The Ombudsman and the Rule of Law

Abstract

Many rule-of-law scholars overlook the important role played by the ombudsman in safeguarding the rule of law (ROL) (O’Reilly 2015; McMillan 2004). They consider the courts as the bedrock of ROL and do not see much relevance between the ombudsman and ROL. The lack of interest in the ombudsman may have originated from rather narrow understandings of both ROL and the ombudsman. A common understanding of ROL is about controlling the exercise of powers by the executive branch of the government almost exclusively through the courts. Throughout the years, ROL has grown and is ordinarily understood to require laws to protect human rights of various kinds (Bingham 2010; World Justice Project 2016). The ombudsman idea has also evolved from the classical form with only the powers to investigate maladminis- tration or administrative injustice to diverse forms having additional powers to consider broader standards of justice and human rights in flexible ways. Even in this limited understanding of ROL and the classical form of ombudsman, the relationship between ROL and the ombudsman is still significant. If new developments are also considered, their interrelationships are much richer. The aim of this chapter is to explore the evolving relationships between the ombudsman and ROL in light of their own developments. My understandings of the ombudsman and ROL are mainly based on my works in these two areas in Hong Kong (Tai 2009; 2017) combining with insights gained through comparative study. This chapter has five parts. Part I adopts a multi-level approach to integrate the differ- ent understandings of ROL as four levels of ROL. A developmental path of ROL with four stages is suggested. Part II explores how the ombudsman can complement the work of the courts in achieving the institutional goal of one of the levels of ROL: Limitation from Law. Part III further examines how the ombudsman works with other limitation mechanisms in ensuring governmental powers are exercised under proper constraint. Part IV analyzes the contribution of the ombudsman in the attainment of the institutional goal of the highest level of ROL: Justice through Law. Part V concludes by illustrating how the development of the ombudsman and ROL can support the evolution of each other in reaching their institutional goals.