Where the Ombudsman Begins: Sweden, 1809

What the Justitieombudsman could do in 1809

Appointed by the Riksdag, not by the king, for a fixed term, and removable by the Riksdag.

Independent of the Government and of the courts, with his own staff and his own budget.

A jurisdiction over courts as well as over officials. This is the feature that surprises a common law reader. The Swedish ombudsman supervises the observance of the laws by judges too, which no Indian institution does and which the eighth label of this syllabus, judicial inquiries, has to solve in a quite different way.

Access without a lawyer, without a fee and without a form. A complaint could be a letter. This is the feature that most distinguishes the institution from a court.

A power to prosecute. The Justitieombudsman could institute proceedings against an official who had broken the law. This is not the modern pattern; most later ombudsmen recommend rather than prosecute, and India's Lokpal, unusually, can do both.

A duty to report annually to the Riksdag, in public. This is the sanction that actually works, and every statute in this book copies it: the Lokpal's annual report, the Central Vigilance Commission's annual report and the Comptroller and Auditor-General's report are all descendants of this obligation.

A hundred and forty-six years of nothing

The single most examinable fact about the early history is that nobody copied it for a very long time. Finland took the institution in 1919, when it separated from Russia and drew on Swedish constitutional practice. After that, silence until 1955.

Why the delay is a question worth answering in an exam. Three reasons are usually given.

The institution looks unnecessary where the courts are strong. Nineteenth century Britain believed the ordinary courts and ministerial responsibility to Parliament were sufficient, an argument associated with Dicey's account of the rule of law.

The State was small. An officer to supervise officials matters in proportion to how many officials there are and how much discretion they hold. The administrative state that makes an ombudsman necessary is a twentieth century creation.

Sweden's constitutional position was unusual. An officer of a parliament with authority over judges did not fit either the French model of separate administrative courts or the English model of a single hierarchy of ordinary courts.

A worked example

Anders is a shopkeeper in Uppsala in 1830. A customs official has seized his stock on a suspicion he thinks is baseless, and has kept it for four months without deciding anything.

Before 1809 his options are two. Petition the king, whose officer the customs man is; or sue, which is slow, costly, and in practice hopeless against the Crown's servants.

After 1809 there is a third. He writes a letter to the Justitieombudsman. It costs him a sheet of paper.

What the Ombudsman does. He calls for the file, asks the officer to explain, and finds that the seizure was made without the authority the regulations required and that nothing has been done since. He may direct that proceedings be taken against the officer, and he records the case in his annual report to the Riksdag.

What Anders gets. His stock, an official finding that he was wronged, and the knowledge that the case is in a public report.

What everybody else gets, and this is the point. The report is read in the Riksdag. The customs administration knows that its handling of seizures is being examined and published. That is a control on a practice, which is what a lawsuit could never have delivered.

What this has to do with India

Every feature of the 1809 office reappears in the Indian debate of the 1960s, and it reappears because the First Administrative Reforms Commission went and looked at it.

Appointment by, and reporting to, the legislature becomes the Lokpal's Selection Committee and its annual report to the President, laid before both Houses.

Independence from the executive becomes the charge on the Consolidated Fund and the removal only on a reference to the Supreme Court.

Access without cost becomes the complaint provisions of the Lokayukta Acts.

Supervision of judges does not survive the journey. India's judiciary is kept out of the Lokpal's jurisdiction altogether, and MU's eighth label exists because the problem had to be solved another way.

Prosecution is the feature India revived. The Lokpal has a Prosecution Wing, which is closer to 1809 than to the British model of 1967.

What the Swedish origin does NOT mean

It does not mean the Indian institution is a copy. India took the name and the founding idea and built something much larger and much more criminal in character. Saying the Lokpal is the Indian ombudsman is true; saying it is the Swedish ombudsman in Indian conditions is not.

It does not mean the office is only Scandinavian. By the time India legislated in 2013 the institution existed in well over a hundred countries, in the European Union, and in specialised forms such as banking and insurance ombudsmen.

And it does not mean 1809 is the whole answer to an evolution question. A candidate who writes only about Sweden has answered a fifth of MU's second question. The rest is chapters 30 to 100.

Quick revision

Origin: Sweden, Instrument of Government of 1809, the office of Justitieombudsman, created after the deposition of Gustav IV Adolf.

Predecessor: the Justitiekansler of 1713, but he was the king's officer, which is exactly the defect the 1809 office cured.

The word: ombud, an agent or representative.

Six features: appointment by the Riksdag; independence of the executive; jurisdiction over courts as well as officials; free and informal access; a power to prosecute; and a public annual report to Parliament.

Spread: Finland 1919, then nothing until Denmark in 1955.

Why the delay: strong ordinary courts, a small State, and an office that fitted neither the French nor the English model.

Test yourself

1. When and where did the office of Ombudsman originate, and what was the immediate constitutional occasion? Sweden, in the Instrument of Government of 1809, adopted after Gustav IV Adolf was deposed in the coup of March 1809. The Riksdag wanted a supervisor of officialdom answerable to itself rather than to the Crown, because the existing supervisor, the Chancellor of Justice of 1713, was the king's officer.

2. What does the word ombudsman mean, and what follows from the meaning? It means an agent or representative. It follows that the office is representative rather than judicial: the ombudsman acts for the citizen and for the legislature, which is why he may act on his own motion, unlike a judge who must wait for a case.

3. Name four features of the 1809 office and say which of them India did not adopt. Appointment by and answerability to the legislature; independence from the executive; free, informal access without a lawyer; a public annual report; and jurisdiction over the courts. India adopted the first four in substance and did not adopt jurisdiction over the judiciary, which is kept outside the Lokpal Act altogether.

4. Why did no country copy the institution for nearly a century and a half? Because it looked unnecessary where the ordinary courts were thought sufficient, because the State was small enough that officials exercised little discretion, and because an officer of a parliament with authority over judges fitted neither the French system of administrative courts nor the English system of a single ordinary hierarchy. The administrative state that made the office necessary is a twentieth century development.