When
will we have an Ombudsman
for Bangladesh?
A
H Monjurul Kabir
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"...it
shall be a fundamental aim of the
state of realise through the democratic
process a socialist society, free
from exploitation - a society in which
the rule of law, fundamental human
rights and freedom, equality and justice,
political, economic and social, will
be secured for all citizens …"
- Preamble of the Constitution of
the People's Republic of Bangladesh.
The
word ombudsman has one familiar element,
man, but it is difficult to think
of what ombuds could mean. Ombudsman
is from Swedish, a Germanic language
in the same family as English, and
man in Swedish corresponds to our
word man. Ombud means "commissioner,
agent," coming from Old Norse
umbodh, "charge, commission,
administration by a delegacy,"
umbodh being made up of um, "regarding,"
and bodh, "command." In
Old Norse an umbodhsmadhr was a "trusty
manager, commissary." In Swedish
an ombudsman was a deputy who looked
after the interests and legal affairs
of a group such as a trade union or
business. In 1809 the office of riksdagens
justitieombudsman was created to act
as an agent of justice, that is, to
see after the interests of justice
in affairs between the government
and its citizens. This office of ombudsman
and the word ombudsman have been adopted
elsewhere, around the world. The preamble
of the Constitution of Bangladesh
and the Article 77 of the Constitution
in particular indicates the same spirit.
Article
77 of the Constitution of Bangladesh
provides that Parliament may by law
establish the office of Ombudsman.
Once established the Ombudsman shall
have the power to investigate any
action taken by a ministry, a public
officer or a statutory authority and
such other powers and functions as
may be prescribed by Parliament. The
Ombudsman shall prepare an annual
report concerning the discharge of
his functions and such report shall
be laid before Parliament. Being convinced
by the fact that an institution like
the Ombudsman would be essential for
safeguarding the interests and rights
of the public in Bangladesh from maladministration
or administrative excesses, our constitution
makers have made such provision for
it in the constitution. But up to
1980, no definite attempt was made
to establish the office of Ombudsman.
In
1980, at the initiative taken by the
then government, the Jatiya Sangshad
(House of the Nation) passed the necessary
Act providing for the establishment
of the office of Ombudsman. But the
then government did not put the Act
into effect. Successive governments
followed the same trend. And the office
of Ombudsman has not been established
though more than 21 years have been
passed since the passing of the Ombudsman
Act 1980. The Act shall come in to
force on such date as the government
may, by notification in the official
gazette, decide. The present BNP led
4-Party Government has finally decided
to install the Office. This is indeed,
a welcome move. However, it is still
not clear whether they are genuinely
interested to amend the existing Act
for making the desired institution
more effective.
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 (10)].
(2)
Parliament shall recommend for appointment
a person of known legal or administrative
ability and conspicuous integrity
[Sec. 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. 3(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 favour
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 authorised
to furnish any such information or
answer any such question or produce
so much of any document as might prejudice
the security or defence 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)].
(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 favour 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 Ombuds man 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, utilise 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
1. 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.
2.
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.
3.
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'.
4.
Jurisdiction: The jurisdiction of
the Ombudsman includes 'ministry',
'statutory public authority' and 'a
public officer'. The jurisdiction
should extend to 'local authority'
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.
5.
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.
6
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.
7.
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.
8.
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 as might
prejudice the security or defence
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. There is every 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.
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.
9.
Public Access: 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.
Need
for a new legislation and the first
Ombudsman
Undoubtedly, 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. Can we do that beyond
narrow political interests?
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The author is a legal and human
rights analyst and researcher.
