Article 77 of the Constitution of Bangladesh provides for the establishment of the office of Ombudsman. The provision confers on an Ombudsman the power to investigate any action taken by a Ministry, a public officer, or a statutory public authority. The Ombudsman Act, 1980 was enacted to establish this office and define its powers and functions. However, the office of the Ombudsman has not been established even after 50 years of the existence of the Constitution, potentially undermining the constitutional spirit.

The concept of the Ombudsman can be traced to the Qin dynasty in China in 221 BC, while the modern iteration of the notion can be found in Sweden in 1713. In present times, the office of the Ombudsman has become a regular feature of modern states, having the power to initiate investigations with or without any formal complaint against government officials, judges and other judicial officials, local governments, and even military administration in some jurisdictions. Ombudsman and its different forms have worked as a "safety valve" against the arbitrary exercise of power and made executive as well as judiciary more accountable, without curbing their powers.

The Interim Government of Bangladesh recently signed the International Convention for the Protection of All Persons from Enforced Disappearances (ICPED) and has vowed to implement it. The current legal regime of Bangladesh is not equipped to tackle and properly remedy instances of enforced disappearances. Under the Convention, the State has been burdened with the responsibility to prevent crime and combat impunity for such crimes. The state will discharge such responsibility through its various institutions.

However, in Bangladesh, the conundrum is that the law enforcing agencies are themselves under the accusation of either committing the crime, supporting it, or concealing it. As such, it becomes quite tricky to confer the task of investigating the complaints of enforced disappearance to any law enforcement agencies. Instead, the responsibility may be assigned to an independent body like Ombudsman, who, in theory, will be free to perform his duties according to the law.

Section 6 of the Ombudsman Act, 1980 allows an Ombudsman to investigate any action taken by a Ministry, a statutory public authority, or a public officer if a complaint is made to him by a person who claims to have sustained injustice in consequence of such action. Investigation can also be made based on any information provided that such information is received from any person or source, otherwise than on a complaint.

However, the provision does not allow the Ombudsman to investigate any civil or criminal proceedings before any Court. The provision could be amended to include investigation of law enforcement agencies, disciplined force, ministers, judicial officers, etc. as well as mandating that an Ombudsman can request a court to allow him to conduct an investigation in case there are grounds to assume that proper investigation might not be carried out by the law enforcement agency.  Besides, Article 12 of the ICPED states that an alleged victim of enforced disappearance has the right to report the facts to the competent authorities, who will examine the allegation promptly and impartially and, if necessary, undertake without delay a thorough and impartial investigation. In our present context, an Ombudsman would be more suited to conduct this investigation than a law enforcement agency.

Besides, section 15 of the Ombudsman Act, 1980 authorises the Government to exempt any public officer or class of public officers from the operation of this Act. This provision can defeat the object and aim of the legislation, making the Ombudsman a toothless tiger. Again, section 9 of the Act authorises the Ombudsman to make recommendations, and there is nothing substantive to equip an Ombudsman to compel relevant authority to implement any recommendations.

With proper amendments in the Ombudsman Act, the office of the Ombudsman could well be prepared as an alternative redress mechanism to fulfill the obligations under the ICPED. In the past, the office of Tax Ombudsman had been established in our country through a separate legislation, though it was abolished within a few years. In the current context, the office of the Ombudsman could be a much-needed mechanism to address the grievances of the people. In fact, such experimentation could be done to accommodate the office of the Ombudsman to deal with other issues of concern in the country such as banking or financial fraud, political harassment, etc. 

The writer is Lecturer, School of Law, Chittagong Independent University.