Ombudsman

The word “ombudsman” can be traced back to the ancient expressions “umbup” (power and authority) or eventually to the Swedish word “ombud”, describing a person acting as a representative, with authority to act on behalf of the others.

The post of the first “true” ombudsman was established in the 18th century by Swedish King Charles XII (if we discount some activities of a similar nature of Roman tribunes or medieval emperors). From 1713 the duty of this ombudsman was to mainly ensure the correct conduct of royal officials. The institution of the ombudsman was firmly incorporated into the Swedish constitution from 1809. It was defined as the parliamentary body supervising judges, government and other officials, and ensuring their compliance with laws and other legal regulations. The embedding of the ombudsman in the constitution was completed by a further law specifying in greater detail the scope of his activities and his legal authority.

The institution of the ombudsman developed and grew most significantly in the 20th century. Ombudsman institutions were on the increase especially in the period after the Second World War when almost a hundred of them were established. The institutions took varied forms and modifications depending on the historical, political and social background of the given country. The names used to refer to the ombudsman institutions may, of course, differ. For example in Spain it is “defensor del pueblo”, in France, “médiateur”, in Austria “Volksanwaltschaft”, in Poland “Rzecznik praw obywatelskich”, in Romania “Avocatul Popolurui”, and in the Czech Republic “veřejný ochránce práv”.

Variety of ombudsman

The basic models of the ombudsman institution can be explained with regard to the way in which they are established. There is the so-called Parliamentary Ombudsman, elected by the parliament or similar law-making authority. In such a case parliament also represents the body to which the parliamentary ombudsman reports. (This is the case in a majority of countries).

Another type of the ombudsman institution, however, not very common, is the so-called Executive Ombudsman, chosen by and reporting to the government. There is also an ombudsman institution that represents a combination of the two previously mentioned types.

The general ombudsman deals with all aspects and activities of state administration. A Specialized Ombudsman deals with only a specific area of state administration (such as prisons, the army, protection of children, protection of data, etc.) The ombudsmen can either be centralized in one place or have a localized scope of authority (e.g. Italy, Switzerland).

The range of powers of the ombudsman and the definition of his/her legitimate authority differs in various countries. Generally it can be defined as a person authorized by the state to resolve complaints of the individuals against state administration or on his/her own initiative to detect inefficiencies, malpractice or violations of the law.

Development of an Integrated Indicator and Monitoring System for Legal and Judicial Reform

A key part of any reform process is measuring the consequence of the reform initiatives – that is if the reform works and progresses as intended. Accordingly, it is an acknowledged priority of the RGC to develop an indicator and monitoring system (IMS) for the Legal and Judicial Reform (LJR). The establishment of such a system has been discussed at TWG/LJR meetings and at bilateral meetings between LJR actors and consensus has been reached that it is now timely to initiate the actual design, piloting and implementation[1].

The framework for LJR in Cambodia has been developed through a comprehensive and participatory process involving all stakeholders, including civil society organisations and international donors. Thus, the framework is a shared framework. The CLJR wish once again to adopt a participatory process and suggests that an IMS be developed jointly between RGC and donors and with civil society consultations. This will secure that all stakeholders have the same reference frame when measuring progress and effect (and ultimately impact) of the LJR – that all have a common language – and ensure the consolidation and sustainability of the IMS.

Context

The development of an IMS is integral to the LJR Strategy and accordingly a priority action of the Action Plan[2]. The LJR Strategy is linked directly into the overall reform initiatives and strategies of the RGC[3]. LJR Strategy operationalizes the Justice Sector Value Paper and the vision statement for the justice sector.

The Value Paper establishes the basic concepts and values for the Cambodian Justice Sector that informs the goals and rationale of the LJR Strategy. The Value Paper also establishes a number of criteria (hereafter termed the Criteria), which have to be fulfilled to realize the values, and these Criteria inform the seven LJR strategic objectives and their related strategies. Finally, the Value Paper lists 63 concrete interventions needed in the Cambodian Justice Sector to reach the Criteria and these interventions inform the actions and activities of the LJR Strategy. Consequently, by measuring the progress of the interventions and the fulfillment of the Criteria established in the Value Paper, the outputs and effects, respectively, of the LJR strategy can be monitored.

Principles

It is essential to the IMS that it monitors whether the LJR activities carried out and the outputs achieved actually contribute towards the fulfillment of the outcomes and goals of LJR and realize the vision for the Cambodian Justice Sector. Also, it is important that the indicators are simple and relatively easily measured and that the IMS strikes a feasible balance between data collection and processing and the capacities of the institutions implementing it.

Linking up to international best-practices

By basing the development of an IMS firmly within the LJR framework, it is ensured that the IMS is anchored in existing, national structures and relate fully to national procedures. That said, a number of international guidelines and checklists provide best-practices for monitoring judicial reform and the IMS in Cambodia should integrate such well-established best-practices – most notably the ABA-CEELI Judicial Reform Index and the World Bank Check List for Evaluating Judicial Performance. Due to the acknowledged comprehensiveness of LJR and the fact that the Criteria are heavily inspired by international best-practices, the vast majority of factors outlined for instance by ABA-CEELI are already captured as part of the fulfillment of the Criteria. Thus, measuring the progress of the interventions and designing indicators that capture the fulfillment of the Criteria established in the Value Paper will ensure both a coherent and nationally anchored approach to the IMS and compliance with international best-practices.

It should also be noted that the focus on the Criteria enables the IMS to reach beyond international best-practices on judicial reform assessments such as the World Bank and ABA-CEELI lists, since the Criteria address not only the judiciary but the justice sector as such and thereby include the legislative framework, institutional capacity etc. which are also integral parts of the Cambodian LJR.

The Criteria are attached as Annex A. Annex B provides a schematic overview of the links between the World Bank and ABA-CEELI lists and the Criteria.

What is measured?

The objective of the establishment of IMS should be to monitor the progress and effect of LJR by measuring performance and outcome of key LJR processes and interventions. Thus, IMS will measure progress, performance and effect in two dimensions:

Dimension 1: Reform Progress and Performance – is the reform progressing according to plan and objectives and are outputs delivered?

This dimension monitors the progress of LJR interventions across the different sector institutions. This dimension will primarily be monitored by the PMU and indicate reform progress on the basis of data from the sector institutions on the implementation of activities in the Action Plan which – as established above – are all related to the 63 interventions of the Value Paper. Are interventions done or not done? Are they timely? Are they delivered with respect of LJR values? Are they well organized, well managed, methodologically sound etc?

Thus, this dimension monitors the performance of reform activities and progress hereof and not the performance of individual institutions. Progress indicators directly measuring the implementation of the 63 interventions of the Value Paper have been suggested as key performance indicators (KPI) for this dimension of the IMS.

Dimension 2: Reform Effect – does the implementation of the reform lead to the desired outcomes and to the realization of the justice sector vision?

This dimension monitors the outcome of LJR and the effect on the justice sector. The monitoring is done by measuring the ways that the justice sector institutions implement their mandates across the different LJR interventions and strategic objectives and in general. This dimension will primarily be monitored through the management information systems that are to be developed in the respective institutions and aggregated by the PMU or the IMS project group. This dimension will primarily indicate reform effect (e.g. by measuring the flow of justice and/or the effectiveness and efficiency of case handling practices, cf. below). However, this dimension will also monitor the performance and institutional strengthening of the respective justice institutions (e.g. in relation to training and staff development) and of the justice sector as such.

Since the Criteria are i) anchored in the vision and values of the Cambodian Justice Sector; ii) relate directly to international best-practices; and iii) inform the seven LJR strategic objectives[4], it is suggested that the Criteria are used as the basis for designing effect/outcome indicators for the LJR and the Cambodian justice sector.

It is suggested that the key outcome indicators of the IMS should be based on relatively few, highly concrete, measurable data, which can be collected through the management information systems of the sector institutions and provide a comprehensive picture of how key justice sector institutions carry out their mandates in relation to the LJR objectives. Thus, the key outcome indicators should hold the potential to indicate both the effect of the way sector institutions carry out their mandates, the fulfillment of the Criteria and the achievement LJR strategic objectives.

The design and selection of key outcome indicators will be a main task during the initial development of the IMS. Indicators measuring the flow of justice and case-handling practices have tentatively been suggested as key outcome indicators due to the fact that they are relatively easily measured and only require a relatively limited data collection and processing. It is envisaged that over time the number and comprehensiveness of indicators can be developed further.

The IMS will not, in its initial phases, assess the impact of LJR on Cambodian society’s progress towards fulfillment of LJR overall goal or the full realization of the concepts of the Values Paper. However, the development and implementation of the first phases of IMS – targeting progress, performance and effect monitoring – will build capacity and ownership among LJR actors that facilitates future impact assessments with a broader outlook on the justice system and the Cambodian society, including the possible integration of public surveys and third party reports[5]. Furthermore, the development of management information systems in the initial phase of the IMS and the data collected in that regard will contribute to the establishment of baseline information on which to base the – later – impact assessment.

Linking up to the JMI-Mechanism

As part of the CDCF process the RGC and its development partners set a number of joint monitoring indicators (JMI) for the implementation of the NSDP – including the governance and cross-sectoral priorities that encompass LJR. These JMI directly relate to the strategic objectives of the LJR and the activities of the Action Plan. Consequently, an IMS based on the LJR will support a further consolidation of the JMI-mechanism by offering a systematic framework for measuring reform progress. The selected JMI for 2007 on training and selection of judicial professionals will for instance be measured through the progress of a number of LJR interventions and activities and by monitoring the strengthening of institutional capacities – including the action planning for human resources and training. Thus, the IMS will both offer key indicators and means of verification for the setting and measuring of JMI.

The Process

It is important that the process of developing IMS is driven by the Cambodian stakeholders with the support from the international stakeholders (e.g. in terms of expertise). In this way, it will be secured that:

· The IMS can serve as a management tool for the relevant actors in the reform, enabling justice sector institutions and stakeholders to systematically and continuously document progress of the LJR and identify bottlenecks and consequently revise plans and actions.

· The justice sector stakeholders’ ability to further clarify and express ambitions and service goals to the citizens is strengthened

· The IMS can work as an accountability mechanism towards the Cambodian society as well as the international community.

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[1] This development was also noted and welcomed in the RGC Development partners’ consensus statement on governance at the CDCF June 19 2007.

[2] Plan of Action for Implementing the Legal and Judicial Reform Strategy, Short-Term Priority Action 7.4. “The Sector should develop a monitoring system that can measure how justice is done (include by which rules, processes, institutions and enforcement mechanisms justice is carried out) and at the same time the system should identify problems and bottlenecks in the administration of justice”… “monitoring system of the justice sector to measure its overall performance, including the administration of justice, as a guiding line for overall reform”.

[3] The high prioritisation of LJR are articulated in the Rectangular Strategy and LJR integrates directly with National Poverty Reduction Strategy, the National Strategy Development Plan and the Public Administration Reform

[4] Annex C links the seven LJR Strategic Objectives to the Criteria…

[5] When developing impact indicators, the Vera Institute

material could provide useful inspiration.