Lawyers Practicing Tort In Dhaka

Introduction:

Ombudsman as the name derived from the Swedish word which means representing for the people of the country. Basically, the administrative part of the government is accountable to such a group of people which monitors that the government is not fettering its wide discretionary powers or exploiting them. They provide redress of individual grievances against government.

In Bangladesh, such term seems unfamiliar as Ombudsman is developed in western countries specially in UK.

Main Content:

The value of Ombudsman model of redress is that an individual can get details of his case looked at by someone with an open mind, experience in the ways of government and able to distinguish well from bad administration.

On one view the essence of the ombudsman idea for the ordinary person is accessibility, flexibility and informality. On another view, the ombudsman provides and authoritative means of judging the behavior of the officials, thus helping to maintain standards of administration that are publicly acceptable.

After the independence of Bangladesh, the framers of the constitution adopted the concept of Ombudsman in 1972. Article 77 of the Constitution outlines the basic function of Ombudsman. Firstly, the Parliament will form the office of Ombudsman and their powers would such that it would not be partial in the political sense. The Ombudsman should investigate whether there was any maladministration and if so, it should be reconciled. In the end, they must prepare an annual report and must be laid before the parliament.

Moreover, the parliament passed the Ombudsman Act 1980 which enunciated the features and functions in a widened manner.

In Bangladesh, the Ombudsman Act 1980 provides that Ombudsman should be appoint by the Head of State, 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 politics Ombudsman should be appointed by the President on the consensus of all parties in parliament to ensure acceptability of the Ombudsman to all.

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.” 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.

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.

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.

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.

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 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 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.

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 has 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.

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 incorporated 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.

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.

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 obstacle also by the accused organization, 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 policymaking process. As Ombudsman will go against their interest they may resist it establishment and effective ness.

Conclusion:

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.

Bibliography:

Retrieved from www.google.com, on 14th October, 2010

Retrieved from www.wikipedia.org on 14th October, 2010

Hossain M. Rahman, Md. Awal Hossain

Chowdhury, Gysuddin A 1996 Ombudsman: An Instrument of Human Rights, the Daily Star, April 22.

Abedin, Nazmul, 1992. The Ombudsman: An Overview of Relevance for the developing countries, Asian Affairs, vol. 14, No. 1:5-17.

Law Books, Newcastle Law Academy Library on October 10, 2010

Law Books, Bhuiyan Academy of Law Library on October 10, 2010

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