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Role of Ombudsman in Improving and Maintaining Public Service Delivery With focus on Decentralization, Public Private Partnership and 1 Outsourcing
Dr. Alex Brillantes Dean, UP National College of Public Administration and Governance
1
Alex Brillantes Jr and Jose Tiu Sonco II For comments and suggestions, please email us at
[email protected];;
[email protected] [email protected] [email protected];; and jotiusonco@gm and
[email protected] ail.com..
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Table Contents I.
Introduction ................................... ................. .................................... ................................... ................................... .................................... ................................... ...................... ..... 4 II. Contextualizing the Role of the Ombudsman in New Public Management (NPM): Decentralization, Outsourcing and Public-Private Partnership (PPP) ....................................... 6 A.
Decentralization .................................. ................ ................................... ................................... .................................... ................................... ............................... .............. 6
B.
Outsourcing or “contracting out” and Public Private Partnership (PPP) ............................. ................. ............ 12
III.
The Role of Ombudsman in Decentralization ................................. ............... .................................... ................................... ....................... ...... 16
A.
Policy Framework of Ombudsmanship in AOA member countries and other countries ...... 17
B.
Perspectives from AOA member countries ................................. ............... .................................... ................................... ....................... ...... 20 1.
Mandate, Structure and Jurisdiction of the Ombudsman ................................... .................. ................................ ............... 22
2.
Implications of decentralization, outsourcing and PPP on the Role of the Ombudsman .. 23
3. Can the Ombudsman intervene intervene in situations where the delivery delivery of public service has already been outsourced? ......................................................................................................... 24 4. C.
D. IV.
Perception Survey Results – Policy and Institutional, Organizational and Individual Levels 25 Cases: The Philippines and Thailand ................................. ............... .................................... ................................... ................................ ............... 32
1.
Philippines .................................... .................. ................................... ................................... .................................... ................................... ................................ ............... 33
2.
Thailand .................................. ................ .................................... ................................... ................................... .................................... ................................... .................... ... 38 Summary notes and observations ................................... ................. .................................... .................................... ................................... ................. 43
Conclusions and the way forward ................................. ................ ................................... .................................... ................................... ....................... ...... 45
References ........................................................................................................................................ 48 Annexes............................................................................................................................................. 53
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Table Contents I.
Introduction ................................... ................. .................................... ................................... ................................... .................................... ................................... ...................... ..... 4 II. Contextualizing the Role of the Ombudsman in New Public Management (NPM): Decentralization, Outsourcing and Public-Private Partnership (PPP) ....................................... 6 A.
Decentralization .................................. ................ ................................... ................................... .................................... ................................... ............................... .............. 6
B.
Outsourcing or “contracting out” and Public Private Partnership (PPP) ............................. ................. ............ 12
III.
The Role of Ombudsman in Decentralization ................................. ............... .................................... ................................... ....................... ...... 16
A.
Policy Framework of Ombudsmanship in AOA member countries and other countries ...... 17
B.
Perspectives from AOA member countries ................................. ............... .................................... ................................... ....................... ...... 20 1.
Mandate, Structure and Jurisdiction of the Ombudsman ................................... .................. ................................ ............... 22
2.
Implications of decentralization, outsourcing and PPP on the Role of the Ombudsman .. 23
3. Can the Ombudsman intervene intervene in situations where the delivery delivery of public service has already been outsourced? ......................................................................................................... 24 4. C.
D. IV.
Perception Survey Results – Policy and Institutional, Organizational and Individual Levels 25 Cases: The Philippines and Thailand ................................. ............... .................................... ................................... ................................ ............... 32
1.
Philippines .................................... .................. ................................... ................................... .................................... ................................... ................................ ............... 33
2.
Thailand .................................. ................ .................................... ................................... ................................... .................................... ................................... .................... ... 38 Summary notes and observations ................................... ................. .................................... .................................... ................................... ................. 43
Conclusions and the way forward ................................. ................ ................................... .................................... ................................... ....................... ...... 45
References ........................................................................................................................................ 48 Annexes............................................................................................................................................. 53
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Abstract Over the past decades, many countries in Asia and around the world have embarked on various strategies to improve governance towards the general objective of improving public service delivery. Decentralization Decentralizati on has been a key strategy with the general objective of devolving administrative functions and responsibilities for increased operational efficiency towards the overall goal of pursuing economic development, good governance and democratizing the polity. Broadly speaking, Ombudsmanship sits well with decentralization. The promotion of accountability and transparency is central to the ideology of Ombudsmanship. Ombudsmanship . Decentralization largely aims to “increase democratic quality, promote accountability and administrative transparency, and encourage citizen participation to hold the state to account” in the delivery of public services. Thus a central concern pertains to how accountability mechanisms, institutions and processes have been affected by decentralization and alternative service delivery mechanisms such as outsourcing and public-private partnerships (PPP). Put another way, did decentralization strengthen or weaken Ombudsmanship? This paper aims to explore the role of the ombudsman in cases where the delivery of service have been decentralized; compare country practices and challenges of the ombudsman institutions of selected countries in Asia; point out lessons, insights and possible areas for wider replication; and, advance strategies to strengthen the role of the ombudsman within the context of new public management (NPM). It will be recalled that decentralization, outsourcing in the public sector, and PPP have been considered among the favored modes of NPM (Larbi 1999).
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I.
INTRODUCTION
The study focuses on the role of the ombudsman institution – its structure and jurisdiction – as it relates to the citizens as key stakeholders within the context of decentralized services. The paper addresses the following questions: With decentralization and alternative service delivery mechanisms, i.e., outsourcing or contracting-out 2 in the public sector, and public-private partnership (PPP), what are the implications on the role of the ombudsman and the right of the citizens for redress of their grievances through the ombudsman? Can the ombudsman intervene in situations where delivery of public service has already been outsourced to the private sector? In cases of PPP, can the ombudsman enforce accountability measures to the private sector if some public funds or resources are used?3 This study is largely exploratory in nature. Where appropriate and useful, it applies in a comparative perspective. It brings into the discussion the key dimensions of Ombudsmanship and the New Public Management (NPM) as complementary policies to improve public service delivery. Additionally and depending on the availability of data, it discusses the experiences of some Asian countries. The following methods were employed to achieve the above objectives: a) review of literature including academic papers, country/regional assessment reports, annual/regular reports of member institutions/countries, country papers of the Asian Ombudsman Association (AOA) organized conferences; b) country facts sheets of AOA member institutions; c) consultation with key persons including Asian Development Bank Technical Assistance (ADB-TA) consultant/s, and current and former officials of the Office of the Ombudsman of the Philippines, staff of Thailand Ombudsman, the Anti-Corruption & Civil Rights Commission (ACRC); d) administration of a questionnaire to the participants of the AOA workshop conducted by the ADB in Bangkok in February 2010; and e) further administration of a questionnaire to the officials and staff of the office of the Ombudsman in Thailand and the Philippines. Key sources and documents were accessed primarily through the websites of AOA, individual member countries and other reliable sources of information. The paper is divided into five sections. Part II presents the conceptual and operational definitions of decentralization, outsourcing in the public sector, and public-private partnership (PPP) as a new development context for the Ombudsman. Part III explores the role of the Ombudsman in the delivery of 2
This paper uses the terms outsourcing and contracting-out interchangeably.
3
The focused questions are based on the comments of Atty. George Carmona on an earlier draft outline. It should also be noted that this paper would have some common areas/discussion with the paper being prepared by Prof. Rajani Ranjan Jha.
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decentralized services. It discusses the results of the survey conducted to key informants and experts from AOA member institutions, as well as the Ombudsman officers of the Philippines and Thailand. It also highlights the key lessons and observations of the study. Part IV provides some conclusions and the way forward.
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II.
CONTEXTUALIZING THE ROLE OF THE OMBUDSMAN IN NEW PUBLIC MANAGEMENT (NPM): DECENTRALIZATION, OUTSOURCING AND PUBLIC-PRIVATE PARTNERSHIP (PPP)
A survey among Asian Ombudsman Association (AOA) members 4 indicated that the ombudsman institutions in the Asian region have varying degrees of powers, authorities, jurisdiction, functions and services. These include investigation, prosecution and punishing cases of mal-administration and malfeasance; pursuing anti-corruption initiatives; protecting individual human rights; and redressing individual grievances and administrative injustices. However, their jurisdictions and extent of powers vary, and these continue to evolve depending on the maturity and extent of development of the politico-administrative institutions therein. Most ombudsman institutions have the power to diagnose, investigate, and redress injuries committed by a government official to an individual, while others have additional powers like anti-corruption, leadership code enforcement, human rights and environmental functions (ADB-AOA 2009; Rief 2004). In other words, we have a mixed picture, with some ombudsman having greater jurisdiction than others, with powers ranging from simple counseling to reporting to prosecution, but all operating within the framework of promoting accountability of public sector institutions. The following subsections discuss the concepts and modalities of decentralization, outsourcing, and PPP. 5 It provides the context for defining or redefining the role of the Ombudsman where such modes have been adopted not only as a way of delivering services in a more efficient and responsive manner, but also in relieving central governments of unnecessary burdens and responsibilities.
A. Decentralization6 Depending on one’s paradigms and perspectives, decentralization can have different meanings and dimensions. It is a management approach that would deliver public services more efficiently by improving both allocative and productive efficiency i (Kakhonen 2001). It decongests top management, hastens decisionmaking processes, shuts down unnecessary procedures and minimizes delay. It 4
Azerbaijan; Hong Kong, China; India; Iran; Indonesia; Japan; Kyrgyz Republic; Republic of Korea; Malaysia; Pakistan; Peoples Republic of China; Republic of the Philippines; Sri Lanka; Thailand; and Viet Nam. �
As will be shown later, decentralization is actually all encompassing as it includes devolution of powers to sub-national authorities (local governments) and also t o the private sector (market decentralization) that includes PPP and outsourcing. 6
This section draws from Brillantes (2004), Decentralization Imperatives: Some Lessons from Asian Countries. Some parts also appear on a special issue on Public Policy, University of the Philippines.
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can also mean “load shedding” wherein central authorities transfer functions and responsibilities to sub-national institutions because of the inability of former to continue funding such functions. It broadens the reach of national government, and enables penetration of national government policies into the remote rural areas of the polity (Cheema and Rondinelli 1983:15). It can be a means to recognize the special status of certain regions that differ markedly from the rest of the nation due to different ethnic composition and makeup, or availability of resources (Bahl 2002). Decentralization suggests democratization by broadening the base of participation and providing a voice to marginalized and non-mainstream sectors of society, such as cultural and ethnic minorities. It contributes to operationalizing democracy at the local level by providing avenues to enable citizens to access structures and processes of governance especially at the local level. Decentralization can mean building the capacities of sub-national institutions to enable them to respond to local needs: it can lead to more autonomous local authorities that would be less dependent upon central institutions. Decentralization can mean more innovations and flexibility at the local level: it allows local governments to design and implement programs customized to the unique needs of the locality. It encourages creativeness and provides the opportunity to depart from standard and formula-based once size fits all approach to development challenges. Indeed, decentralization may mean any, or all the above and more. ii All said, decentralization entails the transfer of functions, powers, responsibilities and accountabilities to lower level institutions for better governance iii . This definition is not inconsistent with the classic definition developed by Cheema and Rondinelli in the early eighties that has somehow become some kind of “industry standard.” iv According to them, decentralization is the “transfer of planning, decision-making, or administrative authority from the central government to its field organizations, local administrative units, semi-autonomous and parastatal organizations, local governments or non-governmental organizations” (1983:18). Our definition suggests that, given the recognition in contemporary development analysis about the imperative to reduce poverty, and given that the lack of effective governance was pinpointed as the “missing link” (UNDP 2000) in failed poverty reduction efforts, the discourse should therefore illustrate that decentralization, when correctly implemented and given the proper policy and capacity mix at the national and sub-national levels, has the potential to be a very powerful tool to effect good governance; v thereby, delivering public services in a more effective and efficient manner. However, the promises of decentralization can only be as effective when the appropriate accountability mechanisms are put in place as well. This paper highlights the entry points whereby accountability institutions such as the
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Ombudsman can play a critical role in exacting accountability when powers, authorities, functions, and responsibilities have been decentralized.
Forms of Decentralization. Decentralization manifests in various forms. The four major – and widely known – forms of decentralization are i) fiscal decentralization, ii) political decentralization, iii) administrative decentralization, and iv) market decentralization. Table 1 indicates each form, the definition and the manifestation of the practices of decentralization. Figure 1-A further illustrates the forms of decentralization as well as the accountability issues which are viewed entry points for the ombudsman, particularly at the operationalizational level.
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Table 1. Forms of Decentralization Forms
Definition
Fiscal decentralization
Decentralizes fiscal resources and revenue generating powers
Political decentralization
Administrative decentralization 7
Market decentralization 8
Transfers political power and authority to sub-national levels
Transfers decision-making authority, resources and responsibilities for the delivery of a select number of public services from the central government to other lower levels of government, agencies, and field offices of central government line agencies Allows functions that had been primarily or exclusively the responsibility of government to be carried out by business, community groups, cooperatives, private voluntary associations, and other nongovernment organizations.
Operationalization/ manifestation Self-financing Expansion of local revenues Local expenditure Intergovernmen tal fiscal transfers Authorization municipal borrowing. Local elections Representation Local decision making
Deconcentratio n Delegation Devolution
Privatization Deregulation Debureaucractization
Accountability issues
Corruption Poor spending assignments Poor utilization of fiscal transfers from the central government Misuse of “pork barrel” Misuse of finances for purposes other than those in the technical and financial documents Abuse of decision making powers Indiscretion or interference in public transactions such as the bidding process Abuse of authority Poor public service delivery of devolved function, e.g. health, education, social services, agriculture
Collusion Conspiracy Non-compliance or substandard services Citizens’ complaints
Source: Brillantes 2004; World Bank Institute 2004; authors’ views.
7
“Deconcentration “redistributes decision-making authority and financial and management responsibilities among different levels of the central government.” Delegation occurs when “central governments transfer responsibility for decision-making and administration of functions to semiautonomous organizations not wholly controlled by central government.” Devolution involves the transfer of functions and “authority for decision-making, finance, and management to quasi-autonomous units of local government with corporate status.” 8 “Privatization” involves the cooperation of government and private sector in the provision of services or infrastructure, and “deregulation” reduces legal constraints on private participation or allows competition among private suppliers for services that in the past were provided by government or regulated monopolies.
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Figure 1-A. Forms of Decentralization
Source: Based on Brillantes 2004; World Bank Institute.
Taking off from the above, another variation of classifying decentralization would be the following: i) deconcentration, ii) devolution, and iii) debureaucratization. Figure 1-B illustrates the modalities of decentralization.
Figure 1-B. Modalities of decentralization: deconcentration, devolution and debureaucratization.
Source: Modified based on Brillantes 2004.
Deconcentration may also be referred to as “administrative decentralization.” It entails the transfer of functions from central authorities to lower level administrative institutions such as “field offices.” It embraces the notion of “delegation” since central authorities decide and identify what functions can be
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“delegated” to sub-national institutions. Such institutions, though, still retain their “national character” since they are simply authorized by their principals at the central government to administratively act on certain matters including routine matters that need not go to the center and clog operations there. It also includes transfer of authorities over fiscal matters, such as determining up to what amounts the field offices can decide on without having to obtain authority from the central office (Brillantes 2004). To a certain extent, it is referred to as “deconcentration” because it lessens the concentration of load in the center. The extent of delegated authority is determined by the center and such delegated authority may be revoked by them. A distinguishing feature of deconcentration is that final authority still rests in the center. Thus, deconcentration has been referred to sometimes as “pseudodevolution.” It is therefore important to always appreciate administrative decentralization within the proper context of the whole decentralization scheme. To a certain extent, it does represent a weak form of decentralization. According to Dalton (2003:9) “administrative decentralization often distracts attention from building towards devolution and in some cases misses the point entirely.” In other words, Dalton suggests that we should not lose sight of the ultimate objective of decentralization which is to move towards local democracy – and good governance – one that could be attained through devolution (Brillantes 2004). Devolution is also referred to as “political decentralization.” This entails the transfer of powers to lower level political institutions specifically the local governments. Local governments partake of a political nature when they fulfill the following criteria vi: (a) They have a set of elected officials, e.g., elected local chief executive such as the mayor and / or the local legislative body; (b) the local governments have jurisdiction over a specifically defined geographical area ; (c) they have clear responsibility for the performance of certain functions and delivery – and financingvii - of basic services, and are held accountable for such; and (d) they have the power to generate revenues and levy taxes . Local governments are clothed with a certain amount of autonomy that enables them to decide on local matters without interference by the center. The imposition of taxes should be authorized by the local legislative assembly. viii Debureaucratization refers to the process of transferring public functions, powers and authorities to the private sector, business organizations, voluntary and non-governmental organizations, people’s organizations, and to civil society in general. It is essentially enabling non-government and extra-governmental structures to deliver of services and perform functions that traditionally belonged to government (Brillantes 2004). Debureaucratization (roughly, “getting out of the bureaucracy”) is a recognition of the limitations of government’s inability to deliver some services due to some limitations (such as lack of resources and even graft and corruption). More important, it recognizes that there are some services and functions that may be
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more efficiently delivered and performed by the private sector. There may be various modalities of debureaucratization. These may range from government-nongovernment partnerships, to joint ventures, co-financing between government and private sector, to contracting out and even outright privatization (Brillantes 2004). Public-private partnerships and outsourcing are also forms of debureaucratization.
B. Outsourcing or “contracting out” and Public Private Partnership (PPP) This section provides an overview of outsourcing or contracting-out of services in the public sector, and Private-Public Partnership (PPP) as alternative service delivery mechanisms of public goods and services. As we mentioned earlier, broadly speaking, outsourcing and PPP could be considered a form of decentralization, i.e., market decentralization.
“Outsourcing” or contracting-out is an arrangement “whereby a contracting agency enters into a contract with a supplier firm from outside that agency for the provision of goods and/or services which typically have previously been provided internally”. This has been widely practiced by businesses in order for them to focus on performing their core functions and services by “farming-out” other activities to external service providers (Figgis and Griffth 1997). Outsourcing in the public sector has become a” model” for governments to increase efficiency in public service delivery. The United Kingdom, United States, New Zealand and Australia were the early frontrunners of public sector outsourcing. Among the government activities that they contracted out include building and equipment maintenance, cleaning, catering, prison management, information technology, telecommunications, waste management, mail services, printing, training, legal services, security, library services, property management, policy advice, payroll and accounting services, economic forecasting, determining or administering welfare entitlements, auditing, recruitment, collecting revenue, health care, home and community care, and transport (Figgis and Griffth 1997).
PPP describes a wide range of relationships between the public and the private sectors with emphasis on “infrastructure” and other services. The Asian Development Bank’s (ADB) handbook on PPP defines it as an arrangement between the public sector and the private sector specifying their shared “tasks, obligations, and risks” in an optimal way.” It recognizes that each sector has certain advantages relative to the other in performing specific tasks. The terms private sector participation (PSP) and “privatization” are oftentimes interchangeably used for PPP, but there are differences. PSP refers to a contract that transfers the obligations to the private sector rather than emphasizing the opportunity for partnership. Privatization involves the sale of shares or ownership in a company or the sale of operating assets or services owned by the public sector. Non-traditional public services such as construction and manufacturing are the more common and widely accepted sectors to be privatized. In cases where the infrastructure or utilities sectors are privatized, there are sector-specific regulatory
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arrangements such as pursuit for social and policy concerns, the use of assets for public services (ADB Handbook on PPP). Public-private partnerships, private sector participation, and privatization overlap and sometimes may mean the same: they all engage the private sector. However, in a PPP framework, the private sector “acknowledges and structures the role of the government in ensuring that social obligations are met and success sector reforms and investments achieved” (ADB Handbook on PPP, Italics provided). In other words, the enabling role of the government is recognized and given emphasis. Table 2 indicates the public and private partners as well as their potential role or contribution in PPP. The government ministries/departments and their regional and local offices, the state-owned enterprises/ corporations, and the local government units (LGUs) comprise the public sector partners. The local and international businesses and investors, nongovernment organizations (NGOs), community-based organizations (CBOs), and individual contractors represent the private partners.
Table 2. Public and Private Partners in PPP and their role/contribution Partners Public Partners: • National level Ministries /Departments • Sub-national level Regional and local • offices • Local government units (LGUs) Private Partners • Local or international businesses or investors
•
•
•
• •
• • •
Role/ Contribution Provide capital for investment (available through tax revenue) Transfer of assets or other commitments or in-kind contributions that support the partnership Promote social responsibility and environmental awareness Extend local knowledge, and Mobilize political support Use of its expertise in commerce, management, operations Bring in innovations to run the business efficiently Contribute investment capital depending on the form of contract Represent stakeholders directly affected by the project.
Nongovernment organization (NGOs) / community-based organizations (CBOs) Source: Based on the ADB PPP Handbook. •
•
The ADB Handbook identifies sectors in which PPPs have been completed worldwide including: power generation and distribution; water and sanitation; refuse disposal; pipelines; hospitals; school buildings and teaching facilities; stadiums; air traffic control; prisons; railways; roads; billing and other information technology systems, and housing. Table 3 indicates the PPP options that can be undertaken by the public and the private partners; it also provides the features, duration and possible entry points for accountability measures by the Ombudsman. The PPP options include service contracts, management contract, lease contract, build-operate transfers (BOT), concession, and joint ventures.
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Table 3. PPP Options PPP Option 1.
Service contracts
Duration •
1 to 3 years
Features •
•
•
•
2.
Management contract
•
2 to 5 years
•
•
•
3.
Lease contract
•
10 to 15 years
•
•
•
4.
5.
Build-operatetransfer (BOT) and similar arrangements Concession
Vary
•
•
25 to 30 years
•
Hires a private company or entity to carry out one or more specified tasks or services for a period Multiple contracts for a variety of support services such as meter reading, billing, etc. Useful as part of strategy for improving efficiency of public company Promotes local private sector development Expands the services to be contracted out to include some or all of the management and operation of the public service (i.e., utility, hospital, port authority, etc.) Management of entire operation or a major component Interim solution during preparation for more intense private participation Responsibility for management, operation, and specific renewals Improve operational and commercial efficiency Develops local staff Investment in and operation of a specific major component such as a treatment plant
Responsibility for all operations and for financing and execution of specific investment Improves operational and commercial efficiency Mobilizes investment finance Development
•
•
•
Problems and Challenges, and Entry Points for the Ombudsman Administration of multiple contracts and strong enforcement of laws Intense competition among private service providers Bidding process
•
•
•
•
•
•
•
•
•
•
•
• •
6.
Joint venture
Vary
•
•
Joint ventures are alternatives to full privatization in which the infrastructure is co-owned and operated by the public sector and private operators
•
•
Management may not have adequate control over key elements such as budgetary resources, staff policy, etc. One time only; contract not usually renewed Awarding of contracts
Potential conflict between the public partner and private operation Initial contract only; subsequent contract usually negotiated One time only; often negotiated without direct competition Does not necessarily improve efficiency of ongoing operation; may require guarantees How to compensate investment and ensure good maintenance during last 510 years of contract Long term during of contracts (necessary to recover the substantial investment costs) complicates the bidding process and contract design, given the difficulty in anticipating events over a 25-year period. Government’s dual roles as owner and regulator can lead to conflict of interest. Joint ventures also have a tendency to be directly negotiated or to follow a less formal procurement path, which can lead to concern for corruption.
Source: ADB Handbook on PPP; based on Skilling and Booth 2007.
Advantages and Disadvantages of Outsourcing in the Public Sector and/or PPP. In a review of practices of outsourcing in Australia, Figgis and Griffith (1997) cite the following as the major advantages of contracting out: “cost savings,
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increased accountability of service providers through contract specifications and performance measurement ; better work and management practices; access to greater skills, knowledge or technology; better use of capital and equipment; better service quality; greater flexibility in services; local industry development; and fewer industrial relations issues.” (Italics provided). They note, though that outsourcing also has its disadvantages, especially within the context of government procedures. More specifically, they enumerate the following as disadvantages of outsourcing: “ reduced accountability of government for contracted services ; loss of privacy and confidentiality of personal information; collusive tendering and other tendering problems; loss of control by the government over contracted services ; reductions in quality of services; the costs of outsourcing; savings to government resulting from losses to other groups rather than from increases in efficiency; and the effects on levels of employment and on the wages and conditions of employees of contractors.” (Italics provided). Box 1 illustrates the possibility of less government accountability in outsourcing. Box 1. Are we reducing government accountability by outsourcing? Lessons can be drawn from the experience in Australia. A question was asked: What happens if a person receiving a service suffers loss as a result of a contractor’s actions? Contract law usually prevents the person taking action directly against the contractor, because only a party to the contract (that is, the government agency or the contractor) can take legal action to obtain a remedy for breach of the contract. If the relationship between the contractor and the government agency is not clearly defined, then the agency, the contractor and their respective insurance companies can all deny liability for a problem. The Commonwealth Ombudsman has commented that ‘... the rules associated with contracting out are muddy, contradictory, or not yet written, and when it comes to issues of accountability and redress there is a new twilight zone. It is this blurring between public accountability and commercial remedies (through, for example, contracts and/or common law) that needs to be carefully considered in the contracting context because current redress mechanisms cannot cover all the situations and questions being raised Thus, there is an argument that outsourcing can reduce the Government’s accountability and transparency to the public for its actions. These include: •
•
•
•
the line of accountability becomes extended and less certain, making it difficult for affected parties to determine who is responsible for the delivery of the service; for services where it is difficult to allocate precise responsibility, the introduction of an additional person provides greater scope to shift the blame, making it difficult to seek redress; governments may refuse to make public the details of contracts on the basis that they are ‘commercial in confidence’, thereby preventing the public from assessing the terms on which services are contracted out, and the costs involved; where services are contracted to the private sector, individuals may not
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have access to the administrative law mechanisms and remedies that safeguard the interests of persons affected by government actions (such as an Ombudsman or freedom of information, or rights to privacy) Source: Drawn from Figgis and Griffith 1997, p.22.
Outsourcing can be a double-edged sword when it comes to the promotion of accountability within the context of NPM and pursuit for good governance. This is a central challenge therefore to the enforcement of accountability procedures by the Ombudsman and other institutions: essentially, where does government end and where does the private sector begin? Or should “government” end at all considering that such outsourced – and even privatized – procedures all started within the framework of government?
III.
THE ROLE OF OMBUDSMAN IN DECENTRALIZATION
This section locates the extent to which the Ombudsman institution can have authority and jurisdiction over the decentralized services as discussed in the preceding section. This paper argues that the Ombudsman should have a conscious effort to oversee and exact accountability in the delivery of public services, given that service delivery mechanisms are being pursued at different levels of government and by external service providers. Figure 2 shows an indicative accountability framework for the Ombudsman within the context of decentralized public services in improving access to and quality of public services. As illustrated below, decentralization is operationalized in two modes: 1) decentralization from central to sub-national governments and local governments (de-concentration and devolution); and, 2) and market decentralization which includes, outsourcing and PPP.
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Figure 2. Accountability Framework for the Ombudsman in Decentralization
Source: By authors.
A.
Policy Framework of Ombudsmanship in AOA member countries and other countries
A review of country fact sheets (CFS) of AOA members revealed that the Ombudsman institutions in Asia are fairly “young.” King Charles XII of Sweden has been generally credited as the first ruler to establish an ombudsman office (Office of the Supreme Ombudsman) in 1713. 9 In other words, Ombudsmanship is as old as 300 years. Seen from this perspective, Ombudsmanship among AOA member states is a relatively new phenomenon, the “oldest” of which is that in Vietnam with the setting up of the Special Inspection Board in 1945, and the People’s Supervisory Commission of the People’s Republic of China established in 1949; to the very recent ones, the Commission for Human Rights of Azerbaijan in 2001, and the Kyrgyz Republic with its Institute of Ombudsman in 2001. Thus, it is important to appreciate how “old” (or how “new”) the offices of the ombudsman to be able to properly appreciate their capacity levels and be able to confidently recommend capacity building interventions at various levels, whether at the policy, organizational or individual levels. This is further discussed later.
9
Asian Ombudsman Association, Addressing the Capacity Development Needs of the Asian Ombudsman Association and Its Members, October 2009. P. 8
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Table 4 indicates the member countries, the ombudsman institution or organization performing similar functions, and the year they were established.
Table 4. Establishment of Ombudsman Institutions in AOA member countries AOA member Country 1. 2.
Azerbaijan Hong Kong, China
3. 4.
Macao Peoples Republic of China
Ombudsman Institution/ Similar organization • •
• • • •
•
5.
India
• •
6. 7. 8.
Iran Indonesia Japan
• • •
Commission for Human Rights Ombudsman of Hong Kong (formerly Office of the Commissioner for Administrative Complaints) Commission Against Corruption People’ Supervisory Commission Renamed Ministry of Supervision Cancelled the Ministry due to restructuring Re-established the Ministry Vigilance Commission Lokayukt Organization in Madhya Pradesh General Inspection Organization Ombudsman Republik Indonesia Administrative Evaluation Bureau
Year Established
• •
Ombudsman Structure vis-à-vis decentralization
2001 1989
1999 1949 1954 1959 1987
• •
•
• • •
1970s 1982
2000 1966
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Kyrgyz Republic 10. Republic of Korea
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Institute of Ombudsman Ombudsman of Korea Anti-Corruption and Civil Rights Commission Public Complaint Bureau was established Banking Mohtasid (Ombudsman) Wafaqi Mohtasid (Ombudsman) Provincial Ombudsman of Sindh Ombudsman of Azad Jammu & Kashmir (AJK) Provincial Ombudsman of Punjab Federal Tax Ombudsman Provincial Ombudsman of Balochistan
2002
1996 2008
1971
1962 1983 1991 1992
1996 2000 2001
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1997 created supervisory bodies at all levels of local governments
8 Regional AEB 42 District AE offices 50 Local offices in each prefecture 5000 administrative counselors
Local ombudsman/ counsel
Provincial ombudsmen
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AOA member Country 13. Republic of the Philippines 14. Sri Lanka
Ombudsman Institution/ Similar organization
Office of the Ombudsman was established
Parliamentary Commissioner for Administration First parliamentary commissioner appointment 15. Thailand Ombudsman of Thailand 16. Viet Nam Special Inspection Board was set up in 1945 Government Inspectorate of Vietnam (GIV) Source: AOA Country Fact Sheets. •
Year Established
1987
1978 1982
1999 1945
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Ombudsman Structure vis-à-vis decentralization 3 special areas covering Luzon, Visayas, and Mindanao
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Central only
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The Ombudsman operates within an enabling legal framework. This could be provided by the constitution, a national law, or an administrative circular. Our survey identified two policy frameworks with explicit reference to decentralized services either by de-concentration and devolution to sub-national and local governments, or market decentralization to the private sector. Those of Japan and Malaysia explicitly state their jurisdiction over private businesses and the activities of local governments. Japan’s Administrative Evaluation Bureau (AEB) has “the authority over citizens’ complaints against businesses within the jurisdiction of national administrative organs, Incorporated Administrative Agencies (IAA), and public organizations. It also covers activities of local government organs delegated or subsidized by the national government” (AOA Fact Sheet for AEB of Japan). Malaysia’s Development Administration Circular No. 4 of 1992 provides for the role of different levels of government – ministry, state or federal statutory body, and local authority in the management of public complaints. The public may lodge a complaint on the “dissatisfaction emanating from an administrative action of the government agencies and those that have been “privatized” or institution that have monopoly of service. (AOA Fact Sheet for the PCB of Malaysia) While in other countries the jurisdiction of the Ombudsman generally covers all dealings with government agencies, and against elective and appointive civil servants at the national and sub-national government levels as well as in state enterprises or government-owned and controlled corporations. On the other hand, the Ombudsman in Pakistan should be viewed differently; it has a number of Ombudsman institutions assigned to specific jurisdictional coverage, including the Federal Ombudsman, Tax Ombudsman, Banking Ombudsman, and the Provincial Ombudsmen. Each has its own legal framework.
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The study has likewise identified the Ombudsman of Argentina, which directly addresses the issue of decentralization, outsourcing and PPP. Its enabling law on the Ombudsman, the Defensor del Pueblo ( Defender of the People) or the Ombudsman of Argentina explicitly provided for its jurisdiction over public utilities that have been privatized. Article 2 of Law No. 6644, which created the Ombudsman of Argentina, provides: For the purposes of this law, the concept of provincial public administration, includes the centralised and decentralised administration; self-governed entities; State enterprises; State companies; State-partially-owned Companies; State-majority-owned Companies; and any other agency of the Provincial State whatever is its legal nature, name, special regulatory law, or place where its service is provided. This Office of the Defender of the People shall have jurisdiction over public non-state legal entities that exercise public powers, as well as over private suppliers of public utilities. In this case, and without prejudice to the remaining powers granted by this law, the Defender of the People may demand the competent administrative authorities in pursuance of the powers granted by law. The Office of the Defender of the People shall not have jurisdiction over the Judicial Power and the Legislative Power. The legal framework of the Ombudsman of Argentina indicates clear authority and jurisdiction over decentralized services. It enumerates both central and decentralized government instrumentalities as well as “public non-state legal entities that have public powers and the private suppliers of public utilities.” This may serve as a model for other Ombudsman institutions in AOA member countries should they feel the need to expand their jurisdiction to include decentralized politico-administrative structures and the external providers of public services. However, it must be pointed out that the mandate, power, functions and the jurisdiction of the Ombudsman are context specific.
B. Perspectives from AOA member countries To deepen our appreciation of the role of the ombudsman within the context decentralization and alternative service delivery mechanisms, this study employed a framework to assess the capacity of Ombudsman Institutions in select AOA member countries. The institutional capacity of the ombudsman to perform its functions under decentralized conditions can be operationalized at three levels: (1) institutional and policy; (2) organizational, and (3) individual. Figure 3 presents the schematic framework for strengthening the capacity of the Ombudsman towards improving public service delivery. The institutional and policy level relates to the enabling law/s and supporting policies of the Ombudsman institution. The organizational level pertains to the
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Ombudsman organization, the elaboration of its objectives and strategies, structure, systems and procedures, resources (human, financial, and physical), performance measures, coordination, systems of accountabilities, and feedback mechanisms. At the individual level, the framework suggests that the competencies - knowledge, skills and attitude – and the mindset of individuals within and outside of the Ombudsman are keys for better service delivery and accountability.
Figure 3. Institutional Capacity Framework for Good Governance and Improved Service Delivery Institutional/ Policy
Organization
Legal Legalframework framework Policies Policies
• • • •
Objectives Objectives&&strategies strategies Structures Structures Processes Processes&&procedures procedures Resources Resources Communications Communications Information Informationsystems systems Performance Performancemeasures measures Accountabilities Accountabilities Linkages Linkages&&networks networks Coordination Coordination
Improved Capacities
• • • • • • • •
Individuals
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Better Quality of Services
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Knowledge Knowledge Skills Skills Attitudes Attitudes Aspirations Aspirations
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Improved Living Conditions
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Source: Astillero and Mangahas 2003. Given the above framework, this study conducted a perception survey among key informants and experts from various AOA member institutions. The survey aimed to draw a picture of the capacities of the ombudsman at the three levels. The following discussion presents the results of a survey administered to 33 key informants representing 10 member countries 10 of the AOA. They participated in the advanced investigative training for administrative watchdogs conducted by ADB and AOA.11 The perspectives presented here are largely based on the informants’ perception employing a Likert Scale and their substantive responses to open-ended questions.
10
Azerbaijan (1) HKSAR Chin a (2), India (4) Indonesia (2), Korea (2), Malaysia (1), Pakistan (11), Philippines (2), Thailand (5) and Vietnam (3). There were 26 men and 7 women respondents who accomplished the questionnaire. 11 The workshop was held from February 8 to 11 in Bangkok, Thailand.
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The survey meant to draw out the key informants’ perceptions on the implications of decentralization, outsourcing and PPP upon their functions and responsibilities as upholders of accountability and answerability. Among the questions asked were the following: Were the structures, processes and institutions in the ombudsman ready for such processes? Were the institutions strong enough to operate within such a framework? More specifically, using the Institutional Capacity Framework in Figure 3 above, we asked our key informants the following questions: Have policie s been in place to allow them to address the challenges posed by a decentralized, outsourced and PPP set-up? How have their organizations responded? How have they as individual officers and staff coped with such challenges? The following is a discussion of the results of the survey.
1. Mandate, Structure and Jurisdiction of the Ombudsman In most AOA member countries, the Ombudsman has the mandate to investigate grievances and maladministration against erring government officials – both national and local – who “collude or conspire” with the private sector, but the laws do not explicitly state provisions in dealing with public sector outsourcing and/or PPP issues. In outsourcing public services, the Ombudsman usually deals with the concerned government agencies that contracted-out a particular service. In Hongkong, the law empowers the Ombudsman to probe administrative acts made on behalf of the organization under the jurisdiction. In the present system, they deal with the government departments that contract-out services. For example, the cleaning and management services of public housing estates have been contracted-out to the private sectors; should there be complaints on this aspect, they will deal on it with the Housing Department. The authority of the Ombudsman over private individuals or contractors pertains to “graft and corruption” cases, i.e., when there is evidence of collusion and “conspiracy” with public servants on government transactions like the bidding process. Ombudsman institutions have broad jurisdiction over all public services and agencies. In India and the Philippines, private individuals or partners may likewise be prosecuted for their misconduct in dealing with government services. In the Philippines, the Office of the Ombudsman (OMB) can only investigate private individuals if it believes that there has been a “collusion” occurring on certain transactions with public officials. The Ombudsman follows only the provision of the Ombudsman Act. Government personnel may be held “accountable” if violations are committed and due process was afforded. Its powers are essentially limited to government officers. In India, the Lokayukt (ombudsman) in the State Madya Pradesh (MP) has broad jurisdiction over all public servants defined under the relevant laws. The
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private contractors or partners can also be prosecuted in furtherance of the crime under the Prevention of Corruption Act of 1988 and the Indian Penal Code. In Pakistan, the federal structure of the government has placed the Ombudsman offices at various levels with varying jurisdictions. They have different mandates for the federal Ombudsman, tax ombudsman, banking ombudsman, and the provincial ombudsmen. The mandate of the Federal Ombudsman is limited to investigate cases of maladministration pertaining to Federal government agencies excluding defense and Foreign Service related institutions. The Banking mohtasib (ombudsman) entertains complaints against commercial banks by their customers and inter-bank complaints. At the provincial level, there is no provision in the Provincial Ombudsman Balochistan legislation to deal with PPP issues. The Ombudsman offices deal with all the government agencies and departments but they do not have powers to deal with PPP issues.
2. Implications of decentralization, outsourcing and PPP on the Role of the Ombudsman This subsection highlights the views of key informants on the implications of decentralization, outsourcing and PPP on the role of the Ombudsman and the right of the citizens for redress of their grievances through the Ombudsman.
Philippines. Decentralization and outsourcing public service delivery may improve the quality of delivery of services; however, the Ombudsman may not immediately act on the complaints of the citizens. The Ombudsman may call the attention of the public agency concerned that contracted-out or engaged in PPP to look into the grievance aired by the citizens. It must be emphasized that the powers of the Ombudsman are limited only to government officials and employees. Hongkong. Public interest may be compromised more easily. The Ombudsman office does not have jurisdiction over the private sector. The role of the Ombudsman has become more complicated; it has less or indirect jurisdiction over contractors. As such, there is a need for more in-depth inquiries and greater investigative powers. For now, one way to abate possible jurisdictional problems is to provide a “clause” for the cooperation with the private sector or contractor in the delivery of public service. India. Action can be taken against private persons if they act in collusion with the public servants who violate relevant laws. The role of the Ombudsman is not only to entertain corruption cases, but also to intercede with the various government departments. As in the case of the Philippines, collusion is a very important trigger for the ombudsman’s involvement. Thailand. Given this development on alternative service delivery mechanisms, one significant role of the Ombudsman under a decentralized framework is simply to provide citizens the right information offering opportunities to help them
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recognize their rights and recommend to the department that can help to address their grievances. This will be able to protect the right of the citizens for redress of their grievances.
Pakistan. The key informants from Pakistan noted that there is no legislative provision on the role of the Ombudsman pertaining to decentralization, outsourcing, and PPP. In order for the Ombudsman to be more responsive to these service delivery modalities, it would require capacity building activities which include: i) amending the Ombudsman law; ii) changing the organizational structure, and iii) conducting trainings for the Ombudsman personnel. Moreover, there is a need to develop the rules and regulations, work manuals, and provide for a good service career structure for those working for the Ombudsman office. The responses above are simply indicative of the way the changes in service delivery mechanisms and management paradigms have changed the role of the Ombudsman over the past decades, and how it will continue to change the institutions in the future. The recommendations should be seen as entry points for possible policy reforms and re-structuring, should the policy stakeholders feel the need to align the role of the Ombudsman with decentralized services.
3. Can the Ombudsman intervene in situations where the delivery of public service has already been outsourced? This subsection discusses the extent to which the Ombudsman institutions in some AOA member countries can intervene where the delivery of services has been outsourced. Generally, the jurisdiction of the ombudsman is circumscribed when it comes to investigating cases where the services have been outsourced. However, there is also the overriding principle that once public funds are used, they can be investigated even if the functions have been administered. At the very least, they should monitor the use of such resources. In Pakistan, the question on whether the Ombudsman can intervene when a particular service has been outsourced was found to be “not relevant” to the Federal Ombudsman. There is no such role assigned to the Provincial Ombudsman as well; thus, the provincial ombudsman cannot intervene. However, there was another view that the office of the Ombudsman dealing with public complaints regarding government officials can generally interfere with private concerns. The fundamental principle was suggested: if public funds have been used/ involved in some services, then that must be accountable to the Ombudsman. On the other hand, in cases where generalized systemic weaknesses in Banking processes are observed, Banking mohtahsib may suggest procedural improvements via the Central Bank. Similarly, where serious breach of law or
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regulation is observed, mohtasib can recommend to the Central Bank to conduct an inquiry or to take action. The key informants from Thailand categorically stated that the “Ombudsman cannot intervene in situations where delivery of public services has already been outsourced to the private sector.” It can merely investigate the administration of the government agency. Likewise, in PPP, the Ombudsman cannot enforce accountability measures directly to the private sector even if some public funds or resources are used; however, the Ombudsman can investigate the government side. In India, the Ombudsman can enforce accountability for the violation of laws, if some public funds or resources are used. In one case, the government allotted public land to a group of people in violation of the law. The minister was prosecuted in a court of law and had to lose a berth in government. The OMB of the Philippines cannot intervene in operations outsourced to the private sector. Only the concerned government agency may be made answerable once the OMB has determined that there was mismanagement or violation of laws committed by the personnel of the private sector. In Hong Kong, the Ombudsman has a monitoring role which is relatively restrictive. Public-private management is an example whereby property management is delivered by agents. Similarly, in Vietnam the Ombudsman can intervene but for monitoring purpose only.
4. Perception Survey Results – Policy and Institutional, Organizational and Individual Levels Policy and Institutional Concerns. Our survey revealed that the officials and staff of the ombudsman in selected Asian countries felt that the policy and institutional frameworks for the enforcement of accountability mechanisms are largely in place vis-à-vis decentralized powers and services. 12 This was based on the fact that they believed that the ombudsman offices have broad jurisdiction over public officers and services. Generally, they felt that the offices of the ombudsman were strong enough and had sufficient capacities. They felt that their powers were broad enough and would not be significantly diluted nor weakened by the decentralization, outsourcing or privatization processes. However, they also said that the laws do not explicitly state jurisdiction over private entities with reference to the modality of outsourced public services and PPP modalities in service delivery. In other words, they could work proactively (and aggressively) in a decentralized framework. While the laws do not explicitly state jurisdiction over private entities, the laws also do not prohibit them from being proactive and hence pursuing such.
12
However, as suggested earlier, this has to be placed within the proper context of how “old” or how “young” their organizations are.
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Most respondents agreed on the power, mandate and jurisdiction of the Ombudsman over decentralization and local governance. More specifically, they were asked whether they felt that the ombudsman had a clear mandate and jurisdiction over the following: local officials (elected and appointed), devolved services, outsourced services and PPP modalities. (See Graph 1)
Graph 1. Mandate of Ombudsman
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree The officials and staff of the ombudsman in various countries in the region said that they did not feel any significant constraints in their operations under a decentralized framework. In fact they said that they have aggressively pursued cases among local governments. (See Graph 2)
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Graph 2. Practices of the ombudsman
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree As regards PPP, our survey revealed that about 45% of the respondents did not indicate a categorical response on the mandate and jurisdiction over PPP. About 77% perceive that the mandate of their ombudsman institution is not as clear in terms of projects undertaken through public-private partnership (PPP) arrangements . (See Graph 3)
Graph 3. Jurisdiction of the Ombudsman on “outsourcing” and PPP
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree Although all the key informants believe that their respective Ombudsman organizations have the broad policy framework for decentralization, outsourcing
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and PPP, most of them (about 76%) feel that the role of the Ombudsman should further be clarified within the context of NPM. (See Graph 4)
Graph 4. Function of the Ombudsman
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree The survey results indicate that the various Ombudsman offices have actively pursued and succeeded against abuses at the local government level; however, they seemed hesitant when asked whether they are actively pursuing cases against outsourced services and/or PPP projects like BOTs. This is consistent with their previous claim that they simply deal with the concerned government agencies and public officials, but not directly with the private entities, in cases of grievances and complaints from the citizens. This continues to be an area that must be clarified.
Organizational Concerns. Seventy-five percent of the key informants believe that the organization structures of their Ombudsman organizations are properly designed . Fifty-seven percent believe that they are responsive to decentralization or decentralized services. However, about 60% of the informants do not agree that their organizational structures are responsive to outsourcing and PPP modalities. Again, this is consistent with the observation that the Ombudsman institutions have “broad mandates,” but that explicit powers and the appropriate organizational structures are lacking. (See Graph 5)
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Graph 5. Organization structure of the Ombudsman
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree Forty-five percent of the key informants agree that they have adequate personnel to address cases at the national government level, while 54% say that they have adequate personnel at the sub-national government level. Almost half of the respondents feel that the ombudsman field investigators are not adequately compensated. In other words, personnel concerns are a major issue among the offices of the ombudsman: there is no clear picture as to whether they feel they have adequate number of personnel to do perform the tasks expected of them. Then there is the additional challenge of what they felt is fair and adequate compensation. (See Graph 6)
Graph 6. Ombudsman Personnel
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Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree It should be noted that 45% of the key informant say that the rules and procedures on decentralization cases are not clear to investigators. Moreover, the coordination and linkages between the ombudsman institutions, other accountability and oversight agencies need to be strengthened. (See Graph 7)
Graph 7. Rules and Procedures
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree
Individual concerns. Interestingly, 79% of the key informants say that their ombudsman investigators are willing to pursue cases at the sub-national government level , while 19% disagreed. Graph 8. Attitude and Competencies
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Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree Most of our respondent s believe that field investigators seem to have the appropriate competencies in terms of handling cases against national and sun- national government officials. The averages of responses pertaining to the competencies, i.e. knowledge, skills, and attitudes, of the ombudsman officers/ field investigators were on the positive side. The key informants feel that their field investigators are motivated to investigate erring government officials at the local government level. (Graph 9)
Graph 9. Competencies of Ombudsmen Personnel
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree In terms of skills, the key informants generally agree that the field investigators need more training in handling cases which have been decentralized, outsourced, and delivered through PPP modalities. (Graph 10)
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Graph 10. Training and Capacity building
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree Finally, about 30-37% of the key informants believe that the citizens do not actively participate in elevating complaints against local government officials and private contractors. (See Graph 11)
Graph 11. Citizen Participation
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree
C. Cases: The Philippines and Thailand In order to deepen our understanding of the role of the ombudsman under a decentralized framework, selected cases in the Philippines and Thailand are presented. The research questions pertain to the extent to which ombudsman
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institutions take on decentralized public services. These include the following: to what extent do ombudsman institutions pursue accountability measures over decentralized and outsourced services? What are the issues and challenges? Given the existing conditions, how can the ombudsman services be improved and strengthened? 13 One particular task is to trace the policy framework, structural design, and policy implementation levels from the central to sub-national institutions. The Philippines has been perceived as one the most corrupt countries in Asia. Its ranks 24 th with a 2.4 Corruption Perception Index (CPI) 14 score for 2009 – similar to Bangladesh and Pakistan – among the 33 countries in Asia and the Pacific Region (APR). Thailand ranks 14 th with a CPI score of 3.4. Singapore ranks 2nd in APR and 1st in Asia with a CPI score of 9.2; while Afghanistan ranked 33 rd with a CPI score of 1. (See Annex 4 for the regional ranking and CPI score in 2009).
1. Philippines A survey was conducted among the officials and staff of the Office of the Ombudsman of the Philippines. Survey participants included officials and staff from the regional offices of the OMB. The follow sub-sections present the highlights of the qualitative survey. 15
a. Office of the Ombudsman (OMB) of the Philippines: Mandate, structure and Jurisdiction Legal Framework. Generally, the Office of the Ombudsman (OMB) has a very broad mandate which covers all government instrumentalities and personnel, services and functions – national government agencies (NGAs), local governments (LGUs), and government owned and controlled corporations (GOCCs). OMB’s legal framework emanates from the 1987 Constitution whereby it can “investigate any act or omission of any public official, if deemed illegal, unjust, improvement or inefficient. It can enforce administrative, civil or criminal liability in every case when the evidence warrants in order to promoting efficient service by the government to the people. It has ‘preventive, investigative, and prosecutory powers in cases of graft and corruption.”
13
Among the functions may vary from investigative, prosecution, and punitive; other soft services as such as public assistance and education; and administrative remedies, if applicable. This was based on initial discussions OMB officials include Assistant Ombudsman Atty. Evelyn A. Baliton, Atty. Alan R. Cañares, and Atty. Rafael Hipolito last 5 January 2010. 14 The higher the CPI score and ranking indicate that the country is perceived to least corrupt. 15 The graphs showing the results of the perception survey in the Philippines and Thailand are presented in Annex 5.
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The 1987 Constitution and the Republic Act (RA) 6770, which created the Office of the Ombudsman, limit the jurisdiction of the Ombudsman to public officials only. However, OMB may also claim jurisdiction over private-public partnership (PPPs) and outsourcing of public services provided that there is “conspiracy” between a government employee and the private sector. Under a specific law, i.e. Republic Act (RA) 3019, private individuals can be investigated and prosecuted together with public officers if “conspiracy” in committing an irregularity is established.
Jurisdiction and Function. As noted earlier, OMB’s jurisdiction is limited to public officials only. OMB cannot just assume jurisdiction over private contractors even if they are discharging public functions. With the existing legal framework, OMB can exact accountability and conduct investigations only when there is established proof or evidence that collusion/conspiracy between public official/s and the private partner occurred. Box 1: Task Force Illegal Hatak (Towing) This was created because of the complaints against the abuses of some towing companies. OMB had to ask the towing companies where they get their authority to tow. It was learned that they were delegated by the LGUs. Although the abuses of these companies were proven, it was difficult to pursue cases against them because they were not public officials and the LGUs concerned failed and refused to cooperate. That is the reason why the cases did not prosper.
Thus, OMB handles cases on erring public officials; complaints filed against private entities are usually dismissed due to lack of jurisdiction. It was therefore suggested the OMB be given the mandate to look into private persons or corporations who are engaged in public service delivery as long as public funds/resources are disbursed.
Organization Structure and Personnel. Most of the officials and staff of the OMB felt that the organizational structure of the OMB is well defined given its broad legal framework and jurisdiction as mandated by the 1987 Constitution. However, there was the accompanying perception that the structure does not adequately respond to structural changes brought about by the decentralization of government functions and services, and even more with the engagement of alternative service delivery mechanisms, including PPP and outsourcing. Although the OMB has vast powers over public officials – from national to sub-national; it is constrained by the “lack of personnel” and offices in the countryside. For instance, a key informant from OMB Mindanao noted that “the organizational structure of OMB is starkly inadequate to completely address pressing issues considering the geographical location and the sheer size of its area of jurisdiction.”
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Moreover, exacting accountability in outsourcing and PPPs needs to be clarified. OMB has limited functions in outsourcing and PPPs arrangements. How can the OMB enforce accountability in such conditions? Guidelines on the “rules of the engagement” over them should be established. If necessary, the legal framework on areas where they should have authority may be expanded as deemed appropriate by the Ombudsman institution.
b. Implications of decentralization, outsourcing outsourcing and PPP on the Role of the OMB The key informants from OMB view some opportunities and weaknesses with the foregoing service delivery mechanisms. Decentralization. With decentralization, exacting accountability to devolved services and local governments performing more autonomous functions requires a more responsive OMB organizational structure and widely distributed personnel on the ground. Citizens may actively participate and work with the OMB. It has been argued that decentralization “brings government closer to the people” not only in the delivery of public services, but also in exacting accountabilities and answerabilities.” On the one hand, the political system hopes to hold erring local public officials accountable to the citizens through their election or non-election in electoral process. On the other hand, the citizens can be more involved and make them answerable through complaints to the appropriate authority, i.e. the Ombudsman. But the question is: does our Ombudsman institution have the appropriate mechanisms and organizational reach to the thousands of local governments in the Philippines?
Outsourcing and PPP. With outsourcing and PPP, as one key informant pointed out, “it dilutes the role of the OMB and the right of the citizens for redress of grievances.” On the other hand, it provides opportunities for OMB to discover its potential role in outsourcing and PPP by making its structure more responsive, and where appropriate and necessary, expand its mandate and jurisdiction. Moreover, it opens up the need for stronger linkages between OMB and accountability institutions like the Commission on Audit (COA). The latter can provide the needed evidence to assist the former in establishing “conspiracy” or “connivance” between public officials and the private contractors; thus, providing OMB the jurisdiction to investigate and prosecute a private entity. c. Can the Ombudsman intervene intervene in situations when the delivery delivery of a public service has been outsourced? To the key informants, the answer to this question was a resounding “yes.” Yes, it can intervene if there is “conspiracy.” Yes, the OMB can intervene and enforce accountability provided that public funds have been used to deliver services.
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To many, the OMB, given its broad powers mandated by Republic Act 6770, which provided for the functional and structural organization of the Office of the Ombudsman, can always intervene in matters where the delivery of public services is at stake. In PPP, the presence of “conspiracy” allows the OMB to have jurisdiction jurisdiction over the matter. In outsourcing, outsourcing, the OMB through its Integrity Development Review (IDR) could give recommendations and non-compliance may be dealt with in accordance with the provisions of the Constitution.
OMB Intervention in Corruption issues. The OMB can intervene through its corruption prevention program. It can enforce accountability measures to the private sector if there is a conspiracy between government employees and private entities, and when the interests of the government are “jeopardized.” Box 2. A case of outsourcing in the Philippines In the case of the Philippines, certain functions of the Land Transportation Office (LTO) have been outsourced. A case in points is the drug testing requirement for drivers before they are issued licenses. Since government does not have the capacity to administer drug testing, certain private companies have been accredited to perform such tests. The question is: has the Ombudsman pursued possible cases of collusion between certain frontline LTO officials and private drug testing companies operating right outside the premises of the LTO? There have been cases where “preferred” drug testing companies have been identified by the LTO official, and applicants are “encouraged” to go to such companies to obtain the tests. Either the public is unsuspecting (of opportunities for collusion and corruption), or if the public perceives such collusion, they simply let it go because all they want is to get the service, in this case, the driver’s license. Some officials of the Ombudsman have told us that they may pursue the case on its own, should it warrant. However, accompanying issues including capacities of the Ombudsman itself, and citizen involvement (who would need to testify) have to be addressed.
Unclear role on the quality of public service delivery by private contractors. On the contrary, some key informants maintain that OMB does not have authority over private persons. It can only direct a government agency or instrumentality, but not the private sector. The OMB has no jurisdiction over the delivery of services. The role of the OMB in ensuring the quality of the service is vague. Thus, it cannot directly intervene against the service contractor especially if the dispute is about the quality of service. Box 3. The case of rural electric cooperatives Any misdemeanor committed by officers of these cooperatives is outside the jurisdiction of the OMB. However, if said cooperatives have a loan from the National Electrification Agency (NEA), NEA can step in to ensure that the funds loaned are utilized properly. Since it is outside the jurisdiction of the OMB, OMB , NEA and/or the OMB can file f ile cases before the public prosecutor’s office.
The extent to which OMB can intervene in outsourced services needs further clarification. What is very clear is that: private entities/individuals may be ��
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made accountable together with public officers if there is an irregularity in the engagement or contract and the subsequent contract implementation. If malversation or misappropriation of funds is established, a complaint may be filed with the OMB charging private persons.
d. Perception Survey – Policy and Institutional, Organizational, and Individual Levels Similarly, their perceptions on the OMB’s capacities at the policy, organizational and individual levels were obtained during the survey. The following are the results of the survey.
Policy and Institutional. All the respondents fully agreed that the OMB of the Philippines has a clear mandate, jurisdiction and a defined role over local government officials both elected and appointed with an average scale of 4.7. Sixty-six percent of the respondents agreed that the OMB has a clear authority over devolved services, e.g. education, health, and social services ; 26% indicated neutral and 7% did not agree with the statement. On the other hand, only 38% felt that the ombudsman has a clear jurisdiction over outsourced public services, while 40% was neutral and 23% responded negatively. (See Graphs 12 and 13) Sixty percent of the key informants strongly believe that the OMB actively pursues cases against local government officials. However, this perception changed when asked whether OMB actively pursues cases against outsourced services and PPP projects. This reflects that the key informants are a bit quite wary in situating their jurisdiction over private entities involved in outsourcing and PPP modalities of public service delivery as against local government officials. (See Graph 14A) Over 60% of the key informants believe that OMB has succeeded in addressing grievances and/or abuses at the local government level . Interestingly, about 15 % think that OMB fails to respond to large scale abuses in the delivery of service delivery; while about 40% key informants responded neutral. (See Graph 14B) More than 80% the key informants felt the need to clarify the new role of the OMB within the context of NPM approaches such as decentralization, outsourcing, and PPPs. More particularly, there was a strong indication that the key informants would like to have jurisdiction over private entities engaged in the delivery of public services. (See Graph 15)
Organizational level. The key informants felt that, generally, the overall organizational structure of the OMB is properly designed. This may be seen within the overall context of OMB’s mandate and jurisdiction over public officials. ��
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However, their responses shifted to “neutral” when they were asked whether the organizational structure of the OMB is responsive to decentralized services, outsourcing and PPP arrangements . (See Graph 16) The key informants perceive inadequacy of personnel to pursue cases both at the national and sub-national government levels . Moreover, over 40% believe that the field officers are inadequately compensated, while 33% responded neutral. (See Graph 17) The key informants felt the need to clarify the rules and procedures of OMB pertaining to decentralization cases, outsourcing, and PPP arrangements. The coordination mechanisms and linkages between OMB and other accountability institutions within this context need to be established as well. (See Graph 18)
Individual level. OMB officers and investigators are willing to pursue cases at the national government level, but not as motivated at the sub-national level. About 40% of the informants did not agree nor disagree when asked whether the Ombudsman officers/investigators know how to handle cases within the context of decentralization, outsourcing and PPP. (See Graph 19) More than 70% of the key informant thought that the field officers of the OMB possess adequate competencies, i.e. knowledge, skills and attitude to pursue cases against national and local government officials . (See Graph 20) The survey clearly indicates that the key informants see the need to conduct trainings for OMB officers and investigators pertaining to cases on decentralized services, outsourcing, and PPP arrangements. (See Graph 21) The survey results further imply that there is a need “to provide guidance for them on how to handle such cases.” This strengthens the observation that the “rules for engagement” or the guidelines on the processes and procedures should be developed. (Graph 19 and 21) Between 33% and 40% of the respondents thought that citizens actively participate by elevating complaints against local government officials and contractors of public services. However, there was an indication that they are more active over government officials compared to private entities that are engaged in public services. (Graph 22)
2. Thailand This section presents the case of the Ombudsman of Thailand. It draws from a review of documents gathered from the Ombudsman institution in Bangkok, Thailand, and the country facts sheet prepared by the AOA. This case also highlights the results of the survey administered to 35 key officers and staff of the Thailand Ombudsman organization. It follows the structure of the Philippine case in addressing the overall focus questions of the paper.
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a. Office of the Ombudsman (OMB) of the Philippines: Mandate, structure and Jurisdiction Legal Framework. The Ombudsman of Thailand was established on September 14, 1999 to “consider and investigate complaint of injustice, illegality, or maladministration done to the persons by a civil servant, member or employee of a government body, state agency, state enterprise or local government,” through the 1997 Constitution of the Kingdom of Thailand (B.E. 2540) and 1999 Organic Law on Ombudsmen (B.E. 2542). Powers, Functions and Jurisdiction. The Ombudsman shall consider and investigate a civil servant i) who violates the law or exceeds the jurisdiction of his or her authority; and, ii) whose action or inaction causes harm, damage or injustice to an individual or to the general public. The Ombudsmen shall submit its report, comments and recommendations to the National Assembly. If it finds any violation of the Constitution, the matter shall be “referred” to the Constitutional Court, Administrative Court or the appropriate government agency for further review. Among its powers essentially pertain to demanding or requesting pertinent documents and/or evidence relevant to the investigation including the authority to enter premises with prior notice. It also has administrative powers to issue regulations and procedures on receiving complaints, conducting investigations, and financial matters such as reimbursements and out-of-pocket expenses (AOA Fact Sheet, Thailand; Thailand Ombudsman at a Glance, undated). The Thai Ombudsman has no power to sanction; it can only make provide recommendations. In case of non-compliance by the concerned agency, it may report to the Minister, Prime Minister, the Parliament, and to the public (Thailand Ombudsman at a Glance, undated). In relation to decentralization and alternative modes of public service delivery, our survey among members of the Ombudsman of Thailand found that it has the “mandate to investigate local organizations (local governments) and public authorities who handle decentralized activities. However, the OMB is not allowed to directly investigate services which have been outsourced or implemented through PPP arrangements. It can investigate the public authority which has a contract with the private sector.
Organizational Structure and Personnel. Thai Ombudsman is based in its capital city, Bangkok, with no other branches or sub-units at the sub-national level. Although it has a clear mandate over public offices both at the national and subnational levels, there was an observation that its organizational structure is problematic with insufficient manpower and inadequate investigation processes and operations. One key informant noted that “the institution focuses mainly on the speed of investigation and the quantity of ended (resolved) cases.”
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b. Implications of decentralization, outsourcing and PPP on the Role of the OMB The role of Ombudsman to investigate complaints or irregularities is limited to public authorities/ organizations that have been decentralized and have contractedout or engaged in PPP. At any rate, the OMB of Thailand has documented resolved cases of what may be considered as decentralization functions and services of the Thailand Government. The cases range from complaints against the operation of Bangkok Metropolitan Administration, unexplained decrease of financial assistance to villages and sub-districts, unlawful purchase of waste disposal by the Tambon Administrative Organization (TAO), failure in the performance of duties by the Provincial Industrial Office and the Provincial Health Office, neglect to dredge clogged drainages by a municipality and the Department of Highway, and other unlawful practices at the sub-national level. 16 Box 4 illustrates a case wherein the OMB had acted on a complaint against a private company for air pollution. OMB jurisdiction was not on the private company doing a purely private business, but on decentralization government instrumentalities that were supposed to enforce rules and regulations, and monitor operations and safety standards. Box 4. Foul Smell from a Shrimp Processing Company OMB received a complaint filed by the community residents on foul smell coming from a shrimp processing company. It then instructed the Provincial Industrial Office (PIO) to investigate the cause of the problem by inspecting the machines of the company; they found some defects in them. The PIO ordered the company to replace the defective parts to improve emission. Still, the problem remained unresolved. Thus, the OMB further conducted an investigation of the concerned government agencies on the ground. They found that public officials had failed to perform their duties to ensure compliance by the companies in the area. They instructed the Tambon Administrative Organization (TAO), the PIO and the Provincial Health Office (PHO) to perform their duties and strictly enforce the rules and regulation for industry expansion and pollution control. They order the PHO to supervise and monitor the plants regularly, i.e., 3 and 6 month periods. Moreover, OMB required the concerned public agencies to report their performance; failure to improve their services would instigate the OMB to take further action. Source: Thai Ombudsman at a Glance, pp. 48-49.
The case above has shown that the OMB of Thailand can resolve cases that emanate from complaints of the people, whether it is a public service or caused by activities of purely business operations. The OMB exacted accountability upon 16
See Thai Ombudsman at a Glance (undated), pp. 44-75, for the 50 highlighted cases of the Thai Ombudsman. Many of these cases involved complaints against public services what are supposed to be delivered by sub-national government institutions.
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concerned government agencies that have jurisdiction over private companies doing purely private operations.
c. Can the Ombudsman intervene in situations when the delivery of a public service has been outsourced? Our key informants clearly stated that the OMB of Thailand “cannot intervene” nor “investigate” directly the private contractor in such a situation. Foremost, the OMB of Thailand has no power to sanction. As noted earlier, it can only make recommendations to the appropriate and competent authority, e.g., the Office of the Consumer Protection Board, Office of National Human Rights Commission of Thailand, among others. As such, the OMB can investigate a particular case through the public agency/ies that engaged the service to the private sector. It can only act on the public entity involved for not ensuring that the private sector acts properly or in compliance with the law and/or agreements. Box 5 illustrates a case on what will likely happen should there be a complaint by the citizens about a particular service that has been contracted out. Box 5. Complaint on Outsourced Public Service The citizens complained to the OMB that the public toilet in their locality is very dirty. Aside from the foul smell, it poses health hazard to the members of community, particularly the young children and the elderly. It also provides a bad image to the tourists. The private company contracted out to clean the toilet has not been doing their job for a long time already. The OMB can take action by investigating the public agency that outsourced the service, but not the private contractor directly. Its particular concern is to determine why the government agency did not supervise the private contractor to deliver the services expected of them. After the investigation, the OMB may give its recommendation on how to solve the case.
A senior officer of OMB Thailand noted that the OMB may introduce an amendment to the law concerning the organizations that may be included under its jurisdiction, i.e. private contractors of public services or PPP. In fact, one of the functions of OMB is recommend amendments to existing laws of the government. It is interesting to note that the key informants did not immediately recommend for the expansion of the jurisdiction of OMB to cover the private sector; instead, they expressed the need to strictly supervise the public sector including those engaged in outsourcing and PPP from national to sub-national governments. One key informant emphasized “the role and power of the OMB to promote and improve public ethical standards.” This may include educating both public and private organizations as well as the citizens of the role of the OMB to redress grievances of the people. Another way to improve the effectiveness of OMB is to study and determine better ways of conducting investigative processes.
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d. Perception Survey – Policy and Institutional, Organizational, and Individual Levels Policy and Institutional. Most of the key informants from Thailand Ombudsman agree that their institution has mandate over local government officials (70%) and the local bureaucracy (90%). The responses further indicate that the Ombudsman has greater mandate over local civil servants than elected government official. They did not show as much confidence in responding to the statement whether the Ombudsman has the mandate over devolved functions and services. Less than 50% of the informants agree that the Ombudsman has jurisdiction over outsourced services and PPP, while over 50% of them indicate neutral, disagree or strongly disagree. (See Graphs 23 and 24) Organizational . About 75 % of the informants say that the Ombudsman actively pursue cases against local government officials, while only 20% believe that the OMB pursue cases against outsourced services and PPP projects. About 50% noted that they have succeeded in addressing grievances and/or abuses at the local government level. This survey validates the observation that OMB has a jurisdiction over local governments, but not over private contractors and PPP modalities. (See Graphs 25A and 25B) As such, 62% of the informants feel the need to clarify the role of the Ombudsman of Thailand on NPM approaches such as decentralization, outsourcing and PPP. However, they had a split response when asked whether the Ombudsman should have a jurisdiction over private companies engaged in the delivery of public services. (See Graph 26) For the point of view of the key informants, the organizational structure of the Ombudsman of Thailand may need further review and re-structuring vis-à-vis the context of decentralized and outsourcing of public services, and PPP modalities. There was an indication that the overall organization structure of the Ombudsman is not properly designed; and to a certain extent, it is not responsive to the NPM service delivery approaches. (See Graph 27) About 63% of the key informants felt that the Ombudsman does not have enough personnel of pursue cases both at the national and sub-national government levels. Almost the same number of informants thought that the Ombudsman field officers are not adequately compensated. (See Graph 28) Sixty-two percent of the key informants answered neutral when asked whether the rules and procedures on decentralization cases are clear to the field investigators. This may imply that they are addressing cases in connection to decentralized services; but there are not explicit guidelines on how to handle such cases. They are simply guided by the overall mandate and authority assigned to them. On the other hand, the rules and procedures pertaining to outsourcing and PPP public service are not clearly established or unclear to them.
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Coordination and linkages between the Ombudsman and other accountability institutions seem to be in place, but the responses indicate some hesitance on the part of the respondents whether they are function well. (See Graph 29)
Individual. Among our key informant, 18% of responded strongly agree, 33% agree, and 42% neutral that the Ombudsman officers and investigators are willing to pursue cases at the sub-national level. While as low as 5% of our informants strongly agree that they are motivated to pursue cases against erring local officials at the local government level. When asked whether they know how to handle cases within the context of decentralization, outsourcing or PPP, 65% responded neutral and 20% agreed. The responses suggest that the Ombudsman officers do not have strong attitude and motivation toward NPM decentralized services as a result of: unresponsive organizational structure (highly centralized); perceived lack of jurisdiction, particularly over outsourced services; and, lack of knowledge on handling such cases. (See Graph 30) It may also be argued that the competencies (knowledge, skills, and attitude) of the Ombudsman field officers have to be enhanced. More training interventions are warranted in pursuing cases against decentralized service including outsourcing and PPP arrangements. (See Graph 31A and 31B) Finally, 60% of our key informants believe that the citizens actively participate in elevating complaints to the Ombudsman against local government officials, while 44% against contractors of public services. However, the survey also suggests that there is much room for improvement in as far as allowing the citizens to actively participate in the process. Some key informants therefore suggest promoting awareness on the role of the Ombudsman to the government entities, the private sector, and the citizens so that they can be more involved. (See Graph 32)
D. Summary notes and observations This sub-section discusses the emerging lessons from the survey conducted. It also shares the possible areas for improvement and reform in public service delivery, should the Ombudsman institutions can have a major domain within the context of decentralization and PPP. With the massive changes in service delivery mechanisms, administrative structures, and the growth of economies, the call for greater accountability of government servants should be increased. The accountability institutions need to be responsive to these changes. The jurisdiction of the Ombudsman over outsourced services and PPP arrangements is either covered by a broader policy framework and/or penal provisions of other laws, but not within the organic legal framework of the
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Ombudsman. Japan and Malaysia are exceptions wherein they have enabling policies and jurisdiction over outsourcing and PPP. A key informant from India noted that “the privatization of the Indian economy has thrown up new patterns in the private sector. The sheer size of the economy makes it more vulnerable to corruption. With decentralization, corruption has seeped to the lowest levels. As such, there is a need to strengthen the system of the Ombudsman in the federal area where no such agency exists.” There should be a model law which should be applicable to the country. To make the Ombudsman organizations more relevant and to have more domain within the context of decentralization in general, and engagement with the private sector in particular (i.e. outsourcing and PPPs), the laws where their powers emanate need to be reviewed and amended, if appropriate and necessary. Key informants from Pakistan noted that “the law needs to be suitably amended to empower the institutions of the Provincial Ombudsman and extend the mandate of the Federal Ombudsman to cover the areas not yet included in its domain.” The respondents from Pakistan and the Philippines explicitly stated that they should have an increased domain over public services that have been decentralized, outsourced and implemented through PPP modalities. The key informant from Hong Kong suggested a better delineation of investigative powers and accountability of outsourcing authorities, e.g. access to premises of private organizations and subpoena their management executives if they are performing public duties. Structures and processes should be improved and streamlined to cater for the work of the Ombudsman. The surveys conducted at the OMB Philippines and OMB Thailand were indicative of not the only legal framework, organizational, and individual capacity of the OMB institution but also provided the viewpoints of OMB staff vis-à-vis decentralization, PPP and outsourcing modalities. The study found that in terms of jurisdiction – over decentralized, outsourced services, and PPP arrangements – the Ombudsman institutions of the two countries are limited to the public sector only. As such, they deal or investigate concerned/involved agencies of the government. Both countries have undergone massive decentralization in various modes; however, they differ in terms of the powers of the Ombudsman. The Philippine Ombudsman is very powerful in functions and jurisdiction – from investigation to prosecution and punishment of cases. While the authority of the Thai Ombudsman is limited to the promulgation of its own administrative policies, investigation of complaints, and recommendation to the constitutional or administrative court, and the concerned agency.
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The case study in Thailand showed that the key informants from the Ombudsman would want to strengthen the role of the Ombudsman by improving its structure and increasing the awareness of the citizens. They do not long for the expansion of their powers and jurisdiction over the private sector; they simply want to make the Ombudsman institution more effective and efficient in performing its existing mandated functions. In the Philippines, there were those who emphasized that the OMB and its field investigators have nothing to do with outsourced or decentralized public service delivery. For the OMB to be able to act on such cases, the Ombudsman Act needs to be amended to give the Ombudsman wider latitude or jurisdiction over outsourced and PPP arrangements. The informants from the Philippines would cite broader policy frameworks such as the Constitution to establish some sort of juridical personality over outsourced services and PPP arrangement. Compared to the Thai informants, they were a bit enthusiastic of expanding their powers to cover the private sector. However, the extent of their jurisdiction has to be well-studied and determined accordingly. Contrary to the recommendations of the key informants from OMB Philippines, the Thai informants wanted to strengthen the role of the OMB within its current jurisdiction over public organizations. They did not feel the need to cover the private sector under their jurisdiction at this point. In sum, the jurisdiction of OMB on decentralization and local governments is well-covered by existing policy frameworks. However, there are competing views on whether the OMB has jurisdiction over PPP and outsourcing of public services or not. The key informant argue that OMB has no authority over private persons. OMB can only direct a government agency or instrumentality, but not the private sector. On the other hand, the key informants of OMB cite a provision of a law granting authority to OMB to investigate and prosecute a private individual if there is evidence of “conspiracy” with a government official. Moreover, they also have different views on the responsiveness of its organizational structure, particularly with reference to decentralized services. These competing arguments therefore make the role of the Ombudsman over PPP and outsourcing on the grey side. As such, assertions to change/amend existing policies should be located within the context of each country.
IV.
CONCLUSIONS AND THE WAY FORWARD
In most general terms, the processes of decentralization, outsourcing and publicprivate partnerships (PPP) may enhance the delivery of public services. Conceptually, these are management philosophies – with sound economic basis –
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with the intention of achieving efficiency, effectiveness and better allocation of resources by the government. But the question remains: how should accountability procedures and mechanisms be enforced considering that they begin to lose their “public” character? This is mostly true for outsourced and privatized services. In the case of decentralization, the challenge is to continue enforcing accountabilities as services as further decentralized to sub-national units of government. The whole question here is: how is the ombudsman able to continue its accountability role once certain “public” funds, responsibilities and institutions become non-public? The appreciation of the key informants on their role vis-à-vis public service delivery through a decentralized outsourced and/or PPP vary. Figure 4 illustrates the modes of public service delivery (PSD) and the jurisdiction of the Ombudsman over the service providers – the public sector and the private sector. The continuum suggests that government accountability is at the highest level when its instrumentalities actually deliver the services. On the other hand, government’s involvement and accountability diminishes as the services are outsourced or delivered through PPP, and privatized. Thus far, the jurisdiction of the Ombudsman over the modes of service delivery also moves from highest to lowest together with the declining involvement of the government. This will likely happen, if the roles, incentives, and system of accountabilities are not well defined prior to the engagement of the private sector in the delivery of public services.
Figure 4. Modes of Public Service Delivery and the Jurisdiction of the Ombudsman Modes of PSD
Full Government/ Decentralized
Extent of Government Involvement and accountability
High
Low
High
Low
Jurisdiction of the Ombudsman
Outsourcing
PPP
Privatized
Source: By authors. The following are some of the emerging lessons from this study.
Decentralization of services has provided a new context for Ombudsmanship. This has to be recognized as the institutions, structures and processes, in the offices of the ombudsman continue to evolve through time.
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Hence, the process of decentralization continues to be a challenge to the operations of the Office of the Ombudsman. Decentralization can be within the context devolution (political decentralization and devolution to sub-national units) to market decentralization which includes private-public partnerships and outsourcing. Adjustments to the said decentralization processes by the office of the ombudsman have to be done at the policy, organizational and individual levels. Our study has shown that most of the offices of the ombudsman in the region have made proper adjustments as far as the regime of political decentralization is concerned. However, this is not true though when it comes to market decentralization. More information on market decentralization and its implications have to be studied by the office of the ombudsman in order for them to be able to properly address such changes.
The Ombudsman should be more proactive. The processes of publicprivate partnership and outsourcing can diminish the jurisdiction of the ombudsman when it comes to the preservation of accountability. Conscious efforts therefore (especially at the policy level) should be made to strengthen accountability mechanisms. The ombudsman can – and must - play a proactive role in promoting accountabilities in PPPs and outsourced services. The Ombudsman may take on a more “proactive” role prior to the enforcement of an outsourcing and/or PPP contract. More information should be provided to the government parties. Experience from other countries show that the jurisdiction of the government diminishes once the contract has been signed and the private sector has taken over. The PPP Options table above indicates that a PPP arrangement may take for as long as 25 to 30 years or more; thus, there has to be a window for the Ombudsman to ensure that PPP contracts are appropriately pursued by the concerned parties – both the public and the private sectors. Capacity building for the Office of the Ombudsman should be a continuous and sustained process. Capacity building interventions can range from refining the relationships between and among the level of the offices of the Ombudsman, to defining the “proper” role given the specific context. Role may range from simply coaching the citizens what to do, to conducting investigations to prosecution. To a certain extent, this may be dependent on the “maturity” of the ombudsman as an organization, given the specific historical context of its evolution as an organization. It is imperative to clarify the Jurisdiction of the Ombudsman within each Country Context. A number of recommendations and areas for reform to strengthen the Ombudsman vis-à-vis the new service delivery strategies have been made. These include the need to further define and establish the rules and procedures for OMB officers and investigators. Ombudsman institutions remain responsible for ensuring accountability in the delivery of public goods and services by the central government, sub-national governments, and even private entities, particularly when public resources are utilized.
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Pramudji, S., Makna Daerah Tingkat II, 1990, as cited by Kutut Suwondo, “Decentralization in Indonesia,” INFID’s Background Paper on Decentralization, INFID Annual Lobby, 2002. Quah, J. (December 2009). Benchmarking for Excellence: A Comparative Analysis of Seven Asian Anti-Corruption Agencies. The Asia Pacific Journal of Public Administration, Vol. 31, No. 2 , 1-25. Sato, M. (2004). Fiscal Decentralization in Asia: Revisited. Retrieved November 3, 2007, from International Symposium on Fiscal Decentralization in Asia Revisited: http://www.econ.hitu.ac.jp/~kokyo/APPPsympo04/Theory(sato).pdf Sato, M. (2007). The Political Economy of Interregional Grants. In R. Boadway, & A. Shah, Intergovernmental Fiscal Transfes: Principles and Practice (pp. 173-197). Washington: The World Bank. Smoke, P. (2006). Fiscal Decentralization Policy in Developing Coutries: Bridging Theory and Reality. In Y. Bangura, & G. (. Larbi, Public Sector Reform in Development Countries: Challenges to Improve Services. New York: Palgrave, MacMillan. Tajika, E., & Yui, Y. (2004, February). Conceptual Framework for Analyzing the Roles and Finance of Local Governments. Retrieved November 3, 2007, from International Symposium on Fiscal Decentralization in Asia Revisited: http://www.econ.hit-u.ac.jp/~kokyo/APPPsympo04/Japan.pdf UNDP, Overcoming Unman Poverty. UNDP Poverty Report 2000, http://www.undp.org/povertyreport , 2000. USAID-Center for Democracy and Governance, USAID’s Experience in Decentralization and Democratic Local Governance, Center for Democracy and Governance, Washington DC: Bureau for Global Programs, Field Support and Research, September 2000 Vangansuren, U. (2005). The Institution of the Ombudsman in teh Former Communist Countries. Washington, D.C.: International Foundation for Election Systems. WP-GSICS 2004-01 - Working Paper of the Graduate School of International Cooperation Studies, Special Lecture on Political and Social Development (Bashir, Uddin; Som Savuth, Sok Say, Neak Chandarith, Shiv Das Meena, Ella Wargadinata, Hafsah Febrianti, Pathammavong Chanthakhath. Armi Marie Manuguis, Boun Inthabandith and Thongkhamhan Vilaysack) Governance and Decentralization in Some Asian Countries: Issues, Concerns and Lessons Learned (WP 2004-01), GSICS, Kobe University, February 2004. Wargadinata, Ella and Hafsah Febrianti, “Decentralization in Indonesia” in Working Paper of the Graduate School of International Cooperation Studies, Special Lecture on Political and Social Development Governance and Decentralization in Some Asian Countries: Issues, Concerns and Lessons Learned (WP 2004-01), GSICS, Kobe University, February 2004. Webster, Douglas, “Implementing Decentralization in Thailand: The Road Forward,” Capacity Building Project, Office of Decentralization to Local Government Organization Committee and the World Bank, May 2002.
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Draft Final
World Bank Group, “Decentralization From the “Top Down”: the Japanese Case,” http://www.worldbank.org/wbi/mdf Yun-Hwan, K., & Smoke, P. (2002). Intergovernmental transfers in Asia: Current practices and challenges for the future. Manila: Asian Development Bank.
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Draft Final
Annexes Annex 1. Survey Responses (Ten AOA Member Countries) Table 1. Survey Responses – Policy and Institutional Level Statements No.
1
2 3 4 5 6 7 8 9 10
Statement Policy and Institutional Our ombudsman institution has a clear mandate, jurisdiction and defined role over: 1.1. Local government officials (elected officials) 1.2. Local government bureaucracy (local civil servants) 1.3. Devolved functions and service areas such as education, health social services 1.4. Ou tsour ced or pr ivate contr actors of public service s 1.5. Public-private partnership (PPP) modalities Our ombudsman institution does not have authority over decentralized and outsourced services Our ombudsman actively pursues cases against local government officials Our ombudsman actively pursues cases against outsourced or contractors of ublic services There is a need to clarify the r ole of the ombudsman on new public management (NPM) approaches such as decentralization, outsourcin and ublic- rivate artnershi s Our ombudsman has succeeded in addressing grievances and/or abuses at the local government level Our ombudsman actively pursues cases against PPP projects such as build-operate transfer (BOT) schemes Our ombudsman should have a jurisdiction over private companies en a ed in the deliver of ublic services Our ombudsman has no adequate authority over contractors of public services The ombudsman fails to investigate and/or prosecute large scale abuses in the delivery of decentralized services
Frequency Distribution Strongly Undecide Strongly Agree Disagree Agree d Disagree # % # % # % # % # %
n
Mean
SD
29 28
3.6 4.3
1.52 1.19
12 41% 18 64%
5 6
17% 21%
5 17% 1 4%
2 1
7% 4%
5 17% 2 7%
30
4.2
1.22
18 60%
7
23%
1
3%
2
7%
2
30 30
2.9 2.9
1.25 1.22
2 7% 4 13%
10 3
33% 10%
5 17% 13 43%
8 5
27% 17%
5 17% 5 17%
29
3.3
1.33
6 21%
8
28%
7 24%
4
14%
4 14%
28
3.8
1.26
8 29%
14
50%
1
4%
2
7%
3 11%
28
3.1
1.36
5 18%
7
25%
5 18%
7
25%
4 14%
29
4.0
0.87
8 28%
14
48%
5 17%
2
7%
0
0%
28
4.1
1.10
12 43%
11
39%
3 11%
0
0%
2
7%
29
3.3
1.10
2
7%
13
45%
8 28%
3
10%
3 10%
31
3.4
1.34
9 29%
7
23%
5 16%
8
26%
2
30
2.9
1.20
2
7%
9
30%
6 20%
9
30%
4 13%
31
2.7
1.06
2
6%
5
16%
10 32%
11
35%
3 10%
7%
6%
Table 2. Survey Responses – Organizational level statement No.
Statement
Organizational 1 Our ombudsman’s organizational structure is properly designed Our ombudsman's organizational structure is responsive to 2 decentralization or decentralized public service deliver Our ombudsman’s organizational structure is responsive to 3 outsourcing or sub-contracting of public services Our ombudsman’s organizational structure is responsive to public4 private partnership (PPP) modalities Our ombudsman has enough personnel to pursue cases at the 5 national level Our ombudsman has enough personnel to pursue cases at the 6 sub-national level 7 Om budsman field off icers are adequately compe nsated. The rules and procedures on decentralization cases are clear to 8 the field investigators The rules and procedures pertaining to outsourced and PPP public 9 services are clearl established Coordination and linkages between the ombudsman institution, 10 other accountability and oversight agencies are functioning well
n
Mean
33
4.0
1.00
Frequency Distribution Strongly Undecide Strongly Agree Disagree Agree d Disagree % % % % % 12 36% 13 39% 4 12% 4 12% 0 0%
30
3.4
1.22
6
20%
11
37%
5
17%
6
20%
2
7%
30
2.9
1.14
2
7%
9
30%
7
23%
9
30%
3
10%
28
2.9
1.36
4
14%
8
29%
2
7%
10
36%
4
14%
33
3.1
1.32
4
12%
11
33%
7
21%
5
15%
6
18%
32
3.2
1.28
4
13%
13
41%
4
13%
7
22%
4
13%
32
3.3
1.26
6
19%
11
34%
6
19%
6
19%
3
9%
31
3.5
1.21
7
23%
10
32%
9
29%
2
6%
3
10%
28
3.3
1.14
4
14%
8
29%
9
32%
5
18%
2
7%
32
3.7
1.18
9
28%
10
31%
8
25%
3
9%
2
6%
SD
��
Draft Final
Table 3. Survey Responses – Individual statements No.
1 2 3 4 5 6 7 8 9 10
Statement Individual (Knowledge, skills and attitude) Our ombudsman officers/investigators are willing to pursue cases at sub-national level Field officers or investigators are motivated to pursue cases against erring officials at the local government level Our field officers have the competence (appropriate knowledge, skills and attitude) to pursue cases against local government Our field officers have the competence (appropriate knowledge, skills and attitude) to pursue cases against national government Field officers or investigators are motivated to pursue cases against erring officials at the local government level Our ombudsman officers/investigators need training to pursue cases on decentralized services Our ombudsman officers/investigators need training to pursue cases on outsourced or sub-contracted services Our ombudsman officers/investigators need training to pursue cases on public-private partnership (PPP). Citizens actively participate by elevating complaints to the Ombudsman against local government officials Citizens actively participate by elevating complaints to the Ombudsman against contractors of public services
SD
Strongly Agree # %
Frequency Distribution Undecide Strongly Agree Disagree d Disagree # % # % # % # %
4.0
1.11
13
41%
12
38%
1
3%
6
19%
0
0%
28
3.8
0.88
4
14%
17
61%
5
18%
1
4%
1
4%
28
4.0
0.92
7
25%
16
57%
3
11%
1
4%
1
4%
16
4.0
0.52
2
13%
12
75%
2
13%
0
0%
0
0%
29
4.1
0.92
11
38%
14
48%
1
3%
3
10%
0
0%
29
4.3
0.65
10
34%
18
62%
0
0%
1
3%
0
0%
31
4.2
0.78
10
32%
18
58%
1
3%
2
6%
0
0%
31
4.0
1.05
11
35%
15
48%
1
3%
3
10%
1
3%
29
3.9
0.99
8
28%
12
41%
7
24%
1
3%
1
3%
30
3.6
1.22
8
27%
11
37%
5
17%
4
13%
2
7%
n
Mean
32
��
Draft Final
Annex 2. Survey Responses – Ombudsman of the Philippines Table 1. Survey Responses – Policy and Institutional Level Statements Frequency Distribution and Percentage No.
Statement
Policy and Institutional Our ombudsman institution has a clear mandate, jurisdiction and defined role over: 1.1. Local government officials (elected officials) 1.2. Local government bureaucracy (local civil servants) 1 1.3. Devolved functions and service areas such as education, health, social services 1.4. Outsourced or private contractors of public services 1.5. Public-private partnership (PPP) modalities 2 3 4
5
6
7
8 9 10
Our ombudsman institution does not have authority over decentralized and outsourced services Our ombudsman actively pursues cases against local government officials Our ombudsman actively pursues cases against outsourced or contractors of public services There is a need to clarify the role of the ombudsman on new public management (NPM) approaches such as decentralization, outsourcing and public-private partnerships Our ombudsman has succeeded in addressing grievances and/or abuses at the local government level Our ombudsman actively pursues cases against PPP projects such as build-operate transfer (BOT) schemes Our ombudsman should have a jurisdiction over private companies engaged in the delivery of public services Our ombudsman has no adequate authority over contractors of public services The ombudsman fails to investigate and/or prosecute large scale abuses in the delivery of li i
n
Mean
SD
Strong Agree
Agree
Nuetral
Disagree
#
%
#
%
#
%
#
%
Strongly Disagree # %
42
4.69
0.468
29
69%
13
31%
0
0%
0
0%
0
��
42
4.714
0.457
30
71%
12
29%
0
0%
0
0%
0
��
42
3.952
0.962
15
36%
13
31%
11
26%
3
7%
0
��
40
3.225
0.974
4
10%
11
28%
16
40%
8
20%
1
��
42
3.452
0.993
5
12%
17
40%
14
33%
4
10%
2
��
40
2.6
1.105
3
8%
4
10%
13
33%
14
35%
6
���
42
4.571
0.59
26
62%
14
33%
2
5%
0
0%
0
��
40
3.75
0.981
9
23%
17
43%
10
25%
3
8%
1
��
41
4.244
0.969
20
49%
15
37%
3
7%
2
5%
1
��
41
4.146
0.573
10
24%
27
66%
4
10%
0
0%
0
��
40
3.875
0.822
9
23%
19
48%
10
25%
2
5%
0
��
40
4.45
0.749
23
58%
13
33%
3
8%
1
3%
0
��
40
3.075
1.289
7
18%
9
23%
8
20%
12
30%
4
���
39
2.615
0.877
0
0%
6
15%
16
41%
13
33%
4
���
Table 2. Survey Responses – Organizational level statement No.
1 2
3
4 5 6 7 8 9
Statement Organizational Our ombudsman’s organizational structure is properly designed Our ombudsman's organizational structure is responsive to decentralization or decentralized public service delivery Our ombudsman’s organizational structure is responsive to outsourcing or sub-contracting of public services Our ombudsman’s organizational structure is responsive to public-private partnership (PPP) modalities Our ombudsman has enough personnel to pursue cases at the national level Our ombudsman has enough personnel to pursue cases at the sub-national level Ombudsman field officers are adequately compensated. The rules and procedures on decentralization cases are clear to the field investigators The rules and procedures pertaining to outsourced and PPP public services are clearly established
Coordination and linkages between the ombudsman 10 institution, other accountability and oversight agencies are functioning well
n
Mean
Frequenc y Distribution
SD Strongly # %
#
Ag re e %
Und ec id ed # %
D is agr ee # %
St ron gly # %
41
3.902
0.995
11
27%
21
51%
4
10%
4
10%
1
��
41
3.561
0.923
6
15%
16
39%
15
37%
3
7%
1
��
41
3.293
0.814
4
10%
9
22%
23
56%
5
12%
0
��
40
3.35
0.864
4
10%
11
28%
21
53%
3
8%
1
��
41
2.659
1.153
2
5%
10
24%
7
17%
16
39%
6
���
42
2.405
1.037
0
0%
9
21%
7
17%
18
43%
8
���
42
2.524
1.018
2
5%
4
10%
14
33%
16
38%
6
���
42
2.905
0.821
2
5%
4
10%
26
62%
8
19%
2
��
42
2.619
0.882
1
2%
3
7%
22
52%
11
26%
5
���
42
3.357
0.85
3
7%
15
36%
19
45%
4
10%
1
��
��
Draft Final
Table 3. Survey Responses – Individual statements No.
1
Statement Individual (Knowledge, skills and attitude) Our ombudsman officers/investigators are willing to pursue cases at sub-national level
n
Mean
Frequency Distribution
SD Strongly # %
Agree # %
Undecided # %
Disagree # %
Strongly # %
42
4.238
0.656
14
33%
25
60%
2
5%
1
2%
0
��
2
Our ombudsman officers/investigators know how to handle cases within the context of decentralization, outsourcing or public-private partnerships (PPP)
41
3.317
1.011
4
10%
14
34%
17
41%
3
7%
3
��
3
Our field officers have the competence (appropriate knowledge, skills and attitude) to pursue cases against local government officials
42
4.095
0.656
11
26%
24
57%
7
17%
0
0%
0
��
4
Our field officers have the competence (appropriate knowledge, skills and attitude) to pursue cases against national government officials
42
4
0.733
10
24%
23
55%
8
19%
1
2%
0
��
5
Field officers or investigators are motivated to pursue cases against erring officials at the local government level
42
3.929
0.894
13
31%
15
36%
12
29%
2
5%
0
��
6
Our ombudsman officers/investigators need training to pursue cases on decentralized se rvices
42
4.595
0.587
27
64%
13
31%
2
5%
0
0%
0
��
7
Our ombudsman officers/investigators need training to pursue cases on outsourced or sub-contracted services
42
4.643
0.577
29
69%
11
26%
2
5%
0
0%
0
��
8
Our ombudsman officers/investigators need training to pursue cases on public-private partnership (PPP).
41
4.707
0.461
29
71%
12
29%
0
0%
0
0%
0
��
42
4.095
0.906
16
38%
17
40%
6
14%
3
7%
0
��
42
3.929
0.997
14
33%
15
36%
10
24%
2
5%
1
��
9
10
Citizens actively participate by elevating complaints to the Ombudsman against local government officials Citizens actively participate by elevating complaints to the Ombudsman against contractors of public services
��
Draft Final
Annex 3. Survey Responses – Ombudsman of Thailand Table 1. Survey Responses – Policy and Institutional Level Statements Frequency Distribution and Percentage No.
1
2 3 4
5
6
7
8 9 10
Statement Policy and Institutional Our ombudsman institution has a clear mandate, jurisdiction and def ined role over: 1.1. Local government officials (elected officials) 1.2. Local government bureaucracy (local civil servants) 1.3. Devolved functions and service areas such as education, health, social services 1.4. Outsourced or private contractors of public services 1.5. Public-private partnership (PPP) modalities Our ombudsman institution does not have authority over decentralized and outsourced services Our ombudsman actively pursues cases against local government officials Our ombudsman actively pursues cases against outsourced or contractors of public services There is a need to clarify the role of the ombudsman on new public management (NPM) approaches such as decentralization, outsourcing and public-private partnerships Our ombudsman has succeeded in addressing grievances and/or abuses at the local government level Our ombudsman actively pursues cases against PPP projects such as build-operate transfer (BOT) schemes Our ombudsman should have a jurisdiction over private companies engaged in the delivery of public services Our ombudsman has no adequate authority over contractors of public services The ombudsman fails to investigate and/or prosecute large scale abuses in the delivery of li i
n
Mean
SD
Strong Agree #
%
Agree #
%
Nuetral #
%
Disagree #
%
Strongly Disagree # %
31
4.10
1.136
16
52%
6
19%
6
19%
2
6%
1
��
35
4.46
0.98
23
66%
9
26%
0
0%
2
6%
1
��
31
4.03
0.836
10
32%
13
42%
7
23%
1
3%
0
��
31
2.77
1.257
1
3%
11
35%
6
19%
6
19%
7
���
31
3.13
1.118
1
3%
14
45%
8
26%
4
13%
4
���
33
2.79
1.244
4
12%
5
15%
9
27%
10
30%
5
���
35
4.03
1.043
14
40%
12
34%
6
17%
2
6%
1
��
35
2.66
1.136
2
6%
6
17%
11
31%
10
29%
6
���
35
3.54
1.094
6
17%
16
46%
5
14%
7
20%
1
��
35
3.63
0.77
4
11%
16
46%
13
37%
2
6%
0
��
35
2.94
0.802
2
6%
4
11%
19
54%
10
29%
0
��
35
3.26
0.919
3
9%
11
31%
13
37%
8
23%
0
��
35
3.69
0.9
6
17%
15
43%
12
34%
1
3%
1
��
35
2.8
0.797
0
0%
6
17%
18
51%
9
26%
2
��
Table 2. Survey Responses – Organizational Statements No. 1 2
3
4 5 6 7 8 9
Statement Organizational Our ombudsman’s organizational structure is properly designed Our ombudsman's organizational structure is responsive to decentralization or decentralized public service delivery Our ombudsman’s organizational structure is responsive to outsourcing or sub-contracting of public services Our ombudsman’s organizational structure is responsive to public-private partnership (PPP) modalities Our ombudsman has enough personnel to pursue cases at the national level Our ombudsman has enough personnel to pursue cases at the sub-national level Ombudsman field officers are adequately compensated. The rules and procedures on decentralization cases are clear to the field investigators The rules and procedures pertaining to outsourced and PPP public services are clearly established
Coordination and linkages between the ombudsman 10 institution, other accountability and oversight agencies are functioning well
Frequency Distribution and Percentage Agree Nuetral Disagree # % # % # %
n
Mean
SD
35
3.29
1.178
7
20%
8
23%
9
26%
10
29%
1
��
35
3.03
0.891
2
6%
8
23%
14
40%
11
31%
0
��
34
2.74
0.963
1
3%
7
21%
10
29%
14
41%
2
��
35
3.00
0.84
1
3%
9
26%
14
40%
11
31%
0
��
35
2.54
1.268
3
9%
7
20%
3
9%
15
43%
7
���
35
2.60
1.09
2
6%
5
14%
10
29%
13
37%
5
���
35
2.63
1.06
1
3%
7
20%
10
29%
12
34%
5
���
35
2.94
0.802
2
6%
3
9%
22
63%
7
20%
1
��
35
2.57
0.948
1
3%
4
11%
13
37%
13
37%
4
���
35
3.54
0.817
2
6%
19
54%
11
31%
2
6%
1
��
Strong Agree # %
Strongly # %
��
Draft Final
Table 3. Survey Responses – Individual statements No. 1
Statement Individual (Knowledge, skills and attitude) Our ombudsman officers/investigators are willing to pursue cases at sub-national level
n
Mean
SD
35
3.57
0.979
6
Frequency Distribution and Percentage Agree Nuetral Disagree # % # % # %
Strongly # %
17%
12
34%
15
43%
0
0%
2
��
Strong Agree # %
2
Our ombudsman officers/investigators know how to handle cases within the context of decentralization, outsourcing or public-private partnerships (PPP)
35
3.11
0.718
1
3%
7
20%
23
66%
3
9%
1
��
3
Our field officers have the competence (appropriate knowledge, skills and attitude) to pursue cases against local government officials
35
3.46
0.741
2
6%
15
43%
15
43%
3
9%
0
��
4
Our field officers have the competence (appropriate knowledge, skills and attitude) to pursue cases against national government officials
33
3.42
0.792
2
6%
14
42%
13
39%
4
12%
0
��
5
Field officers or investigators are motivated to pursue cases against erring officials at the local government level
35
3.43
0.917
2
6%
18
51%
9
26%
5
14%
1
��
6
Our ombudsman officers/investigators need training to pursue cases on decentralized services
35
4.11
0.963
15
43%
12
34%
5
14%
3
9%
0
��
7
Our ombudsman officers/investigators need training to pursue cases on outsourced or sub-contracted services
35
4.00
0.939
12
34%
14
40%
6
17%
3
9%
0
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8
Our ombudsman officers/investigators need training to pursue cases on public-private partnership (PPP).
35
3.97
0.954
11
31%
16
46%
4
11%
4
11%
0
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by elevating complaints local government
35
3.60
1.241
9
26%
12
34%
9
26%
1
3%
4
���
by elevating complaints contractors of public
35
3.31
1.022
4
11%
11
31%
14
40%
4
11%
2
��
9
10
Citizens actively participate to the Ombudsman against officials Citizens actively participate to the Ombudsman against services
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Annex 4. Corruption Perception Index in Asia and the Pacific Region, 2009. Regional Rank 1 2 3 4 5 6 7 7 9 10 11 11 13 14 14 16 17 18 19 19 19 22 23 24 24 24 27 28 29 30 30 32 33
Country/ Territory
Corruption Perception Index (CPI) Score 9.4 9.2 8.7 8.2 7.7 5.6 5.5 5.5 5.3 5.0 4.5 4.5 3.6 3.4 3.4 3.2 3.1 3.0 2.8 2.8 2.8 2.7 2.5 2.4 2.4 2.4 2.3 2.2 2.1 2.0 2.0 1.4 1.0
New Zealand Singapore Australia Hong Kong Japan Taiwan Brunei Darussalam South Korea Macao Bhutan Malaysia Samoa China India Thailand Vanuatu Sri Lanka Tonga Indonesia Kiribati Solomon Islands Vietnam Maldives Bangladesh Pakistan Philippines Nepal Timor-Leste Papua New Guinea Cambodia Laos Myanmar Afghanistan Source: Transparency International, 2009.
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Annex 5. Perception Survey Results – Philippines and Thailand Graph 12. Mandate over local government officials and devolved services
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree
Graph 13. Jurisdiction over Outsourced Services and PPP
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree
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Graph 14A. Practices of the Ombudsman
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree
Graph 14B. Practices of the Ombudsman
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree
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Graph 15. Need for Institutional/policy change 70% There is a need to clarify the role o f the ombud sman on new public ma nagement (NPM) approac hes such as decentra lization, outsourcing and public-private partnerships
60% 50% 40%
Our ombudsman should have a jurisdiction over private com pa nies engaged in the delivery of public services
30% 20%
The ombudsma n fa ils to investigate and /or prosecute large sca le abu ses in the delivery of decentralized services
10% 0% SA
A
N
D
SD
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree
Graph 16. Organizational Structure of OMB ��% ��� ����������� � ������������� ��������� �� �������� �������� ��%
��� ���������'� �� ������������ ��������� �� ���������� �� ���������������� �� ������������� ������ ������� ��������
��%
��%
��� ����������� � ������������� ��������� �� ���������� �� ����������� �� ��������������� �� ������ ��������
��%
��%
��� ����������� � ������������� ��������� �� ���������� �� ������� ������� ����������� (���) ����������
�% ��
�
�
�
��
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree
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Graph 17. Personnel matters ��� ��� ��� ��������� ��� ������ �������� � �� ������ ����� �� ��� �������� ���� �
��� ��� ���
��� ��������� ��� ������ �������� � �� ������ ����� �� ��� ���� �������� ���� �
��� ���
��������� ����� �������� ��� ���������� ������������
��� �� �� ��
�
�
�
��
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree
Graph 18. Rules, Procedures and Linkages 70%
The rules a nd procedures on decentra lizat ion cases are clear to the field investigators
60% 50% 40%
The rules a nd procedures pertaining to outsourced a nd PPP public services are clearly esta blished
30% 20% 10% 0% SA
A
N
D
SD
Coordination and linkages between the ombud sma n institution, other acco untability a nd oversight a gencies are functioning well
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree
Graph 19. Attitude and Motivation of Investigators ���
Our ombu dsma n off icers/investigato rs are willing to pursue cases a t subna tional level
���
���
���
Field officers or investigators are motiva ted to pursue cases against erring officials at the loca l government level
���
���
���
�� ��
�
�
�
��
Our ombu dsma n off icers/investigato rs know how to ha ndle cases within the context of decentralization, outsourcing or publicprivate partnerships (PPP)
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Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree
Graph 20. KSA over national and local government officials 60 % 50 %
Our field o fficers ha ve the competence (appropriate knowledge, skills and a ttitude) to pursue ca ses a gainst loca l governm ent officials Our field o fficers ha ve the competence (appropriate KSA) to pursue ca ses against na tiona l government officia ls
40 % 30 % 20 % 10 % 0% SA
A
N
D
SD
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree
Graph 21. Need for training 80 % Our ombudsman officers/investigators n eed t raining to pursue cases on d ecentralized services
70 % 60 % 50 %
Our ombudsman officers/investigators n eed t raining to pursue cases on outsourced or sub-contra cted services
40 % 30 %
Our ombudsman officers/investigators n eed t raining to pursue cases on p ublic-private partnership (PPP).
20 % 10 % 0% SA
A
N
D
SD
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree
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Graph 22. Citizens’ Participation 45 % 40 % Citizens a ctively pa rticipate by elevating complaints to the Ombudsma n a gainst local government of ficials
35 % 30 % 25 % 20 %
Citizens a ctively pa rticipate by elevating complaints to the Ombudsma n against contra ctors of public services
15 % 10 % 5% 0% SA
A
N
D
SD
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree
Graph 23. Mandate over local government units
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree
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Graph 24. Jurisdiction over outsourced services and PPP
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree
Figure 25A : Practices of the Ombudsman
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree
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Figure 25B: Practices of the Ombudsman
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree
Figure 26. Need for policy reform
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree
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Figure 27. Organizational structure
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree
Figure 28. Ombudsman Personnel
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree;
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SD= Strongly Disagree
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Figure 29. Rules, procedures and linkages
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree
Figure 30. Attitude and Motivation
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree
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Figure 31A: KSA- National vs. local
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree
Figure 31B- Need for training
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree
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Figure 32. Citizen Participation
Legend: SA= Strongly Agree; A= Agree; N= Neutral; D=Disagree; SD= Strongly Disagree
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i
Kakhonem (2001) writes that allocative efficiency may be attained through better matching of public services to local preference; productive efficiency may be attained through increased accountability of local governments to citizens, fewer levels of bureaucracy, and better knowledge of local costs. ii Cheema and Rondinelli, in their classic and authoritative work Decentralization and Development. Policy Implementation in Developing Countries (1983) list as many as fourteen reasons behind the adoption of decentralized development planning and administration in developing countries. These include the following: overcome the limitations of centrally controlled national planning; cut through red tape; increase the sensitivity and knowledge of central government officials to local problems; allow political and administrative “penetration” of national government policies into remote areas; allow greater representation for various political, ethnic and religious groups; develop greater administrative capability among local governments; increase efficiency of central government by relieving top management officials of routine tasks; provide a coordination structure for national agencies operating at the local level; institutionalize participation of citizens; create alternative means of decision-making; lead to flexible and innovative administration; allow leaders to locate services and facilities among local communities; increase political stability and national unity by recognizing diversity; and reduce diseconomies of scale inherent in over-concentration of decision-making in the national capital. iii Good governance has been referred to as the “missing link” between anti-poverty efforts and poverty reduction. According to the UNDP (2000:54) “even when a country tries to implement economic policies to foster pro-poor growth and mount targeted poverty programmes, inept or unresponsive governance institutions can nullify the impact.” It is within this context that decentralization, properly implemented and supported, may be an effective instrument that may bring about effective governance. We are definitely cognizant of the possibility that the decentralization strategy, if badly planned and implemented, can even worsen inequalities (UNDP 2000:60). Decentralization may therefore be a twoedged sword. iv We use the term “industry standard” to suggest that many multilateral development institutions – have used as reference, or taken off from, the Cheema and Rondinelli construction. v This is certainly not an attempt to romanticize the notion of decentralization. As stated elsewhere in the paper, decentralization is a double bladed sword: not used properly, it can exacerbate inequalities among regions and even lead to fragmentation of the state; but when used correctly, can indeed be a potent poverty reduction strategy. vi These criteria are essentially in accordance with the classic elements of the state as described in political science literature, i.e., people, territory, sovereignty vii It is within this context that one cardinal rule that must be followed in implementing decentralization is Roy Bahl’s (1999) Rule No. 2: “Finance follows Function.” In other words, Bahl argues that the functions and responsibilities of local authorities should be clearly defined first, vis-à-vis national authorities. After a clear delineation of responsibilities, then the funding of such services – whether by transfers from the central government, or by locally generated taxes, or users fees, etc – should then be addressed. One reason for failed decentralization strategy is the continuing practice on the part of central authorities to mandate sub-national governments to perform functions without providing the necessary funds, hence “unfunded mandates.” Some refer to this practice as “dumping” – referred to elsewhere in this paper as “load shedding” - of responsibilities to the local governments on the part of central authorities because of the inability of the latter to continue funding them. The complete and highly authoritative Implementing Rules for Fiscal Decentralization as developed by Roy Bahl which is rapidly becoming a classic in the decentralization discourse are as follows: Rule one: Fiscal decentralization should be viewed as a comprehensive system Rule two: Finance follows function Rule three: There must be a strong central ability to monitor and evaluate decentralization Rule four: One intergovernmental system does not fit the urban and rural sector Rule five: Fiscal decentralization requires significant local government taxing powers
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