Ombudsman for the Defence Forces

2nd International Conference of Ombuds Institutions

For the Armed Forces 25th – 28th April, 2010, Vienna.

 

Presentation by Ombudsman for the Defence Forces, Paulyn Marrinan Quinn S.C.

Role of Ombudsman Institutions in promoting

and protecting the Human Rights of Armed Forces personnel.

Dear Mr. President, Honoured Guests and friends.

May I thank you and your colleagues for providing us with these magnificent surroundings in which to conduct our discussions during this 2nd International Conference for Ombudsman Institutions for Armed Forces and our friends who are here with to assess the merits of the different approaches, adopted by the jurisdictions represented here, in dealing with grievances and complaints from members of their Armed Forces, monitoring the internal processing of those grievances and providing valuable civilian oversight of Military administrative matters.

It is remarkable how this grouping of people, with a common interest, has responded to the inspired step taken last year by our colleague Reinhold Robbe, German Parliamentary Commissioner for Armed Forces. Mr. Robbe recognised that it was timely and appropriate to focus on this area of work in order to stimulate discussions and promote an exchange of experiences which would assist the many Office holders in their work and provide an opportunity for those interested in this work to assess the strengths and weaknesses of the different approaches.

So far, I have found the two Conferences to be of immense value. I must thank you for inviting me to describe the role and function which I perform as the first Office of Ombudsman for the Defence Forces in Ireland which was established in 2005.

It is interesting to note, so far, the different systems and, indeed, in listening to the various Ombudsman and Inspectors and Commissioners, who have described their legislative structures, to gain further insights into the differences in the respective Jurisdictions. It might therefore be wise to say a few introductory words about the Complaints procedures in the Defence Forces in Ireland in order to put the establishment of my Office in some context.

Every member of the Irish Defence Forces has a right to become a member of a Representative Association. There are two. One, PDFORRA, for the enlisted personnel and RACO, the Association for Commissioned Officers. Every member of the Armed Forces has a legal right to make a complaint, which is known as the “Redress of Wrongs” set out in the 1954 Defence Act. As is customary with most hierarchical Institutions, the complaint handling mechanism has traditionally involved the Complaint being processed up through the Chain of Command. Whereas there is a commitment to try to resolve the matter locally at Unit level, there is a right, on the part of the Complainant, if he or she is not satisfied with the determination, at lower levels, or the way in which the complaint has been handled, to have the matter referred to a higher authority through the General Officer Commanding, and ultimately to the Chief of Staff who is the head of the Defence Forces. Both the General Officer Commanding and the Chief of Staff make what is described as a Considered Ruling which is a formal written finding in relation to the grievance.

For many years the Representative Association of the enlisted personnel and other ranks had been campaigning for the establishment of an Office of Ombudsman for
the Defence Forces. That campaign had gathered a degree of support. However, as a result of some indications of bullying in the Defence Forces, in or around 2001, an independent review was commissioned by the Minister for Defence which resulted in the publication of a Report of the Independent Monitoring Group which had been established to review the implementation of recommendations arising from its preliminary Report.
The Independent Monitoring Group was chaired by Dr. Eileen Doyle and had, among its group, members of the senior Military Management, the Representative Associations and Senior Officials from the Department of Defence. The Report entitled “Response to the Challenge of a Workplace” was presented to the Minister of Defence in 2004. The Report found as part of an in- depth review of practices and procedures, that there was persuasive evidence to suggest that members did not fully trust the internal Complaint’s system. This was an impetus for the appointment of an Ombudsman for the Defence Forces.
The Group considered that access to such an Office of independent appeal was a pre-requisite for effective change within the Permanent Defence Forces in Ireland and an integral part of the modernisation of the Army. This gave the necessary endorsement to the long - standing campaign to have such an Office established. The Ombudsman (Defence Forces) Act, 2004 was unanimously supported by all parties during the Parliamentary debates on the Legislation.

Thus, I was appointed by the President of Ireland as the first Ombudsman of the Defence Forces in September, 2005.

The Legislation setting up my Office ensures that the Ombudsman is independent from the Department of Defence, the Minister for Defence and the Defence Forces. The Ombudsman is independent in the performance of her function and, notwithstanding a duty to have due regard for the operational requirements of the Defence Forces, has power to investigate any action that is the subject of a complaint made by a person affected by the action if, having carried out a Preliminary Examination of the matter, it appears to the Ombudsman that the Complainant was adversely affected by the action which was, or may have been, taken without proper authority; taken on irrelevant grounds; the result of negligence or carelessness; based on erroneous or incomplete information; improperly discriminatory; unreasonable, notwithstanding consideration of the context of the Military environment; based on undesirable administrative practice; or otherwise contrary to fair or sound administration provided that the action was not an order issued in the course of a military operation.

There were already time- lines and guide lines set down to direct how the Redress of Wrongs system worked within the Defence Forces but with the establishment of the Office of the Ombudsman, new tighter time - frames and procedures came into force. It is now all the more necessary for the Defence Forces to move a complaint through the internal complaint handling stages expeditiously having attempted first to resolve the matter at the lowest level if possible. The Legislation setting up my Office provides that if a period of 28 days has expired since the complaint was made and no progress has been made towards its resolution, the Complainant has the right of direct access to the Ombudsman. It might be useful to point out that a former member can make his or her complaint directly to me. In the case of a member of the Defence Forces making a complaint against a Civil Servant, this complaint is made directly to me without going through the Chain of Command.

As Ombudsman, I have discretion in determining whether a case is trivial or vexatious or if the Complainant has sufficient interest in the matter. I also have discretion in determining whether I have Jurisdiction. When a complaint is referred to me, I have the right to request the full file from the Defence Forces in relation to the matter together with any other documentary information which I require. As Ombudsman, I have discretion as to how I conduct my investigations of individual cases.

When an Office like this is established, one of the first ways of assessing whether the Legislation is sufficiently powerful is to ascertain whether the Ombudsman has a right to unfettered investigation and right of access to any witnesses or premises which require to be examined or inspected.

In the normal course, I carry out a Preliminary Examination in order to determine whether I have Jurisdiction or whether I deem it appropriate to investigate the case. Where I conduct an investigation into the action that is the subject of a complaint, I send a Report in writing of the results of my investigation to the Minister and to all persons concerned with the complaint and to any other person to whom it is appropriate to send my Report. When I have examined a case, and I am satisfied that the action adversely affected the Complainant and that it is an action falling within the headings which I mentioned above, I may recommend to the Minister that the action be further considered or that measures or specified measures be taken to remedy, mitigate or alter the adverse effect of the action, or that the reasons for taking the action be given to me. If I believe it appropriate, I request the Minister for Defence to notify me within a specified time of a response to my recommendation. Where it appears to me that the measures taken or proposed to be taken in response to my recommendations are not satisfactory I may cause a special Report on the case to be included in my Annual Report and presented to Houses of the Parliament in Ireland.

For the purposes of a Preliminary Examination or an Investigation, I may require any person who is in my opinion in possession of information or has a document or part of a document or thing in his or her power of control that is relevant to the Preliminary Examination or Investigation to furnish that information or document to me and, where appropriate, I may require a person to attend before me for that purpose. The person must comply with my requirements. In circumstances where a document or part of a document or thing relates to decisions or proceedings of the Government or any Committee of the Government, which would not be amenable to my review, a Certificate is provided by the Secretary General to the Government certifying that such information should not be given to me. Similarly, any documentation or information relating to security or to a military operation, on the advice of the Chief of Staff, is deemed privileged, a notice is given to me by the Minister for Defence, certifying that such information or document falls into this category. The Act is very clear in stating that a person shall not by any act or omission obstruct or hinder me in the performance of my functions or do any other thing which would, if I were a Court having power to commit for contempt of Court, be contempt of such Court.

The Minister may give notice to me in writing with respect to any document or information that, in the opinion of the Minister, the disclosure, other than to me of that document or information would, for the reasons stated in his notice, be prejudicial to the public interest or to security.

As the Accounting Officer of the Office, I may be requested to attend before a special Committee of our Houses of Parliament to account for the general administration of the Office. There are also some protections here in that where, in my opinion, I am requested to account before a Committee on a matter that I believe may at a future time be the subject of proceedings before a Court or a Tribunal in the State, I can inform the Committee of that opinion. Where the Committee does not withdraw the request, I may apply to the High Court for a determination in relation to the matter.

Since the introduction of the Legislation establishing my Office, a very powerful new protection has been introduced. That is to say, every complaint which a member of the Defence Forces makes must now, by Law, be notified to me in writing by the Defence Forces. There are very strict protocols and time limits in the way in which this must be done and, of course, this demonstrates one other aspect of the work of my Office in that I can monitor and track every complaint ensuring that no grievance of a member can be left unanswered or unfairly delayed or obstructed. I track the progress of the Complaint while it is being progressed within the Defence Forces own Redress of Wrongs procedures. A designated Officer is required to provide me with written confirmation when the complaint has been resolved internally together with the signed written consent of the Complainant confirming that he or she is satisfied with the redress offered and that they are withdrawing the complaint.

Just a few months after I was appointed, I was greatly honoured to be invited to become a member of the Expert Group convened by (ODIHR), the Office of Democratic Institutions and Human Rights at the OSCE (Organisation for Security and Cooperation in Europe) and DECAF, the Geneva - based Centre for Democratic Control of Armed Forces, to draw up a Hand Book on Human Rights and Fundamental Freedoms of Armed Forces Personnel. The work was inspired by the “Citizens in Uniform” concept. It was timely that this Hand Book was launched in May of 2008, here in Vienna at the 60th Anniversary of the Universal Declaration of Human Rights.

The inspirations for the Hand Book and for the principles which it espouses are based on the importance of ensuring the protection of Human Rights for people serving in the Armed Forces. By virtue of being citizens, members of Armed Forces should enjoy the same Human Rights and Fundamental Freedoms as other citizens. I believe that having respect for the rights and welfare of members of Armed Forces contributes to a Military that is firmly integrated in society. It is widely agreed that respect for Human Rights in the Barracks serves to prevent a Military Force from being misused by a Government and turned against the civilian population. I suggest also that respect for Human Rights in the Barracks protects members of Armed Forces against misuse and oppression by a Government or Army Commanders. I believe that modern day peace- keeping operations require Armed Forces Personnel to be mindful of Human Rights work into their day to day operations. I believe they are better prepared to do so if they, themselves, operate in an environment that respects and protects those rights and requires them to internalise the values that underlie them. It was with these principles as a guiding force that the OSCE Expert Group looked at the range of protections available across a number of jurisdictions. I commend the Hand Book to you as a first step in offering a review and guidance on the basic and desired standards in providing protections for the Armed Forces Personnel. It was my great honour to deliver the key note address at the launch of the Hand Book here in your City of Vienna in 2008.

I am conscious that there are many different types of Commissioners, Inspectorates and other Offices of oversight represented here today who strive, with varying mandates, to protect the welfare and Human Rights of their citizens and, in some instances, specifically those of the members of their Armed Forces.

From my own perspective, having worked in this job for four years, I am convinced that there is a significant degree of protection offered by an Ombudsman for the Armed Forces, at the very least, in ensuring that the spotlight is never taken away from the objective and that the Ombudsman comes to represent a ‘touch-stone’ against which fairness, appropriate behaviour and standards are tested. In addition to Adjudicating individual cases that have not been resolved through the internal complaints procedures of the Armed Forces, the Ombudsman provides a reassuring presence as an independent Appeal mechanism and sets down standards by which administrative decisions must be objectively justified.

Through the investigation of individual cases, the Ombudsman can uncover and identify any systemic practices which are in need of reform and, at all times, the Ombudsman is an advocate of fair procedures. In order to do this job in a meaningful way, the Ombudsman needs to be properly empowered and established on the universally recognised pillars and essential elements of Ombudsmanship. That is to say, the Office must be accessible, independent, fair, and accountable the Ombudsman must of course, be effective and perceived as unbiased. I believe that the work that we have done, so far, at this Conference demonstrates a substantial commitment to shared objectives and unstinting respect for those essential elements.
I look forward to the discussions continuing and the valuable exchange of experience and wisdom.
Thank you.

Paulyn Marrinan Quinn,
Ombudsman for the Defence Forces