Daily Star Home  

<%-- Page Title--%> Law Campaign <%-- End Page Title--%>

  <%-- Page Title--%> Issue No 133 <%-- End Page Title--%>  

March 21, 2004

  <%-- Page Title--%> <%-- Navigation Bar--%>
<%-- Navigation Bar--%>

What functions do they carry out?

Barrister Harun ur Rashid

The institution of Ombudsman is one of the important pillars of government's accountability to people. The functions of Ombudsman are to rectify the misuse or abuse of executive power of government through impartial and thorough investigations into governmental activities against its citizens.

There is a demand from the civil society in Bangladesh that the office of Ombudsman to be created so that complaints against unlawful excesses of administrative power against any citizen are fully investigated and redressed.

Origin of Ombudsman
Let me first begin with the origin of the term "Ombudsman" and what does it mean?
The term "Ombudsman" derives from the Swedish word "Omboodz-man" which means "a grievance man or person" or in the words of Oxford Dictionary " people's defender".

The office of Ombudsman was first incorporated in the Swedish Constitution of 1809 and was originally established as an offshoot of Parliament to check on improper Government influence over civil servants but gradually it became an investigator of "citizen's complaints".

Since the 60s, we have seen a dramatic growth of the institution of Ombudsman all over the world (British Government introduced it in 1967). Its gradual spread throughout the Western world led to its application even in Russia and in Eastern Europe (Poland).

Bangladesh Constitution
The 1972 Bangladesh Constitution contains many productive and inspiring provisions to establish rule of law in the country. One of them is the setting up of the office of Ombudsman. Article 77 of the Constitution stipulates that "Parliament may, by law, provide for the establishment of the office of Ombudsman".

The Article further states that 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.

The powers and functions of Ombudsman are to be incorporated by a law. This means that Ombudsman acts under a law and functions may be either restricted or extensive as Parliament decides However, parliament cannot take away Ombudsman's core function to investigate any action taken by administrative agencies of the government enumerated by the Constitution.

Although the office of Ombudsman is a necessary adjunct to good governance and accountability, some how or other, during the last 32 years, the setting up of such constitutional office has escaped the attention of successive governments.

I shall first briefly discuss the role and functions of Ombudsman and thereafter the meaning of term of "natural justice", the denial of which ordinarily constitutes the basis of most of complaints by our citizens to the Ombudsman.

Functions of Ombudsman
We must bear in mind that Office of Ombudsman is not a judicial office. Ombudsman's office is a constitutional office that is concerned with the fairness of administrative decisions and the means/procedures adopted to reach those decisions for good governance. It cannot change or alter decisions of authorities but recommends to authorities procedures to act upon for natural justice.

The establishment of an office of Ombudsman is (a) to ensure that the Ministries, Departments and the statutory authorities are responsive, adaptive and sensitive to the needs of citizens and (b) to investigate the complaints against the decisions or orders of the administration. The role of the Ombudsman is pivotal in providing redress to individual complaints. It is a part and parcel of good governance.

Broadly Ombudsman's duty is to defend rights of ordinary people in dispute with governmental agency or public authority. This includes investigation of a complaint relating to administrative actions and try to resolve it by conciliating between the complainant and the agency of the government. The complaint may be made to the office of Ombudsman orally or in writing. The Ombudsman in most of the cases makes preliminary inquires to first decide whether the complaint is worth of investigating and if it has a prima facie case against an agency of the government, it proceeds ahead to inquire the complaint. Furthermore Ombudsman may suomoto investigate any administrative action, that has been reported in media of a matter of official abuse or misuse

If the Ombudsman is not satisfied with the response of the agency of its recommendations, it is reported both to the Prime Minister and Parliament. Ombudsman may also report particular concerns regarding public administration to Parliament and formally submits an annual report of its activities to it.

Ombudsman brings benefits to authorities
In the context of Bangladesh administrative machinery, complaints made against a Ministry/Department or an authority should not be considered as negative aspects of its administration. It should be deemed as good feed-back of its quality of delivery of service by the authorities , namely, Gas /Power Board /WASA/City Corporation etc.

The Ministries/Departments and agencies can learn a lot about the quality of their service by listening to the complainants. It is desirable that government authorities should set up an effective internal complaint- handling system to improve the quality of service-delivery and to ensure fairness to all citizens. In fact Ombudsman raises standards in public administration and accountability across the board.

I would argue that Ombudsman shall be able to decide as to whether actions of government authorities are unlawful, wrong, unjust, or discriminatory. As a result, the quality of public administration will be improved and accountable which is an integral part of good governance.

As earlier stated, Ombudsman cannot change a decision of any authority but can make recommendations to rectify the wrong decision or order. This is often viewed as unsatisfactory by the public from time to time as the Ombudsman seems to be a "paper tiger".

However, an Ombudsman's services provide a very positive message to the public as an inexpensive means of examining grievances. The accountability of the government or statutory authorities is put to the test through this mechanism of Ombudsman. The principal value is the deterrent one- that by having someone with a clear investigative power and a commitment to the public, Ministries and statutory authorities will make every effort to ensure that a decision is lawful, non-discriminatory and fair and made without any extraneous considerations.

Principle of Natural Justice
Ombudsman is to ensure that principles of nature justice are scrupulously adhered to. Most of the people whose rights and interests are adversely affected are familiar with the term "natural justice". Both Plato and Aristotle define natural justice as the virtue which gives every one his/her due. From this point of view, natural justice becomes the master virtue and includes other virtues.

Despite having been given a wider meaning by our society at large, principle of natural justice has a specific legal meaning in the context of government decision-making. The principle of natural justice contains following three main elements.

so-called bias rule: precludes bias, favouritism or prejudgment in arriving at a decision affecting a person.
hearing rule : entitles a person to be told of the allegations and to have his or her reply heard before a government agency makes a decision that affects adversely that person.

fairness rule: what is "fair" depends on particular circumstances. Generally, it will involve consideration of main factors which has influenced the decision affecting an individual.

The duty to observe the three above principles is widely accepted to be at the heart of decision-making. It is a legal obligation founded on the plainest principles of justice which continues to bind the decision makers.

Breach of the right of opportunity of being heard is found to be most common in the investigations of Ombudsman. Breaches usually arise when a government agency is making a decision against a person but fails to provide the person an opportunity of being heard on allegations against that person. After giving the opportunity to the person concerned, an agency could come to a decision.

Concluding remarks
The creation of the office of Ombudsman in conjunction with the strict compliance of rules of natural justice by authorities will underpin the edifice of good governance. The office will have a significant impact in the elimination of corruption, nepotism and bias in the public administration.

Barrister Harun ur Rashid is a former Bangladesh Ambassador to the UN in Geneva


      (C) Copyright The Daily Star. The Daily Star Internet Edition, is joiblished by the Daily Star