The evil effect of deficient laws can be mitigated by good officials, but the evil effect of maladministration can’t be surmounted by good law. Administrative abuse of power is commonly seen in many countries where judicial remedy is not so effective. So there must be an effective institution enabled proper investigation of the citizens’ complaints against such abusive power for providing remedy and safeguarding the rights of citizen.
It is Sweden, for the first time in 1809 established an office of Ombudsman for safeguarding the rights of the citizens, though the Constitution of Sweden provides judicial remedy for the infringement of fundamental rights of citizens. An ombudsman is a legal representative appointed by the govt. to investigate the complaints of citizens against various governmental departments and other public bodies. Watching its effectiveness, many countries such as Australia, Canada, France, India, Russia, Gambia, New Zealand etc. have also adopted the institution of ombudsman. According International Ombudsman Institute(IOI), now there are ombudsmen in around 140 countries.
Bangladesh is a country, emerged from the British Colonial rule through neocolonialism of Pakistan, experiencing wide ranging corruption and unfettered discretion in the whole edifice of government. At that time the people of Bangladesh were subjected to various cruel oppressions. In view of this situation, the provision for the office of ombudsman was inserted in the original constitution under article 77 for protecting long cherished public rights against administrative excess. Article 77 states that Parliament may, by law provide for the establishment of the office of ombudsman and will determine the powers and functions of Ombudsman including the power to investigate any action taken by a ministry, public officer on a statutory authority.
Why still not appointed:
It is a matter of great regret that till the date, the office of ombudsman has not been established in Bangladesh. There are many reasons behind not appointing on ombudsman.
Political instability is one of the biggest problems. Though the provision for establishing the office of ombudsman was inserted in the constitution in 1972, the then Awami League govt. didn’t give much importance on it. On 15 August 1975, Bangabandhu was assassinated with his whole family (except two daughters). On 3rd November national four leaders were killed in prison. In 1976 Major Ziaur Rahman declared martial law and came into power through unconstitutional way. Through the 5th Amendment (has been abrogated through the 15th Amendment) of the constitution all military activities of Ziaur Rahman got legalized. The Jatiya Sangsad passed the Ombudsman Act 1980 to establish the office of Ombudsman. In 1981, Ziaur Rahman was assassinated and after that Hussain Muhammad Ershad declared martial law and took the power. The automatic ruler Hussain Muhammad Ershad didn’t think of establishing an institution of ombudsman. Hussain Muhammad Ershad was forced to abandon power in the face of mass movement in 1990. In 1998, the day Awami League govt. gave commitment of establishing the office of ombudsman. But so far no concrete development has taken place to establish the office. Political parties are in nasty race here to get power. It is pertinent to mention here that on act named the Tax-Ombudsman Act 2005 was passed in 2005. This Act was annulled by the Tax-Ombudsman(Annulment) Act 2011.
One of the most essential parts of modern state govt. is bureaucracy. In our country almost all the democratic governments politicized the bureaucracy since 1991 for serving their narrow political interest. Due to widespread politicization bureaucracy has been divided where the supporters of the ruling party are getting privileged. This leads to the bureaucracy to irregularities and abuse of power. Therefore govt. as well as the bureaucracy doesn’t want to be accountable.
The Ombudsman Act was passed in 1980. Since then many govt. has come to power but none of has appointed an Ombudsman. It is a barrier to their narrow political interests as they are not transparent themselves. If there is any effective institution of ombudsman the govt. will be accountable to for its irregularities. But the political authorities of the govt. in our country are reluctant to face any kind of accountability. So usually no govt. comes forward to establish the office of ombudsman.
In a democratic country civil society plays a vital role in reducing injustice and development process. Although civil society in our country is contributing in many sections, it is not emphasizing in this regard. As the office of ombudsman provides opportunities to ensure justice there should be a great demand for it among civil society and general people. In India the govt. passed the Lokpal & Lokayukta Act after a mass movement in 2011. Though even before the enactment of the Act almost every state has created Lokayukta as a statutory authority.
An Ombudsman under the Ombudsman Act:
In 1980 the Ombudsman Act was passed by the then parliament for the establishment of an office of Ombudsman. The Act is insufficient and so the Law Commission made a recommendation to amend the existing Act in 2001. The Act has been enforced without amending by the BNP govt. in 2002 under the Bangladesh Government Gazette (এস,আর,ও নং ০৭ -আইন/২০০২). But practically the office of Ombudsman has not been established.
Under the Ombudsman Act the office of ombudsman has many limitations which reveal a feigned office of ombudsman. Some important limitations of the act are as follows-
- According to section 2 and 6 of the Act Ombudsman can only investigate the action of public authority. “Acts of corruption” and “illegal acquisition of property” are kept out of the jurisdiction of the Ombudsman.
- Under section 6 of the Act Ombudsman can only investigate a few cases. The Act narrows down the jurisdiction of Ombudsman precluding the President, Prime Minister, Cabinet Minister, PSC, CAG from his supervision. Local authorities are also exempted from the jurisdiction of the ombudsman.
- Section 3(2) of the Act provides that the ombudsman shall be a person of known legal or administrative ability and conspicuous integrity. A person may not have both the ability but the ombudsman must have the legal as well as administrative expertise.
- According to section 15, the govt. may exempt any public officer or class of public officers from the operation of all or any of the provision of the Ombudsman Act. This provision empowers the govt. to limit the jurisdiction of the ombudsman. So here Ombudsman can’t investigate properly.
- The Act gives secretaries of the ministry the freedom to withhold information on the pretext of security and international relations.
- The Act also does not give financial independence to the ombudsman. So the ombudsman will have no actual independence.
- Section 13 of the Act provides that if a person obstructs the ombudsman from carrying out his duties without a legal reason, he shall be punished with imprisonment for three months or a fine of two thousand taka or both. But according to current scenario, this is not quite enough against the malpractices, injustice.
Why Ombudsman is important:
The United Nations Convention Against Corruption is the only legally binding universal anti-corruption instrument. It has been adopted by the UN General Assembly in October 2003 and entered into force in December 2005. On 28 February 2007, Bangladesh became a state party to the convention. According to Article 6 of the Convention, each state party shall, in accordance with the fundamental principles of its legal system, ensure the existence of anti-corruption bodies. Therefore Bangladesh has a legal obligation for establishing anti-corruption bodies like Ombudsman. But most importantly there are some justifiable and practical reasons which necessitate the establishment of ombudsman. These are given below:-
First of all corruption is one of the major problem which is deeply rooted in most of the sections of our country. According to Corruption Perceptions Index 2019 reported by Transparency International, Bangladesh is the 14th most corrupted country out of 180 countries. The govt. has increased the salary allowance in the public sector over past year few to discourage people from corruption. But the hike in salaries has not helped to curb corruption because the incentive structure that allows public officials to bribery still exists. Public officials are hardly subjected to judicial scrutiny. The Anti-corruption Commission was established to fight against corruption. Recently the director of ACC Khandaker Enamul Basir has been suspended in connection with an alleged exchange of Tk40 lakh in bribes and a case was filed against suspended DIG Mizanur Rahman & Khandaker Enamul Basir. ACC Secretary Didar Bukht said that during allegations against them beyond a reasonable legal doubt. So its transparency is also questionable now. We have seen the incident of Ruppur Nuclear Power Plant where expenditure of every single goods was shown surprisingly high. Development projects with huge funds undertaken every year are failing to achieve the goals largely for the corruption. Therefore an effective and independent office of ombudsman is the demand of the time now to restrain corruption for the betterment of country.
Bureaucracy is the part and parcel of the modern administrative system of a country. In the modern state bureaucracy plays a key role in running the public administration including the implementation of governmental policies and laws, policy formulation, financial administration etc. and our country is no exception. In our country politicization, lack of accountability and increase of functions lead it to irregularities and abuse of power. Therefore for it is not in a desired position. Recently we have also noticed the incident of journalist Ariful Islam, who published news regarding the irregularities of Kurigram Deputy Commissioner Sultana Parvin. Ariful Islam was picked up from his home at midnight on March 13 and sentenced to one year imprisonment by executive magistrate Bikash Chakma through a mobile court which became viral on social media. After that DC Sultana Parvin has been withdrawn and also three Magistrates including the Senior Assistant Commissioner Nazim Uddin, Assistant Commissioner Rintu Bikash Chakma and Assistant Commissioner SM Rahatul Islam for their involvement in torturing the journalist Ariful Islam. According to ASK(Ain O Salish Kendra) from January 2020 to April 2020, 85 journalists were harassed in Bangladesh where a significant number harassed for lay baring the irregularities of govt. officials. Another incident of giving punishment to some senior citizens got viral on social media where we saw them standing up and down holding their ears. This unconstitutional, inhuman and immoral punishment had been given by Assistant Commissioner (land) Saima Hasan and she herself captured the punishment procedure using her phone. According to article 35(5) of the Constitution of People’s Republic of Bangladesh this kind of inhuman and degrading punishment are prohibited. This is also violation of article 5 of the UDHR. So there is a demand for a functionary who can hear and investigate complaints of victims against the administration. Ombudsman through inspection can make the administrator more careful in decision making and discharging duties.
Judiciary plays the most significant role in ensuring justice. But the court system besets with some chronic problems most importantly delay in litigation and corruption. Justice Iyer says, “Delayed justice is the means of inflicting injustice through the process of law”. According to the Ministry of Law, the number of cases pending with the country’s higher and lower courts is more than 3.64 million. Every year the number is continuously increasing. An office of ombudsman can minimize the pressure of court along with ensuring justice. Another notable problem in judiciary is the corruption. Report says that many justice seekers pay between Tk 200 and Tk 10 lakh bribe to different people during legal proceedings. Lack of accountability and governance is troubling the people in getting justice.
Enforcement of court’s verdict in practice largely depends on the administration and law enforcement agencies which are often found despising the decision of court in our country. Moreover according to a survey report of TIB the law enforcement agency were the most corrupted sector in Bangladesh. In the case of BLAST, ASK and others vs Bangladesh and others (23BLD HCD) the HCD laid down a set of guidelines regarding arrest and detention. Recently the Appellate Division has expressed its disappointment as the law-enforcement agencies continued arresting without warrant flouting its guidelines to follow when they deal with arrest, interrogation and detention and at the disappearance of arrested persons. There are also many cases where the court order is despised by the administration and law enforcement agencies. Some of the cases are – Farzana Hoque vs Bangladesh (writ petition no. 271 of 1990), Radha Kanta vs Deputy Commissioner ( 31 DLR 352) etc. So if there is an ombudsman for proper accountability, the enforcement of court verdict will be more effective and the above mentioned irregularities will not arise.
The rule of law implies that govt. officials and citizens all are subjected to law that are fairly applied and enforced. According to the World Justice Project (WJP) Rule of Law Index 2020 Bangladesh has been ranked 115th among 128 countries which was 112th among 126 countries in the previous year. Due to lack of good governance and accountability Bangladesh is not in a desired position in rule of law performance. An effective office of ombudsman will play a supportive role in promoting rule of law.
Conclusion:
Our country has witnessed unprecedented infrastructural development in the tenure of present Awami League government. The govt. is launching huge budget every year and carrying out various development works. But the benefit of these developments is not always reaching to all the people. Moreover development in all sectors is not going to desired level due to some selfish society. The office of Ombusman is the last constitutional institution that has not been established till the day and this is the high time to do so. Moreover, it is a must to bring transparency in all sectors to assist the government in achieving the desired goals and for the well-being of the people at large.
Writer:
Mohammad Asif Ul Ghani, Student of LL.B.(Hons) 2nd Year, University of Chittagong.
Refenences:
- Constitution of People’s Republic of Bangladesh
- The Ombudsman Act, 1980
- The Law Commission Report, 2001
- United Nations Convention Against Corruption
- Universal Declaration of Human Rights
- Mahmudul, Constitutional Law of Bangladesh, 2nd ed.
- Md Abdul, Constitution Constitutional Law and Politics: Bangladesh Perspective 14th ed.
- Md. Awal Hossain, Ombudsman for Bangladesh: Theory and Reality
- https://www.thedailystar.net/news-detail-235102
- https://www.thedailystar.net/news/bangladesh-bureaucracy-accountability-and-responsibility
- https://www.newagebd.net/article/97448/bangladesh-now-14th-most-corrupt-country-in-ti-global-index
- https://tbsnews.net/bangladesh/bribery-charges-against-acc-director-basir-dig-mizan-finalised-35853
- https://thefinancialexpress.com.bd/national/over-36m-cases-pending-in-courts-law-minister-1579441099
- https://www.newagebd.net/article/99509/top-bangladesh-court-concerned-as-guidelines-on-disappearance-arrest-flouted
- https://www.thedailystar.net/backpage/news/bangladesh-slips-rule-law-index-1879465
- https://www.thedailystar.net/frontpage/bribery-every-step-1498822