One of the most overlooked amendments to the Constitution proposed by the Premier in August may well be the most important: the creation of an Ombudsman for Bermuda.

What is an Ombudsman? The Ombudsman is an independent, non-partisan office to which residents may take complaints about government and quasi-government services. As an alternative to airing complaints in the media, the Ombudsman is a far more effective way of encouraging accountability in government.

What does an Ombudsman do? The Ombudsman's job is to: (a) investigate complaints and analyse relevant legal rights; (b) recommend the fairest way for each specific complaint to be resolved; and (c) recommend ongoing processes in order to avoid the situation recurring.

With an office of the Ombudsman, individuals would no longer have to navigate the labyrinth of Government departments in order to lodge complaints. They would not have to explain the situation multiple times or negotiate their own resolutions. Note that the Ombudsman is not a maverick, a court of appeal or an advocate for the people, nor an administrative police officer. Rather, the Ombudsman is a problem-solver who acts as an honest broker between a government and its people.

Won't this cause a flood of unnecessary complaints? Just as the Ombudsman protects citizens from indifference and intimidation, this institution also protects the civil service from frivolous complaints and attacks. Transparency and fairness are realised when it is the Ombudsman, rather than the department being complained about, who determines whether a complaint warrants investigation.

Can government departments simply ignore the Ombudsman's recommendations? Typically the Ombudsman has only the power of persuasion. This is often quite enough. As a neutral advisor, the Ombudsman's purpose is not to apportion blame. Rather, recommendations aim to assist government to overcome inefficiencies, inconsistencies or perceived bias in the delivery of its services. Moreover, the Ombudsman usually makes an annual report to Parliament -- and government departments prefer to be recorded as having been responsive.

Proposal for national ombudsman Does an Annual Report make complaints public? The full process of the complaint, from initial filing to final solution, is confidential. The integrity of the institution is paramount, in order to encourage residents to bring their concerns forward without fear of reprisals.

While the Ombudsman's annual report to Parliament may not name individuals, it does provide important information about the number and general nature of complaints as well as how they were resolved.

Can an Ombudsman really work in a small island? The Ombudsman is especially important in small countries, where the intimacy of family and social relations may lead to suspicions of bias in the administration of government.

As evidence of how critical this institution has become, a recent Commonwealth Secretariat publication reports that 22 of its 32 small member states now have an Ombudsman. This institution is very effective in larger jurisdictions also.

In the UK, for example, the traditional remedy of complaining to a Member of Parliament tended to be inadequate and susceptible to politicisation. When the Parliamentary Ombudsman (or Commissioner) was established in 1967, there were some initial doubts as to whether it would be practicable in a large country.

The institution has since proven to be so important that, in February 1999, the UK government included an additional 158 public bodies within the Ombudsman's mandate.

How does Bermuda's proposal compare to other jurisdictions? Judging from the proposed Constitutional amendment, the statute governing the office of the Ombudsman is likely to compare quite well with the mandates of the other almost 100 Ombudsmen worldwide.

Indeed, Bermuda's proposal actually goes further than other jurisdictions by providing that the Ombudsman should not have held political office in the prior three years. It is important that the Ombudsman be -- and be seen to be -- completely independent from political influence.

The position cannot be a reward for past political service or a stepping-stone for political aspirants. Accordingly, most jurisdictions provide that the Ombudsman's term of office extend beyond the election cycle. Based on this principle, Bermuda's proposal probably should stipulate no political affiliation for five years rather than three. But this is a small quibble in light of the fact that Bermuda's amendment puts us in the forefront of the global movement to promote good government.

The office of a national Ombudsman enshrines one of the most fundamental features of a democracy -- the willingness of government to acknowledge, investigate and resolve lapses in its own functioning. The proposed amendment to Bermuda's Constitution presents a singular opportunity towards the harmonisation of principle and power.

N.B.

This is the exact same Law Matters supplement that ran in The Royal Gazette on 20th September, 2000. However do the printing problems that affected the quality of the print, it was pulled from the circulation and did not appear again until the 9th October, 2000.