OMBUDSMAN’S PROPARTIF APPROACH: TOWARDS A RESPONSIVE RULE OF LAW IN INDONESIA?

Oleh Stijn Cornelis van Huis

The main tasks of the Indonesian Ombudsman (Ombudsman Republik Indonesia; ORI) are handling complaints of citizens about the public service delivery by government institutions and conducting investigations on its own initiative based on reports of maladministration. One could say that ORI’s role is that of a referee who examines whether the government in its dealings with citizens plays by the rules. If the government violates its own procedures and standards, ORI has the power to intervene and to compel a government institution to offer a satisfactory solution for the harmed citizen(s). Hence, ORI functions as a safeguard of one of the main elements of the rule of law: government’s actions must be bound by law.

A majority of complaints that are reported by citizen’s are minor cases – a pension that is not paid, a refusal by an official to issue an identity document, the levying of illegal fees, a court decision that is disregarded. On their own those cases are relatively marginal and will not have any impact beyond the lives of the citizens and officials involved. Taken together, however, these every day dealings of citizens with the government, or what Lipsky has called the street-level bureaucracy, shape citizen’s perceptions of the rule of law and their trust in the government. If ORI is doing its work well and intervenes in such cases of maladministration in a satisfactory way, it will achieve two things: (1) government institutions are reminded to play according to the rules, (2) citizens are reminded that the government is serious in upholding the rule of law.

Upholding the rule of law can be done in different ways. In its interaction with citizens a government may exclusively focus on procedures and regulations. In this scenario the communication by the government does not extend beyond explaining procedures, receiving requests and complaints by citizens, writing reports, checking the documentation and facts, after which it publishes documented decisions.  Such formalistic approach to the rule of law is called an “autonomous rule of law”. When citizens experience procedural issues in their dealings with the government, a government institution has also the option to approach the case in a less formal way: by listening to the problems citizens experience, investigate if there are possibilities to solve these issues, and facilitate communication between citizens and relevant government officials to see whether a  solution within the boundaries of the law can be reached. This approach has been called a “responsive rule of law”. In both approaches the rule of law is uphold, as the solutions remain within the boundaries of the law. However, in the second approach the government actively helps citizens to look for solutions and is involved in communication and negotiations with the relevant officials.

The government of the Netherlands has experienced that a more responsive approach of government institutions towards their citizens, not only reduces the number of conflicts between citizen’s and the government, but also results in better and earlier solutions of conflicts. The Dutch case shows how a responsive justice does not only lead to improved feelings of justice, but that it is effective as well: when government officials invest a bit more time in communication with citizens and other officials, cases are resolved faster and in a more satisfactory way. In the end the government saves money because of decreased costs for its complaint handling and litigation.

ORI is positioned as intermediary, mediator, and arbiter between citizens and the government. The effectiveness of ORI’s complaint-handling therefore very much depends on how ORI officers communicate with citizens and government officials. Therefore, ORI has decided to provide its officers with improved mediation and communication skills. ORI has been inspired by experiences of the Dutch Ombudsman with the implementation of a new communication approach (Prettig contact met de overheid; Responsive communication with the government), and together with the Dutch Ombudsman, Dutch mediators of CvC and Indonesian mediators of Pusat Mediasi Nasional, has developed a Propartif approach (pendekatan progresif dan participatif).

In preparation of the implementation of the Propartif approach more than 400 ORI officers have been trained to improve their communication and mediation skills. These improved communication skills are meant to lead to a faster and more satisfactory complaint handling by ORI’s provincial offices. The Propartif approach does not only envision a more responsive communication of ORI with citizens, but of other government institutions with citizens as well. As such. it is an important exploration of the Indonesian government with the idea of responsive justice. ORI’s Propartif approach is an important test: to what extent is Indonesia’s bureaucracy, starting with ORI’s own bureaucracy, receptive to the ideas of a responsive rule of law? Is the shift from a formalistic approach to a more proactive and solution-oriented approach possible in the Indonesian context? Only time will tell (***).