Log In

Reset Password

It seems Dame Lois was right

“That’s what the courts are for”: Dame Lois Browne-Evans saw the problems in reverting to the office of the Ombudsman

When the Ombudsman idea was first introduced back around 2001 by the British overseas department, I recall Dame Lois Browne-Evans reticence and her statement: “That’s what the courts are for.” I never thought then that her statement, in a perverse way, was going to be so true.

Understandable also is the notion of governments creating, at least the perception of achieving, a just society and in that regard, the office of Ombudsman became a staple in the British Commonwealth countries. It was introduced during the mid-1970s, supposing to provide a check on abuses of governments upon its citizens.

Like the Human Rights Act, the Ombudsman Act was produced by our legislators and crafted by drafters of law to give teeth and substance to how they perform. Often the intended idea is presented in dead legal linguistic script and, like the American Constitution, crafted and flowing with human equalities and freedoms.

But it’s a couple of hundred years later before many aspects began to actualised. We can only hope it does not take as long for our institutions to function as they should.

Real life and empirical experience is the best instructor to testify on how any system actually works, or needs modifications to be a truly effective instrument.

Notwithstanding without either the Human Rights Commission or the Ombudsman’s office, Bermuda as a jurisdiction would look uncivilised. There are some who may attest they have benefited from their existence.

However when you examine the mechanics of their operation and square it with effectiveness; the realisation has to hit home, they are paper tigers and not real ones that bite.

It is important to realise the nature and the constraints on how our Ombudsman office works. If not, it could be a disappointing discovery to uncover that it either doesn’t have, or wont exercise, the power to settle a matter that has damages, in spite of the restorative words in the act. It may be also useful for the public to know that the process of investigation can be as long as a year, during which time all the original harm and damage is accruing. Then if a ministry or particular institution decides to be belligerent, they can walk away from the Ombudsman ruling and worse, all of the evidence gained against them declared inadmissible as evidence in any future proceedings in court.

The crude truth is that the government culprits can confess under examination of the Ombudsman and can be found to be guilty, but like a confession to a priest or a person under lawyer-client privilege, they can lie in an open civil court and the evidence gained by the Ombudsman investigation be protected as inadmissible.

That’s the way the law is written. It may not be the way it should be interpreted or even intended – however it’s the way the Ombudsman office functions.

Juxtaposed to that reality is what we witnessed in 2013 when the Ombudsman office takes the unprecedented step of leading the charge against the practice of the Corporation of Hamilton over its handling of the waterfront development contract.

In that particular matter the Government built its case almost entirely upon the presumed credibility of evidence of the Ombudsman’s office to lodge a Supreme Court case. Whether or not it was appropriate is not the debate, and, unquestionably, they had the right to do so under the Act.

The paradox is the Government can use the Ombudsman’s office as a sword that cuts when their rulings are found favourable, but when the roles are reversed and the Government is at fault and the Ombudsman’s report is against them, all their information gained as evidence against them becomes defunct, as the function of the Ombudsman Act now becomes as a shield and all their investigations inadmissible as evidence to be used in court. I have to concede after all these years, that Dame Lois Browne-Evans was right and people should, as a first option, if they perceive their matter involves damages, remember what she said, “that’s what the courts are for”, and not the office of the Ombudsman.

The role of any department or statutory body created to establish fairness, is not to be complacent, but to be alive and evolve its practice to achieve its primary intent.

It can be fully appreciated that statutory bodies must act within the laws they are provided.

Therefore in order for members and heads of these bodies such as the Human Rights Commission or office of the Ombudsman, to be intellectually honest, they need to push at the boundaries of the acts and where they do not work in practice, talk to the legislators and demand change.