Keeping an eye on governance
A truly democratic government requires both politics and administration to be accountable to the electorate. Accountability cannot, however, be achieved in a vacuum; it cannot be achieved by chance. One of the institutional mechanisms to ensure administrative accountability is the office of the ombudsman. In recent times, the ombudsman has begun to develop more as a movement than as an institution in different parts of the world.
The government has decided to install the office of the ombudsman and is reportedly looking for an appropriate person for this post. Article 77 of the Bangladesh Constitution provides for the office of the ombudsman with autonomous powers to investigate actions of ministries, civil servants or officers of other statutory bodies. Article 77(2) and (3) specifies that the ombudsman shall exercise such powers and perform such functions as the 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 office of the ombudsman operates as a uni-functional and independent body to protect the rights of the citizens under the rule of law; it acts mainly to examine the substantive contents of the administrative decisions and dysfunctional procedures and the reasons for delay in decision-making within an agency, to redress citizens' grievances. Thus, the Ombudsman is known as "citizens' defender," "complaint commissioner" or as "independent critic of the administration."
Complaints of the aggrieved citizens are received through the members of the parliament and remedial measures are recommended by the office of the ombudsman. According to Gerard E. Caiden, the device is "the institutional public conscience -- the essence of what government ought to do." An ombudsman has no power to correct maladministration but it can criticise and publicise findings of the investigation.
If the government decides to install the office of the ombudsman, it may keep the following factors in mind to ensure its efficacy.
-Role definition The government has to clearly specify the goals and roles of other agencies engaged in promoting administrative accountability. If the ombudsman is instituted among the Anti-Corruption Commission, the judiciary, the Comptroller and Auditor-General, the Public Accounts Committee and the administrative tribunals, the functions of each agency have to be made transparent to the members of the public so that there is no confusion about the functional purview of each agency. Schedules should be framed to include the list of the agencies or departments over which ombudsman will have investigative jurisdiction.
-Personality factor: The success of the system depends largely upon the personality of the officer. In fact, the institutionalisation of the system will depend on the performance of the first ombudsman. Therefore, the selection of the first ombudsman is crucial as the government has to prove that it made a non-controversial choice, and placed athe right person in the right place. As Gellhorn puts it: "A gentle war against bureaucratic sin can be won, of course, only when the warrior's own integrity and objectivity are beyond doubt."
Theoretically, the incumbent should have tolerance and the power of persuasion, and be unafraid of criticism. The ombudsman should be a consensual person with a sense of diplomacy; he or she should have sound legal knowledge and administrative capability. He or she should be a person with integrity of character, non-partisan outlook, sharp sense of the economy, people orientation, communication skills.
-Political non-interference: The office of the Ombudsman is independent of the government in form and function; it is also independent of the Parliament. Thus, unwarranted interference from the party persons, interest groups, members of the parliament or other quarters will not merely weaken but also nip the institution in the bud. Thus, laws should be framed to keep the office immune from undue external interference.
-Responsible citizenry: Without a responsible citizenry, the office cannot operate properly. Civil servants as well as elected public representatives must be shielded from unfounded accusations of irresponsible members of the public or the civil society. Bombarding the office with concocted complaints is a serious hindrance. Even in the developed societies, false or anonymous complaints are sent to the office of the ombudsman. "Americans are notorious complainers," remarks Sandler. About the British, an English writer confesses: "Complaining is a very old British art." Sweden and Finland receive 1000 to 1800 complaints annually, and at least one-fifth of them are found to be unmeritorious. In France, from 3000 to 4000 complaints are received by the mediator through senators and deputies every year, and more than half of these are found to be groundless.
If this occurs in the developed world, what may happen in Bangladesh is a question to ponder over. Experience indicates that, in our country, at least 80% of the complaints received from the members of the public are ill-founded. Unless citizens who tend to lodge fabricated complaints are held accountable, it will be difficult to institutionalise the office of the ombudsman. Thus, there should be adequate legal provisions to penalise those who submit false complaints with the office.
-Efficient personnel system: The office of the ombudsman forms a small bureaucracy within a big bureaucracy, like a "play within the play." If this small bureaucracy is not efficient, it will naturally have a negative impact on the big bureaucracy. Thus, a balanced mix of civil servants and lawyers is required to discharge the functions of the office. Skill to adjudicate complaints promptly, courteously, and efficaciously is a basic professional requirement for managing the office.
The office of the Ombudsman, to serve today's complex national government and 150 million people, may require at least 100 to 150 employees to receive and process the complaints of the genuinely aggrieved citizens. Cases of corruption cannot be handled properly by those who themselves are corrupt. If it so happens, the office will in no time lose its institutional credibility, and when credibility is lost, it will simply assume the status of an institutional parasite. Therefore, the office should be staffed with persons with a reputation for integrity and competency.
-Democratic culture: Unrestricted flow of, and access to, all relevant information is an essential factor. Full and accurate information is necessary to ensure justice to the aggrieved persons. Relevant agencies should be duty-bound to furnish information and evidentiary documents required by the office of the Ombudsman.
A responsible free press can make the public conscious and keep the government away from party pressures. Wide publicity in newspapers/journals is necessary to raise public awareness about the importance, objectives and modalities of the office. Public discussions may also be generated in the form of periodic seminars to reinforce education of the public, as the government has been doing.
Unless the actions of the ombudsman are rational, and unless it is staffed by qualified people, it is likely to have an adverse impact on the Civil Service system. It has to be kept in mind that the ombudsman is a supplement to and not a substitute for the judicial process. Let us not succumb to "ombudsmania" all of a sudden, but experiment with the concept slowly and judge how much it suits our purpose. Let us also not forget Prof. Gellhorn's remark that the ombudsman succeeds best where it is needed least.
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