Question: Need for an office of Ombudsman in Bangladesh.
Introduction
In the recent days a word ‘Ombudsman’ has been pronounced much more in politico administrative discussion. It is generally alleged that a major problem throughout Bangladesh’s public sector is not only lack of accountability but also the nature of accountability. If the administrators vested with vast authority but of unfettered type there is very apprehension that they may become tyrannical. Hence, some sort of controls over the administration is essential for ensuring accountability. In our country, to make the administrators accountable and to minimize mal-administration, inefficiency, conceit and abuse of power which are built into the system of our administration, some internal based on hierarchy and include time limits for disposal of files, inspection, supervision, Annual Confidential Report (ACR), civil service conduct rules etc. and external, such as parliamentary control, the role of the judiciary, the press and the citizens or the pressure group mechanisms are existing within the system and society. But the prevailing administrative process and internal mechanisms of control over administrative malpractices is not so effective. Because, “time limits for disposal of files are not usually complied with.
Supervision has been weak in many cases and non-existent in others. Inspections are conducted casually and at irregular intervals. The ACR is largely subjective and therefore is not of much use” (Khan, 1995:13). On the other hand, in law courts litigations are expensive, tension creating and protracted.
Administrative Courts follow Court-like procedures. Executive complaints handling agencies lack the essential characteristics of independence. The standing committees of the Parliament have not so far been very effective-due to political differences of the major political parties. Therefore, an urgent need of the time is to evolve an adequate and effective mechanism for controlling the administration in exercising its powers, safeguarding individual rights and creating procedures for redress of individual grievances against the administration. The circumstances call for an external agency outside the administrative hierarchy, to detect and check administrative lapses and faults and to supervise the administration so that the rights of the individuals are not unduly jeopardized (Kabir, 1997:176). And the office of Ombudsman
can be such an external, red tape, arbitrariness, bias, corruption etc., which in many ways undermine human dignity and human rights.
Features of the ombudsman:
The Ombudsman is
i. independent of government.
ii. Responsible for making sure that administrative practices and services of public bodies are
fair, reasonable, appropriate and equitable.
iii. An officer of the provincial legislature.
iv. able to conduct confidential investigations that are non threatening and protect complainants
against retribution.
v. required to file an annual report with the legislative Assembly. (Internet websites)
According to Anderson the essential characteristics of the Ombudsman’s post require that the
individual filling it be:
1. Independent;
2. Impartial;
3. Expert in government;
4. Universally accessible; and
5. Empowered only to recommend and to publicize (Anderson, 1969:3)
In 1962 a seminar was arranged by the UNO an judicial and other remedies, that seminar
Suggested some features of Ombudsman as follows:
1. It is not only an instrument of parliament for supervising administrative action but also a
protector of individual rights.
2. Investigations conducted by it are completely impartial and independent of the administrators.
3. Investigation can be started by the Ombudsman at his own initiatives basing his actions of
information received by him.
4. The investigation is conducted informally.
5. The ombudsman has considerable flexibility in the form of action which he would take in
given case.(UN Technical Assistance Operation, 1962:12-17)
Bangladesh Perspective
Constitutional Provision On Ombudsman:
After the independence of Bangladesh the framers of the constitution adopted in 1972 the concept of Ombudsman or Naypal (Islam, 1994:208). Article 77 of the constitution provides:
(i) Parliament may, by law, provide for the establishment of Ombudsman.
(ii) The Ombudsman shall exercise such powers and perform such functions as parliament
may by law, determine, including the power to investigate any action taken by ministry, a
public officer or a statutory public authority.
(iii) The Ombudsman shall prepare an annual report concerning the discharge of function and
such report shall be laid before parliament (Constitution, 1972). Being persuaded by the fact that an institution like the Ombudsman would be essential for safeguarding the interest and rights of the public in Bangladesh from mal administration or administrative excesses.
Ombudsman Act’ 1980
The main characteristics of Ombudsman Act 1980 are:
(a) There shall be an Ombudsman who shall be appointed by the president on the recommendation of the parliament.
(b) Parliament shall recommend for appointment as Ombudsman a person if known legal or
administrative ability and conspicuous integrity.
(c) It shall come into force on such date as the Govt. may, by notification in the official Gazette,
appoint.
(d) The Ombudsman shall, subject this section, hold office for a term of three years from the date
on which he enters upon his office, and shall be eligible for reappointment for one further term.
(e) The Ombudsman shall not be removed from his office except by an order of the president
passed pursuant to a resolution of parliament supported by majority of not less than two thirds of the total numbers of parliament on the ground of proved misconduct or physical incapacity.
(f) The Ombudsman may investigate action taken by a ministry, a statutory public authority, or a
public officer in case where a complaint in respect of such action is made to him by a person.
(g) Ombudsman shall have the power to punish any person who, without lawful excuse obstructs
him in the performance of his functions with simple imprisonment, which may extend to three months, or with fine which may extend to two thousand taka, or with both.
In the following discussions, an attempt has been taken to critically assess the various provisions
of the act and for success full efficient functioning of the system, some proposal have also been put forward.
Appointment of the Ombudsman:
Theoretically there are three available modes of appointment of Ombudsman in the world:
1. Appointment by the National Assembly or Legislature;
2. Appointment by the Head of the State;
3. Appointment by the Head of the State on the recommendation of Parliament.
In Bangladesh, the Ombudsman Act 1980 provides for the third type of appointment, which
sounds logical and rational, because the political system based on the parliamentary spirit is yet to develop in our country. But in the Act, nothing is mentioned regarding the role of the opposition parties in molding the recommendations to be sent to the President. In such a situation, the Ombudsman would certainly be recommended by the ruling party, which, in the long run ruin the independence, accountability and impartiality of the institution. Therefore, in the context of Bangladesh polities
Ombudsman should be appointed by the President on the consensus of all parties in parliament to ensure acceptability of the Ombudsman to all.
Qualification of the Ombudsman
As regards the qualifications of the Ombudsman, the Act only states that, “the Ombudsman shall
be a person of known legal or administrative ability and conspicuous integrity.” But a person with legal capability may not have the requisite administrative ability and similarly a person with administrative capability may not have the legal ability, which is more essential for the post of Ombudsman (Ahmed, 1993:48). But only law is not enough. The Ombudsman also requires substantive experiences and insight into public administration. Thus the provision regarding qualification requires little modification. Another defect with the act of 1980 is that it is completely silent regarding the age of the Ombudsman, which is an integral aspect of its qualification. Besides, the term ‘conspicuous integrity’ should be defined precisely
within the Act.
Tenure of the Ombudsman:
According to the provision of the act, “the Ombudsman shall hold office for a term of three years
from the date on which he enters upon his office and shall be eligible for reappointment for one furtherterm.” It seems that three years are not adequate to be efficient and successful in handling the affairs,which will fall within his domain. It is therefore desirable that the Ombudsman’s tenure of office should also be equal to that of the President and parliament and be renewable for a further term depending upon his performance of the pervious term.
Privileges of Ombudsman
The remuneration, privileges and other conditions of service of the Ombudsman shall be the same as are admissible to a judge of the Appellate Division of the Supreme Court. The conditions of the service of a judge of the Appellate Division of the Supreme Court have been enumerated into the Constitution of the People’s Republic of Bangladesh.
Functions of the Ombudsman
Generally, an Ombudsman may receive complaints from three sources:
i. Complaints sent to him by the members of the people (MPs);
ii. Complaints made to him by any person; and
iii. The Ombudsman may, on the basis of the newspaper comment or otherwise, proceed suo
motu. (Halim, 1998:291) Besides these, the Ombudsman can undertake periodic tours of inspection in various regions of the country to see for himself the state of affairs. The act of 1980 is not very clear regarding the Ombudsman’s procedure of work in our country. In a populous country like ours, whatever method may be used, there will be numerous cases to investigate. Thus, identifying a particular one or two is not desirable. Because, one or two may have ‘in-built’ shortcomings with them.The Ombudsman can also act as an agency to suggest administrative and law reforms. He may assume the role of a legislative advisor. He may call attention of the legislature to the desirability of reconsidering any law he believes has produced unreasonable, unjust, oppressive or discretionary results. (Ahmed, 1993:59).
Jurisdictions of the Ombudsman
The Ombudsman Act 1980, narrows down the Jurisdictions of the Ombudsman in Bangladesh by
precluding the President, Prime Minister, Judges of the Supreme Court including High Court,
Magistrates, the Chairman and Members of the Public Service commission and the Comptroller and Auditor General from his supervision. But since independence, the charges of corruption against President, Prime Minister and Cabinet Ministers are higher than those of the administrative officials. Therefore, for ensuring transparency of the administration everybody in the service of the Republic should be open to investigation by the Ombudsman in Bangladesh irrespective of his status and position.
Removal of the Ombudsman
The Ombudsman Act 1980, states that the Ombudsman shall not be removed from his office
except by an order of the President pursuant to a resolution of the Parliament supported by a majority of not less then two- thirds of the total number of members of the Parliament on the ground of proved misconduct or psychological incapacity. Provided that on such resolution shall be passed until the Ombudsman has been given reasonable opportunity of being heard in person. He may resign his office by writing his hand addressed to the president.
Organizational Structure
Organizational structure of the office of the Ombudsman may be determined with reference to his functions and workload. But it can be predicted that in the land of 120 million people the workload is likely to be enormous. Therefore, there should be reasonable number of personnel within the office of Ombudsman. Six divisional Ombudsmen may also be appointed by the Ombudsman s his deputy with sufficient staff under them to deal primarily with their respective divisional complaints. They will make preliminary checks on the physical existence of the complaint and the bonafide of the case for investigation and forward the complaint with their preliminary comments to the Ombudsman. However, the personnel required to carry out the functions of the Ombudsman should not be too large in number.
Specialization of Ombudsman:
The Bangladesh Ombudsman Act 1980 is silent as its number and area of specialization. Following the other countries, Bangladesh can adopt four types of Ombudsman according to the varied type of work (i.e. specialization) they are called upon to perform.
? The Ombudsman (general) to investigate into mal-administration president, Prime Minister,
Cabinet Ministers, MPs and central bureaucracy.
? The Ombudsman (local) to investigate complaints of mal-administration committed by local
authorities, representatives and officials.
? The Ombudsman (military) to investigate in discipline of military personnel and officers
employed by the ministry of defense.
? The Ombudsman (judicial) to deal with the matters of legality of the judicial divisions, without
having power to influence the court proceedings. (Ahmed, 1993:53)
The government has to clearly specify the goals and roles of other agencies, which are operating
currently to promote administrative accountability. If the office of the Ombudsman is instituted in the offices like the Bureau of Anti-corruption, the judiciary, office of the Comptroller and Auditor General,the Public Accounts Committee and the administrative tribunals, functions of each agency have to be made transparent to the members of the public so that there is no confusion about the role of respective agencies. Schedules should be framed to include the list of the agencies or departments over which Ombudsman will have investigative Particularly the relation between the Ombudsman and the Bureau of Anti-corruption should be clearly clarified so that no confusion arises in the minds of the public.
Emphasis on Ombudsman and Government’s commitment:
The necessity for the office of Ombudsman has been felt in Bangladesh ever since its
independence. Since Bangladesh is a country emerging form the British colonial rule through neocolonialism of Pakistan, it inherited an asymmetric political system where administration has precedence to popular representative institution the legislature. The premature death of Mohammad Ali Jinnah and Liaquat Ali Khan in the early years of Pakistan’s independence caused serious political vacuum, which was filled in by competent senior bureaucrats particularly the CSPs in absence of strong constructive political leadership. This is now reliance on bureaucracy rather than politicians has developed in this country. Administration, since then in used to exercising unfettered discretion in the whole edifice of government and allegedly involved in wide ranging corruption that is very often complained of. In view of this situation, the authors of Bangladesh constitution in corporated a provision for the office of
Ombudsman for protecting long cherished public rights against administrative excess. The Awami League government of the day made no endeavor to this effect. The move in this regards was taken by president Ziaur Rahman in 1980. The Jatio Sangshad passed the relevant Act to constitute the office of Ombudsman. But with the assassination of president Ziaur Rahman the initiative crumbled down before it could take off the ground. In the nine year autocratic rule of General Ershad did not turn their eyes to it. How ever, with the reestablishment of democracy in the country through mass movement in 1990 and the general election under a neutral care taker government in 1991, the issue of appointing an Ombudsman has gained much prominence and both the government sponsored and donor sponsored studies called for the establishment
of an Ombudsman’s office to monitor the functioning of the executive agencies and adjudicate disputes and grievances. In view of the tremendous public demand for the office of Ombudsman last government (elected 1996) declared in 1998 its commitment to establish the office as early as possible. But so far no concrete development has taken place to establish the office.
The following discussions will throw light on the initiative taken so far by the government for
institutionalizing the office of Ombudsman.
???? A five member committee headed by the law secretary was appointed to examine the legal
aspects of appointment of Ombudsman. In this regard, the committee has given their green
signal. (The Independent, 4 march 1997:6).
???? The ministry of law submits a financial proposal of Tk 3,67,00, 000 to the ministry of finance
for establishing the office of the Ombudsman. (Janakantha, 3 June 1998:1).
???? The ministry of Finance will keep provision for the money in the ensuring budget of 1998/99.
The above mentioned amount has been earmarked for the purposes of the office of
Ombudsman, and other relevant office expenditures including staff salary transport
allowances etc.
???? A proposal by ministry of law relating to the setting up of Ombudsman’s office and its
organogram consisting of a total of 127 employees, including 31 officers, has also been
submitted to the ministry of Establishment and Ministry of finance for approval. The
Independent, 3 June 1998:12).
???? The Ministry of law proposed that out of these 127 officers and employees, there would be
one Director General (equivalent to the status of secretary to the government), One Additional
Director General (Additional Secretary), eight Directors (Joint Secretary), eight Deputy
Directors (Deputy Secretary) and eight Assistant Directors including others. The monthly
remuneration of the Ombudsman has been fixed Tk. 21,000 and Tk. 15,000 for house rent, Tk.
500 for medical facilities and Tk. 450 for other purposes. (Janakantha, 3 June 1998:1).
However, thought the Government has decided to employ 127 employees but it was not clear
whether they will be appointed by the Ombudsman himself as per the Ombudsman Act or by
the Government.
In view of the tremendous public demand for the office of Ombudsman the Awami League
government declared in 1998 its commitment to establish the office as early as possible. At last, BNP government (elected in 2001) established the office of Ombudsman by Government Gazette in 6th January 2002.
Ombudsman – Prospect
There is a considerable difference in the functioning of such an official in a small country as
compared with a large one, for obvious reasons. First, there is a possibility for the Ombudsman to receive a volume of complaints from the citizens because of our large population.
Second, Ombudsman’s function can be obstacled also by the accused organizations, agencies or
persons in some technical ground as Ombudsman has some restrictions of his investigation.
Third, bureaucracy exists here, as one of the vital forces of governmental policy making process.
They have better cohesiveness and maturity than any other groups participating in administrative policy making process. As Ombudsman will go against their interest they may resist it establishment and effective ness (Islam, 1996: 48).
Conclusions:
In the context of Bangladesh politics and attitude of the government towards political opposition
Ombudsman is better to be appointment by the parliament on the consensus of all political parties in the parliament to ensure impartiality and objectively in his investigations. His area of jurisdiction should extend over the judiciary too in matters of legality of the decision. From the above discussion it is clear that the establishment of an Ombudsman in Bangladesh will undoubtedly go a long way in helping to establish a real democratic social order and polity based on parliamentary system of government for the well being of the people at large.
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