Subcommittee on Ideal Government and Organizations (Second Meeting)

Thursday, March 11, 2004

Meeting Agenda

Matters concerning ideal government and organizations (human rights commissions and other quasi-judicial bodies; the ombudsman system)

After a statement was heard from Professor UTSUNOMIYA Fukashi concerning the above matters, questions were put to him. This was followed by free discussion among the members.

Informant

  • UTSUNOMIYA Fukashi, Professor, School of Political Science and Economics, Tokai University

Members who put questions to Prof. UTSUNOMIYA

Main points of Prof. UTSUNOMIYA's statement

1. The history of the ombudsman system

[1] Its worldwide diffusion and development

>> From its origins in Sweden, since the 1950s the ombudsman system has spread to many countries around the world, such as Denmark and New Zealand (a British Commonwealth nation), which have parliamentary cabinet systems.

>> The following four points are of particular interest: (a) No ombudsman system has ever been abolished once it was adopted; in every case, the system has taken root and developed into a trusted institution. (b) Most of the ombudsmen around the world are "parliamentary ombudsmen," i.e., they are appointed by the legislative assembly and are independent of the executive branch. (c) It is important to provide for the ombudsman's post in the nation's constitution, in order to ensure that it has a high status and independence, but it is also possible to introduce it by legislation alone. (d) The system has been widely adopted since the 1950s for several reasons: (i) the countries concerned had developed big governments as they became welfare states, and therefore felt the need for an ombudsman and a freedom of information system; (ii) when administrative structures have acquired enormous power, there is a limit to how much control can be maintained over them by mechanisms that date from the 19th century; (iii) the courts, which are the traditional channel for arbitration of complaints, have lost their flexibility and no longer function satisfactorily in terms of time, procedures, or costs.

[2] Moves toward introducing an ombudsman system in Japan

>> In Japan, moves in this direction have included study of the question by a "Research Group on the Ombudsman System" under the old Administrative Management Agency, and by the Ad Hoc Commission on Administrative Reform. In 1997 both Houses established administrative oversight committees.

>> Japan's local administrative counselors are known as "Japanese-style ombudsmen." However, this is not a system that can take the place of an ombudsman; the two should work in tandem to handle the public's complaints.

>> Beginning with Kawasaki City, nearly forty local governments have introduced ombudsmen, including special ombudsmen, but because of restrictions under the Local Autonomy Law, these are all executive-type ombudsmen, i.e., they are appointed by the head of the executive branch.

2. Special features and functions of the ombudsman system

[1] Special features

>> The office of a (Swedish-type) ombudsman has the following five characteristics: (a) The ombudsman is an officer of the legislature and reports to it. (b) He or she is an impartial investigator who is also independent of the legislature in terms of political influence. Appointments to the office are traditionally suprapartisan. (c) Unlike the courts, an ombudsman does not possess the power to annul decisions, or to issue rulings that are binding; he or she can only make recommendations. However, the executive branch almost always abides by these. The source of an ombudsman's power lies in his or her ability to conduct investigations to determine the facts. These investigative powers include the power to attend meetings and to obtain and examine documents. An ombudsman maintains his or her influence through the objectivity of these investigations. He or she reports to the legislature, and is empowered to release his or her findings to the news media. (d) An ombudsman possesses investigative powers ex officio, and this functions effectively to control the administration. (e) The complaints process is direct, fast, and free of charge.

[2] Functions

>> The ombudsman's main functions are: (a) control and oversight of the administration; (b) receiving and handling complaints; (c) improving the administration.

3. The need for an ombudsman system and the issues involved

[1] The need for a system

>> Today, the need for an ombudsman system in Japan is greater than ever.

[2] Possibility of its introduction

>> An ombudsman system could be introduced by legislation, without affecting the Constitution.

[3] Issues involved

>> It would be possible to introduce either a parliamentary or an executive ombudsman. In my view, the parliamentary type is preferable as it functions more effectively in overseeing the administration. The executive type is strictly a form of internal control and its independence from the executive branch is problematic, but it does have the advantage that it can handle a large caseload quickly and cheaply. The parliamentary type, in contrast, is a form of external control and it is independent, but it poses the problems of how to exclude political influence and how to provide an adequate investigative staff.

>> A parliamentary ombudsman would be suitable both as a way to strengthen the Diet's function of overseeing the executive branch, and because the office serves a function like that of the tribune in ancient Rome, who protected the citizenry from arbitrary action by the magistrates. Also, the creation of a parliamentary ombudsman would be permitted by the existing Constitution as an embodiment of the right of petition (Article 16).

Main points of questions and comments to Prof. UTSUNOMIYA

SUGIURA Seiken (Liberal Democratic Party)

>> Is there any need to establish an ombudsman's office in the Diet, considering that Diet Members have powers, such as the right to investigate state affairs, which already provide a check on the executive branch, and also that disclosure of administrative information is on the rise? Even if we were to establish such an office, would it not be possible to take full advantage of the House of Representatives' Committee on Audit and Oversight of Administration and the House of Councillors' Committee on Oversight of Administration, and have the ombudsman work in tandem with them?


KANO Michihiko (Democratic Party of Japan and Club of Independents)

>> I think that an ombudsman system should be given constitutional status. I would like to hear your views on the advantages and disadvantages of enacting an authorizing provision in the Constitution.

>> Administrative counselors have served for many years as "Japanese-style ombudsmen." What functions does an ombudsman have that cannot be performed by administrative counselors? Would a division of roles between the two be possible?

>> Local governments have introduced executive-type ombudsmen because the Local Autonomy Law makes it difficult for them to establish the parliamentary form of the office, but isn't it also possible to interpret the law in a way that would allow this?

>> Considering the national character, do you believe that an ombudsman system would take root in Japan?


FUKUSHIMA Yutaka (New Komeito)

>> I would like to hear your views on whether an ombudsman system would really be accepted in Japan, in light of the nature and history of government in this country, where there are still lingering effects of prewar bureaucratic control over the people.

>> If we are going to introduce an ombudsman system, I think the parliamentary type is preferable. But isn't it difficult to make a neutral appointment that transcends partisanship, as you advocate?

>> I think that an essential prerequisite for the success of an ombudsman system is a mentality of self-governance among the public. How do you view the mentality of the Japanese people?

>> Over the next decade, there will be a series of changes that will have a major impact on the public, such as tax increases and social security reform. Since public trust in the government is necessary if these moves are to go ahead, I think it would be advisable to have an ombudsman system. Would you like to comment?


YAMAGUCHI Tomio (Japanese Communist Party)

>> The Japanese Communist Party has proposed an ombudsman system, and we have also prepared and submitted a bill to create a Board of Administrative Oversight. As I see it, the constitutional basis for an ombudsman is twofold, consisting of the right of Diet Members to conduct investigations in relation to government under Article 62, and the right of petition under Article 16. Do you agree?

>> The office proposed in the final report of the Research Group on the Ombudsman System would be created in the executive branch, and its independence therefore seems dubious to me. I would like to hear your evaluation of this report in connection with your assessment that Japan is lagging behind in introducing an ombudsman system.

>> Private-sector ombudsmen have proved very effective in such areas as administrative oversight and handling complaints, but you commented that, when it comes to their powers, it is better not to classify them as ombudsmen. Where do you think private-sector ombudsmen fit into the overall picture?


ABE Tomoko (Social Democratic Party)

>> In my view, the Board of Audit should be truly independent of the Cabinet. In the U.S.A., the General Accounting Office is a sub-organ of Congress. What form do you think the Board of Audit should take? Also, how would the public benefit if an ombudsman were established in the Diet?

>> Are the existing parliamentary committees carrying out adequate investigations of the administrative oversight plan?

>> Under present conditions, the freedom of information system is not being utilized to the full. What are your views about linking this system and an ombudsman's office?


SUGIURA Seiken (Liberal Democratic Party)

>> In order to make the government more transparent, I think that ombudsmen should be introduced first at the local level, where there is less distance between residents and the administration. What do you think of this idea?

>> The currently scheduled judicial reforms include putting in place a Justice Support Network with nationwide access to consultation and reforming the system of administrative litigation. We should ask ourselves whether it is truly necessary to establish an ombudsman at the national level at this time. Similar functions could be covered by strengthening the role of the existing Committee on Audit and Oversight of Administration and other organs of that kind. What are your views in this regard?


TSUJI Megumu (Democratic Party of Japan and Club of Independents)

>> As Japan moves ever more rapidly toward becoming an administrative state, the principle of separation of powers is not functioning in practice, due to judicial passivism, among other causes. Also, I am concerned that the executive branch may have a strong influence over the Justice Support Network, which will be run by an independent administrative institution. Under these conditions, I think that creating an ombudsman would be a very meaningful step toward strengthening the Diet's functions. In concrete terms, what sort of ombudsman could be envisioned?

>> I think we also need special ombudsmen who would have the power to investigate the police, the prisons, and the armed forces. Concretely, what kind of system could be envisioned for Japan?

>> You stated that an ombudsman's authority is based on making recommendations to the administration. In concrete terms, what direct checks on the administration can be envisioned in order to correct its actions?


ETO Seishiro (Liberal Democratic Party)

>> Sweden, which introduced the world's first ombudsman, has a unicameral parliament. Is there any connection between the various ombudsman systems and whether the countries concerned have unicameral or bicameral parliaments?

>> What do you think of the idea of stipulating a constitutional status for an ombudsman, alongside the courts, as an organ for the redress of violations of the people's human rights? Also, what matters should the constitutional provisions cover? How do you view the independence of the office and the duty of relevant bodies to cooperate with it?

>> Should the ombudsman's organization be attached to the Diet, or should it be independent like the Board of Audit?

>> If we are going to consider introducing an ombudsman in Japan, which country's system do you think we should take as our model?

>> It has been suggested that what Japan needs is a system of special ombudsmen. What are your views on this point?

>> I think that the Local Autonomy Law should be revised to allow local governments to establish parliamentary ombudsmen. Do you agree?

>> If Japan adopts an ombudsman system on the national level, to ensure that it takes root, what points in its operation do you think will need particular care?

>> Would you please explain what an international ombudsman is?

Main points of comments by members in the free discussion (in order of presentation)

FURUYA Keiji (Liberal Democratic Party)

>> Unlike those countries where there is a widespread and highly developed public awareness of the ombudsman system, if an ombudsman were to be introduced in Japan, I think that it should be in the public sector, because it seems that private-sector ombudsmen in this country tend not only to be active in protecting citizens' rights but also to have an ideological agenda.

>> Japan already has a system of administrative counselors and the Administrative Grievance Resolution Promotion Council, among other channels, and we should first ascertain whether these are functioning properly. Then, if necessary, we should supplement and improve them.

SUGIURA Seiken (Liberal Democratic Party)

>> In Japan, if the administrative oversight committees and related bodies in the two Houses of the Diet were strengthened, they could play a role similar to that of an ombudsman. The question of whether this would require a constitutional amendment should be discussed separately in this Commission.

> (To Mr. TSUJI)
>> Although the Justice Support Network is to be run by an independent administrative institution, I would like to point out that, in its proposal, the ruling coalition was firmly resolved not to allow this system to become a typical bureaucracy; for example, it includes provisions for hiring from the private sector.

GENBA Koichiro (Democratic Party of Japan and Club of Independents)

>> I am basically in favor of introducing an ombudsman, although the design of the system needs study. However, if an ombudsman is to be introduced, we should make provision in the Constitution.

>> From the viewpoint of using tax money efficiently, I think that, if we introduce an ombudsman, it should be done on the condition that we reorganize or dissolve any committees or other bodies that have the same or similar functions.

TSUJI Megumu (Democratic Party of Japan and Club of Independents)

>> In my view, there is a very pressing need for a parliamentary ombudsman to control and oversee the administration, as it is becoming increasingly bloated under conditions of judicial passivism and inadequate decentralization.

ABE Tomoko (Social Democratic Party)

>> A parliamentary ombudsman is needed in the current political climate, which calls for greater impartiality and transparency. Moreover, according to Prof. UTSUNOMIYA, although it would be preferable to make provision in the Constitution, the office can be established by legislation. I would like to discuss this subject further.

>> In my view, the existing system of administrative counseling is inadequate to deal with cases where members of the public have been harmed by improper medical care. There is a need for a general or special ombudsman with the power to conduct on-site investigations, e.g., by inspecting a patient's medical records. Only in this way, I believe, can we ensure the public's peace of mind and safeguard their interests.

KANO Michihiko (Democratic Party of Japan and Club of Independents)

>> The creation of an ombudsman's office separately from the system of administrative counselors would contribute more to the national life than the existing system in two ways: it would ensure independence from administrative agencies, and it would secure the specialized investigative capacity which, as government becomes increasingly complex, is needed to deal with problems that are too specialized to be resolved by administrative counselors.

>> We could ensure that the ombudsman worked in tandem with the oversight committees of both Houses of the Diet by stipulating that these committees, or other bodies or Members of the Diet, can request investigations. The introduction of an ombudsman system would be meaningful from this perspective also.

SUZUKI Katsumasa (Democratic Party of Japan and Club of Independents)

>> Based on my experience in local administration, I see no need for an ombudsman's office as long as the local assemblies are doing their job properly, but I am not opposed to the introduction of such an office.

>> Besides the question of the costs involved in introducing such a system and the need for public awareness, we will need to take care that the creation of an ombudsman's office does not make government employees less willing to take on challenges and thus, contrary to the public's expectations, lead to stagnation of the administration.

NAGAOKA Yoji (Liberal Democratic Party)

>> It is important to create a mechanism for the prompt redress of violations of individual rights. At the national level, it is the Diet that should check that the people's rights are being protected. On the other hand, as the administration becomes ever larger in scale, there is also a need to make it easier for individuals to seek redress for violations of their rights. However, the work of government must strike a balance between individual rights and the public good, and we should be wary of accentuating individual rights too strongly.

>> Because the creation of an ombudsman system involves constitutional questions, the first step should be to provide the necessary protections by strengthening and improving the existing committees of the two Houses of the Diet. At the same time, we need to separate the national from the local level in examining this issue.