Legal Analysis on Ombudsman in Bangladesh

Introduction :

The institution of Ombudsman is one of the important pillars of government’s accountability to people. The functions of Ombudsman are to rectify the misuse or abuse of executive power of government through impartial and thorough investigations into governmental activities against its citizens.

Ombudsman as a control mechanism of parliament aims to restricting administrative excess and ensuring fair play in the exercise of administrative powers. Ombudsman is a respected apolitical individual outside the bureaucracy who is empowered to investigate citizen’s completes about government services and recommend, rectification. Usually he¹ was the power to investigate, criticize, and publicize administrative actions, but can not reverse them.² He is an independent and impartial arbiter between government and individual.

The countries which have established Ombudsman seem to have been satisfied with the disposal of their business, and earned respect and confidence in the minds of people, as a shied against abuse of power, and protection of there rights against excess of administration.

In the recent days a word ‘Ombudsman’ has been pronounced more in politico-administrative discussion. It is generally alleged that a major problem throughout Bangladesh public sector is not only lack of accountability but also the nature of accountability. If the administrators vested with vast authority but of unfettered type there is very apprehension that they may become tyrannical.

1.     In all cases where a ‘he’ or ‘him’ is referred to, it should be take to mean ‘he/she’ or ‘him/her’.

2.     DA Cutchin, Guide to Public Administration : Illinois, 1987.

Hence, some sort of controls over the administration is essential for ensuring accountability. In our country, to make the administrators accountable and to minimize mal-administration, inefficiency, 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 Report (ACR), civil service conduct rules etc. and external, such as parliamentary control, the role of the judiciary, the press and the citizens of the pressure group mechanisms are existing within the system and society. But the prevailing administrative process and internal mechanisms of control over administrative malpractices is not so effective. 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.

On the other hand, there is a demand from the civil society in Bangladesh that the office of Ombudsman to be created so that complaints against unlawful excesses of administrative power against any citizen are fully investigated and redressed.

Md. Awal hossain, Lecture, Department of Public Administration, University of Rajshahi, Bangladesh.

Definition of Ombudsman :

The Swedish word Ombuds means officer or spokemen or representative (wade, 1967:12) it also connotes “Attorney, solicitor, deputy proxy, delegate or representative agent.” So, Ombudsman means a delegate or an agent or representative or spokemen.

Ombudsman means the man or official who represents the people in their grievances or who acts as a commissioner of parliament to redress the grievances of the people. He is also called a “grievance man”.

An Ombudsman is an independent, objective investigator of peoples complaints against government agencies and other organizations the public and private sectors. After a fair through review the Ombudsman decides if the complaint is justified and makes recommendations to the organization is order to resolve the problem.

Even we can say Ombudsman is an office which is created by the parliament to investigate any complaints against any department of the government.

In various countries it may be said that Ombudsment is an office created either by the causticities or law which is a body independent of the executive and responsible only to parliament and the principal function of which is to investigate complaints of maladministration against various government department or other public bodies.

May scholars defined Ombudsmen in different perspective –

According to Davis Ombudsmen – “Occupies a position of high prestige in the government and his job in to handle complaints from any citizen who displeased with the action on in action of my administration on civil servant (Davis, 1961:1037-1076).

Justice  report defined on as “an office of parliament he appointed who has as his primary function the duty of acting as a agent for parliament for the purpose of safeguarding citizens against abuse on misuse administrative power by the executives”  (1961; Para-2).

According to Bernard frank “Ombudsman on office established by constitution or statute heated by a independent, high  level public official who is responsible of to the legislature, who receives complaints from aggrieved person against government agencies, officials and employees or who acts on his own motion and has power to investigate, recommend corrective action and  issue reports” (Frank , 1986 :11).

The Black’s Law Dictionary defines Ombudsman as “an official or semi official office or person to which people may come with grievances connected with government. The Ombudsman stands between, and represents, the citizen before government.”

The Supreme Court of New Jersey mentions the establishment of Ombudsman program for the judiciary.

According to Oxford Dictionary “Ombudsman is an official appointed by a government in investigate and report on complaints made by citizens against public authority”.

According Professor Garner “Non in a officer of parliament, having as his primary function, the duty of action as an agent for parliament for the purpose of safeguarding citizens against abuse or misuse of administrative power by the executive” (Garner, 1981 : 92).

So, from those definition it can be understand that the main work of Ombudsman is to protect the human rights from administrative corruption.

Origin of Ombudsman :

The word Ombudsman has one familiar element, man but it is difficult to think of what could mean. Ombudsman is from Swedish, a Germanic language, corruption to our word man.

The origin of the word is found on old Swedish “Umbuosmann” and the word “Umbudsman” meaning representative. The first preserved use is in Swedish. In the Danish Law of Jutland from 1241 the term of “Umbozman” and means a royal civil servant in a hundred country subdivision form 1552, it is also used in the other Scandinavian language such as Icelandic “Umboosmaour” the Norwegian “Ombudsman” and the Danish “Ombudsmand”.

The modern use of the term began in Sweden with the Swedish parliamentary Ombudsman instituted a 1809, to safeguard the right of citizens by establishing a supervisory agency independent of the executive.

In 1809, the Swedish parliament appointed an Ombudsman to resolve problems in the abscess of the king. Ombudsman means grievance handler, the people’s representative delegate. This concept become a popular method for resolving problems and quickly spread to other countries. In the United States and Canada  Ombudsman office have been created to assist citizens, consumers, children, students and employees who wish to address their concerns confidentially. the Ombudsman function has been utilized in state and federal agencies, prisons, hospital, nursing homes, child protective services, industry and higher education colleges and universities resource, which is natural objective, confidential and advisory by identifying options for resolving conflict.

Since the Ombudsman, we have seen a dramatic growth of the institution of Ombudsman all over the world like British Government introduced it in 1967. Its gradual speared throughout the western world led to its application even in Russia and in Eastern Europe (Poland).

Categories of Ombudsman :

The 2 most common kinds of Ombudsman in Canada and in other countries are –

(1) Legislative Ombudsman

(2) Executive Ombudsman

(1) Legislative Ombudsman :

      Who are established by statute and who can report findings and recommendations to ministers of the crown to the provincial legislature on to parliament.

(2) Executive Ombudsman 

      Who report only to the head of the organization whom they investigate, such as government departments or crown corporation, universities or colleges or business.

Reason of establishing the office of Ombudsman :

The civil effect of deficient laws of be mitigated by good officials, but the evil effect of bad administration cannot be surmounted by good laws. It is, therefore, necessary to have a good and efficient administration Technological development and complex living of today has led to vest expansion of administration function and with it has increased administrative abuse of power. Experience shows that normal judicial system is not effective in preventing such abuse of power. Somehow a system must be evolved which will enable proper investigation of the citizens complaints against abuse of power by the administrative officials and redress made. In many countries the problem has been sought to be solved be establishing the office of Ombudsman.

Work of Ombudsman : 

Ombudsman does different type of work like –

Public Information

The Ombudsman works with the court divisions, municipalities and country personnel to develop and provide customers with updated information related to court services and processes.

The Ombudsman reviews signage, bulletin boards, lobby information booths, web pages, publications, and materials for self represented litigants and linguistic minorities.

The Ombudsman provides training and information on Judiciary policies, procedures, public information and customer service. The Ombudsman works with media contacts to provide information about services and educate the public about the court system. The Ombudsman maintains updated materials related to soical and legal service entities in the community.

The Ombudsman Confidentially receives and documents complaints from the public related to misunderstandings, conflicts, mistreatment or discrimination in the courthouse. The Ombudsman review facts and provides recommendations to improve existing services and develop new ones.

• Acts as a mediator to resolve conflicts between the public and the courts. The Ombudsman provides information related to established legal system complaint and disciplinary procedures.
• Serves as a point of contact to citizens who may need assistance in coordinating multiple court services during their visit to the courthouse.
• Responds to inquiries related to court processes, court services and referrals to other agencies of government.
• Collects and reviews customer suggestion forms.

The local Government Ombudsman : 

The local government Ombudsman, formally the Commission for Local Government Administration – there are three Commissioners, for England and wales was created in 1973m and for Scotland in 1974; since then, a variety of other public and private sector-specific Ombudsman have been created. Critics claim that the Ombudsmen appear independent while actually being recruited form the ranks of officials and their function tends to entail little more than rubber stamping for official decisions. Use of the Ombudsman schemes is becoming increasingly common, although citizens will often pursue grievances against government through their local MP, or else through another MP or the courts.

In the US, there are Ombudsmen at the federal level such as the Department of Homeland Security Citizenship & Immigration Services Ombudsman, as well as some limited use of the system in some states.

In Canada the office of the Ombudsman is present in all departments of the federal government, in many provincial and municipal governments as well as in Crown Corporations such as CBC.

In the Republic of China, the role of the Control Yuan is comparable to that of an Ombudsman.

Organizational Ombudsman :

Many private companies, universities and government agencies also have an Ombudsman (or an ombudsman department) which serve internal employees or other constituencies. These ombudsman roles are structured to function independently, by reporting to the board of directors, and do not serve any other role in the organization. Organizational Ombudsmen are sometimes called “Ombuds” or “Ombuds officers” or “Ombudsperson” or “Ombud”. They are beginning to appear around the world within organizations, sometimes as an alternative to anonymous hot lines, in countries where the latter are illegal or considered inappropriate.

News Ombudsman : 

Newspaper and media Ombudsman offices are especially valuable for promoting journalistic integrity on behalf of readers, viewers and listeners. There is an international Organization of News Ombudsman. The position of the public editor is paradoxical, as they are generally employees of the newspaper. However as a valuable symbol of a high standard of journalism ethics for a newspaper, the firing of a public editor over any criticisms they might have would contradict their purpose. The press in Sweden is self-regulated through the Public Press Ombudsman (Allmanhetens Pressombudsman) and the Swedish Press Council (Pressens Opinionsnamnd).

Method of Work :

Generally an Ombudsman may receive complaints from three sources :

i)    complaints sent to him by the menders of the people (MPs).

ii)   completes made to him by any person.

iii)  the Ombudsman may. On the basis of a news paper comment or otherwise, proceed SUO MOTU.

Features :

The Ombudsman is

i.     independent of Government.

ii.    responsible for making sure that administrative practices and services of public bodies are.

iii.   an officer of the provincial legislature.

iv.   able to conduct confidential investigations that are non threatening and protect complainants against retributions.

v.    required to file an annual report with the legislative Assembly.

According to Anderson the essential characteristics of the Ombudsman’s post require that the individual filling it be :

1.  Independent.

2.  Impartial.

3.  Export in Government

4.  Universally accessible; and

5.  Empowered only to recommend and to publicize (Anderson 1969:3) In 1962 a seminar was arranged by the UNO an judicial and other remedies, that suggested some features of Ombudsman as follow –

i.    It is not only as instrument of parliament for supervising administrative action but also a protected of individual rights.

ii.   Investigations conducted by it are completely impartial and independent of the administrators.

iii.  Investigation can be started by the Ombudsman at his own initiatives basing his action of information received by him.

iv.  The investigation is conducted informally.

v.   The Ombudsman has considerable flexibility in the form of action which he would take in given case (UN Technical Assistance Operation, 1962:12-17).

Ombudsman in different country:

Sweden

• The Swedish Parliamentary Ombudsmen (Riksdagens ombudsmän)

          Governmental ombudsmen :

• Swedish Ombudsman for Equal Opportunities, or Jämställdhetsombudsmannen (JämO). Monitors issues relating to gender equality and since 1st of March 2002, equal treatment of students at universities.
• Swedish Ombudsman for Children, or Barnombudsmannen. Observes matters affecting the rights and interests of children and young people.
• Swedish Disability Ombudsman, or Handikappombudsmannen. Monitors issues relating to the rights and interests of persons with disabilities.
• Swedish Ombudsman against Discrimination on Grounds of Sexual Orientation, or Ombudsmannen mot diskriminering på grund av sexuell läggning
• Swedish Ombudsman against Ethnic Discrimination, or Ombudsmannen mot etnisk diskriminering

Australia :

The Commonwealth Ombudsman in Australia was established in 1976. The Ombudsman can investigate complaints about the actions and decisions of Australian Government departments and agencies, the services delivered by most private contractors for the Australian Government, and oversee complaint investigations conducted by the Australian Federal Police.

The Ombudsman can also investigate complaints about delays in processing Freedom of Information requests (FOI) and complaints about FOI charges. The Commonwealth Ombudsman is also the Defence Force Ombudsman, Immigration Ombudsman, Postal Industry Ombudsman, Taxation Ombudsman, Law Enforcement Ombudsman and through an arrangement with the Australian Capital Territory (ACT) Government, the ACT Ombudsman.

The current Commonwealth Ombudsman is Prof. John McMillan.

European Union :

The European Ombudsman was established by the Maastricht treaty, the treaty establishing the European Union. The current European Ombudsman, holding office since April 1, 2003, is Nikiforos Diamandouros, former national ombudsman of Greece. The European Union Ombudsman investigates claims by companies which reside or have their interests within the European Union against incidents of bad administration by bodies or institutions of the European Union.

India :

The Governing Body of Insurance Council (GBIC) has been set-up under Redressal of Public Grievances Rules 1998, to look after the functioning of Insurance Ombudsman popularly known as Bima Lokpal established all over India.

Similarly Ombudsman for Securities also established. The Government is contemplating establishing the Ombudsman for Indirect as well as direct Taxes of the Union.

The Insurance Regulation Development Authority has Ombudsman scheme to take care the interests of the Insurer.

Italy 

In Italy there isn’t an ombudsman at national level whereas many units of sub-national government (regions, provinces and communes) have their ombudsman, known as difensore civico, elected by regional, provincial or communal council.

New Zealand :

The post of Ombudsman was established in New Zealand in 1962, with the aegis of investigation of complaints against government departments. In 1975 the post was expanded, with a Chief Ombudsman and several (number unspecified) of other ombudsmen. New Zealand also has a Banking Ombudsman. The Ombudsman has a very high level of power in New Zealand, and it is either a very brave – or very foolish – government department who attempts to flout an Ombudsman’s rulings.

Pakistan :

In Pakistan, the establishment of the institution of Ombudsman was advocated on several occasions. It was, however, Article 276 of the Interim Constitution of 1972, which for the first time provided for the appointment of a Federal Ombudsman as well as Provincial Ombudsmen.

The Ombudsman in Pakistan is called “Wafaqi Mohtasib”, (English: “Federal Ombudsman”) with its headquarters in Islamabad and Regional Offices in Lahore, Sukkur, Quetta, Faisalabad, Multan, Dera Ismail Khan, Peshawar and Karachi. The official website of Ombudsman in Pakistan is http://www.mohtasib.gov.pk

Spain :

The Spanish laws translate “ombudsman” as defensor del pueblo (“People’s defender”). The Spanish Defensor can start processes at the Constitutional Court. There is a general Defensor del Pueblo for issues with the Spanish administration, and regional ones for the autonomous communities of Spain.

United Kingdom :

In the United Kingdom a post of Ombudsman is attached to the Westminster Parliament with additional posts at the Scottish Parliament, the Welsh Assembly and other government institutions.

List of all Ombudsman Services in the United Kingdom :

• Energywatch
• Estate Agents Ombudsman
• Financial Ombudsman Service
• Financial Services Ombudsman Scheme for the Isle of Man
• Health Service Ombudsman – England(Ombudsman)
• Housing Ombudsman Service (HOS)
• Independent Police Complaints Commission
• Legal Services Ombudsman
• Local Government Ombudsman – England
• Northern Ireland Ombudsman
• Northern Ireland Police Ombudsman
• Parliamentary Ombudsman (Ombudsman)
• Pensions Ombudsman [http://www.pensions-ombudsman.org.uk (Pensions Ombudsman)
• Prisons and Probition Ombudsman
• Public Services Ombudsman for Wales
• Removals Industry Ombudsman Scheme
• Scottish Legal Services Ombudsman
• Scottish Public Services Ombudsman
• Telecommunications Ombudsman (OTELO)

United States :

Department of Homeland Security Citizenship and Immigration Services Ombudsman

The Department of Homeland Security (DHS) Citizenship and Immigration Services Ombudsman (CIS Ombudsman) http://www.dhs.gov/cisombudsman provides recommendations for resolving individual and employer problems with the United States Citizenship and Immigration Services (USCIS). As mandated by the Homeland Security Act of 2002 § 452, The Office of the CIS Ombudsman (CISOMB) is not a part of USCIS, it is an independent DHS office that reports directly to the DHS Deputy Secretary.

Ombudsman associations :

• BIOA.org.uk – ‘British and Irish Ombudsman Association’ (BIOA)
• NewsOmbudsman.org – ‘Organization of News Ombudsmen’ (ONO)
• OmbudsAssociation.org – ‘The International Ombudsman Association (IOA)
• USOmbudsman.org – ‘The United States Ombudsman Association: Promoting and supporting fairness, accountability, and equity in government through the public sector ombudsman’
• UVA.nl – ‘The European Network of Ombudsmen in Higher Education’ (ENOHE), Universiteit van Amsterdam
• IOI – International Ombudsman Institute (IOI)
• EOI – European Ombudsman Institute (EOI)
• AOA- Asian Ombudsman Association (AOA): Promoting and developing the concepts of Ombudsmanship in Asia’
• CFO – Coalition of Federal Ombudsman (CFO) – Promoting and Assisting Ombudsman in the United States Government.

Table : Introduction of Ombudsman system in various countries

Developed countries Year of Establishment

Source: Jinnah and Ehsan, Ombudsman in Bangladesh : A Review, Social Science Review, Vol.

XVI. No 1 (1999)

Criticisms against Ombudsman (World Perceptive) :

1.   An Ombudsman can work only in small countries. In a large poplars country the Ombudsman can not hand complaints without an equally vast bureaucratic organization.

2.   The Ombudsman system cereals a bureaucracy by its self, i.e. it form a small bureaucracy a big bureaucracy and with even more red tapes.

3.   The Ombudsman has no real power and can recommend only. Government official and agencies may listen to suggestions depending on their will.

4.   The Ombudsman tend to create the mission that all is well with the government.

5.   The office is adaptable only to parliamentary country. The system interferes with the ministerial responsibility is parliament.

6.   The process of Ombudsman impedes efforts to strengthen existing institution. 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 can not be successfully translated from Scandinavian countries.

9.   The Ombudsman to a part of the government establishment and tens to sustain its actions. The Ombudsman is a government technique used similarly to reform 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.

OMBUDSMAN IN BANGLADESH

Emphasis On Ombudsmen And Governments Commitment :

The necessity for the office of Ombudsman has been felt in Bangladesh ever since its Independence. Since Bangladesh is a county emerging from the British colonial rule through neocolonialism of Pakistan it inherited an asymmetric political system where administration has procedure 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 bureaucracy rather than politicians has developed in this country. Administration, since then in used to exercising unfettered discretion in the whole edifice of government and allegedly involved in wide ranging corruption that is very often complained of. In view of this situation, the authors of Bangladesh constitution in corporate 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. However, 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 gover5nment (elected 1996) declared in 1998 its commitment to establish the office as early as possible. But so far no concrete development has taken place to establish the office. The following discussions will throw light on the initiative taken so far by the government for institutionalizing the office of Ombudsman.

A five member committee headed by the law secretary was appointed to examine the legal aspects of appointment of Ombudsman. In this regard, the committee has given their green signal. (The Independent, 4 march 1997:6).

The ministry of law submits a financial proposal of Tk. 3,67,00,000 to the ministry of finance for establishing the office of the Ombudsman. (Janakantha, 3 June 1998:1). The ministry of Finance will keep provision for the money in the ensuring budget of 1998/99.

The above mentioned amount has been earmarked for the purposes of the office of Ombudsman, and other relevant office expenditures including staff salary transport allowances etc.

A proposal by ministry of law relating to the setting up of Ombudsman’s office and its organogram consisting of a total of 127 employees, including 31 officers, has also been submitted to the ministry of Establishment and Ministry of finance for approval. The Independent, 3 June 1998:12.

The Ministry of law proposed that out of these 127 officers and employees, there would be  one Director General (equivalent to the status of secretary to the government, One Additional  Director General (Additional Secretary), eight Directors (Joint Secretary), eight Deputy Directors (Deputy Secretary) and eight Assistant Directors including others. The monthly remuneration of the Ombudsman has been fixed Tk. 21,000 and Tk. 15,000 for house rent, Tk. 500 for medical facilities and Tk. 450 for other purposes. (Janakantha, 3 June 1998:1).

However, thought the Government has decided to employ 127 employees but it was not clear whether they will be appointed by the Ombudsman himself as per the Ombudsman Act or by the Government.

In view of the tremendous public demand for the office of Ombudsman the Awami League government declared in 1998 its commitment to establish the office as early as possible. At last, BNP government (elected in 2001) established the office of Ombudsman by Government Gazette in 6^th January 2002.

Bangladesh Constitution 

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 low. 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.

I shall first briefly discuss the role and functions of Ombudsman and thereafter the meaning of term of “natural justice”, the denial of which ordinarily constitutes the basis of most of complaints by our citizens to the Ombudsman.

Status of Ombudsman in Bangladesh :

Article 77 of the constitution of Bangladesh provides that parliament may by law provide for the establishment of the office of the Ombudsman. In 2002 after 21 years of passing the Ombudsman Act was made effective, but as earlier decision of making the Act updated was ignored. Till date the office of the Ombudsman has not come in to being. In the context of emerging needs and success of other countries, Bangladesh has set up national sector specific Tax Ombudsman Office. After publishing gazette of Tax Ombudsman in July 2005 the office has been set up in July 2006. In Bangladesh there is also Ombudsman in the private sector. Brac and Diabetic Association of Bangladesh are example.

Ombudsman Act 1980 :   

The Ombudsman Act 1980 make provision for the appointment of a person with kwon legal or administrative ability and conspicuous integrity but the law did not come into effect.

Appointment :

The Ombudsman shall be appointed by the president on the recommendation of the parliament [Art, 3(1)].

Qualification :

To be an Ombudsman a parson of kwon as legal or administrative ability and conspicuous integrity [Act, 3(2)].Tenure :

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

Removal :

The Ombudsman may be removed from his office by the order of the President supported by a majority of not less than two thirds of the total members of parliament on the ground of proved misconduct or physical incapacity [Art. 4(2)].

Remuneration and other conditions of service :

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

Functions :

The Ombudsman may investigate any action taken by a ministry a statutory public authority or public officer.

1.  Investigation :

     The Ombudsman may investigate any       action taken by a ministry, a statutory public authority, or public officer.

2. Report :

     If, after investigation of any action, it appears to the ombudsman that injustice has been caused to complaint or to any other person in consequence of maladministration in connection to such action, the ombudsman may, by a written report, 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.

3. Annual report :

     The ombudsman shall prepare an annual report concerning the discharge of his functions and submit it to the president. [Articles 6 & 9]

4. Power :

     For the purpose 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 to the investigation to furnish any such information or produce any such document. [Article 8(1)]

5. Exemption:

     With gazette notification, the government may exempt any public officer or class of public officers from the jurisdiction of the ombudsman. [Article (15)]

6. Immunities :

     No suit, prosecution or other legal proceeding shall lie against ombudsman or any member of his staff in respect of anything which is done in good faith, [Article 16(1)] \\\Recently a seminar was organized by Manusher Jonno Foundation, (MJF) and Transparency International Bangladesh TIB. Seminar paper followed by open discussion recommended to review the act in following areas:

7. Tenure :

     The ombudsman shall hold office for five years instead of three years as stipulated in the act.

8. Jurisdiction :

     Under the 1980 act, ministries, statutory public authorities and public officers all fall within the jurisdiction of the ombudsman. However the jurisdiction does not include several categories of public functionaries. Recommendation of the Law Commission may be considered which proposed widening of the mandate of ombudsman including illegal acquisition of property by public functionaries.

9. Exemption :

     Exemption provision of Article 15 should be dropped from the act.

10. Budget :

     The act has made no provision of financial resources for the ombudsman, but it should have full freedom to draw its own budget to be provided under the category of “charged expenditure” of the national budget.

11. Commitment :

     If ombudsman is not satisfied with the action taken or proposed to be taken by the competent authority, a special report should be made to the higher authority including court.

12. Self Regulation :

     In order to ensure transparency and accountability of ombudsman, self-mechanism of ombudsman should be developed without revealing identities; information of all activities should be made available and regularly updated for public information through website.

Ocritical analysis of the Act :

Appointment Procedure:

In a country like Bangladesh where the political system based on parliamentary system the provision made in the Act “the Ombudsman shall be appointed by the President on the recommendation of the Parliament”, sounds logical. But in the Act, there is no mention whether the opposition parties would also share the recommendation. In the absence of such specification, the Ombudsman would be naturally recommended by the ruling party and as such his/her independence; acceptability and impartiality may be seriously questioned by the opposition political parties and non-government actors.

Tenure:

The tenure of Ombudsman is three years. It seems the term of three years is not adequate. The President and the House of the Nation who will appoint him will remain in office, unless otherwise for a term of five years. It is therefore desirable that tenure of office should be equal to that of the President and the Parliament and be renewable for a further term depending upon his performance of the previous term.

Qualification :

As regard the qualification of the Ombudsman, the Act only states, ‘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. Such provision must be reflected in the Act. In that case the word “or” should be replaced by the word ‘and’. Besides the term conspicuous integrity should be defined precisely and may include several elements including ‘honesty in professional career’.

 Jurisdiction :

     The jurisdiction of the Ombudsman includes ‘ministry’, ‘statutory public authority’ and ‘a public officer’. The jurisdiction should extend to ‘local authority¹ and ‘other public institution’ too. As per Article 15, 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.

Power :

     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.

Function :

     According to Article 6, 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. Independence: Lack of provision about the financial independence of the Ombudsman may endanger 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 17 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.

Secrecy in the name of State :

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.

Type of Ombudsman in Bangladesh :

The Ombudsman Act, 1980 of Bangladesh is silent about the type or variety of Ombudsmen that may be created to discharge the varied types of responsibilities more efficiently and effectively if situation warrants.

In order to protect the institution of Ombudsman from being over burdened with multifarious responsibilities, varieties of Ombudsman have been created with specific responsibilities in their jurisdiction in different counties of Scandinavia and Europe. For example, from the Swedish and British experience, Bangladesh may have provision to constitute three types of Ombudsman to perform three distinct functions in three distinct areas such as :

1.  The Ombudsman (General) to investigate into mal-administration of Cabinet Ministers and central bureaucracy i.e. the bureaucracy located in the Secretariat and the courts.

2.  Ombudsman (Local/Field) to investigate into mal-administration and injustice committee by local representatives of the people and field level government agencies engaged basically in the implementation of government policies in the field level and the courts.

3.  Ombudsman (Military) to investigate indiscipline or activities of the military considered subversive to the interest and security of the state and employed under the Ministry of Defense and the Military Courts.

Function of Ombudsman :

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 means 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 try to resolve it by conciliating between the complainant and the agency of the government. The complaint may be made to the office of Ombudsman orally or in writing. The ombudsman in most of the cases makes preliminary inquires to first decide whether the complaint is worth of investigating and if it has a prima facie case against an agency of the government, it proceeds ahead to inquire the complaint. Furthermore Ombudsman may suomoto 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 and annual report of its activities to it.

Necessary of Ombudsman : 

1.  Protects human and constitutional rights of the citizens.

2.  Work as an watchdog to oversee the activities of public officials and institution.

3.  Promotes rule of law.

4.  Recognizes that public agencies are supposed to serve the citizens.

5.  A person affected by the activities to the public agencies can get quick remedy.

6.  Promote morale values and confidence of the citizens giving a feeling that there is someone in their favorus to hold the government accountable.

Organizational Structure :

Organizational structure of the office of the Ombudsmen 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 personable within the office of Ombudsman. Six divisional Ombudsman 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 bonafied 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. At the initial stage an organizational tram work containing 35 personal have been recommended by PARC for the office of the Ombudsman which is showed by the following organogram.

Source : Public Administration for 21^st century, report of the public administration reform commission (PARC) vol-2, June-2000.

Ombudsman is must for Bangladesh :

Region :

The executive organ of every countries are always alert for the protection of citizens rights and independence. And every country has also different courts and tribunals in under executive for the remedy with the solution in ease of violation of any human rights. So, normally the question is arise that, why the Ombudsman is must in this situation.

There are some justifiable and practical reasons for which it is must that the immediate establishment of Ombudsman in Bangladesh –

Firstly :     Though we have a court system to resolve legal disputes of various types. He most of the courts is he inordinate delay due to which our courts can provide only technical justice rather than substantial justice. It is seen that in Bangladesh and also others countries under third world that for getting the remedy for a simple case it takes a long term. For that reason most of the people don’t like to go to the court for the violation of their legal rights and it takes long period.

Secondly : It is a very expensive to continue a case in court. Not only that people also waste money but they don’t get the proper remedy in many case.    

Thirdly :   In most of the cases our country give the declaration of remedy whereas the real remedy lies with the administrative and law enforcement agency which frequently flouts the decision of the courts. There are many cases in Bangladesh where the court order is neglect by the administration. Those cases are – Farzana Haque v. Bangladesh (writ petition no. 271 of 1990), Radha Kanta v. Deputy Commissioner (31 DLR, 352). Nazrul Islam case etc. If there had been an Ombudsman then the above mentioned cases to courts world not have arises and the administration world not be able to neglect the court order.

Fourthly : He courts and tribunals are very careful for the solution is some cases in many times. But the administrative worth is related in some cases and for those case the reports of administration, Opinion on deed must to address in the court and those are unavoidable. But for the reason of administrative “red tape” or to harass the plaintiff the administration authority delay to submit the report or papers without any reason.

For that reason people don’t take step against any administration authority or any officer.

Fifthly :    Harass by the administrative authority many people seek remedy in the High Court Division by write petition but in many cases the High Court Division may not take the writ petition.

Sixthly :    In our country criminal cases are filed more than the civil cases in a year. And these criminal cases are death primarily with Magistrates Courts. But these Magistrates Courts are related with corruption. Had there been an Ombudsman these magistrates would not be able to take bribes and to be so corrupt as they are how.

Seventhly : Public servants of various corporations and particularly most of the teachers of the government universities are doing the most corruption in their profession and engaging themselves in “extra profitable” work. It there is an office and proper functioning of a duly appointed Ombudsman by the parliament, then the accountability of those public servants is likely to the well ensured and our public administration will be more effective and clear for the benefit of the people.                           

Suggestion :

From above those discussion we can say no democracy if administrating lies in the hands that are tainted. So, in guest of a good and efficient administration a strong and effective institution of Ombudsman is a must. It there is the institute of Ombudsman then the autocracy of the administrative arthritics and the partiality of the Magistrate will be reduced.

So, far the world the office of the Ombudsman has been recognized as creative office Because Ombudsman is a clearly independent institute. It is only answerable to the parliament not to any other person. If he get any intimation about the corruption of administrative authority he can interface here without any question. To protect the people from the administrative corruption is the basic purpose of an Ombudsman. Only by an Ombudsman the oppression people administrative and others organs corruption can be removed. So, in Bangladesh the institution of the Ombudsman is effective.

Conclusion :

In the context of Bangladesh politics and atitude of the Government towards political opposition Ombudsman is better be appointment by the parliament on the consensus of all political parties is the in the parliament to ensure impartiality and objectively in his investigation. His area of jurisdiction should extend over the judiciary too is matters of legality of the decision. From the above discussion it is clear that the establishment of as Ombudsman in Bangladesh will undoubtedly go a long way in helping to establish a real democratic social order and polity based on parliament.