Scope and Challenges on Provisions regarding Ombudsman in Bangladesh

- Md. Nayem Alimul Hyder

Complain to the Ombudsman

Published On - December 10, 2014 [Vol. 1, Jul - Dec, 2014]

The term “Ombudsman” was derived from the Germanic language and has its roots from the early days of Germanic tribes. The person who was chosen from a neutral group to collect blood money (Wergild) on behalf of the wrongdoer was called Ombudsman (Chowdhury, 1996: 7). But the modern office of Ombudsman was first conceived in Sweden by the Swedish Constitution Act 1809, over 193 year ago. It has an even earlier prototype, the King’s Chancellor of Justice, which extends far back into Swedish history (Rowat, 1967: 135). Today, however, the experienced persons having authority to inquire into and pronounce upon grievances of citizens against public authority are entitled as Ombudsman. The Swedish word “ombuds” means “officer” or “spokesman” or “representative” (Wade, 1967:12) It also connotes “attorney, solicitor, deputy, proxy, delegate and representative agent.” Many scholars defined Ombudsman in different perspective.

In general sense ombudsman means a public official who acts as an impartial intermediary between the public and government or bureaucracy, or an employee of an organization who mediates disputes between employees and management. The Swedish legislature first created the position of ombudsperson in the early 1800s; the literal translation of ombudsperson is “an investigator of citizen complaints.” This official was considered to be a person of “known legal ability and outstanding integrity” and was chosen by the Swedish parliament to serve a four-year term.

In 1962 a seminar was arranged by the UNO on judicial and other remedies, the 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 this Ombudsman 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)

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 complaint before the Ombudsman without the counseling of lawyers. In Sweden even prisoners have the right of sending complaints to the Ombudsman through respective authority.
  2. Citizens can send their complaints to the Ombudsman in writing. In Finland these complaint can be raised orally in front of the office of Ombudsman. But in France the scenario is some thing 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 (Dragnich, 1981: 306).
  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 and question any one and demand 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. (Chapman, 1966:157). The power of inquiry 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 . . . . .” (Chapman, 1966: 256-57)
  7. 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. (Encyclopedia Britanica, 1970:960).
  8. In France, instead of going directly to the “Mediateur de La Republique” (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 mediateur.
  9. An Ombudsman though has enormous prestige, power and responsibility but it hasn’t any legal powers except to inquire. It can advice the people but it 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 with in the administration. Because he is a man of legislature. They presents their annual functional reports to the legislature.

The necessity for the office of Ombudsman has been felt in Bangladesh ever since its independence. So, the authors of Bangladesh constitution incorporated a provision for the office of Ombudsman for protecting long cherished public rights against administrative excess. Article 77(1) of the Constitution stipulates that “Parliament may, by law, provide for the establishment of the office of Ombudsman.” Article 77(2) of Bangladesh Constitution) also stipulates that, 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. According to Article 77(3) of Bangladesh Constitution, 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. So, when the Constitution had, when it was adopted on 4 November 1972, but commenced from 16th December 1972, desired that Parliament should pass a law establishing the office of Ombudsman, it thereby expressed the will of the people. The expression, “may”, used in clause (1) of the Article 77 clearly indicates that the constitution did not mandate Parliament to establish the office of the Ombudsman but left it to the wisdom and discretion of Parliament.

Up to 1980, no definite attempt was made to establish the office of Ombudsman. The Jatiya Sangshad (House of the Nation) passed the necessary Act named the Ombudsman Act 1980 (Act No. XV of 1980) providing for the establishment of the office of Ombudsman in 1980. But still, no governments take necessary and effective initiatives to install the office.

Constitutional Provision On Ombudsman:

After the independence of Bangladesh in 1972 the framers of the constitution adopted 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.

A Glimpse of the Ombudsman Act 1980:

The salient provisions of the Act are:

(1) There shall be an Ombudsman who shall be appointed by the President on the recommendation of the Parliament [Sec. 3 (1)].

(2) Parliament shall recommend for appointment a person of known legal or administrative ability and conspicuous integrity [Sec. 3(2)].

(3) The Ombudsman shall hold office for a term of three years and shall be eligible for reappointment for one further term [Sec. 4 (1)].

(4) 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 a majority of not less than two-thirds of the total number of members of the Parliament on the ground of proved misconduct or physical incapacity and, in that case, the Ombudsman shall be give a reasonable opportunity of being heard in person [Sec. 4 (2)].

(5) The remuneration, privileges and other conditions of service of the Ombudsman shall be same as are admissible or applicable to a judge of the Appellate Division of the Supreme Court of Bangladesh [Sec. (5)].

(6) The Ombudsman may investigate any action taken by a ministry, a statutory public authority, or a public officer in a case where there is a complaint in respect of such person who claims to have sustained injustice in consequence of such action; or who affirms that such action has resulted in favor being unduly shown to any person or in accrual of personal benefit or gain to any person; or information has been received by him from any person or source, otherwise than on a complaint, that such action is of nature mentioned before. Ombudsman shall have no right to investigate any civil or criminal proceedings before any court, or the function performed by, or the conduct of, a person acting as a member of a court.

Where, the Ombudsman proposes to conduct an investigation, under the Ombudsman Act. 1980, he shall forward a copy of the complaint or, in the case where he proposes to conduct the investigation on his own motion a statement setting out the grounds therefore, to the ministry, statutory public authority or the public officer concerned and afford the ministry, public statutory authority or the public officer concerned an opportunity to offer its or his comments on such compliant or statement. The Ombudsman may obtain information from such persons and in such manner, and make such enquires and in such manner as he thinks fit. Where any action is under investigation by any other person under any other law, the Ombudsman shall not investigate such action unless for reasons to be recorded in writing he is of opinion that an investigation by him is necessary [Sec. (6 & 7)].

(7) For the purposes of an investigation, the Ombudsman may require any public officer or any other person who in his opinion is able to furnish information or produce documents relevant investigation [Sec. 8 (1)].

(8) For the purposes of any such investigation the Ombudsman shall have all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 in respect of the following matters:

(a) Summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of any document;

(c) requiring evidence on affidavit;

(d) requisitioning any public record or a copy thereof from any court or office;

(e) issuing commissions for the examination of witnesses of documents [Sec. 8 (2)].

(9) No person shall be required or authorized to furnish any such information or answer any such question or produce so much of any document as might prejudice the security or defense or international relations of Bangladesh, or the investigation or detection of crime or as might involve the disclosure of proceedings of the Council of Ministers or any committee thereof and a certificate issued by a Secretary to the government that any information or portion of a document is of the nature specified herein before, shall be conclusive and binding. No person shall be compelled for the purpose of an investigation under the Ombudsman Act, 1980 to give any evidence or produce any document, which he could not be compelled to give or to produce in any proceedings in court [Sec. 8 (5)].

(10) If, after investigation of any action, it appears to the Ombudsman that injustice has been caused to the complainant or to any other persons in consequence of maladministration in connection with such action, the Ombudsman, shall by a report in writing, recommend to the competent authority concerned that such injustice should be remedied in such manner and within such time as may be specified in the report. The competent authority shall, within one month of the expiry of the time specified in the report, intimate to the Ombudsman of the action taken in compliance with the report. If, after investigation of any action, it appears to the ombudsman that such action has resulted in favor being unduly shown to any person or in accrual of undue personal benefit given to any person and that this may be substantiated, he shall, by a report in writing, communicate his findings, together with the relevant documents, materials and other evidence, to competent authority and recommend such legal, departmental or disciplinary action as he deems fit. The competent authority shall examine the report and within one month of date of receipt of the report, intimate to the Ombudsman the action taken or proposed to be taken on the basis of his report. If the Ombudsman is satisfied with the action taken or proposed to be taken he shall close the case but where he is not satisfied and if he considers that the case so deserves, he may make a special report to the President (Sec. (9)].

(11) The Ombudsman shall prepare an annual report concerning his discharge of functions and submit it to the President who shall cause it, together with an explanatory memorandum to be laid before Parliament [Sec. 9 (6)].

(12) If, during any investigation, the Ombudsman finds any defect in any law, he may report such defect to the government and recommend such reform of the law as, in his opinion, will remove such defect [Sec. 9 (7)].

(13) The Ombudsman may appoint officers and other employs to assist him in the discharge of his functions. The categories of officers and other employees who may be appointed by the Ombudsman and their terms and conditions of service shall be such as may be prescribed after consultation with the Ombudsman. The Ombudsman may with previous sanction of the government, utilize the services of any officer, employees or agency of the Government, if such services are required by him for the purpose of discharging his functions [Sec. (10)].

A critical analysis of the Act:

In our country, according to the Act (section 3(2) “the Ombudsman shall be appointed by the President on the recommendation of the Parliament” is better than other models and steps. In that Act, participation of opposition political parties in the appointment procedure of the ombudsman is not mentioned. So, the ombudsman may not be accepted by the opposition political parties and other actors, because still our political culture is volatile, not sound. In the absence of such specification, the Ombudsman recommended by the ruling party would not be natural; acceptability and impartiality may be seriously questioned by the opposition political parties and non-government actors. There is another fact that, there is a provision for appointing officers and employees to assist the ombudsman in section 10 of the Act. But, Qualifications of them are not mentioned here. As a result, the functions of the ombudsman may be hampered due to lack of efficient manpower in its office.

According to section 4(1) of the Act, The working period or tenure of the Ombudsman is three years from the date on which he enters upon his office. But, in reality, it is difficult for him to work effectively and successfully and this period is not enough to work efficiently. According to section 3(2) of the Ombudsman Act, “The Ombudsman shall be a person of known legal or administrative ability and conspicuous integrity.” 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. So, the Ombudsman must have the legal as well as administrative expertise and experience. It is tough to sort out the qualified ombudsman, mentioned in this act.

The jurisdiction of the Ombudsman includes ministry, statutory public authority and a public officer. The jurisdiction is not extended to local authority and other public institution too. As per section 15 of the Act, the Government may exempt any public officer or class of public officers from the operations of all or any of the provisions of the Ombudsman Act. This provision empowers the Government to limit the jurisdiction of the Ombudsman. The ombudsman has no jurisdiction to investigate “acts of corruption” various public functionaries and certain most important functionaries are cleverly kept out of the jurisdiction of the ombudsman by more cleverly defining the expression, “public officer” in section 2 of the Act. “Acts of corruption” and “illegal acquisition of property” are also kept out of the jurisdiction of the ombudsman. The Act narrows down the jurisdiction of ombudsman in Bangladesh by precluding the Prime minister, Ministers and Judges of the Supreme Court including High Court, Magistrates, Chairman and Members of the PSC and the Comptroller and Auditor General from His supervision. Although, we have seen the charges of corruption against President, Prime Minister, Ministers are higher than administrative officials. One of the essential requirements of good governance is the absence of corruption, but unfortunately, corruption has been struck deep-roots in our society, including its administrative apparatus. At each & every rung of the administration: whether at the Centre or in the root level; there are corrupt elements that are causing immense loss to the state, to the nation and the public interest. The administrative apparatus of local authorities, public sector corporations and government companies has become equally bad. So, if acts of corruption are kept out of the jurisdiction of the Ombudsman as in the present Act, this institution will be virtually ineffective and will not be able to meet the expectation of the nation.

The scope of the Ombudsman‟s power to punish any person for obstruction of the function of the Ombudsman has not been mentioned. The Ombudsman may turn to the President if an administrative authority refuses to follow the recommendations of the Ombudsman. Sadly, under the existing all-powerful parliamentary system of governance in Bangladesh, the President does not have any executive power to implement the recommendations. So the ultimate achievements may not be achieved.

According to section 2 and 6 of the Act and Article 152 of the Constitution, only “actions” of “public officers” is as defined in the letter section can be investigated by the ombudsman. The Act also does not seem to include certain important functionaries, such as, Ministers, MPs and Judges etc. According to this act, the Ombudsman shall monitor and assess if the administration has conducted „injustice‟ in exercising its powers. It is not spelled out on what basis the ombudsman shall assess if the actions of the administration are „unjust‟. The basis should not be solely the discretion of the Ombudsman. The 1980 Act did not specify anything with regard to maladministration. Many of the public grievances are linked with the government servants‟ arbitrary conducts, better known as maladministration without corruption. If the Ombudsman cannot deal with them, the whole institution would be weakened, to a large extent. It is also not clear whether the Ombudsman can take cases up on his own initiative. The Act does not making clear regarding the Ombudsman‟s procedure of work in our country. There may be lots of cases, but process of identifying particular cases to investigation is not mentioned in the act. Lack of provision about the financial independence of the Ombudsman may imperil the independence of this institution. The Ombudsman‟s core funding is directly under Ministry of finance. This will make the Ombudsman very dependent on the Governments will to support the activities of the office. Article 77 empowers the Government to make rules for carrying out the purposes of the Act. It might be a problem that the Government may influence the Ombudsman by general rules to server their interest.

According to [Sec. 8 (5)] of the Act, no person shall be required to furnish any such information or answer any such information or answer any such question or produce so much of any documents as might prejudice the security or defense or international relations of Bangladesh, of the council of ministers or any committee thereof and for the purposes stated here a certificate issued by a Secretary to the Government certifying that any information or answer or portion of a document is of such nature as mentioned earlier shall be conclusive and binding. The authority given to the secretary seems to be ridiculous and inconsistent with the very concept of Ombudsman, who is supposed to protect the citizens from the excesses of bureaucracy. It is not a denying fact that, there is possibility of the Secretary to the Government of being influenced by internal and external factors such as his own interest or the interest of his class or political pressure in exercising this authority in a country like Bangladesh where the instances of such influences are said to be rampant. The Government could limit the Ombudsman‟s access to information. As a result, the powers of the ombudsman seem to limit. The Government should allow the Ombudsman the right to demand information hedged by the rules of secrecy about official manners. Secretary, who himself is an integral part of the bureaucracy, should not be the final authority on the matter of secrecy about an information to be applied by the Ombudsman. This provision goes against the basic concept of Ombudsman and therefore, must be deleted from the text. Moreover terms like „security of the state‟ etc. should be precisely and elaborately defined so that no one can take the opportunity of the vagueness.

Right of information is now one of the most discussed topics in the world. But, there is no provision concerning publication of the Ombudsman‟s annual report to the public. The Act is also silent about the non-government actors. It is also not clear whether a complainant has to lodge a complaint to a higher administrative authority if it exists- and wait for its decision before being allowed to lodge in complaint to the Ombudsman.

In section 13 of the Act, it is mentioned that, “The Ombudsman shall have 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”. But this is not enough against malpractices, injustice committed by the government functionaries.

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.

However there are also some Criticisms against Ombudsman, such as;

(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 its elf, 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.

Though the initiative of making the Ombudsman Act 1980 has been a promising step, the examination of its different provision will reveal the idea that the Act suffers from many democrative mechanisms;

  1. Under section 6 of the Act the ombudsman is empowered to investigate only such actions of a ministry, a public officer or a statutory public authority.
  2. This Act does not allow the ombudsman to scrutinize complaints against the President, Prime Minister, cabinet Ministers and chairman of the PSC.
  3. The ombudsman does not have any jurisdiction to examine complaints against the local government bodies.
  4. Under the Act Ombudsman have no effective independence, he has to seek permission from at least 3 ministers including the ministry of finance to spend money.
  5. According to The Law Commission report, 2001 existing provisions are likely to make the office of the Ombudsman into a toothless tiger.
  6. The ombudsman Act 1980 was passed in view of presidential system of government. However there is Parliamentary form of government at present in the country.

I have suggested following issues to minimize the current challenges regarding Ombudsman in Bangladesh.

  1. Need to increase the power of Ombudsman regarding Investigation Process.
  2.  This Act should incorporate the provisions relating to scrutinize the complaints against the President, Prime Minister, cabinet Ministers and chairman of the PSC.
  3. The ombudsman office should have the jurisdiction to examine complaints against the local government bodies.
  4. The government should need to ensure the proper independency of the ombudsman.
  5. The maladministration,corruption and illegal acquisition of property by public should be within the jursdiction of the ombudsman.
  6. The ombudsman’s jurisdiction should be wide enough to cover all ministers and public activities.

The Ombudsman Act 1980 has many limitations and shortcomings. 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 revised, clarified and updated. The Act must be amended, or a separate legislation can replace the old one to make a better start. However, Success of the system depends largely upon the nature of personality of the officer concerned. The role of Ombudsman especially that of the first Ombudsman, is extremely important. A general consensus in the „House of the Nation‟ regarding the appointment of Ombudsman candidate can greatly contribute towards establishing a credible and acceptable institution. There is an opportunity to revise, clarify and to update the Act in running session of the House of the Nation. But, the result is totally depending on governments sweet will. There are lots of inconsistence and shortcomings in existing Act. It needs to be modified, reviewed.

About The Writer

Article Author Image

Md. Nayem Alimul Hyder

Senior Lecturer & Ex Coordinator, Department of Law, World University

lawmnahyder@yahoo.com

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