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Polonia

"La institución del Ombudsman en el mundo contemporáneo", pronunciada en Varsovia, 13 de mayo de 1999.

The Ombudsman Institution in the Contemporary World

Warsaw, Poland, May 13, 1999

Dr. Jorge Luis Maiorano
Defensor del Pueblo of the Argentine Nation
President of the International Ombudsman Institute


Members of the Supreme Court of the Republic of Poland, members of the Constitutional Court, members of the Administrative Court of the Republic of Poland, Professor Adam Zielinski, officials of the office of the Commissioner for Civil Rights Protection, Ladies and Gentlemen, With the establishment of the Ombudsman in Sweden (1809), a new tool of control was born in the public law and in the most diverse political systems, with peculiar characteristics which, for over a century, was restricted to the Scandinavian sphere.

However, the Ombudsman would never have ceased to be an institution of just the Norse regimes without the great cataclysm of the Second World War, the establishment of the Nazi and fascist regimes which gave origin to it and the serious consequences it had over the freedoms and respect for the most fundamental human rights.

In fact, after this cataclysm, Europe started its reconstruction under the form of a strong public interventionism, motivated by a deeply socialised society, demanding more and better public services.

Thus, powerful public administrations started to build up which made the citizen feel he was the modern subject of the State of the Law; in brief, the administered.

But, we all know that the golden rule of all democratic constitutional systems is that every enlargement of power must be followed by the strengthening of the means of control and the post-war Ombudsman contributed to this aim.

At that time, the Ombudsman was only committed to the control and oversight of the administrative legality, including discretionality and arbitrariness. This Ombudsman was devoted to the control over what we call “maladministration”.

It was only since the 70s, with the Proveedor de Justiça of Portugal and, after it, the Spanish Defensor del Pueblo that the Ombudsman figure starts to commit itself with aims which went far beyond those which had identified it during the first two stages described, marking the appearance of a third landmark in the development of the Ombudsman Institution which, from the Iberian Peninsula, projected itself in Latin America.

In other words, people resorted to a prestigious and renowned Institution which had not been designed to fulfil this function; nevertheless, it was given this delicate mission, thus surpassing the traditional “maladministration” conception, adopting another conception with richer shades that the one which had been used to define what the scope of action of the Ombudsman should be.

With this new conception, the Ombudsman figure was quickly incorporated to the diverse juridical orders of the recently born democracies in Latin America and it also started to spring in some States of Central and Eastern Europe.

Such was the development of the Ombudsman Institution in these regions that it constituted one of the most singular phenomena of the time in the countries of these areas.

It should be explained that these countries resorted to this figure to add more security to the increasing need to provide an integral protection of the human rights.

The former Defensor del Pueblo of Spain, Alvaro Gil Robles, was right to preach on the “universalism” of the Ombudsman institution. This implies that the figure must consider, above any other juridical or formal aspect, an essential value to defend the fundamental rights and freedoms of all persons.

Two decades ago, suggesting that the Ombudsman would be part of any juridical system of these countries was almost the dream or a useless effort of a law expert.

Notwithstanding, today this is a true, effective and vigorous reality in most countries of these regions where it can show its achievements with legitimate pride, especially, regarding human rights.

However, when talking about the Ombudsman and the function of control and protection this Institution fulfils in the field of human rights, we must bear in mind the classical tripartite division of these rights into traditional (life, freedom and dignity), which are the so-called civil, individual or fundamental rights; secondly, the “economic, social and cultural” rights which, in opposition to the fundamental ones, are progressively known, but they can also be damaged by a determined economic policy.

These social rights provide the basis for people to be exposed to the action of the State only if this does not affect their activity as individuals and as members of the society.

Lastly, the third generation rights or rights of solidarity exceed the selfishness and exclusivity of the individual rights, the group interest of the social ones, which find their fundament in their collective incidence; for instance, the right to a balance environment, to the protection of the cultural or historical values of a community.

Thus, the traditional rule which reads “what belongs to everyone is of nobody’s concern” is surpassed. Today, what belongs to everyone interests all and each of us as an integral part of a whole. This is the last stage of this process where we have progressed from the individual aspect to the social one; and from the social aspect to the community one or, in other words, from the selfishness to the sector and from here to the society, imbued with solidarity.

When we talk about solidarity, we must bear in mind the inequality of the conditions of the relationships between users and the companies -usually powerful multinational holdings- delivering the services.

As a consequence of the reform process which the States had to undergo world-wide, they have turned from a powerful State, a true modern Leviathan, intervener and trader to a State which has transferred its activities and duties to the private sector.

The withdrawal of the State from the direct patrimonial management should never imply the resignation or neglect of the protection of social interests. This implies safeguarding the community from any illicit procedure before the monopolic strategies which, endowed with an important capital concentration, operate in its core.

In fact, while the private renderers have information, technical, material and economic resources and an organisation which gives them direct access to the decision-making instances, users make up an heterogeneous, shapeless, inorganic and scattered universe, having the least information.

The true thing is that, at present, the Ombudsman is created with a twofold function: defending the rights of users and consumers before the abuses and dysfunctions of the public and private, political and economic power and to control the exercise of the State power.

The Ombudsman must then defend the most vulnerable sectors of the society, those who complain about the abuses of power and, consequently, they reflect the dissatisfactions, needs and sufferings of a sector of the community.

In this regard, let me highlight the important innovation introduced in the Argentine legal system by the 1994 Constitutional Reform in reference to the protection of the rights of users and consumers. Section 42 of the Argentine Constitution stipulates that “Consumers and users of goods and services shall be entitled to the protection of their health, security and economic interests; to adequate and true information; to the freedom of choice and to an equitable and dignifying treatment. Authorities shall rule for the protection of these rights, the education of consuming habits, the defence of the competence against any form of market distortion, the control of natural and legal monopolies, the quality and efficiency of public services and the creation of consumers and users associations...”.

As far as the new relationships being generated between the State and the society are concerned, the entities regulating the delivery of privatised public services and the defence of consumers rights, the Ombudsman contributes to the balance which should prevail among the different sectors of the society.

Thus, from within the State, the Ombudsman makes a diagnosis which helps him to recreate his relationship with the society, dealing with the antinomies in order to overcome them; for example, the duality public-private, authority-freedom; capital-work; public interest-private interest, among others, trying to conciliate and avoid confrontations.

For this reason, though it is characterised by its objectivity, the action of the Ombudsman in its control function is partially achieved since he cannot stand aloof before the injustices generated by the excesses and abuses of the public and private power.

But the evolution of the Ombudsman Institution did not stop here. It kept on adapting itself to the growing needs and social demands of each Nation, starting another stage in the process we are analysing. Offering new examples of its adaptability, the figure was institutionalised in the Asian and African countries as a effective means in the fight against corruption.

Certainly, in order to fight this scourge, the societies resorted to the Ombudsman since it constitutes the ideal tool to promote citizen participation, the public discussion of issues affecting different sectors of the society as well as the information of the acts of government, factors which contribute to do away with corruption.

But, at the threshold of the XXI Century, apart form corruption, there are other factors which represent a threat to Man’s peace: humanity itself constitutes the most important threat to its mere existence.

The proliferation of nuclear weapons during the Cold War has given place to a similarly sombre perspective: the constant risk of ethnic conflicts, violence and instability in many countries. Derived effects include the degradation of the environment, poverty, marginalisation, overpopulation, migrations and flagrant social inequalities.

Therefore, it is evident that the Ombudsman Institution in the contemporary world has been built on the traditional model, not always as its image. I do not think it would be convenient to encourage distinctions between the classical and non classical models if this pretends to establish supremacies of one model over another, unless this distinction shows the maturity, development and permeability of the Institution to the demands of the society.

Today the international Ombudsman community does no longer consider dissonant or alien the guarantee challenges which those who represent this Institution have taken as our own.

At present, the 1996 Declaration of Antigua, Guatemala, of UNESCO, acknowledging the Ombudsman as the main figure in the respect for the rights and duties of human beings and multiplying agents of the peace, is the actual evidence of the relevance the Ombudsman has in the control process.

Peace can only be achieved when the human being enjoys liberty with dignity, not with hunger or misery. For this reason, the diverse initiatives aimed at building the culture of the peace, link peace with development.

While in the past, the political stability was ensured by resorting, as a last possibility, to the threat of the armed forces, today it is achieved through the systems of participatory democracy.

In these systems, this conflict is faced with a combination of participation, dialogue, mediation and commitment. The contemporary Ombudsman finds a place here as well since, from within the State, he can create the antigens necessary to avoid the social belligerence and encourage new forms of conciliation and mediation of interests.

Today Ombudsmen fill new institutional places; individuals have left the classical position of “the administered” to take the role of the citizen or tax payer who have the duty of voting or paying taxes but they are also entitled to demand the acknowledgement of their rights.

Before these new challenges, the Ombudsman figure is facing one of the consequences of globalisation. I am referring to the consequences of the economy liberalisation process, model which strengthens the macroeconomies while destroying millions of microeconomies with the resulting demerit of human rights.

I am convinced that the Ombudsman of our time is an absolutely necessary instance to contribute to the culture of the peace. No matter what name it receives in each order, he is an agent of the peace.

This Institution also contributes to the continuous defence of the rights of the most humble citizens, those that vote, but frequently realise that their voice is not being listened to, struggling to make fundamental rights more than a mere document, or a mere highlight in a political speech, turning the Ombudsman into an official who can actively contribute to the state of peace, working for a development with social justice.

Acting with complete functional independence without connivance or complacency with power, the Ombudsman is in a privileged position and plays, from the Government, the role of mediator between the needs of the people and the authorities that rule their fates. Thus, the Ombudsman becomes a valuable instrument of communication between different sectors and an important means for sensitising the political power.

From this position, the great gap between the dissatisfactions of the people and the priorities of the governing classes can be clearly noticed. And what makes him more competent is that acting with autonomy, he can take this crude x-ray within the State, offering it the possibility to recreate its relationship with society, which standing far from the big problems of the State, only wishes to solve the “small” problems of each of its members in order to live in peace.

Thus, the Ombudsman actively contributes to the growing cry of the modern societies which are no longer satisfied with the rhetoric proclamation of the right to life or freedom; they want much more and this implies a better quality of life, better education, better health and a greater protection of values in common.

Time and distance have enriched the Ombudsman, who is the cherished child of the classical Ombudsman, born in Sweden in 1809. Reality has changed, but before these changes, the Institution has not stood indifferent; it has proven permeable to the new demands of the society.

The key to all this lies in that the modern Ombudsman, without any concession, must keep his independence from partisan interests and he must try to stand out.

Many are the countries which show this indispensable condition every Ombudsman should show. Let me set the case of the Republic of Poland as an example. It can show to the whole world, with legitimate pride, the effectiveness of this figure of control. Since its establishment in 1987 it has witnessed the successful management of Professor Ewa Letowska, Professor Tadeusz Zielinski and the present Commissioner for Civil Rights Protection and surely a friend of many of you here, Professor Adam Zielinski.

Today the Ombudsman is not a luxury of the developed societies; he is an evident need of every State of the Law, inherent to an advanced democracy. The Ombudsman is an inexcusable referent to know the sufferings, needs and dissatisfactions which are harming the social fibre of a country.

Therefore, as Ombudsmen, we must strive to legitimate this wonderful Institution of protection and control which is song to hope and a bet to solidarity.