Star Law Analysis
Office of Ombudsman -- need of the hour
Khan Ferdousour Rahman
The present caretaker government (CG) has taken decision to establish National Human Rights Commission (NHRC) in principle to ensure human rights in the society. Substantial steps have also been taken to ensure separation of judiciary from the executive, strengthening the Anti Corruption Commission (ACC) and the Election Commission. These efforts can be more effective by establishing the office of the Ombudsman of the State.
The need of Ombudsman arises for undertaking preventive and corrective actions with a view to containing bad governance committed by the officials or employees of the public administration. In modern times, governments in both developed and developing countries have assumed varying number voluminous, and enormous amount of functions and roles in the field of socioeconomic welfare of the citizens. The scopes and dimensions of work of public agencies have thus expanded enormously.
The term 'Ombudsman' is relatively unfamiliar in Bangladesh, but it is widely used and practised in Western countries to ensure the transparency and accountability of the administration. The word Ombudsman and its specific meaning have since been adopted into English as well as other language. In Bengali we have made it 'Nyayapal' who is charged with representing the interests of the public by investigating and addressing complaints submitted by individual citizens. The objective of Ombudsman is to secure fairness, integrity, accountability and efficiency in public affairs. The office of the Ombudsman is an institution. It is the general jurisdiction watchdog of the government and serves as deterrent to the bureaucratic lapses and excesses. However, an Ombudsman need not be appointed by government; they may work for a corporation, a newspaper, an NGO, or even for the general public.
A prototype of modern Ombudsmen flourished in China during Qin Dynasty (221 B.C.) and in Korea during the Choseon Dynasty. The Romans also grappled with the problem, but it was the example of the second Muslim Caliph Omar (634-644) and the concept of Qadi al-Qadat (developed in the Muslim world), which influenced the Swedish King, Charles XII. In 1713, fresh from self exile in Turkey, Charles XII created the Office of the Highest Ombudsman. The modern use of the term began in Sweden with the Swedish Parliamentary Ombudsman instituted in 1809 to safeguard the rights of citizens by establishing a supervisory agency independent of the executive branch. Ever since most European countries have adopted the institution of Ombudsman, where the Ombudsman is elected unanimously by the parliament. The scope of work of the Ombudsman varies from country to country.
The Ombudsman system has its basic purpose of protecting of the human rights of the citizens. The existing mechanisms for addressing grievances in modern system are inadequate. In law courts litigation is expensive, tension-causing and protracted. If an institution fails compliances with what should have been done; if it does it in the wrong way or does in a way it should not have done, there may be reason to complain to the Ombudsman. Some of the common problems he deals with are unnecessary delay, refusal of information, discrimination and abuse of power.
Transparency is an essential part of democracy. As a citizen, the individual has a right to know how and why decisions are taken. If the individual has such information, then he can very well evaluate how the political representatives are performing, which can ensure accountability of public authority. Being well informed enables the individual to participate effectively in the ongoing public debate that is the part of healthy democracy. The rule of law implies that no person or body, however powerful, can break the law with impunity. The Ombudsman can bring a number of cases to his attention, based on the complaints he received regarding violation of rule of law and denial of information.
The Ombudsman investigates complaints about maladministration in the institutions and bodies of the government, and usually conducts inquiries on the basis of the complaints, but can also launch inquiries at own initiative. The Ombudsman investigates charges of illegality, negligence or the misuse of official position; pay special attention to offices involving fraud, abuse of power or those impeding the cause of justice. The Ombudsman ensures that no one in an official position breaks either the constitution or the laws of the land or the rules and regulations which administrative agencies are assigned to uphold.
The main purpose of the institution is to maintain integrity and honesty among the civil servants in general, and contain any kind of administrative excesses done by civil servants in any field of administration in particular. The Ombudsman may simply inform the department or establishment concerned about any complaint in order to resolve the problem. If the case is not resolved satisfactorily during the course of the inquiries, the Ombudsman will try to find a friendly solution which puts right the case of maladministration and satisfies the complaint. If the attempt of conciliation fails, the Ombudsman can make recommendations to solve the case. If the institution does not accept his recommendations, he may make a special report to the parliament.
Many private companies, universities and government agencies in various countries also have an Ombudsman (or an ombudsman department) which serves internal employees or other constituencies. These Ombudsmen's roles are structured to function independently, by reporting to the board of directors, and do not serve any other role in the organisation. Recently since 1960s, the position has grown in US, particularly in corporations, universities and government agencies. Using an alternative dispute resolution (ADR) sensibility, an organisational Ombudsman can provide options to whistleblowers with ethics concerns, provide mediation in conflicts, track problem areas, and make recommendations for changes to policies and procedures in support of orderly systems change.
The necessity of the office of Ombudsman has been felt in Bangladesh since its independence in 1971, which is why the authors of the constitution of Bangladesh incorporated a provision for that in 1972 when it was drafted. The preamble of the constitution of Bangladesh, and Article 77 of the constitution in particular, indicate the spirit of Ombudsman. Article 77 provides the parliament may by law establish the office of the 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 the parliament.
The Ombudsman Act was passed in the parliament in 1980. As Bangladesh is a very densely populated country, so there has been a widely expansion of governmental functions of various kinds. The executive officials are always vested with unlimited and often unguarded discretionary power which has given rise to widespread abuse and maladministration often causing indescribable sufferings to the ordinary people. Corruption is the biggest problem of our administration. From 1991, the issue of appointing an Ombudsman has gained much prominence and it was the election pledge of both the major political parties to implement before the general elections.
The first Bangladeshi Ombudsman was introduced in development sector, in BRAC with Mr. Manzoorul Karim in 2004 with a comprehensive mandate to investigate any incident of maladministration and misuse of power within BRAC that includes grievances, corruption, abuse of power or discretion, negligence, oppression, nepotism, rudeness, arbitrariness, unfairness and discrimination, especially gender based discrimination. The second and last Ombudsman of the country is the introduction of the office of the Tax Ombudsman in 2006 with Mr. Khairuzzaman Chowdhury who will help to curb corruption of tax officials and take preventive measures against bribery and tax evasion having the authority to summon the accused official. After hearing any case he will appraise the Finance Minister with his recommendations, who in turn may ask the NBR to follow the recommendations or ask the Ombudsman to review the recommendations or he would take steps that he considers appropriate.
In the context of Bangladesh, an Ombudsman should be appointed by the parliament on the consensus of all political parties in the parliament. The impartiality of the Ombudsman should not be questioned who should not have been accused of bias and of merely acting as a rubber stamp. The Ombudsman's office should be supported with e-governance through automation. There should be a basis what good administration means in practice and there should be code of good administrative behaviour. In order to reach his work directly to citizens, the Ombudsman should make frequent visit to various areas within the country. There should be Ombudsman sectorwise, i.e. police, land, defence etc. Finally, it is the expectation of general people from the next elected government, that it should take all out efforts to introduce the office of the Ombudsman at the earliest, with a view to promoting and protecting the human rights of the ordinary people.
The writer is a human rights activist and freelancer contributor to The daily Star.
