Revisiting the Ombudsman Act of 1980
LAW and Parliamentary Affairs Minister Shafiq Ahmed recently disclosed to The Daily Star that that the government was looking for a competent person to be appointed as ombudsman within a reasonable time. He has also ruled out the possibility of any amendment(s) to the Act enacted in 1980 to meet the requirements of the changed circumstances.
Article 77 of the Constitution provides for the establishment of the office of the Ombudsman by a law of the Parliament, and he shall exercise such powers and perform such functions as enshrined in the law, including the power to investigate any action taken by a ministry, a public office or a statutory public authority.
The Ombudsman Act enacted pursuant to the above quoted Article of the Constitution has elaborated the functions, responsibilities and powers of the ombudsman, which include, inter alia:
The ombudsman will investigate any action taken by a ministry, a public office or a statutory public authority when he receives a complaint regarding that action from any person who claims that injustice has been caused to him through that action and such action has resulted in favour being unduly shown to any person or in accrual of undue personal benefit or gain to any person.
If after investigation it appears to the ombudsman that injustice has been caused to the complainant or to any person in consequence of maladministration in connection with such action, he shall recommend to the competent authority to remedy the injustice in specified manner and within specified time. The competent authority will report compliance within the specified time.
The ombudsman may ask any ministry, public office or public statutory authority to take legal, departmental disciplinary action against a public officer found guilty, and if he is not satisfied with the action taken by the competent authority, he may prepare a report on the case and send it to the president.
If, during any investigation, the ombudsman finds any defect in any law, he may report such defect to the government and recommend such reform of the law as, in his opinion, will remove such defect.
For investigating a complaint against any ministry, public office, statutory public body or public officer, the ombudsman may summon and interrogate any person after administering oath.
The ombudsman is empowered to punish any person who, without lawful excuse, obstructs him in the performance of his functions with simple imprisonment that may extend up to three months, or with fine, which may extend Tk.2,000, or with both.
The ombudsman shall prepare a report concerning the discharge of his functions and such report shall be laid before parliament.
None of the previous governments (BNP, Jatiyo Party, AL) moved to make the office of the ombudsman functional. The immediate past BNP government reportedly wanted to bring some amendments to the Act before appointing the ombudsman. But nothing happened.
The critics of the Act say that only the actions of public officers can be investigated by the ombudsman. The Act does not seem to include certain more important functionaries such as ministers, MPs, etc. within the ambit of "public officers." The Act was enacted when the country had a presidential form of government and the ministers were responsible to the president, and not the Parliament.
In the prevailing parliamentary system of government, the ministers play the most vital role in shaping and implementing administrative policies. They are also ultimately responsible to the Parliament for all actions of their ministries, departments, corporations, etc. As such, their actions, decisions, etc. should be subject to investigation by the ombudsman.
So is the case with the MPs, who are increasingly being associated with the decision-making, development work, implementation of various projects, etc., particularly at the rural local government bodies. As such, their actions, decisions, etc. should also be subject to investigation by the ombudsman.
The critics further point out that another important deficiency in the Act appears to be that only "action" can be investigated. Acts of corruption, illegal acquisition of property, etc. by public functionaries are outside the jurisdiction of the ombudsman.
There are no two opinions about making the office of the ombudsman functional. But in the changed circumstances, that is, in a parliamentary system of government, it should be done by bringing the ministers, MPs and other public representatives within the jurisdiction of the ombudsman. We have waited for long thirty years for the implementation of the Act. We can wait for a few more days to get a more comprehensive law.