Ombudsman and the Right to Information:
A Case Study From the Pacific

- Walter Rigamoto
Ombudsman of Fiji

Governments, the world over are waking up to the key role the right of information has to play in promoting good governance, participatory democracy and ultimately development. The Asia Pacific region though has been slow to enable what is a vital element in securing good governance, curbing corruption, ensuring more participatory governance and targeted development. Australia and New Zealand made laws early on, Pakistan has recently passed an information law and India is still struggling to bring an effective law into operation…but Commonwealth Pacific Island member states have yet to take Freedom of Information laws on to their lists of priority legislation. This despite the fact that Papua New Guinea (PNG) ranks the right to access of information as a constitutional right and Fiji’s Constitution requires the government to pass a right to information law as a priority. To date neither has enacted legislation.

The Office of the Ombudsman has traditionally confined itself to examining instances of misadministration within governments. However, in recent years, as human rights have increasingly been recognised as being central to effective democracy and good governance, the mandate of many Ombudsmen has been broadened to encompass a consideration of the government’s performance in protecting human rights.

More specifically, throughout the world, Ombudsmen are increasingly being appointed as protectors of the right to information. They are given monitoring and oversight powers, and in some instances are also designated as the independent appeal body to whom the public can direct complaints when information has been unfairly withheld. In many of the Commonwealth countries such as Australia, Belize, New Zealand and Trinidad and Tobago, Ombudsmen have been granted such powers under Freedom of Information legislation.

The significant potential of Ombudsmen as right to information advocates was recently the subject of discussion at the 22nd Australasian and Pacific Region Ombudsmen Conference held in New Zealand in February 2005. The Conference brought together Ombudsmen from 24 countries, including the Commonwealth countries of Australia, Fiji, Malaysia, Malta, Pakistan, Papua New Guinea, Samoa, St. Lucia, Seychelles, Solomon Islands, South Africa, Tonga, Vanuatu, and New Zealand in a two day conference to discuss the role of the Ombudsman in the Asia Pacific region.

It is against this backdrop that the recent presentation of the Ombudsman of Fiji, Mr. Walter Rigamoto, on the value of the right to information should be considered and commended.

CHRI met with Mr. Rigamoto following a workshop in Fiji to launch a civil society Freedom of Information Bill 2004 drafted by the Citizens Constitutional Forum to discuss the value of the right to information. Following these discussions, Mr. Rigamoto and CHRI worked to obtain a slot at the Asia Pacific Ombudsman Conference where Mr. Rigamoto could promote the right to information to his fellow Asia-Pacific Ombudsmen.

In a paper drafted by CHRI and presented by Mr. Rigamoto at the Conference, the Fiji Ombudsman highlighted the key ways in which Ombudsmen in the Asia-Pacific region can maximise the effectiveness of their mandates to scrutinise government administration by promoting the right to information. The paper was well received and tied in with several other delegates’ presentations. It is hoped that this work will build momentum in the Asia-Pacific region around the right to information.

The Asia Pacific

Excerpts from CHRI’s paper on, “Right to Information: Strengthening Democracy and Development”, presented by Fiji Ombudsman, Mr. Walter Rigamoto, at the Asia-Pacific Ombudsman Conference 2005.

Experience has shown that legislation is only the first step in operationalising the right. Effective implementation requires a genuine commitment to opening up to scrutiny from all levels of government, adequate resourcing, improved records systems and infrastructure and education for the public and bureaucracy on their rights and obligations under the new law. In many right to information regimes throughout the world, Ombudsmen have often played a key role in ensuring effective implementation of access laws.

....the right to information has proven to be an effective antidote to corruption, equipping parliamentarians, anti-corruption bodies (such as Ombudsmen) and the public with a tool to breakdown the walls of secrecy that shield corrupt officials. A legally entrenched right to access documents held by the government (and in some cases, by private bodies) can be used to collect hard evidence of malfeasance and hold officials accountable. The right to information also serves as an important deterrent - the knowledge that a decision may be open to review by the public at a later stage can discourage the decision-maker from acting dishonestly.

....right to information laws constitute an extremely useful tool for ensuring greater government transparency in practice, reducing corruption and facilitating increased accountability. Right to information is all about opening up the government to scrutiny and requiring it to be answerable for its actions. This objective dovetails neatly with the mandate of Ombudsmen - to review the administration of the government with a view to ensuring that officials are made accountable for their activities.

Ombudsman are encouraged to take a proactive role in promoting and implementing the right to information, both individually in their home countries and collectively at the regional level. As respected leaders of the community, Ombudsmen could make a real difference in terms of ensuring that the right to information is enjoyed by all.

Ombudsman could strategically take a lead in transforming the general good governance rhetoric into a practical reality for the people of the Asia-Pacific by encouraging governments to make the enactment and implementation of strong right to information laws a priority.

As a first step, Asia-Pacific Ombudsmen, as a collective, are encouraged to recognise the promotion of the right to information as a priority area for attention. This issue could also be placed on the agenda of other meetings of Ombudsmen, such as the upcoming Pacific Ombudsmen meeting in August 2005. Ombudsmen could also consider more actively promoting the right to information domestically – by raising it with government and individual MPs, publishing articles on the topic as a means of raising public awareness and including recommendations regarding implementing the right to information in annual reports, papers and speeches. In addition to pushing for the development of a law, Ombudsman could also usefully support the review of Standing Orders and other parliamentary procedures and rules to ensure that they do not promote secrecy.

Notably, Ombudsman are not only important as strategic supporters of the general right of the public to access information…. Ombudsmen are also commonly given specific responsibilities under right to information laws. In addition to a general monitoring function, some Ombudsman have been given the job of acting as the independent appeal body under the law, with a mandate to review decisions of public authorities not to disclose information and recommend/demand release if appropriate. In New Zealand, the Ombudsman operates as the independent appeal body under the country’s right to information law.

An ombudsman has the expertise and commitment to transparency and accountability to tackle the difficult job of breaking down entrenched cultures of secrecy amongst the bureaucrats responsible for the day-to-day implementation of the law.

To read more, log on to the article at:
http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_&_papers.htm