Ideal Position of the National and Local Ombudsman

or LOD DIY. The facts show that the National Ombudsman representative office in Yogyakarta receives many reports and complaints dealing with the maladministration by the local government. There are not clearly distinguished for who should handle the complaint because of similarity of jurisdiction.¹⁰⁷ The similarity of jurisdiction might cause an overlapping and inefficient in resolving maladministration in the special area of Yogyakarta. To avoid conflict of interest in handling maladministration, it is necessary to determine and clarify the authority of both the national Ombudsman and the local Ombudsman in terms of investigations and the settlement of complaints.

Figure 3. The National and Local Ombudsman’s Oversight System

Although both local Ombudsman and national Ombudsman have the same goal, they are in different legal regimes. Besides, the extent of the Ombudsman's national oversight scope which includes the local government affairs suggests that local governments have not been able to perform self-control. The establishment of local Ombudsmen with the range already covered by the National Ombudsman can also have implications for the effectiveness of the two Ombudsman systems. Therefore, the institutional and workings of the Ombudsman in the same area need to be harmonized. Harmonization is essential to avoid overlapping oversight and to reduce conflicts of interest. With the current legal basis that has not yet integrated the national Ombudsman and the regional Ombudsman, such harmonization can be made by making unwritten agreements on maladministration handling in the regions. Concretely, the alignment of such supervision can be conducted by several agreements as follows:

All government affairs

Local government

affairs National Ombudsman’

Jurisdiction

Local Ombudsman’

Jurisdiction

1. The local Ombudsman can take a strategic position in handling maladministration and encourage public participation in the policy-making process in the region.

2. The local Ombudsman may resolve complaint handling related to domestic government affairs before the National Ombudsman’ representative. In a condition where the reported agency does not follow the direction of the local Ombudsman, the local Ombudsman may refer to the National Ombudsman’

representative for follow-up.

3. To improve public services through systemic reviews, local Ombudsman and National Ombudsman’ representative can work together and share roles proportionately.

Positioning the local Ombudsman as an independent oversight body and having a firm legal basis becomes an essential issue in supporting good governance in the region. The local Ombudsman is present to solve the most significant challenge of ensuring that there is no maladministration on public services in the regions.

Although the National Ombudsman has built up its representation in every province, the existence of local Ombudsmen is still highly relevant as the issue of maladministration is increasingly shifting to the region along with the increasing decentralization of power to the regions. Based on the Constitutional Court Decision No. 62/PUU-VIII/2010 on the judicial review of Article 43 (1) and (2) and Elucidation of Article 46 (3) of Public Service Act, the local government can formulate and strengthen the existence of the local Ombudsman. These provisions have also provided opportunities for local Ombudsmen to carry out their primary

duties and functions as Ombudsmen in the regions.¹⁰⁸ The establishment of Ombudsman’s representatives should consider aspects of effectiveness, efficiency, complexity, and workload. Thus, the local Ombudsman may occupy a space as an oversight body for local government at the district/city level as the following figure:

Figure 4. The Ideal Position of Local Ombudsman in Settlement of the Complaint

After the issuance of the Constitutional Court Decision No. 62/PUU-VIII/2010, the Ombudsman system in the regions may consist of the National Ombudsman’s Representative provided by the central government and the local Ombudsman established by the local government. This decision affirms that the supervision of public services conducted in the regions is simultaneous and multi-actor supervision. So the involvement of local governments is crucial to improving public services including in the formation of local Ombudsmen.

The position of local Ombudsmen that are not integrated into the national legal regime, of course, its existence is still weak because it depends on the will and commitment of the local head. Especially if the legal basis is only in the form of a

108 In the elucidation of Article 46 (3) of the Public Service Act, it is stated that the Regional Representative is a representative formed in the provincial capital or regency/municipality capitals deemed necessary.

People Complaints

National Ombudsman

Local Ombudsman

Central government affairs

Local government affairs

Unsettled

local head's regulation. Thus, to maintain the sustainability of local Ombudsmen, the legal basis for the formation of the local Ombudsman should be in the form of a local regulation.

Moreover, the local Ombudsman should be able to ensure that the implementation of the public services must be qualified, transparent and participatory. Then the people can ensure that the policies will not violate the rights of citizens. Thus, the position of the local Ombudsman should be ideally included in the national legal regime. If the problem of maladministration concerns the service that is the responsibility of the district/ city, then it becomes the authority of the local Ombudsman. Meanwhile, if the problem related to the service of provincial or central government agencies, then it becomes the authority of provincial or central government. However, this still requires a second judicial review and a revision of the laws governing the Ombudsman.