Ombudsman for Bangladesh:
A legal Analysis and Evaluation
Introduction:
Ombudsman is an official appointed by a government to investigate and report on complaints made by citizen against public authorities in any democratic administration to prove its efficacy. It has to practice nature and diffuse the core values of accountability and transparency. The important values are the demand of the day because these work as antidote date to administration political corruption. But the question remains how can these twin values be established? Experts and practitioners of public administration have, therefore diverse mechanisms, to ensure than an accountable and transparent administrative system operates in a country. The office of the ombudsman which is provided in article 77 of Bangladesh constitution is considered as one of the institutional mechanism to hold administrators accountable and redress the day to day grievances of the public. Although ombudsman is relatively an unfamiliar term to us in general but it is widely used and practiced technique of ensuring administrative accountability and transparency in the western developed. In this article, an article is made to analyze the role of ombudsman. In modern state, the individual life is affected by the multifarious state activities. Today the state agencies are to exercise huge administrative peace in discharging their responsibilities. In the recent days a word “Ombudsman” has been pronounced much more in politico administrative discussion. It is sincerely alleged that a major problem throughout Bangladesh’s public sector is not only lack off accountability but also the nature of accountably if the administrators vested with vast authority but of unfettered thermo is very apprehension that they may become tyrannical. Hence some sorts of control over the administration is essential for ensuring accountability. In our country, to make the administrators accountable and to minimize mal-administration, in efficiency, arrogance 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, civil service conduct rules etc, and external, such as parliamentary control, the role of the judiciary, the press and citizens or the pressure group mechanisms are existing within the system and society. The idea of ombudsman, therefore, evolved in response to the growing concern for the protection of in individuals against the ever expanding state horizon. Which the court system revalues conflicts between individuals, the institution of ombudsman emerged as a mechanism to deal with administrative corruption and mal administration. This institution is increasingly assuming such a significant role that it is now indentified as watch dog of the administration and the protector of the little man against arbitrary administrative discretion by investigating. Complaints of individual concerning grievances against a government agency. But the Prevailing administrative process and internal mechanism of control over mal practices is not so effective. Because “time tense limits for disposal of files are not usually compiled with”. Supervision has been weak in many cases and non-existent in others. Inspections are conducted casually and at irregular intervals. In law courts litigations are expressive, tension creating and protesting. 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 difference of the major political parties.
Now the institution of ombudsman has been adopted in many parts of the world irrespective of social, economic legal, political and demographic diversities among these construes.
At present the term “Ombudsman” is well known to many of us. It is become we are living in the 21st century where democracy has been wide spread almost all over the world. so to speak the truth, an ombudsman is the safe gourd for the real democracy in a country. the government of Bangladesh is trying the best to introduce Ombudsman as soon as possible.
There is no denying the fact that decision is very positive and effective in a developing country like Bangladesh where corruption and nepotism have been deeply rooted.
History and Genesis of Ombudsman:
Ombudsmanwas first introduced by the Swedish in their constitution 1809. The ombudsman was originally and instrument of parliament to use to check on improper influence over civil servants but gradually become an investigator of citizens complaints. The term “ombudsman” de-rives from the Swedish word “omboodz-man” which means and aggrieved man or person or in the words of oxford dictionary peoples defender. Denmark followed Sweden in setting up the office of ombudsman The British government introduced it in 1967. A dramatic growth of the institution of “ombudsman” has been seen all over the world since 1968.
“Besides these parliamentary ombudsmen there are some non parliamentary ombudsmen in Sweden like.
(i) Equal opportunities ombudsman
(ii) Children ombudsman
(iii) The press ombudsman
(iv) The Ombudsman against ethnic discrimination
(v) The consumer ombudsman etc.” 1
In Sweden the purpose of creating the office of ombudsman was to safeguard the rights of citizens from the administrative excess, to examine complaints of infringement of the Swedish bill of Rights. It’s gradual spread throughout the western world led to its application even in Russia and Eastern, Europe, (Specially in Poland.)
1. Abedin, Nazmul, 1992. TheOmbudsman : An Overview of Relevance for the developing countries, Asian Affair,. Vol. 14, No. 1:5-1
The provision for office of the ombudsman was introduced in our constitution in 1972.
Sweden is the first to introduce ombudsman. In 1809 the office of the ombudsman is established in that country to keep the administration free from all kinds of corruption, injustice, whim, nepotism and ill practice. It is said that the ombudsman in Sweden has been greatly influenced by rules of Islam. Whatever the second country to introduce ombudsman is Final. In 1920, this country employs the ombudsman to ensure human rights of the citizen of the state. After that the post of ombudsman has been created seventy five countries. Here is a list of several countries where the ombudsman was established in different times.
Name of the country Year of establishment
Sweden 1962
Newzealand 1967
Canada 1971
Israel 1975
Portugal 1977
U.K 1967
Tanzania 1968
French 1973
Puerto Rica 1977
Austria 1977
Nigeria 1975
Norway 1960
Australia 1977
Netherlands 1987
Nepal 1990
Who is an ombudsman :
In fact “Ombudsman” is a Swedish word. In Bengali expression, it is called “Naypal” from the terminological point of view an ombudsman is an experienced person having the authority to inquire into grievances of citizens against public authorities.
Different designation in different construes :
In India, and ombudsman is known as “Lokopal” where as in Pakistan, and ombudsman is called “Oakfi Muhtasib” In Britain and Srilanka, S/He is called a “ Parliamentary Commissioner” Again in Nigeria, he is designated as public complaints.
Concept of Ombudsman:
The word “Ombudsman” has been derived from the Swedish word “Ombud” which in Swedish language commonly denotes A person who acts as a spokesman or representative of another person or persons. A universal definition of ombudsman is yet to be evolved. “Ombudsman’s an official appointed by a government by a government to investigate and report on complains made by citizens against public authorities.”2
2. Ahmed, Ali 1993, Ombudsman for Bangladesh Dhaka: Academic Publishers
However, ombudsman committee of the international Bar association has suggested the following definition. An ombudsman is an office provided by the constitution by the action of the legislature or parliament and headed by an independent, high level public official
· Who is responsible to the legislature or parliament,
· Who receives complaints from aggrieved person
· Against governmental agencies, office and employs or
· Who acts on his own notion and
· Who has the power to investigate recommend corrective action and issue reports.
“According to Prof. S.K Agarwal the term ombudsman raters only to the institution which have three basic and unique characteristics:
1. The ombudsman is an independent and non partisan office of the legislature who supervises the administration.
2. He deals with specific complaints concerning mal-administration or many proceed on his own information and
3. He has the power to investigate criticize and report back to the legislature but not to refer for administrative action. The circumstances call for and external agency outside the hierarchy, to detect and check administrator lapses and faults and to supervise the rights of the individuals are not unduly Jeopardized. 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.” 3
According to davis “Ombudsman Occupies a position of high job is handled complaints from any citizen who displeased with the action or in action of any administration or civil servant.
Reviewing the above mentioned definitions, it can be ascertained that ombudsman is an independent and nonpartisan officer of the Legislature, provided for by law, who is an experienced person having authored to inquire into pronounce grievances of citizens against public authorities.
3. Chowdhury, Gysuddin A 1996 ombudsman : An Instrument of Human Rights, The Daily Star,
1. Features:
“The Features of an Ombudsman are:
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:” 4
1. Independent;
2. Impartial;
3. Expert in government;
4. Universally accessible; and
5. Empowered only to recommend and to publicize
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.QJN Technical Assistance Operation, 1962:12-17)
Besides the features pointed out by the seminar we can also find some other unique features
of
Ombudsman in different countries of the contemporary World as:
1. Any citizen can bring complains before the Ombudsman without the counseling of law
years. In Sweden even prisoners have also the right of sending complaints to the Ombudsman through respective authority.
2. Citizens can send their complaints to the Ombudsman in written. In Finland these complaint can arise orally by the physical presence in the office of Ombudsman. But in France the scenario is something different. “A French person with a complaint cannot go directly to the mediator. Instead he or she must communicate with a member of parliament, who will decide whether the
complaint has sufficient merit to be passed on for action by the mediator (Dragonish, 1981:
3. Ombudsman can delegate their power of inquire to the deputy but cannot delegate their power of
decisions.
4. Ombudsman has considerable discretion as how far he takes a case against an officials. In most cases Ombudsman simply points out the officials error and suggests to the respective authority.
5. In Sweden the Ombudsman has the right to examine any documents question any person and Demand and every assistance from the accused offices or persons. “The Danish Ombudsman is Responsible for investigating any complaint against public officials concerning abuse of power, negligence or abuse of trust. He can inspect all state administrations, and enter all state establishments. He has access to all minutes and official documents. The power of inquire of the finish Ombudsman is similar to the Swedish Ombudsman
6. The scope of work of the Ombudsman varies country to country. Swedish Ombudsman has the power to oversee the courts and civil servants. But in Denmark” a compromise was reached over the Ombudsman’s powers. The whole of the central administration and the parts of provincial administration under government direction were included, but judicial and municipal affairs were excluded. Religious questions were also excluded. Counter balancing his vas jurisdiction is the fact that his power is solely recommendatory. He may suggest changes in government action but not command them.
8. In France, instead of going directly to the “Mediator Law Republic (Ombudsman), a person with a complaint will have to communicate with a Member of parliament, who will decide whether the complaint has sufficient merit to be passed on for action by the mediator.
9. An Ombudsman though has enormous prestige, power and responsibility but he hasn’t any legal powers except to inquire. He can advice the people but he cannot control courts or administration.
10. In Sweden the Ombudsman has not the right to express his opinion about the decisions taken by Courts or agencies.
11. Another feature of Ombudsman in considerable that people can get the Opportunity of having justice cheaply through Ombudsman This can be possible for the procedure of Ombudsman’s office. For the complaint on formal hearing is arranged in the office. Mostly the function of Ombudsman is conducted through postal service.
12. Finally. Ombudsman is an outsider within the administration, because he is a man of legislature. He presents his annual functional reports to the legis1ature
4. Obaidullah, A.T.M 1997. Ombudsman for Bangladesh : A cause of New Hopes and concerns, Journal of the Asiatic Society of Bangladesh, Vol.42, No, 1, 39-55
Role & Function of the ombudsman:
In the article 77 of our constitution it is stated that Parliament may. by law, provide for the establishment of office of the ombudsman. ‘1 he ombudsman shall exercise such powers and perform such functions as the parliament may, by law. determine, including the power to investigate any action taken by a ministry, a public officer or a statutory public authority. So the function of the office of the ombudsman is (a) to ensure that the ministries, departments and statutory authorities are responsive, adaptive and sensitive to the needs of the citizens and (b) to investigate the complaints against the decisions or orders of the administration.” That is why it is needless to say that the ombudsman in pivotal in providing redress to individual complaints. The principal action of ombudsman is to investigate the complaint relating to administration Land try to solve it by conciliating between the complainant and the agency of the government. The complaint may he made verbatim or in writing. The ombudsman man investigate administrative matters without any complaint being made. That is, he can investigate a reported mailer of official abuse or misuse from his own. Whatever, it is true that the ombudsman has no power to take a:tion against anybody though S/he is found guilty then even he cannot change the decision hut he can influence the decision maker to reconsider the decision. After the investigation of a Complaint, the ombudsman makes recommendations to the authority Concerned to take action according to the established Law and order of the country If the ombudsman is not satisfied with the. authority or the S/he can report the matter to the prime minister.
We must bear in mind that office of Ombudsman is not a judicial office. Ombudsman’s office is a constitutional office that is concerned with the fairness of administrative decisions and the mens/procedures adopted to reach those decisions for good governance. It cannot change or alter decisions of authorities but recommends to authorities procedures to act upon for natural justice.
The establishment of an office of Ombudsman is (a) to ensure that the Ministries. Departments and the statutory authorities are responsive. adaptive and sensitive to the needs of citizens and (b) to investigate the complaints against the decisions or orders of the administration. The role of the Ombudsman is Pivotal in providing redress to individual complaints. It is a part and parcel of good governance.
Broadly Ombudsman’s duty is to defend rights of ordinary people in dispute with governmental agency or public authority. This includes investigation of a complaint relating to administrative actions and tries to resolve it by conciliating between the complainant and the agency to the government. The complaint may be made to the office of Ombudsman orally or in writing. The Ombudsman in most of the case makes preliminary inquires to first decide whether the complaint is worth of investigating and if it has a prima facie case against an agency to the government. it proceeds ahead to inquire the complaint. Furthermore Ombudsman may suo-motu investigate any administrative action, that has been reported in media of a matter of official abuse or misuse.
If the Ombudsman is not satisfied with the response of the agency of its recommendations. it is reported both to the prime Minister and Parliament. Ombudsman may also report particular concerns regarding public administration to Parliament and formally submits an annual report of as activities to it. Article 77 of our constitution states that “Parliament may, by law, provide for the establishment of office of the Ombudsman. 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 a ministry, a public officer or a statutory public authority. So the function of the office of the Ombudsman is (a) to ensure that the ministries, departments and statutory authorities are responsive, adaptive and sensitive to the needs of citizens and (b) to investigate the complaints against the decisions or orders of the administration. The “Ombudsman” is pivotal in providing redress to individual complaints.
The core functions of Ombudsman is to investigate the complain relating to administration and try to resolve it by conciliating between the complainant against the agency of the government. The complaint may be made to the Ombudsman verbally or in writing. The Ombudsman in most cases makes preliminary enquiry to decide whether the complaint is worthy to investigate. The Ombudsman may investigate administrative matters without any complaint being made. That is, he can investigate a reported matter of official misuse or abuse from his own.
The Ombudsman has no pore to take action against anybody though found guilty in the investigation. He/she cannot directly even alter a decision but can influence the decision maker to reverse or rescind the decision. After investigation of a complaint, the Ombudsman makes recommendations to the authority concerned and expects the authority to take action accordingly. If the Ombudsman is not satisfied with the authority or agency, he/she can report to the Prime Minister and the Parliament)
5. Article 77 of Bangladesh Constitution
Argument for Ombudsman System:
In modern times the government in both developed and developing countries have assumed with varying number and volume and enormous multitude of functions and roles in the field of socioeconomic welfare of the citizens. The scope and dimension of the activities of the government and those of the powers and the authorities of the officials and public agencies have thus expanded enormously. As a result, the government has become complicated and forceful in modern times (Genicom, 1966:3)
In modern times it has also been felt that the existing machineries for adjusting and redressing grievances of the individuals increasingly tend to be inadequate to fulfill this purpose. Now a days, the court has traditionally played a very important role in correcting abuse by administration. But a number of problems are associated with the role of the judiciary. Unlink the Ombudsman system, informal investigation cannot be conducted by the regular or ordinary courts. Legislation is expensive, time consuming, protracted, slow and very complicated and cumbersome process. The judicial process is also highly impersonal and formal. On the contrary, the process of Ombudsman’s investigation is very informal and flexible and there is an element of personal touch and concern. Furthermore, as the Complaint is required to pay a very nominal or no fee/deposit, the Ombudsman provides a much cheaper Justice than the regular system can offer. Bernard Frank, a Pennsylvanian lawyer and chairman, Ombudsman Committee, International Bar Association, made extensive research on Ombudsman system. According to him the reasons for adoption
Of the system are:
The Ombudsman as an independent arm of the legislature body, assists the legislature in its function of maintaining the activities of government agencies and officials.
The Ombudsman system has as its basic purpose the protection of the human rights of the citizens.
The existing mechanisms for adjusting grievances in modern system are inadequate. In law courts Litigation is expensive, tension creating and protracted. Administrative courts follow court like Procedures Executive complaint handling agencies lack the essential characteristics of independence.
“The Ombudsman provides the citizens with an expert and impartial agent who acts informally, without delay, without requirement of counsel and recommends corrective action.”
The presence of the Ombudsman has psychological value. The citizens become confident as there is a watchdog and it serves as deterrent to the bureaucracy(6. JanaKantha 1998. A vernacular daily news paper, 3 June.)
Importance of Office of the Ombudsman:
The office of the ombudsman has a great importance in the present context of Bangladesh. At present the value system of our country has changed so abruptly. Corruption has engulfed almost all the administrative offices as well as other government offices with only a few exception. Mass people are the worst sufferer of this. Besides, because of our legal and judicial system, people have to wait for long for justice. All these have created substantive grounds for instituting the office of the Ombudsman. “This will facilitate the speedy and inexpensive redress of citizen’s grievances. Moreover, the introduction of Ombudsman’s office may create opportunities for a more detailed control over executive authorities.”
The Ombudsman will be able to decide whether the actions of government authorities are unlawful, unjust, wrong or discriminatory. As a result, quality of public administration will be improved and accountable which is an integral part of good governance. The office of the Ombudsman will also help citizens get natural justice.
The word ombudsman has one familiar element, man, but it is difficult to think of what ombudsman could mean. Ombudsman is from Swedish, a Germanic language in the same family as English, and man in Swedish corresponds to our word man. Ombudsman’s “commissioner, agent,” coming from Old Norse embody, charge, commission, administration by a delegacy,” embody being made up of urn, ‘regarding,” and both, “command.” In Old Norse an umbodhsmadhr was a “trusty manager, commissary.” In Swedish an ombudsman was a deputy who looked after the interests and legal affairs of a group such as a trade union or business. In 1809 the office of riksdagens justified ombudsman was created to act as an agent of justice, that is, to see after the interests of justice in affairs between the government and its citizens. This office of ombudsman and the word ombudsman have been adopted elsewhere, around the world. The preamble of the Constitution of Bangladesh and the Article 77 of the Constitution in particular indicates the same spirit.
7. Halim, Md Abdul 1998. Constitution constitutional law and politics:
Banglsdesh Perspective:
Article 77 of the Constitution of Bangladesh provides that Parliament may by law establish the office of Ombudsman. Once established the Ombudsman shall have the power to investigate any action taken by a ministry, a public officer or a statutory authority and such other powers and functions as may be prescribed by Parliament. The Ombudsman shall prepare an annual report concerning the discharge of his functions and such report shall be laid before Parliament. Being convinced by the fact that an institution like the Ombudsman would be essential for safeguarding the interests and rights of the public in Bangladesh from maladministration or administrative excesses, our constitution makers have made such provision for it in the constitution. But up to 1980, no definite attempt was made to establish the office of Ombudsman.
In 1980, at the initiative taken by the then government, the Jatiya Sang shad (House of the Nation) passed the necessary Act providing for the establishment of the office of Ombudsman. But the then government did not put the Act into effect. Successive governments followed the same trend. And the office of Ombudsman has not been established though more than 21 years have been passed since the passing of the Ombudsman Act 1980. The Act shall come in to force on such date as the government may, by notification in the official gazette, decide. The present BNP led 4-Party Government has finally decided to install the Office. This is indeed, a welcome move. However, it is still not clear whether they are genuinely interested to amend the existing Act for making the desired institution more effective)
The necessity of ombudsman in Bangladesh:
It goes without saying that Bangladesh is one of the corrupted countries of the world. Recently. Bangladesh has become first in inspect of corruption according to the Transparency international. So to speak the truth. our administration has been grasped by the gluttonous monster. 1 here arc hundreds of news of killing, rape. deceive, hijacking, and violence everywhere in Bangladesh. In this situation. the introduction of ombudsman is a crying need for the peaceful living of the general people in the country. To lead a carefree life, there is no alternative to an ombudsman. Now some points are being held up in the support of ombudsman in Bangladesh.
* Our administration is not going on as per established rule and order of the country. The complainants arc filing case against the terrorists hut they are getting release immediately paying bribe publicly, in this condition, an ombudsman is a must to establish the justice.
* Bangladesh is a developing country. The per capita income of the people is about 362 U. S. dollars. People are living below the poverty line. So, most people cannot afford to continue the case. Most officers have an insatiable thirst for money or bribe. But the poor people cannot provide it. so. they are deprived of the justice. Therefore, to establish human rights in judiciary, there is no alternative to the ombudsman in Bangladesh.
* The court is committed to give proper justice to the complainants. But most of the time, they do not get the redress. An ombudsman is very needed to inquire into such matters.
The criminal cases are handled by the magistrates. But often, they are not able to give proper decrees. Sometimes they are accused of economic corruption. To stop this practice, an ombudsman is very necessary in Bangladesh.
To ensure transparency in all departments, Anti Corruption Bureau has been organized. But this agency has completely failed to control he corruption. So, there raises the question of ombudsman.
* Bribe has become an acceptable norm in Bangladesh. It is now an open secret. Most official works are done by taking bribe. Only an impartial person like ombudsman can stop such malpractice.
* Bangladesh a bureaucratic country. Here the high officials do whatever the like. They do not care for the rule. When the politicians bring charges against them, they threaten to strike and call herbal. To
remove this stalemate condition. An ombudsman can play a vital role
Above all, o establish accountability in all government offices. the appointment of the ombudsman is a must.)
Bangladesh Constitution:
It shall be a fundamental aim of the state f realizes through the democratic process a socialist society, free from exploitation a society in which the rule of law, fundamental human rights and freedom, equality and justice, economic and social, will be secured for all citizens preamble of the constitution of the peoples republic of Bangladesh.
The 1972 Bangladesh Constitution contains many productive and inspiring provisions to establish rule of law in the country. One of them is the setting up of the office of Ombudsman. Article 77 of the Constitution stipulates that “Parliament may, by law, provide for the establishment of the office of Ombudsman.
The Article further states that ombudsman shall exercise such powers and perform such functions as Parliament may. by law. determine, including the power to investigate any action taken by a Ministry. a public officer or a statutory public authority.
The powers and functions of ombudsman are to be incorporated by a law. This means that Ombudsman acts under a law and functions may be either restricted or extensive as parliament decides however. parliament cannot take away Ombudsman’s core function to investigate any action taken by administrative agencies of the government enumerated by the constitution.
Although the office of Ombudsman is a necessary adjunct to good governance and accountability. some how or other, during the last 32 years, the setting up of such constitutional office has escaped the attention of successive governments.
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 further term.” 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.
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.
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 Chainman 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 bonfire of the case for
investigation and forward the complaint with their preliminary comments to the Ombudsman.
8. Ombudsman act 1980.
Salient features of the office of Ombudsman:
The review of the office of Ombudsman in most of the countries in which it operates successfully reveals that it has, in general, the following features:
1. Independence: Independence is of fundamental importance to the impartial functioning of the Ombudsman. Therefore, independence from executive intervention has been identified as the most important criterion of the Ombudsman system.
2. Power of investigation: Ombudsman should be given access to the required information, evidence and documents to reach a decision. The office can call for information and documents from any one including ministers and officials. It should be given the power to examine both the official bills and documents for investigation. In this regard it should enjoy immunity from persecution for it’s actions and opinion during the exercise of this power.
3. Annual Report: Preparing annual reports are one of the main functions of the Ombudsman. The production of meaningful annual reports is of considerable importance because these:
a. help to publish the operations of the office to policy makers, legislators and the public;
b. clarify general expectations. of the bureaucracy in its dealing with citizens;
c. are an important indicator as to the effectiveness of the office in proactive; and
d. are also a useful conduit for the communication of recommendations and improvements in the machinery of government.
4. Accessibility: Dealing with complaints and grievances from members of the public is a basic function of the Ombudsman. Therefore, it needs to be accessible to general people. The procedure to lodge complaint with the Ombudsman office must be simple and easy. Moreover, the complaint procedure should be less time consuming to make it a credible institution.
5. Flexibility: The office of the Ombudsman should be a flexible one to enable it to undertake multiple functions. It should enjoy the much needed administrative discretion to investigate corruption and bureaucratic irregularities.
6. Jurisdiction: A clearly defined jurisdiction of the Ombudsman is also an absolute pre-requisite, so that there would be no duplication of efforts, problems of co-ordination and confusion among the public in general.
7. Personnel: A man of integrity and outstanding merit should be appointed as an ombudsman so that he can play a vital role to conform social injustice, wide political and bureaucratic corruption and irregularities in public sectors.
9. Islam K. N. 1996. Ombudsman: Theory and Practice-A Discussion on Bangladesh Journal of Administration and diplomacy. Vol.4. No. 1:39-50
Need for a new legislation and the first Ombudsman:
Undoubtedly, the Ombudsman Act 1980 has many limitations and shortcoming s. The Act fails to envisage an effective and strong institution. In fact, it is impossible to establish an efficient ombudsman institution unless the Ombudsman Act is raised, clarified and updated. The Act must be amended. Or a separate legislation ca replace the old one to make a better start. However, Success of the system depends argali upon the nature of personality of the officer concerned. The role of Ombudsman, especially that of the first Ombudsman, is extremely important. A general co senses in the ‘House of the Nation’ regarding the appointment of Ombudsman candidate can greatly contribute towards establishing a credible and acceptable institution, an we do that beyond narrow political interests?
The institution of Ombudsman has achieved a widespread appeal for it’s intrinsic quality of making government administration responsive, adaptive and sensitive to the needs of the people. However, the major reasons for the desirability of the office of the Ombudsman may be identified as under:
a. Protection of individual against executive mistakes: In modern states, extensive powers and dispersions have been granted to all types of boards, benches and departments. The possibilities of friction between officials and the citizens have been greatly increased. In this domain, Ombudsman may play a vital role in protecting individuals against executive and administrative mistake and abuse of power.
b. Protecting legal status of individuals: Ombudsman play a crucial role in protecting the legal status of individuals.
c. Acting as impartial agent of citizens: The Ombudsman gives the citizens an expert and impartial agent without personal cost to complain without delay, without tension of adversary litigation.
d. Psychological value: The presence of Ombudsman also has a psychological value. His office gives the citizens the confidence that there exists a watchdog for the people who will hold the government accountable.
e. Promoting transparency The primary duty that Ombudsman discharges in most countries, is to fight against maladministration. The fundamental function of the institution of Ombudsman is to ensure transparency in the government.
f. Preventing corruption: In recent times, the emphasis of the Ombudsman has shifted from prevention of maladministration to prevention of corruption. Experience shows that combating corruption by mere isolated punitive actions and facile emphasis on better enforcement of rules and procedures is doomed to failure. It is now increasingly realized that corruption should be treated as social evil and it needs to be~ redressed by institutional measures. In this regard, the Ombudsman may pursue long term investigation and research into recurring problems of maladministration. He may identify legislative policy and procedural deficiencies and recommend measures for the systematic improvement to overcome those defects. He also may review administrative actions to ensure transparency, efficiency and accountability in the system of governance.)”
(Criticisms against Ombudsman):
(1) The Ombudsman can work only in small countries. In a large populous country, the Ombudsman cannot handle complaints without an equally vast bureaucratic Organization.
(2) The Ombudsman system creates a bureaucracy by itself, i.e., it forms a small bureaucracy within a big bureaucracy and with even more red tapes.
(3) The Ombudsman has no real powers and can recommend only. Government officials and agencies may listen to suggestions depending on their will.
(4) The Ombudsman tends to create the illusion that all is well with the governments.
(5) The office is adaptable only to parliamentary countries. The system interferes with the ministerial responsibility in parliament
(6) The process of Ombudsman impedes efforts to strengthen existing institutions. The courts, administrative tribunals are adequate and when required, reforms can be made to make them response.
(7) The Ombudsman will not get support and assistance of the civil servants.
(8) The institution cannot be success fully transplanted from Scandinavian countries.
(9) The Ombudsman is a part of the government establishment and tends to sustain its actions. The Ombudsman is a government technique used primarily to determine what is bothering the citizens without supplying an effective remedy.
(10) The system relies a great deal on single individual his personality, his judgment, his impartiality, and his independence.
Advantage and disadvantage:
It goes without saying that the office of the ombudsman will bring a lot of advantages for the government It will help ensure accountability and transparency in the administration and other government offices. At the same time it may bring a great deal of disadvantages also If the office of the ombudsman becomes biased, unfair and corrupted. it will deceit the present situation further instead of improving.
The office of the Ombudsman will bring a lot of advantages for the government. It will help ensure accountability and transparency in the administration and other government offices. But at the same time it may bring lot of disadvantages too. If the office of the Ombudsman, by any chance, becomes biased, unfair and discriminatory, it will deteriorate the present situation further, instead of improving.)
10c. In the context of Bangladesh administrative machinery. complaints made against a Ministry Department or an authority should not be considered as negative aspects of tits administration. It should be deemed as good feed back of its quality of delivery of service by the authorities. namely. Gas/Power Board/WASA/City Corporation etc.
The Ministries/Departments and agencies can learn a lot about the quality of their service by listening to the complainants. It is desirable that government authorities should set up an effective internal complaint handling system to improve the quality of service-delivery and to ensure fairness to all citizens. In fact Ombudsman rises standards in public administration and accountability across the board.
We would argue that Ombudsman shall be able to decide as to whether actions of government authorities are unlawful. wrong. unjust. or discriminatory. As a result the quality of public administration will be improved and accountable which is an integral part of good governance.
As curlier stead, Ombudsman cannot change a decision of any authority but can make recommendations to rectify the wrong decision or order. This is often viewed as unsatisfactory by the public from time to time as the Ombudsman seems to be a “paper tiger”.
However, an Ombudsman’s services provide a very positive message to the public as an inexpensive means of examining grievances. The accountability of the government or statutory authorities is put to the test through this mechanism of Ombudsman. The principal value is the deterrent one that by having someone with a clear investigative power and a commitment to the public, Ministries and statutory authorities will make every effort to ensure that derision is lawful. non-discriminatory and fair and made without any extraneous considerations.
Ombudsman is to ensure that principles of nature justice are scrupulously adhered to. Most of the people whose rights and interests are adversely affected are familiar with the term “natural justice” Both Plato and Aristotle define natural justice as the virtue which gives every one his her due From this point of view. natural justices becomes the master virtue and includes other virtues.
Despite having been given a wider meaning by our society at large. principle of natural justice has a specific legal meaning in the content of government decision making. The principle of natural justice contains following three main Clements.
so-called bias rule : precludes bias Favoritism or prejudgment in arriving at a decision affecting a person.
Hearing rule: entitles a person to be told of the allegations and to have his or her reply heard before a government agency makes a decision that affects adversely that person.
Fairness rule: what is “fair” depends on particular circumstances. Generally it will involve consideration of main factors which has influenced the decision affecting and individual.
The duty to observe the three above principles is widely accepted to be at the heart of decision making. It is a legal obligation founded on the plainest principles of justice which continues to bind the decision makers.
Breach of the right of opportunity of being heard is found to be most common in the investgations of Ombudsman. Breaches usually arise when a government agency is making a decision against a person but fails to provide the person and opportunity of being heard on allegations against that person. After giving the opportunity to the person concerned. and agency could come to a decision.
Conclusion:
Above discussion revealed that appointment of Ombudsman is mandatory for ensuring transparency, accountability and efficiency in the system of governance. It is absolutely necessary for a country like ours which has already been ranked as most competed in the world. Under existing Act, the powers that Ombudsman would wield would be quite vast but they would also be purely recommendatory. Therefore, whether the office of the Ombudsman functions or dysfunctions depends wholly on how soon those who matter start behaving responsibly rather than continue rising to unbelievable heights of lucidity. The office of the Ombudsman is not a judicial office. It is concerned with the fairness of administrative decisions and the procedures/means adopted to reach those decisions. The Ombudsman should have a clear investigative brief and commitment to the public, ministries and statutory authorities which will ensure that a decision is lawful, non-discriminatory and fair and made without any extraneous consideration, If this could be guaranteed, only then the office of the Ombudsman would have a significant impact in the elimination of corruption, nepotism and biasness in the public administration and the country will be benefited from this office.
References
1. Abedin, Nazmul, 1992. The Ombudsman: An Overview of Relevance for the developing countries, Asian Affairs, vol. 14, No. 1:5-17.
2. Ahmed, Au 1993, Ombudsman for Bangladesh Dhaka: Academic Publishers.
3. Au, Quazi Azher, 1995. Decentralized Administration in Bangladesh. Dhaka: University Press Limited (UPL).
5. Chowdhury, Gysuddin A 1996 Ombudsman: An Instrument of Human Rights, The Daily Star, April 22.
6. Constitution of the People’s Republic of Bangladesh 1991, Dhaka: Government Printing press.
10. Encyclopedia Britanica, 1973, vol-16, p. 960.
11. Frank, Bernard 1986, The Ombudsman and Human rights (Revisited).
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17. JanaKantha 1998. A vernacular daily news paper, 3 June.
18J innah, Mohammad All and Ehsan Mohamad, 1999. Ombudsman in Bangladesh: