The ombudsman question

[Md. Fouad Hossain Sarker]

The figure of ombudsman, with its current characteristics, owes its origin from Sweden; however, its roots may be found in ancient history. Within the Islamic legal system, for example, during the era of Abbasids, complaint handling agencies called "Diwan Al Mazalim" were established. These institutions seen to have been headed by a senior judge. Under Turkish rule the "Quadi al Quadat" the "judge of judges," exercised a similar function. Indeed, it has been suggested the idea of establishing an ombudsman occurred to the Swedish King Charles XII when he -- having suffered defeat at the hands of the Russian army at Poltava -- for a number of years was the guest of the Sultan in Turkey in the early 1700s.

The first Swedish ombudsman took office in 1809 and gradually the concept spread around the globe. As of 2005, including national and sub-national level, a total of 129 offices of ombudsman has been established around the world. Through the establishment of these offices of ombudsman, people's confidence in the executive branches has been regained.
Constitution of Bangladesh has provision for ombudsman in Article 77: "Parliament may, by Law, provide for the establishment of the office of Ombudsman." Article 77(2) states: "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 a ministry, a public officer or a statutory public authority."
It is expected that the ombudsman will act as a watchdog against maladministration, abuse and incompetence that causes harm or loss to the aggrieved citizen. Hence it is essential to ensure transparency, accountability and to curb corruption at all level of administration in Bangladesh.
Nowadays the Anti-Corruption Commission is functioning effectively, so the justification for an ombudsman may be questioned. However, the ACC is not an alternative to the ombudsman since only abuse of power for financial or other material gain comes under the jurisdiction of ACC. Jurisdiction of different guardian institutions needs to be distinctly identified to avoid overlapping and complementary role between the ombudsman and other pillars of national integrity system should be explored further.

[Md. Fouad Hossain Sarker]

What is ombudsman?

The ombudsman is an institution established under the constitution or by the legislature that receives and investigates complaints reported by individual citizens against any government and institution and recommend corrective actions.

[Md. Fouad Hossain Sarker]

Why ombudsman?

•   Protects human and constitutional rights of the citizens.
•   Works as a watchdog to oversee the activities of public officials and institutions.
•   Promotes rule of law.
•   Recognizes that public agencies are supposed to serve the citizens.
•   A person affected by the activities of the public agencies can get quick remedy.
•   Promote morale values and confidence of the citizens giving a feeling that there is someone in their favors to hold the government   
        accountable.

[Md. Fouad Hossain Sarker]

Ombudsman in Different Countries

The ombudsman takes different forms and names in different countries of the world. There are also differences in the power, function and jurisdictions of the ombudsman. There are offices of ombudsman in a number of developing countries.
In 1983, office of the ombudsman was set up in Pakistan under the name of "Wafaqi Mohtasib." In 10 states of India offices of ombudsman or "Lokeyukta" have been established. With a view to establish the office of ombudsman at the central level the "Lokpal Bill" was introduced in the Lok Sabha in 1989 which was not passed by the parliament. The Constitution of Nepal (1990) also provides for the provision of ombudsman.

Norway is the first country to establish an ombudsman for the children in 1981 which is performing there types of functions:
•   Promote and protect the rights of the children.
•   Improve access to existing rights.
•   Promote recognition of human rights not yet embodied in legislation or practice.

In New Zealand, as per law, persons in prison or mental hospital can place their grievances before the ombudsman. There is a military ombudsman in Sweden and a parliamentary ombudsman in Finland.
Ombudsman is an extra-judicial alternative system. There are some activities of the administration that causes bad governance, but can not be challenged through a court of law. For example, if an application for construction of a building is refused by the authorities without any legitimate ground or an application made to the tax authority remains pending for a long time, citizens usually do not go the court or it may be beyond the jurisdiction of the court. In such case the citizens have the opportunity to go to the ombudsman.

[Md. Fouad Hossain Sarker]

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. As per the constitutional provision, the Ombudsman Act 1980 was passed which provides that a person of high integrity and having experience in legal or administrative field shall be appointed as ombudsman. The act gave the government power to make the office of the ombudsman effective through gazette notification.

In 2002, after 21 years of passing, the Ombudsman Act was made effective, but an earlier decision of making the act updated was ignored. Till date the office of the ombudsman has not come into 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

[Md. Fouad Hossain Sarker]

Ombudsman Act 1980

Appointment:
The ombudsman shall be appointed by president on the recommendation of the parliament. [Article 3(1)]
Qualification: Parliament shall recommend for appointment as ombudsman a person of known legal or administrative ability and conspicuous integrity. [Article 3(2)]

Tenure:
The ombudsman shall hold his office for a term of three years, and shall be eligible for reappointment for one further term. [Article 4(1)]
Removal: The ombudsman may be removed from his office by the order of the president passed pursuant to a resolution of parliament supported by a majority of not les than two-thirds of the total members of parliament on the ground of proved misconduct or physical incapacity. [Article 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]

[Md. Fouad Hossain Sarker]

Functions

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

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

[Md. Fouad Hossain Sarker]

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)]

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

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)]

[Md. Fouad Hossain Sarker]

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:

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

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.

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

[Md. Fouad Hossain Sarker]

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.

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.

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.


Source: Seminar Paper on "Ombudsman for Good Governance in Bangladesh: Why & How?" by Dr. Iftekharuzzaman, Executive Director, TIB.