LAWYERS COMPARED TO OMBUDSMEN

Tarzan in the administration jungle

I will not go into too much detail regarding the role and nature of an Ombudsman and investigations carried out by him. The role of Ombudsman is known in many jurisdictions and they can, just like lawyers, be found in all types and sizes. Some are described as “Tarzan in the administration jungle”. I will merely attempt to only highlight a few of the differences between an Ombudsman and a lawyer.

An Ombudsman is the obvious person for civilians to approach with their complaints about government and government agencies. The main task of the Ombudsman in Curacao, for instance, is to serve the citizens (including legal entities) by conducting investigations into actions and practices of government and government bodies or agencies (both the executive and the legislative), by testing the merits of the manner in which a government body, authority, official or public servant has acted in a particular matter and by giving judgments as to whether those actions were improper or not. However, I personally also consider the function of an Ombudsman to be more that of a watchdog, keeping government in line, and guarding against excesses, abuse of power or corruption.

An Ombudsman is impartial and independent. Such a complaint-resolution mechanism was and is needed to supplement the traditional means of seeking redress. This is particularly true for Curacao, because in many cases the government and government agencies are unresponsive, or even take or refuse to take administrative decisions contrary to the laws and regulations as well as contrary to court judgments. Recently, it was established that in over 120 cases the Curacao Minister of Justice simply refused to follow court orders to decide on applications – or on objections against notional refusals – filed by aliens who applied for a (temporary) residence permit. This is a good example of bad government practices. Even a Minister of Justice must abide by the law!

An Ombudsman has no clients and is not paid to exclusively defend the interests of a client. An Ombudsman has no boss. No one can tell an Ombudsman to refrain from investigating certain matters because they are or might be politically sensitive. I guess that many Ombudsmen know by experience that from time to time there are political forces that in subtle or less subtle ways try to prevent them from functioning correctly. We have seen that here in Curacao and in the Dutch part of Saint Maarten as well. The only real power one has as an Ombudsman is the power to investigate. My advice: use that power and show that you cannot be influenced, that you cannot be intimidated, and that you are unstoppable.

A lawyer is not an investigator. Generally speaking, he has no investigative skills, and, as we concluded before, he is not, at least not always, interested in the whole truth. An Ombudsman has, or should have, much easier as well as greater access to government records than a lawyer. An Ombudsman can find information that was not available to a lawyer.

Karel Frielink
Attorney (Lawyer) / Partner

(7 July 2012)
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