Ombudsman
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