal, unjust, improper, or inefficient." It may exercise "primary jurisdiction" over a large array of crimes of graft and corruption and may take over, at any stage, from any investigatory agency of government, the investigation and prosecution of such cases. The Philippine Supreme Court has even affirmed the Ombudsman's statutory power to preventively suspend without prior notice and hearing a public officer pending investigation for as long as six months, as seen in Ombudsman v. Valera and Carabeo v. Court of Appeals.
Regardless of circumstance, however, the office of the Ombudsman is usually mandated to be a fully independent body or person, bound by norms of confidentiality of evidence, and occupies a fiduciary relationship with the complainant or group of complainants. But with the recent hospitalization of Hazare, India's anti-corruption movement is in danger of reaching its peak with the Lokpal bill passing in the lower house and eventually stalling in the upper house. As intimated, parliament is not expected to reconvene until March and Hazare has taken a short break, although he has promised to return to the movement and to the forefront of Indian sociopolitical consciousness once he recovers. Many are disappointed to see India's efforts to curb corruption effectively stall for the time being, since it seemed that Hazare was poised to become a present-day Mahatma Gandhi (and indeed, he fashioned himself as such) mobilizing massive support from his fellow countrymen into initiating major reform which India sorely needs.
In its Corruption Perceptions Index 2011, Transparency International ranked India ninety-fifth out of 183 countries in its public sector corruption index with a score of 3.1 (a "0" means that a country is perceived to be highly corrupt, while "10" means a perceptively clean government). The country is tied with Albania, Kiribati, Swaziland and Tonga. Corruption is a deeply felt issue in India, where giving and taking bribes seems to be a common facet across social sectors, from mundane bureaucratic interactions such as acquiring birth certificates or getting medical treatment in public hospitals to larger matters such as lucrative government contracts and shifting political alliances. Hazare's movement, if parlayed with several recent corruption scandals from allegations of financial malpractice during the 2010 Commonwealth Games which India hosted, to the removal of an anti-corruption chief for facing corruption charges of his own has impressed upon the minds of everyday citizens a mixed sense of skepticism and hope, who see and feel the effects of widespread corruption especially in India's public sector. Social outrage against a spate of corruption scandals drove tens of thousands of middle-class Indians to the streets over the last several months to protest under the banner of the anti-corruption movement led by Hazare.
Although both the upper and lower houses of India's parliament made strides in introducing the bill amidst the demands of the anti-corruption movement, the government's version of the bill was dubbed as weak and ineffective by Hazare and the political opposition. Most significantly, the current version gives the proposed anti-corruption ombudsman no authority over the country's top investigative agency, the Central Bureau of Investigation, thus effectively leaving it powerless to conduct independent investigations into complaints of corruption. While overhauling an entire system can certainly be too high a mark for any country, India's Parliament must make sure that its proposed ombudsman will wield strong, concrete and independent powers beyond nominal authority.
Edsel Tupaz is the founder and managing partner of Tupaz & Associates. Tupaz & Associates is a public interest law firm whose specialties lie in comparative constitutional law and policy. Tupaz is also a professor of international and comparative law, teaching at law schools in the US and the Philippines. He is a graduate of Harvard Law School and Ateneo Law School. Tupaz is currently assisting the House prosecution in the impeachment trial of Philippine Chief Justice Renato Corona.
Joan Martinez is a Research Associate for Tupaz & Associates. She graduated from the University of Virginia in 2011 with a double major in History and Foreign Affairs. She has previously interned with The Rutherford Institute in Charlottesville, Virginia.
Suggested citation: Edsel Tupaz & Joan Martinez, Strengthening Efforts to Fight Corruption in India, JURIST - Sidebar, Feb. 6, 2012, http://jurist.org/sidebar/2012/02/tupaz-martinez-india.php.
This article was prepared for publication by JURIST's professional commentary editorial staff. Please direct any questions or comments to them at firstname.lastname@example.org