In modern times the government in both the developed and developing countries have assumed with varying numbers and enormous multitude of the functions and roles in the field of socio-economic welfare of the citizens. The scope and dimension of the activities of the governments and those of the powers and authorities of the officials and public agencies have thus expanded enormously. As a result, the government has become complicated and forceful in modern times. So, the rate of mal-administrative practice, inefficiency, arrogance and abuse of powers are increased. The circumstances call for an external agency outside the administrative hierarchy to detect and check administrative lapses and faults and to supervise the administration so that the rights of individuals are not unduly jeopardized. The prevailing administrative process and internal and external mechanisms of control over administrative malpractices is not so effective due to various reasons. For these reasons, an urgent need of the time is to evolve an adequate and effective mechanism for controlling the administration in exercising its powers, safeguarding individual rights and creating procedures for redress of individual grievances against administration. And the office of ombudsman can be such an external, independent and effective agency to check the administrative excesses, red-tape, arbitrariness, bias, corruption etc., which in many ways undermine human dignity and human rights.

Ombudsman in Bangladesh: A long cry!

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 16^th 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.

The Awami League government of the then made no endeavor to this effect and But 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 (Act No. XV of 1980) providing for the establishment of the office of Ombudsman in 1980 during the regime of President Ziaur Rahman. But the then government did not install this. But with the assassination of President Ziaur Rahman the initiative crumbled down before it could take off the ground. Still, no governments take necessary and effective initiatives to install the office.

Awami League made promise to make it effective and marked it as one of the most important matters and concerns of 5 preferred concerns at last election manifesto. Finally, the present Awami led Grand Alliance Government confirmed to establish the office of the Ombudsman and it was its election pledge and government is going to install the office of Ombudsman soon. Although the Ombudsman Act, 1980 was enacted 30 years ago, no Ombudsman has, as we have observed, been appointed.

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)].

On the way to first Ombudsman: Need for a new legislation?

As it was demanded by time by the people, all actors failed to install it. Commitment made by the ruling government is going to be tangible results. But before installing this, government must review and modify the Act. 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. In this paper I will try to sort out inconsistency and shortcomings of the existing Act.

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 at the 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 to 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.

Government declares that, it is going to appoint Ombudsman within short time. But, the existing Ombudsman Act 1980 has many limitations and shortcomings. The role of Ombudsman especially that of the first Ombudsman, is extremely important. Finally, the nation can hope that, the office of Ombudsman will be such an independent and effective agency to check administrative excesses, red-tap, arbitrariness, bias, corruption which in many ways undermine human dignity and human rights.

(The writer is a 6^th semester student of department of Public Administration of University of Dhaka. He can be reached at miliyasdu07@gmail.com

 

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