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Ombudsman for Bangladesh: Theory and RealityMd. Awal Hossain Mollaha; Md. Nizam Uddina

a Department of Public Administration, University of Rajshahi, Bangladesh

Online publication date: 29 November 2004

To cite this Article Mollah, Md. Awal Hossain and Uddin, Md. Nizam(2004) 'Ombudsman for Bangladesh: Theory andReality', International Journal of Public Administration, 27: 11, 979 — 1002To link to this Article: DOI: 10.1081/PAD-200037365URL: http://dx.doi.org/10.1081/PAD-200037365

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INTERNATIONAL JOURNAL OF PUBLIC ADMINISTRATION

Vol. 27, Nos. 11 & 12, pp. 979–1002, 2004

Ombudsman for Bangladesh:

Theory and Reality

Md. Awal Hossain Mollah* and Md. Nizam Uddin

Department of Public Administration,

University of Rajshahi, Bangladesh

ABSTRACT

Although the term ‘‘Ombudsman’’ is a relatively unfamiliar term in

Bangladesh in general, it is widely used and is a practiced technique

of ensuring administrative accountability and transparency in

western developed countries. The offices of Ombudsmen, as currently

found in an increasing number of countries, are institutions of

government design to meet the perceived needs as to both out come

and process. Their objectives are to secure fairness, integrity,

accountability and efficiency in public affairs, by methods conductive

to promoting confidence in all institutions of the state. In reality

the Ombudsman’s office is seen as an institution, which has been

established in regional jurisdictions in order to promote high

standards of public administration and management, and to protect

*Correspondence: Md. Awal Hossain Mollah, Lecturer, Department of Public

Administration, University of Rajshahi, Rajshahi-6205, Bangladesh; E-mail:

[email protected].

979

DOI: 10.1081/LPAD-200037365 0190-0692 (Print); 1532-4265 (Online)

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the right of citizens in their dealing with government. In this article,

an attempt is made to analyze the role of the ‘‘Ombudsman’’ concept

and why it is needed and how it can be institutionalized in

Bangladesh. In doing so, the article has been divided into two

parts. Part I discusses the conceptual framework of the Ombudsman

while part II throws light on the prospects and problems of this

concept in Bangladesh as attempts are being made to establish the

office of the Ombudsman.

Key Words: Accountability; Bangladesh; Legislature; Ombudsman;

Parliamentary Commissioner for Administration (PCA).

INTRODUCTION

In recent days the word ‘‘Ombudsman’’ has been pronounced muchmore in politico-administrative discussion. It is generally alleged that amajor problem throughout Bangladesh’s public sector is not only lack ofaccountability but also the nature of accountability. If the administratorsare vested with vast unfettered authority, there is a strong apprehensionthat they may become tyrannical. Hence, some sort of control over theadministration is essential for ensuring accountability. In Bangladesh, tomake the administrators accountable and to minimize mal-administra-tion, inefficiency, arrogance, and abuse of power which are built into thesystem of our administration, some internal controls based on hierarchywhich include time limits for disposal of files, inspection, supervision,production of an Annual Confidential Report (ACR), and civil serviceconduct rules among others also, external controls such as parliamentarycontrol, the role of the judiciary, the press and the citizens or pressuregroup mechanisms already exist within the system and society. But theprevailing administrative process and internal mechanisms of controlover administrative malpractices are not so effective because, for example‘‘time limits for the disposal of files are not usually complied with;supervision has been weak in many cases and nonexistent in others;inspections are conducted casually and at irregular intervals and theACR is largely subjective and therefore, is not of much use.’’[1] On theother hand, in law courts litigation is expensive, tension creating, andprotracted. Administrative Courts follow Court-like procedures.Executive complaints handling agencies lack the essential characteristicsof independence. The standing committees of Parliament have not so farbeen very effective due to political differences among the major politicalparties. Therefore, an urgent need at present is to evolve an adequate

980 Mollah and Uddin


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and effective mechanism for controlling the administration in exercisingits powers, safeguarding individual rights and creating procedures forredress of individual grievances against the administration. Thecircumstances call for an external agency outside the administrativehierarchy, to detect and check administrative lapses and faults and tosupervise the administration so that the rights of the individuals are notunduly jeopardized.[2] And, the office of Ombudsman can be such anexternal agency to review and address red tape, arbitrariness, bias,corruption, and so on, which in many ways, undermine human dignityand human rights.

PART I: CONCEPTUAL FRAMEWORK

Define Ombudsman

The term Ombudsman was derived from the Germanic languageand has its roots in the early days of Germanic tribes. The person whowas chosen from a neutral group to collect blood money (Wergild) onbehalf of the wrongdoer was called Ombudsman.[3] But the modernoffice of Ombudsman was first conceived in Sweden by the SwedishConstitution Act 1an 09, first conceived the modern office ofOmbudsman in Sweden, over 193 years ago. It has an even earlierprototype, the King’s Chancellor of Justice, which extends far backinto Swedish history.[4] Today, however, those persons having authorityto inquire into and pronounce upon the grievances of citizens againstpublic authority, carry the title ‘‘Ombudsman.’’ The Swedish word‘‘ombuds’’ means ‘‘officer’’ or ‘‘spokesman’’ or ‘‘representative.’’[5] It alsoconnotes ‘‘attorney, solicitor, deputy, proxy, delegate and representativeagent.’’

Many scholars defined ‘‘Ombudsman’’ from different perspectives.Now, bellow follow some important definitions presented by famouswriters and scholars. According to Davis, Ombudsman ‘‘—occupies aposition of high prestige in the Government and his job is to handlecomplaints from any citizen who is displeased with the action orin-action of any administration or civil servant.’’ (Rowat, 1968, p.135)[4] Justice report defined Ombudsman as ‘‘an officer of parliament tobe appointed who has as his primary function the duty of acting, as anagent for parliament for the purpose of safeguarding citizens againstabuse or misuse of administrative power by the executives.’’[7] Accordingto Bernard Frank, ‘‘Ombudsman means an office established by

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constitution or statute headed by an independent, high level public officialwho is responsible to the legislature, who receives complaints fromaggrieved persons against government agencies, officials and employees orwho acts on his own motion, and has power to investigate, recommendcorrective action and issue reports.’’[8] According to the OxfordDictionary an ‘‘Ombudsman is an official appointed by a governmentto investigate and report on complains made by citizens against publicauthorities.’’ Professor Rowat in his book, ‘‘The Ombudsman: Citizen’sDefender’’ wrote that, an ‘‘Ombudsman is an independent and politicallyneutral officer of the legislature who receives and investigates complaintsfrom the public against administrative action and who has the power tocriticize and publicize but not to reverse such action.’’[4] According toLoewenstein, an ‘‘Ombudsman is an independent official chosen byParliament to watch over the administrative services in whose practicesthe general public is interested.’’[9] Professor Cutchin defined Ombudsmanas, ‘‘a respected, a political individual outside the bureaucracy who isempowered to investigate citizens’ complaints about government servicesand recommend rectification. Usually he has the power to investigate,criticize, and publicize administrative actions, but can’t reverse them.’’[10]

According to Professor Garner, an ‘‘Ombudsman is an officer ofparliament, having as his primary function, the duty of acting as anagent for parliament, for the purpose of safeguarding citizens againstabuse or misuse of administrative power by the executive.’’ (Garner, 1989,p. 90)[11]

Reviewing the above-mentioned definitions, it can be ascertainedthat an Ombudsman is an independent and nonpartisan officer of thelegislature, provided for by law, who is an experienced person havingauthority to inquire into and pronounce upon grievances of citizensagainst public authorities.

FEATURES

The Ombudsman is:

(i) Independent of government.(ii) Responsible for making sure that administrative practices and

services of public bodies are fair, reasonable, appropriate andequitable.

(iii) An officer of the provincial legislature.(iv) Able to conduct confidential investigations that are non-

threatening and protect complainants against retribution.



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(v) Required to file an annual report with the legislative Assembly.

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

1. Independent.2. Impartial.3. Expert in government.4. Universally accessible.5. Empowered only to recommend and to publicize.

In 1962, a seminar was arranged by the United Nations Organization(UNO) on judicial and other remedies, suggested some features of theoffice of Ombudsman as follows:

1. It is not only an instrument of parliament for supervisingadministrative action, but also a protector of individual rights.

2. Investigations conducted by it are completely impartial andindependent of the administrators.

3. Investigation can be started by the Ombudsman at his owninitiative, 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 a given case.[12]

Besides the features pointed out by the seminar, we can also findsome other unique features of the office of Ombudsman in differentcountries of the contemporary world such as:

1. Any citizen can bring complaints before the Ombudsmanwithout the counseling of lawyers. In Sweden, even prisonershave the right to send complaints to the Ombudsman throughrespective authorities.

2. Citizens can send their complaints to the Ombudsman in writing.In Finland, these complaints can be presented in the presence ofthe Ombudsman. But, in France the scenario is somewhatdifferent. ‘‘A French person with a complaint cannot go directlyto the mediateur. Instead he or she must communicate with amember of parliament, who will decide whether the complaint hassufficient merit to be passed on for action by the mediateur.[13]

3. The Ombudsman can delegate his/her power of inquiry to thedeputy but cannot delegate his/her power of decision-making.



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4. The Ombudsman has considerable discretion as to how far hetakes a case against an official.

5. In Sweden, the Ombudsman has the right to examine anydocuments, question any person and demand and assistancefrom the accused offices or persons. ‘‘The Danish Ombudsmanis responsible for investigating any complaint against publicofficials concerning abuse of power, negligence or abuse oftrust. He can inspect all state administrations, and enter allstate establishments. He has access to all minutes and officialdocuments.[14] The power of inquiry of the Finish Ombudsmanis similar to that of the Swedish Ombudsman.

6. The scope of work of the Ombudsman varies from country tocountry. The Swedish Ombudsman has the power to oversee thecourts and civil servants. But in Denmark ‘‘. . . . . a compromisewas reached over the Ombudsman’s powers. The whole of thecentral administration and the parts of provincial administra-tion under government direction were included, but judicial andmunicipal affairs were excluded. Religious questions were alsoexcluded. . . . .’’[14]

7. Counter balancing his vast jurisdiction is the fact that hispower is solely recommendatory. He may suggest changes ingovernment action but may not command them.[15]

8. In France, instead of going directly to the ‘‘Mediateur de LaRepublique’’ (Ombudsman), a person with a complaint willhave to communicate with a Member of Parliament, who willdecide whether the complaint has sufficient merit to be passedon for action by the mediateur.

9. An Ombudsman, though he/she has enormous prestige, powerand responsibility has no legal powers, except to inquire. Hecan advise the people but, he cannot control the courts or theadministration.

10. In Sweden, the Ombudsman does not have the right toexpress his opinion about the decisions taken by courts oragencies.

11. Another feature of the Ombudsman’s office is that peoplecan have justice at less financial cost. Formal hearings arearranged in the office and for the most part, the Ombudsmancommunicates through the postal service.

12. Finally, the Ombudsman is an outsider with-in the administra-tion. Because since he/she is appointed by the legislature. TheOmbudsman presents his/her annual functional reports tothe legislature.



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ORIGINS OF THE OFFICE OF OMBUDSMAN

The office of Ombudsman was created first in 1809 when Swedenadopted its new Constitution. The office came to be known as theOmbudsman of the parliament or parliamentary Ombudsman. In 1915,the office of the military Ombudsman was created in regard to defenseand military administration. In 1968, these two types of Ombudsmanwere amalgamated and now there are four parliamentary Ombudsmen inSweden. One of them is the chief parliamentary Ombudsman. Besidesthese parliamentary Ombudsmen, there are some nonparliamentaryOmbudsmen in Sweden such as the Equal opportunities Ombudsman,The Children’s Ombudsman, The Press Ombudsman, The Ombudsmanagainst Ethnic Discrimination, The Consumer Ombudsman, and so on.Following in the foot steps of Sweden, the institution of Ombudsman wasadopted in other countries such as Finland in 1919, Denmark in 1955,New Zealand in 1961, and Norway in 1963. A similar office styled asParliamentary Commissioner was created in The United Kingdom in1967 by the Parliamentary Commission Act, 1967, Australia created theoffice in 1973. So far, there are 46 countries who have a ParliamentaryOmbudsman. Among our neighboring countries, Pakistan has success-fully adopted this institution. In India, Ombudsmen are known as Lokpaland Lokayakta. In Srilanka, there is one Ombudsman known as theParliamentary Commissioner for Administration, which was introducedin 1981 (Table 1).

Table 1. Introduction of the ombudsman system to various countries.

Developed

countries

Year of

establishment

Developing

countries

Year of

establishment

Sweden 1809 Tanzania 1966

Finland 1919 Guyana 1967

Denmark 1955 Mauritius 1970

Norway 1962 India 1971

New-Zealand 1962 Srilanka 1971

Canada 1967 Fiji 1972

UK 1967 Zambia 1973

USA 1967 Nigeria 1975

Australia 1971 Nepal 1990

France 1973

Source: Ref.[16]



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RATIONALE FOR THE OMBUDSMAN SYSTEM

In modern times, governments in both developed and developingcountries have assumed a multitude functions and roles in the field of thesocio-economic welfare of the citizens. The scope and dimension of theactivities of the government and those of the powers and the authorities ofthe officials and public agencies, have thus expanded enormously.As a result,the government has become complicated and forceful in modern times.[17]

In modern times, it has also been felt that the existing machinery foradjusting and redressing the grievances of individuals increasingly tends tobe inadequate. The court has traditionally played a very important role incorrecting abuse by administration, but a number of problems areassociated with the role of the judiciary. Without the Ombudsman system,informal investigation cannot be conducted by the regular or ordinarycourts. Legislation is expensive, time-consuming, protracted, slow, and avery complicated and cumbersome process. The judicial process is alsohighly impersonal and formal. On the contrary, the process of theOmbudsman’s investigation is very informal and flexible and it has anelement of personal touch and concern. Furthermore, as the complainantis required to pay a very nominal or no fee/deposit, the Ombudsmanprovides a much cheaper justice than the regular system can offer.[17]

Bernard Frank, a Pennsylvanian lawyer and chairman, OmbudsmanCommittee, International Bar Association, conducted extensive researchon the Ombudsman system. According to him, the reasons for theadoption of the system are:

1. The Ombudsman, as an independent arm of the legislature body,assists the legislature in its function of maintaining the activitiesof government agencies and officials.

2. The Ombudsman system has, as its basic purpose, the protectionof the human rights of the citizens.

3. The existing mechanisms for adjusting grievances in modernsystems are inadequate. In law courts litigation is expensive,tension creating, and protracted. Administrative courts followcourt-like procedures. Executive complaint handling agencieslack the essential characteristics of independence.

4. The Ombudsman provides citizens with an expert and impartialagent who acts informally, without delay, without requirementof counsel and recommends corrective action.

5. The presence of the Ombudsman has psychological value. Thecitizens become confident as there is a watchdog and it serves asa deterrent to the bureaucracy.[16]



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CRITICISMS AGAINST THE OFFICE

OF THE OMBUDSMAN

1. The Ombudsman can work only in small countries. In a largepopulous country, the Ombudsman cannot handle complaintswithout an equally vast bureaucratic Organization.

2. The Ombudsman system creates a bureaucracy by itself, that is,it forms a small bureaucracy within a big bureaucracy and witheven more red tape.

3. The Ombudsman has no real powers and can recommend only.Government officials and agencies may or may not implementsuggestions, depending on their will.

4. The Ombudsman tends to create the illusion that all is well withthe governments.

5. The office is adaptable only to parliamentary countries. Thesystem interferes with the ministerial responsibility in parlia-ment.

6. The process followed by the office of the Ombudsman impedesefforts to strengthen existing institutions. The courts, adminis-trative tribunals are adequate and when required, reforms canbe made to make them respond.

7. The Ombudsman will not gain the support and assistance of thecivil servants.

8. The institution cannot be successfully transplanted fromScandinavian countries without some modifications to makeit sensitive to the needs of the country where wishes to borrowfrom the Scandinavian system.

9. The Ombudsman is a part of the government establish-ment and tends to sustain its actions. The Ombudsmanis a government technique used primarily to determinewhat is bothering the citizens without supplying an effectiveremedy.

10. The system relies a great deal on a single individual his/herpersonality, his/her judgment, his/her impartiality, and his/herindependence.

PART II: THE BANGLADESH PERSPECTIVE

Before discussing the Bangladesh perspective, we can sketch theGlobal perspective as Swedish and British Ombudsman.



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THE SWEDISH OMBUDSMAN

The growth of Swedish Ombudsman dates back to the 18th century.But before that another official known as Justitiekansler created in the17th century used to investigate offences in public administration andacted as the public prosecutor on behalf of the Crown. In 1713, a nowOffice named Hogste Ombudsmannen was created so that laws and theconstitution were followed and official duties properly performed. Thisoffice was renamed as Justitiekansler in 1719 and his competence wasextended to cover the operations of courts of appeal and the activities ofthe local Police Commissioner; examine police ordinances and regulationsand report to the Riksdag (Parliament). The 1809 constitution which is stillin force formally recognized this office and gave him certain independencewithin the structure of the Crown offices. The same constitution createdthe Justitieombudsman (JO), ‘‘an official elected by Parliament to controlthe activities of, and prevent abuses by, and in particular to prevent theCrown from exercising undue influence over the judiciary.’’[14]

According to the current instructions, the JO is to exercise generalsupervision over courts and civil servants to ensure observance of law andthe constitution. He has to investigate charges of illegality, negligence, orgross disregard of the interests of their service in the performance ofofficial duties. He can institute proceeding against officials in the courtson any of these grounds. He is to pay particular attention to thoseoffences which involve fraud or abuse of power or which impede thecourse of justice.

Any citizen can bring a complaint before the Ombudsman. Thecomplaint is simply to be sent in writing with any document or evidencein support of the complaint. A prisoner is entitled to forward hiscomplaint directly through the prison governor’s office in sealed envelop,and which is not subject to censorship.[14] The JO undertakes tours ofinspection throughout the country. On the basis of these inspections andcomplaints his office receives from the public, the JO makes an annualreport to the Riksdag.

The JO elected by the Riksdag for four years is a person of outstandingpersonal integrity. The age for appointment to the office tends to be in theearly forties. The JO is usually a lawyer, comes in particular from the rankof Corps de Elite of Swedish lawyers, Revisionsekreterare.[14]

From 1914 onwards a new thinking has emerged consequent uponthe army reforms of 1901 and 1914, which overburdened the office of JOwith military affairs. In 1915, the Riksdag felt worthwhile to enact a lawfor creating for Militieombudsman (MO) with jurisdiction in the militaryfield parallel to the JO’s in the civil field. The MO has a general



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responsibility for supervising the activities of judges and officialsemployed by the Defence Department. He is especially concerned withthe administration of military justice and other legal proceedings beforethe military courts.[14] It is always customary for the MO to have on hisstaff a military officer of the rank of colonel or Lieutenant Colonel aswell as at least one official from the judiciary. The MO has similar powersover the courts when dealing with military personnel. But the nonmilitarybusiness of the courts is outside his jurisdiction.

THE BRITISH OMBUDSMAN

An appreciation of the shortcomings of the traditional Parliamentarychannels of redress led ‘‘Justice’’ all party organizations of lawyers, toestablish a Committee in 1960 to consider alternative procedure. Thecommittee investigated the Scandinavian institutions of Ombudsman or‘‘Grievance man’’ and made a number of interesting and importantrecommendations. The recommendations of the committee here afterreferred to Justice Committee Report.

The Justice Committee reported that whilst it accepted thatParliament is and must remain the most important channel for makingrepresentations regarding complaints of maladministration against theexcessive, parliamentary procedure would be more effective if it weresupplemented by machinery which would enable such complaints to beinvestigated by an impartial authority.[14] The report therefore came tothe conclusion that an Ombudsman institution should be established inthat country. The Conservative Government under Harold Macmillan settheir face against it for the time being on the complaint that appointmentof a Parliamentary Commissioner would ‘‘seriously interfere with theprompt and efficient dispatch of public business.’’[19] He believed thatthere was already adequate provision for the redress of any genuinecomplaint of maladministration in particular by means of the citizen’sright of access to MPs.[19] A year after the labor government came tooffice and a white paper was issued, a Bill to establish the office waspublished in February 1966. The measure finally became a law in March1967, after a good deal of amendment in the course of the debates, andthe Parliamentary Commission for Administration and his staff officiallybegan working on 1st April 1967. Subsequently, the ‘‘Ombudsmanremedy’’ has been extended in Great Britain by the establishment ofCommissioners for local government and for health service, andNorthern Ireland has its own Ombudsman for central and localgovernment.[19] In the following section of the paper the Parliamentary



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Commissioner for Administration (PCA) and Commissioner of LocalGovernment will be discussed.

Appointment and Tenure of PCA: The PCA is appointed by theCrown on the advice of the government in consultation with thechairman of the House of Common’s select Committee on the PCA. Histenure in the office is secure unless he resigns before the age of 65. TheAct of 1967 affords the PCA a protected status similar to that of thesuperior judges. However, he is removable on the advice of both Housesof Parliament. Initially senior civil servants were considered to be suitablefor appointment to the post for having adequate knowledge to investigateand adjudge allegations of maladministration and their general accept-ability to civil servants.

Access to Information: Unlike the Swedish Ombudsman and otheroverseas Ombudsmen, the PCA is not entitled to act on complaintreceived direct from the public. A complaint must be directed to himthrough a member of Parliament. Members are intended to act as a‘‘filter’’ passing on only those complaints which they consider necessaryto bring to the notice of PCA. The complaints sent without reference ofMP are returned to the complainants with the comment to follow properprocedure.[20]

Jurisdiction of PCA: The jurisdiction of the PCA is clearly defined inthe Ombudsman Act of 1967. Only specified government departmentsand other bodies may be investigated. Complaints should be lodged inwriting by a person who claims to have sustained injustice in consequenceof maladministration. Maladministration here refers to such evils as bias,turpitude, neglect, inattention, delay, incompetence, ineptitude, perver-sity, arbitrariness and so on. The power of the Ombudsman has beenreformulated in 1977 to cover any unreasonableness, unjust or oppressiveact, on the basis of recommendations of Justice Report.

Investigation Procedure: If the PCA is satisfied that the complaintslodged with his office deserve investigation, he can delegate the task to anofficer within his department. In particularly important cases the PCAmany conduct investigation himself. Initially he used to obtain legaladvice from the Treasury Solicitor. But since 1778 this practice has beendiscontinued. Now he goes to private lawyers outside the government orservice if it is considered necessary.

COMMISSIONERS FOR LOCAL ADMINISTRATION

By early 1970, the Ombudsman had become a commendableinstitution and accepted feature of the British Constitution. Lawyers



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and politicians turned their eyes to the possible extension of this devicebeyond central government. The recommendation for establishing anumber of commissioners for Local Administration in Justice Report,1962 gained ground following local government reorganization Act 1974.Part III of the Local Government Act established two new institutions—the commissioner for Local Administration for England and Wales.

The function of the Commissioner is to investigate complaints ofinjustice suffered as a consequence of maladministration in connectionwith the exercise of administrative functions performed by localauthorities, police authorities, water authorities, and joint boards oflocal authorities.[20]

Before beginning to investigate a complaint, the Commissioner mustbe satisfied that the authority in question has had a reasonableopportunity to examine the complaint. In the process of investigation aCommissioner has the right of access to all documents in the possessionof authority. If investigation shows that injustice has been caused as aconsequence of maladministration, the report must be considered bythe Commissioner as to the action it has taken, or proposes to take. Ifthe Commissioner is not satisfied with the reply he has received, hemay further investigate the matter and issue second report. There ishowever on compulsory power to insist on compliance with hisrecommendations. The Commission has stated that it will not issueThird Report. The following matters are excluded from the jurisdictionof the Commissioner:

(i) Matters listed in Schedule 5 to the Act—such items as theinvestigation of crime, discipline in schools, the placing ofcontracts and matters relating to pay and conditions of serviceof local government officers.

(ii) Matters in respect of which the complainant has right ofrecourse to a Tribunal, a Minister, or a court; unless theCommissioner considers it unreasonable that the complainantshould be restricted to a such remedy.

(iii) Any matter in which all, or most of, the inhabitants of anauthority’s area are affected.[20]

Most authorities have shown themselves willing to accept criticismfrom the Commissioner, and afford any redress Act has been suggested.Initially some local authorities were reluctant to make monetarycompensation in fear that the payment might be disallowed as contraryto law. But such payments are now expressly authorized by LocalGovernment Act, 1978.[21]



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CONSTITUTIONAL PROVISION FOR THE OFFICE

OF OMBUDSMAN IN BANGLADESH

After the independence of Bangladesh, the framers of theConstitution adopted in 1972, the concept of Ombudsman or Naypal.[22] Article 77 of the Constitution provides:

(i) Parliament may, by law, provide for the establishment of anoffice of Ombudsman.

(ii) The Ombudsman shall exercise such powers and perform suchfunctions as parliament may by law, determine, including thepower to investigate any action taken by the ministry, a publicofficer or a statutory public authority.

(iii) The Ombudsman shall prepare an annual report concerningthe discharge of function and such report shall be laid beforeparliament.[23]

Being persuaded by the fact that an institution like the Ombudsmanwould be essential for safeguarding the interest and rights of the publicin Bangladesh from mal-administration or administrative excesses, thewriters of Bangladesh Constitution have made such provision for it in theConstitution. But up to 1980, no explicit endeavour was made toestablish the office of Ombudsman. In 1980, at the initiative taken by thethen government, the parliament passed the Ombudsman Act, providingfor the establishment of the office of Ombudsman.

OMBUDSMAN ACT’ 1980

The main characteristics of Ombudsman Act 1980 are:

(a) There shall be an Ombudsman who shall be appointed by thePresident on the recommendation of the parliament [Section-3(1)].

(b) Parliament shall recommend for appointment as Ombudsman,a person of known legal or administrative ability andconspicuous integrity [Section-3 (2)].

(c) It shall come into force on such date as the government may, bynotification in the official Gazette, appoint [Section-1 (2)].

(d) The Ombudsman shall, subject to this section, hold office for aterm of three years from the date on which he enters upon his



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office, and shall be eligible for reappointment for one furtherterm [Section-4 (1)].

(e) The Ombudsman shall not be removed from his office, exceptby an order of the President passed pursuant to a resolution ofparliament supported by a majority of not less than two thirdsof the total members of parliament on the ground of provedmisconduct or physical incapacity [Section-4 (1)].

(f) The Ombudsman may investigate action taken by a ministry, astatutory public authority, or a public officer in a case where acomplaint, in respect of such action, is made to him by a person[Section-5].

(g) The Ombudsman shall have the power to punish any personwho, without lawful excuse obstructs him in the performance ofhis functions with simple imprisonment, which may extend tothree months, or with fine which may extend to two thousandtaka, or with both [Section-12 (2)].

(h) The Ombudsman shall prepare an annual report concerning hisdischarge of functions and submit it to the President who shallcause it, together with an explanatory memorandum to be laidbefore Parliament [Section-9(6)].

In the following discussion, an attempt has been made to criticallyassess the various provisions of the Act and for success-full efficientfunctioning of the system, some proposals have also been put forward.

APPOINTMENT OF THE OMBUDSMAN

Theoretically there are three available modes of appointment of theOmbudsman 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 a third type ofappointment, which sounds logical and rational, because the politicalsystem based on the parliamentary spirit is yet to develop in our country.But in the Act, nothing is mentioned regarding the role of the oppositionparties in molding the recommendations to be sent to the President. Insuch a situation, the Ombudsman would certainly be recommended by



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the ruling party, which, in the long run ruin the independence,accountability and impartiality of the institution. Therefore, in thecontext of Bangladesh polities the Ombudsman should be appointed bythe President on the consensus of all parties in parliament to ensureacceptability of the Ombudsman to all.

QUALIFICATION OF THE OMBUDSMAN

As regards the qualifications of the Ombudsman, the Act only statesthat, ‘‘the Ombudsman shall be a person of known legal or administrativeability and conspicuous integrity.’’ But, a person with legal capabilitymay not have the requisite administrative ability and similarly a personwith administrative capability may not have the legal ability, which ismore essential for the post of Ombudsman.[24]

But only law is not enough. The Ombudsman also requiressubstantive experience and insight into public administration. Thus, theprovision regarding qualification requires a little modification. Anotherdefect with the Act of 1980 is that it is completely silent regarding theage of the Ombudsman, which is an integral aspect of its qualification.Besides, the term ‘‘conspicuous integrity’’ should be defined preciselywithin the Act.

TENURE OF THE OMBUDSMAN

According to the provision of the Act, ‘‘the Ombudsman shall holdoffice for a term of three years from the date on which he enters upon hisoffice and shall be eligible for reappointment for one further term.’’ Itseems that three years are not adequate to be efficient and successful inhandling the affairs, which will fall within his domain. It is thereforedesirable that the Ombudsman’s tenure of office should also be equal tothat of the President and parliament and be renewable for a further termdepending upon his performance of the previous term.

PRIVILEGES OF OMBUDSMAN

The remuneration, privileges and other conditions of service of theOmbudsman shall be the same as are admissible to a judge of theAppellate Division of the Supreme Court. The conditions of the serviceof a judge of the Appellate Division of the Supreme Court have been



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enumerated into the Constitution of the People’s Republic ofBangladesh.

FUNCTIONS OF THE OMBUDSMAN

Generally, an Ombudsman may receive complaints from threesources:

(i) Complaints sent to him by the members of the people (MPs).(ii) Complaints made to him by any person.(iii) The Ombudsman may, on the basis of the newspaper comment

or otherwise, proceed suomotu.[25]

Besides these, the Ombudsman can undertake periodic tours ofinspection in various regions of the country to see for himself the stateof affairs. The Act of 1980 is not very clear regarding the Ombudsman’sprocedure of work in Bangladesh. In a populous country likeBangladesh, whatever method may be used, there will be numerouscases to investigate. Thus, identifying a particular one or two is notdesirable. Because, one or two may have ‘‘in-built’’ shortcomings withthem.

The Ombudsman can also act as an agency to suggest administrativeand law reforms. He/She may assume the role of a legislative advisor.He/She may call the attention of the legislature to the desirability ofreconsidering any law he/she believes has produced unreasonable, unjust,oppressive, or discretionary result.[24]

JURISDICTION OF THE OMBUDSMAN

The Ombudsman Act 1980, narrows down the jurisdiction of theOmbudsman in Bangladesh by precluding the President, Prime Minister,Judges of the Supreme Court including High Court, Magistrates, theChairman and Members of the Public Service Commission, theComptroller and the Auditor General from his/her supervision. Butsince independence, the charges of corruption against the President,Prime Minister and Cabinet Ministers are higher than those of theadministrative officials. Therefore, for ensuring transparency of theadministration, everybody in the service of the Republic should be opento investigation by the Ombudsman in Bangladesh, irrespective of his/herstatus and position.



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REMOVAL OF THE OMBUDSMAN

The Ombudsman Act 1980, states that the Ombudsman shall not beremoved from his/her office except by an order of the President pursuantto a resolution of the Parliament supported by a majority of not less thentwo-thirds of the total number of members of the Parliament on theground of proved misconduct or psychological incapacity. Provided thatno such resolution shall be passed until the Ombudsman has been givenreasonable opportunity of being heard in person. He may resign his officeby writing in his/her hand a letter to that effect, addressed to the president.

ORGANIZATIONAL STRUCTURE OF THE

OFFICE OF OMBUDSMAN

The organizational structure of the office of the Ombudsman may bedetermined with reference to his/her functions and workload. But, it canbe predicted that in the land of 120 million people the workload is likelyto be enormous. Therefore, there should be a reasonable number ofpersonnel within the office of Ombudsman. Six divisional Ombudsmenmay also be appointed by the Ombudsman and his deputy with sufficientstaff under them to deal primarily with their respective divisionalcomplaints. They will make preliminary checks on the physical existenceof the complainant and the bonafide of the case for investigation andforward the complaint with their preliminary comments to theOmbudsman. However, the number of personnel required to carry outthe functions of the Ombudsman should not be too large.

At the initial stage, anorganizational framework containing 35person-nel has been recommended by Public Administration ReformCommission(PARC) for the Office of the Ombudsman, which is shown in Fig. 1.

SPECIALIZATION OF OMBUDSMAN

The Bangladesh Ombudsman Act 1980 is silent on its numbers andareas of specialization. Following the other countries, Bangladesh canadopt four types of Ombudsman according to the varied type of work(that is, specialization) they are called upon to perform.

(i) The Ombudsman (general) to investigate mal-administrationwith reference for president, Prime Minister, Cabinet Ministers,MPs, and central bureaucracy.



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(ii) The Ombudsman (local) to investigate complaints of mal-administration committed by local authorities, representatives,and officials.

(iii) The Ombudsman (military) to investigate discipline of militarypersonnel and officers employed by the ministry of defense.

(iv) The Ombudsman (judicial) to deal with the matters of legalityof the judicial divisions, without having power to influencecourt proceedings.[24]

Note: M LSS= Member of lower subordinate services.

Source: Public Administration for 21st Century, Report of the Public Administration Reform Commission (PARC) vol-2,June-2000.

Ombudsman

Director General

Manpower-71× Ombudsman 1× Private Secretary 1× Personal Officer1× Computer Operator1× Driver2× MLSS

Director ofInformation and

Complaints-2

Manpower-61× Director General 1× Personal Officer1× Computer Operator1× Driver2× MLSS

Director ofAdministration

Director ofInformation and

Complaints-1

Director ofEnquiry-1

Director ofEnquiry-2

Manpower-31×Director 1×Computer Operator1× MLSS




Manpower-10 1×Director 1× Administrative Officer2× Computer Operator1× Accountant 2× Telephone Operator1× Driver2× MLSS

Figure 1. Organizational structure of the Ombudsman office.



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ROLE DEFINITIONS

The government has to clearly specify the goals and roles of otheragencies, which are operating currently to promote administrativeaccountability. If the office of the Ombudsman is instituted in the officeslike the Bureau of Anti-corruption, the judiciary, office of theComptroller and Auditor General, the Public Accounts Committee andthe administrative tribunals, the functions of each agency have to bemade transparent to the members of the public so that there is noconfusion about the role of respective agencies. Schedules should beframed to include the list of the agencies or departments over which theOmbudsman will have investigative authority particularly, the relation-ship between the Ombudsman and the Bureau of Anti-corruptionshould be clearly clarified so that no confusion arises in the minds ofthe public.

EMPHASIS ON THE OMBUDSMAN AND

GOVERNMENT’S COMMITMENT

The necessity for the office of Ombudsman has been felt inBangladesh ever since its independence. Since Bangladesh is a countryemerging from the British colonial rule through the neo-colonialism ofPakistan, it inherited an asymmetrical political system where adminis-tration takes precedence over the popular representative institution, thelegislature. The premature death of Mohammad Ali Jinnah and LiaquatAli Khan in the early years of Pakistan’s independence caused a seriouspolitical vacuum, which was filled in by competent senior bureaucrats,particularly the Civil Service of Pakistan (CSPs), in the absence of strongconstructive political leadership. This new reliance on bureaucracy ratherthan politicians has developed in this country. Administration, since thenis used to exercising unfettered discretion in government and is allegedlyinvolved in wide-ranging corruption which is frequently the subject ofcomplain. In view of this situation, the authors of the BangladeshConstitution incorporated a provision for the office of Ombudsman forprotecting long cherished public rights against administrative excess. TheAwami League government of the day made no endeavor to honour thisprovition. The move in this regard was taken by President ZiaurRahman, in 1980. The Jatio Sangshad passed the relevant Act toconstitute the office of Ombudsman. But, with the assassination ofPresident Ziaur Rahman the initiative crumbled before it could becomeestablished.



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In the nine year autocratic rule of General Ershad, no attention wasgiven to the establishment of an Ombudsman’s office. However, with thereestablishment of democracy in the country, through mass movement in1990, and the general election under a neutral care-taker government in1991, the issue of appointing an Ombudsman has gained muchprominence and both government-sponsored and donor-sponsoredstudies called for the establishment of an Ombudsman’s office tomonitor the functioning of the executive agencies and to adjudicatedisputes and grievances. In view of the tremendous public demand for theoffice of the Ombudsman the last government (elected 1996) declared in1998, its commitment to establish the office as early as possible. But, sofar no concrete development has taken place to establish the office.

The following discussion will throw light on the initiatives taken sofar by the government for institutionalizing the office of Ombudsman.

(i) A five-member committee headed by the law secretary wasappointed to examine the legal aspects of the appointment ofan Ombudsman. In this regard, the committee has given thegreen light.[26]

(ii) The ministry of law submitted a financial proposal of Tk3,67,00,000 to the ministry of finance for establishing the officeof the Ombudsman.[27]

(iii) The ministry of Finance will keep provision for the money inthe ensuing budget of 1998/99. The above-mentioned amounthas been earmarked for the purposes of the office ofOmbudsman, and other relevant office expenditures includingstaff salary, transport allowances, and so on.

(iv) A proposal by the ministry of Law relating to the setting up ofan Ombudsman’s office and its organogram consisting of atotal of 127 employees, including 31 officers, has also beensubmitted to the ministry of Establishment and ministry ofFinance for approval.[28]

(v) The ministry of Law proposed that out of these 127 officers andemployees, there would be one Director General (equivalent tothe status of secretary to the government), one AdditionalDirector General (Additional Secretary), eight Directors (JointSecretary), eight Deputy Directors (Deputy Secretary) andeight Assistant Directors, including others. The monthlyremuneration of the Ombudsman has been fixed Tk. 21,000and Tk. 15,000 for house rent, Tk. 500 for medical facilities andTk. 450 for other purposes.[27] However, though theGovernment has decided to employ 127 employees, it was not



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clear whether they would be appointed by the Ombudsmanhimself as per the Ombudsman Act or by the Government.

In view of the tremendous public demand for the office ofOmbudsman, the Awami League government declared in 1998, itscommitment to establish the office as early as possible. At last, theBangladesh Nationalist Party (BNP) government (elected in 2001)established the office of Ombudsman as announced in the GovernmentGazette on 6th January 2002.

OMBUDSMAN—PROSPECTS

There is a considerable difference in the functioning of such anofficial in a small country as compared with a large one, for obviousreasons.

First, there is the a possibility of the Ombudsman receiving a volumeof complaints from the citizens because of Bangladesh’s large population.

Second, the Ombudsman’s function can also be hampered by theaccused organizations, agencies or persons on some technical ground asthe Ombudsman has some restrictions in terms of his investigation.

Third, bureaucracy exists here, as one of the vital forces of thegovernmental policy making process. They have better cohesiveness andmaturity than any other group participating in the administrative policymaking process. As the Ombudsman may go against their interest, theymay resist its establishment and hamper effectiveness.[22]

CONCLUSIONS

There exist tremendous amount of expectation among a cross sectionof people as regards the institution of Ombudsman. The popular belief isthat the institution would be able to provide the benefit of justice to thepoverty-stricken people who have been suffering due to abusive andoppressive administration but could not get access to the courts and otherlegal bodies for reasons of cost and inaccessibility. The successivegovernments have also made pledges to establish such an institution inthe country. So the Ombudsman, if appointed, will meet the expectationwhich, in fact, poses the most serious challenge to the institution inBangladesh. In the context of Bangladesh politics and the attitude of thegovernment towards political opposition, it would be more forparliament, on the consensus of all political parties in the parliament to



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appoint the Ombudsman, to ensure impartiality and objectively. His areaof jurisdiction should extend over the judiciary too, in matters regardingthe legality of the decision. From the above discussion, it is clear that theestablishment of an Ombudsman’s office in Bangladesh will undoubt-edly go a long way towards establishing a real democratic social orderand polity based on the parliamentary system of government for thewell-being of the people.

REFERENCES

1. Khan, M.M. Governance in Bangladesh. Journal of Administrationand Diplomacy 1995, 3 (1&2), 13.

2. Kabir, A.H.M. Protection and promotion of human rights and theirenforcement mechanisms in south Asia. BIISS Journal 1997, 18,160–192.

3. Chowdhury, G.A. Ombudsman: an instrument of human rights.The Daily Star 1996, April 22.

4. Rowat, R.C. The Ombudsman, Citizen’s Defender; George Allen andUnwin: London, 1968.

5. Wade, H.W.R. Administrative Law; Clarendon Press: Oxford, 1967;12.

6. Davis, K.K. Ombudsman in America: officers to criticize adminis-trative action. University of Pennsylvania Law Review 1961,1057–1076.

7. Justice Report. The Citizen and the Administration (Placed for theBritish Administrative reform, Generally Known as ‘‘WhyattReport’’), 1961.

8. Frank, B. The Ombudsman and Human rights (Revisited ); 1986.9. Loewenstein, K. Political Power and the Governmental Process;

The University of Chicago Press: Chicago, London, 1965.10. Cutchin, D.A. Guide to Public Administration 1981.11. Garner. Administrative Law, 7th Ed.; Butterworths: London, 1989.12. Seminar on Judicial and other Remedies. UN Technical Assistance

Operations. 1962; 12–17.13. Dragnich, A.N.; Rasmussen, J. Major European government. Home

Wood; The Dorsey Press: Illinois, 1982.14. Chapman, B. The Profession of Government; Unwin University

Books: London, 1959.15. Encyclopedia Britanica 1973, 16, 960.16. Jinnah, M.A; Ehsan, M. Ombudsman in Bangladesh: a review.

Social Science Review 1999, XVI (1).



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17. Gellhorn, W. Ombudsman and others; Harvard University Press:

Massachusetts, 1966.18. Abedin, N. The Ombudsman: an overview of relevance for the

developing countries. Asian Affairs 1992, 14 (1), 5–17.19. Cross, J.A. British Public Administration; London, 1970.20. Garnor, J.F.; Jones, B.L. Administrative Law; London, 1985.21. Obaidullah, A.T.M. Ombudsman for Bangladesh: a cause of new

hopes and concerns. Journal of the Asiatic Society of Bangladesh

1997, 42 (1), 39–55.22. Islam, K.N. Ombudsman: theory and practice—a discussion on

Bangladesh. Journal of Administration and Diplomacy 1996, 4 (1),

39–50.23. Constitution of the People’s Republic of Bangladesh; Government

Printing Press: Dhaka, 1991.24. Ahmed, A. Ombudsman for Bangladesh; Academic Publishers:

Dhaka, 1993.25. Halim, M.A. Constitution Constitutional Law and Politics:

Bangladesh Perspective; Dhaka, 1998.26. The Daily Independent (Bangladesh) 1997, 4 March.27. The Janakantha. A Vernacular Daily Newspaper 1998, 3 June.28. The Daily Independent (Bangladesh) 1998, 3 June.29. Ali, Quazi Azher. Decentralized Administration in Bangladesh;

University Press Limited (UPL): Dhaka, 1995.



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