Need For Office of Ombudsman in Bangladesh

Although Ombudsman is relatively an unfamiliar term to us in general but it is widely used and practiced technique of ensuring administrative accountability and transparency in the western developed countries. In this article, an attempt is made to analyze the role of Ombudsman and why it is needed and how it can be institutionalized in Bangladesh. In doing so, the article discusses the conceptual frame work of Ombudsman and throws light on the necessity, prospects and problems of Ombudsman in Bangladesh now with the process of establishing the office of Ombudsman.

Introduction

Bangladesh is a democratic country which became independent in 1971. After achieving the independence, she is going with the self-governing system. After each five years through the election, people of this country elect one person or a group as a representative who then forms the government of the country. The people of Bangladesh have the sense to define or choose the better one. As it is democratic from the very beginning, people are very careful about choosing the government person or group.

The choices of the people of Bangladesh have been changing day to day, one government to another government. This because not getting the required support from the current government. In 1990, the people of all over Bangladesh wanted a change and they made that. After that, the leaders are changing by the selection of general people in each session. But the capability of expressing opinion is limited up to changing the government. Within each session of elected government, people are facing, suffering from various kinds of problems. The people feel to make the government to know about their daily problems which are deeply involved with their lives. But there is no way to do so. People express their opinion, demands through news papers. Television talk show programs usually have a discussion on the current incidents. So, the general people, poor people or the suffered people don’t have any way to complain about their sufferings, requirements etc. So, the office of Ombudsman in Bangladesh is necessary.

In the recent days the word ‘Ombudsman’ has been pronounced much more in politico administrative discussion. It is generally alleged that a major problem throughout Bangladesh’s 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. 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 or 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. Because “time limits for disposal of files are not usually complied with. Supervision has been weak in many cases and non-existent in others. Inspections are conducted casually and at irregular intervals. The ACR is largely subjective and therefore is not of much use” (Khan, 1995:13). On the other hand, in law courts litigations are expensive, tension creating and protracted. Administrative Courts follow Court-like procedures. Executive complaints handling agencies lack the essential characteristics of independence. The standing committees of the Parliament have not so far been very effective-due to political differences of the major political parties.

1.An own idea of Ombudsman has been tried to express here.

2. Where the word ‘Ombudsman’ being used has been described here.

Therefore, an urgent need of the time is to evolve an adequate and effective mechanism for controlling the administration in exercising its powers, safeguarding individual rights and creating procedures for redress of individual grievances against the administration. The circumstances call for an external agency outside the administrative hierarchy, to detect and check administrative lapses and faults and to supervise the administration so that the rights of the individuals are not unduly jeopardized

(Kabir, 1997:176). 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.

Ombudsman

The term Ombudsman was derived from the Germanic language and has its roots from the early days of Germanic tribes. The person who was chosen from a neutral group to collect blood money (Wergild) on behalf of the wrongdoer was called Ombudsman (Chowdhury, 1996: 7). But the modern office of Ombudsman was first conceived in Sweden by the Swedish Constitution Act 1and09, over 193 year ago. It has an even earlier prototype, the King’s Chancellor of Justice, which extends far back into Swedish history (Rowat, 1967: 135). Today, however, the experienced persons having authority to inquire into and pronounce upon grievances of citizens against public authority are entitled as Ombudsman. The Swedish word “ombuds” means “officer” or “spokesman” or representative” (Wade, 967:12) It also connotes “attorney, solicitor, deputy, proxy, delegate and representative agent.”

Many scholars defined Ombudsman in different perspective. Now, I give some important definitions given by famous writers and scholars. According to Davis Ombudsman “– occupies a position of high prestige in the Government and his job is to handle complaints from any citizen who displeased with the action or in action of any administration or civil servant.” (Davis, 1961 : 1057-1076). Justice report defined Ombudsman as “an officer of parliament be appointed who has as his primary function the duty of acting, as an agent for parliament for the purpose of safeguarding citizens against abuse or misuse of administrative power by the executives.” (1961; Para:2). According to Bernard Frank, “Ombudsman means an office established by constitution or statute headed by an independent, high level public official who is responsible to the legislature, who receives complaints from aggrieved persons 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) According to oxford dictionary “Ombudsman is an official appointed by a government to investigate and report on complains made by citizens against public authorities”. Professor Rowat in his famous book “The Ombudsman: Citizen’s Defender” wrote that ,”Ombudsman is an independent and politically neutral officer of the legislature who receives and investigates complains from the public against administrative action and who has the power to criticize and publicize but not the reverse such action.” (Rowat,1986:1X).

The source of the word ‘Ombudsman’ has been described here.

The definition of Ombudsman of Davis has been taken from (Davis,1961:1057-1076).

The definition of Ombudsman of professor Rowat has been given from his book “the Ombudsman: Citizen’s Defender” (Rowat, 1986:1X).

According to Loewenstein, “Ombudsman is an independent official chosen by Parliament to watch over the administrative services in whose practices the general public is interested.”(Loewenstein,1965:403). Professor Cutchin Defined Ombudsman as,” a respected, a political individual outside the bureaucracy who is empowered to investigate citizen’s complaints about government services and recommend rectification. Usually he has the power to investigate, criticize and publicize administrative actions, but can’t reverse them”. (Cutchin, 1981:68 ). According to professor Garner, “Ombudsman is an officer of parliament, having as his primary function, the duty of acting as an agent for parliament, for the purpose of safeguarding citizens against abuse or misuse of administrative power by the executive.”(Garner, 1981:92)

Reviewing the above-mentioned definitions, it can be ascertained that Ombudsman is an independent and nonpartisan officer of the legislature, provided for by law, who is an experienced person is having authoring to inquire into pronounce upon grievances of citizens against public authorities.

Features

The Ombudsman is

1. independent of government.

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

are fair, reasonable, appropriate and equitable.

3. an officer of the provincial legislature.

4. able to conduct confidential investigations that are non threatening and protect complainants

against retribution.

5. required to file an annual report with the legislative Assembly. (Internet websites)

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

1. Independent;

2. Impartial;

3. Expert in government;

4. Universally accessible; and

5. Empowered only to recommend and to publicize (Anderson, 1969:3)

­­­­­­­­­­­­­­­­­­­­­­­­­­­6. The definition of Ombudsman of professor Cutchin (Cutchin , 1981: 68) and of professor Garner, 1981:92) has been given here.

7. The common features of Ombudsman has been described here.

In 1962 a seminar was arranged by the UNO an judicial and other remedies, that seminar suggested some features of Ombudsman as follows:

1. It is not only an instrument of parliament for supervising administrative action but also

a protector of individual rights.

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

administrators.

3. Investigation can be started by the Ombudsman at his own initiatives basing his actions

of information received by him.

4. The investigation is conducted informally.

5. The ombudsman has considerable flexibility in the form of action which he would take

in given case.(UN Technical Assistance Operation, 1962:12-17)

Besides the features pointed out by the seminar we can also find some other unique features of Ombudsman in different countries of the contemporary World as:

1. Any citizen can bring complains before the Ombudsman without the counseling of law years. In Sweden even prisoners have also the right of sending complaints to the Ombudsman through respective authority.

2. Citizens can send their complaints to the Ombudsman in written. In Finland these complaint can rise orally by the physical presence in the office of Ombudsman. But in France the scenario is some thing different. “A French person with a complaint cannot go directly to the mediator. Instead he or she must communicate with a member of parliament, who will decide whether the complaint has sufficient merit to be passed on for action by the mediator (Dragnich, 1981: 306).

3. Ombudsman can delegate their power of inquire to the deputy but cannot delegate their power of decisions.

4. Ombudsman has considerable discretion as how far he takes a case against an officials. In most cases Ombudsman simply points out the officials error and suggests to the respective authority.

5. In Sweden the Ombudsman has the right to examine any documents question any person and demand and every assistance from the accused offices or persons. “The Danish Ombudsman is responsible for investigating any complaint against public officials concerning abuse of power, negligence or abuse of trust. He can inspect all state administrations, and enter all state establishments. He has access to all minutes and official documents. (Chapman, 1966:157). The power of inquire of the finish Ombudsman is similar to the Swedish Ombudsman.

8. Some unique features of Ombudsman pointed out in different seminars in different countries have been described here.

6. The scope of work of the Ombudsman varies country to country. Swedish Ombudsman has the power to oversee the courts and civil servants. But in Denmark ” . . . .. a compromise was reached over the Ombudsman’s powers. The whole of the central administration and the parts of provincial administration under government direction were included, but judicial and municipal affairs were excluded. Religious questions were also excluded . . . . .” (Chapman, 1966: 256-57)

7. Counter balancing his vas jurisdiction is the fact that his power is solely recommendatory. He may suggest changes in government action but not command them. (Encyclopedia Britanica, 1970:960).

8. In France, instead of going directly to the “Mediator de La Republique” (Ombudsman), a person with a complaint will have to communicate with a Member of parliament, who will decide whether the complaint has sufficient merit to be passed on for action by the mediator.

9. An Ombudsman though has enormous prestige, power and responsibility but he hasn’t any legal powers except to inquire. He can advice the people but he cannot control courts or administration.

10. In Sweden the Ombudsman has not the right to express his opinion about the decisions taken by courts or agencies.

11. Another feature of Ombudsman in considerable that people can get the Opportunity of having justice cheaply through Ombudsman This can be possible for the procedure of Ombudsman’s office. For the complaint on formal hearing is arranged in the office. Mostly the function of Ombudsman is conducted through postal service.

12. Finally, Ombudsman is an outsider with in the administration. Because he is a man of legislature. He presents his annual functional reports to the legislature.

9. How ‘Ombudsman’ has bee treating in the countries such as in Sweden, France, Britain, Denmark.

Functions of Ombudsman

Generally, an Ombudsman may receive complaints from three sources:

1. Complaints sent to him by the members of the people (MPs);

2. Complaints made to him by any person; and

3. The Ombudsman may, on the basis of the newspaper comment or otherwise, proceed suo motu. (Halim, 1998:291)

The Ombudsman can investigate the following of the people against council:

Accommodation

Planning

Literacy

Social Service

Accommodation Benefit

Council Tax

Unsocial Behavior

Environment and Dirty

Besides these, the Ombudsman can undertake periodic tours of inspection in various regions of the country to see for himself the state of affairs. The act of 1980 is not very clear regarding the Ombudsman’s procedure of work in our country. In a populous country like ours, whatever method may be used, there will be numerous cases to investigate. Thus, identifying a particular one or two is not desirable. Because one or two may have ‘in-built’ shortcomings with them.

The Ombudsman can also act as an agency to suggest administrative and law reforms. He may assume the role of a legislative advisor. He may call attention of the legislature to the desirability of reconsidering any law he believes has produced unreasonable, unjust, oppressive or discretionary results (Ahmed, 1993:59).

Why Ombudsman is necessary in Bangladesh

As enshrined in Article 77 of the Constitution, establishment of the institution of ombudsman was one of the commitments of the basis of which the state of Bangladesh was created on behalf of the people of this country. Successive governments have failed to meet that commitment, except the passage of the Ombudsman Act of 1980 and subsequent setting up of the Office of tax Ombudsman, which bas at beat remained symbolic. If in thirty-six years after independence nothing has practically happened, why now and how? What follows here is an attempt to answer this question Ombudsman for Good Governance in Bangladesh.

10. Here is an description of the function of Ombudsman.

Bangladesh is going through an unprecedented stage of opportunities for democratic institutionalization and creation of the basis for accountable and pro-people governance. The Government has placed corruption and governance failure at the core of its agenda. For the first time in the history of Bangladesh specific multi-pronged initiatives have been taken that may translate this highest level Government commitment into tangible results. A process has started to make corruption punishable irrespective of the level of authority and power. Some fundamental institutional and policy reforms have been started. These include concrete progress made towards separation of the Judiciary, reconstitution of the Election Commission that has triggered the process of long-overdue electoral reforms, revamping of the Anti-Corruption Commission to make it effective; and a highest level commitment to reform the Public Service Commission.

On 28 February 2007, Bangladesh became a State Party to the UN Convention against

Corruption committing itself to a comprehensive range of fundamental reforms and initiatives for policy and institutional change, especially to ensure, as per Article 6, existence of anti-corruption bodies like the Anti-Corruption Commission and Ombudsman, and to grant them full independence.

Bangladesh is going through an unprecedented stage of opportunities for democratic institutionalization and creation of the basis for accountable and pro-people governance. The Government has placed corruption and governance failure at the core of its agenda.4 For the first time in the history of Bangladesh specific multi-pronged initiatives have been taken that may translate this highest level Government commitment into tangible results. A process has started to make corruption punishable irrespective of the level of authority and power. Some fundamental institutional and policy reforms have been started. These include concrete progress made towards separation of the Judiciary, reconstitution of the Election Commission that has triggered the process of long-overdue electoral reforms, revamping of the Anti-Corruption Commission to make it effective; and a highest level commitment to reform the Public Service Commission.

Given the window of opportunity created by the present government to strengthen the institutional foundations for good governance, it has become incumbent upon the Government to set up the Ombudsman. If democracy and good governance are about preponderance of citizen’s voice on matters of public interest, and if these are about preventing unlimited discretion of the Government and administration and ensuring social accountability in the governance process, the Ombudsman institution must be set up without any further delay.

11.Presented at the Seminar organized jointly by Manusher Jonno Foundation and Transparency International

Bangladesh, Dhaka, 15 May, 2007.

12.Executive Director, Transparency International Bangladesh.

Ombudsman and Government’s commitment

The necessity for the office of Ombudsman has been felt in Bangladesh ever since its independence. Since Bangladesh is a country emerging form the British colonial rule through neocolonialism of Pakistan, it inherited an asymmetric political system where administration has precedence 16 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 bureaucrats particularly the CSPs in absence of strong constructive political leadership. This is now reliance on 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 incorporated 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. How ever, 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 government (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.

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13. Here the activities of different government of different periods regarding the establishment of an office of ombudsman in Bangladesh have been described.

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).17

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.

i) 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).

ii) 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 6th January 2002.

14. Some initiatives taken by the government in different times published in different newspapers such as(The Independent, 4 march 1997:6).17, (Janakantha, 3 June 1998:1), (The Independent, 3 June 1998:12) have been pointed out here.

Appointment of the Ombudsman

Theoretically there are three available modes of appointment of Ombudsman in the world:

1. Appointment by the National Assembly or Legislature;

2. Appointment by the Head of the State;

3. Appointment by the Head of the State on the recommendation of Parliament.

In Bangladesh, the Ombudsman Act 1980 provides for the third type of appointment, which

sounds logical and rational, because the political system based on the parliamentary spirit is yet to develop in our country. But in the Act, nothing is mentioned regarding the role of the opposition parties in molding the recommendations to be sent to the President. In such a situation, the Ombudsman would certainly be recommended by the ruling party, which, in the long run ruin the independence, accountability and impartiality of the institution. Therefore, in the context of Bangladesh polities Ombudsman should be appointed by the President on the consensus of all parties in parliament to ensure acceptability of the Ombudsman to all.

Ombudsman Prospect

There is a considerable difference in the functioning of such an official in a small country as

compared with a large one, for obvious reasons.

First, there is a possibility for the Ombudsman to receive a volume of complaints from the citizens because of our large population.

Second, Ombudsman’s function can be obstacled also by the accused organizations, agencies or persons in some technical ground as Ombudsman has some restrictions of his investigation.

Third, bureaucracy exists here, as one of the vital forces of governmental policy making process. They have better cohesiveness and maturity than any other groups participating in administrative policy making process. As Ombudsman will go against their interest they may resist it establishment and effective ness (Islam, 1996: 48).

15. Here the ways of how ombudsman can be appointed have been expressed.

16.The possibilities and difficulties of establishing an office of ombudsman has been described.

Conclusions

In the context of Bangladesh politics and attitude of the government towards political opposition Ombudsman is better to be appointment by the parliament on the consensus of all political parties in the parliament to ensure impartiality and objectively in his investigations. His area of jurisdiction should extend over the judiciary too in matters of legality of the decision. From the above discussion it is clear that the establishment of an Ombudsman in Bangladesh will undoubtedly go a long way in helping to establish a real democratic social order and polity based on parliamentary system of government for the well being of the people at large.

17. The necessity of the establishment of an office of Ombudsman in Bangladesh is very important and essential.