Name: Sanjedah Binte Haider

Reg no: 19111025

ANALYSIS OF THE OMBUDSMAN ACT,1890

Abstract

Mainly I will focus on the analysis of the Ombudsman Act of,1980 but before that, I will describe shortly
what is ombudsman, the function of the ombudsman, and the history of the making of this Act.

While analyzing the sections of the law I will find lacking and then the effect/ result of the lacking. After
that, I will give some recommendations about ombudsman in our country

Background of ombudsman

The word ombudsman’s literal meaning is the neutral alternative. Ombudsman is an anti-corruption
body or authority that represents public interest against corruption whether it is against the
Government or other public officials. It is created for establishing the Rule of Law. 

There are 2 main types of ombudsmen

 Administrative ombudsman

 Legislative ombudsman

We have the legislative ombudsman in Bangladesh.

Legislative ombudsman

A legislative ombudsman is a member of the Government’s legislative branch who deals with complaints
from the public or internally about the conduct or policies of Governments bodies, people, or
contractors to keep agencies responsible to the public. Sweden, Norway has a legislative ombudsman.
From the process of selection of ombudsman in Bangladesh, we can say that our country adopted a
legislative ombudsman since the president appoints an ombudsman on the recommendation of
parliament members. Legislative Ombudsman established by statute and can report findings and
recommendations to ministers of the crown to the provincial legislature on to parliament.

The ombudsman depends on personal patriotism and character and neutralism, that’s why the
ombudsman should be an old judge, lawyer, or any person who is recognized in society to be a neutral
and wise person where every person agrees to accept him as Ombudsman. Most of the developing
countries do that.

As we know ombudsmen supervise courts' work and civil administration. Ombudsman has to investigate
the complaint of illegal work, negligence, abuse of power in the above sectors. Especially fraudulent
offense and abuse of power and work which is contrary to justice, here the ombudsman have to keep
awareness. He has to see where any public or civil servant going against the Constitution, legislator, or
administrative rules. If anyone does so ombudsman takes a step against them. However, the
ombudsman does it to maintain honesty in the sector of administration or any government sector and
to take control over the movement of the public servant.  

Legal Status of Ombudsman in Bangladesh

In The Constitution of Bangladesh, the office of the ombudsman is established. According to Article 77
Parliament can make provision for creating the office of ombudsman by enacting Law. Parliament can
order an ombudsman to investigate any Ministry, public servant, Statutory Authority’s function. Then
Ombudsman will submit a report of his responsibilities and the Same report has to be presented before
parliament. 

In Ombudsman Act 1980, There it is said People can complain against public servants and employees to
the ombudsman. Information from any source can be a base of investigation. If anybody creates an
obstacle to the function of the ombudsman, will get 3 months jail or fine or both.

After investigation ombudsman will request or order a particular authority or ministry to take initiative.
More on he will suggest in his report that, what steps should be taken by that authority.

After the expiry of the time prescribed in the report (1 month) within that particular authority will let
the ombudsman know what initiatives were taken by them. If the ombudsman gets satisfied by it then
the matter will be closed. But if not then he can send the report to the president for further process.
Neither ombudsman cannot be sued for any function of his office nor any question can be raised in any
court regarding his decision, report of the ombudsman.

Therefore, we can say people of our country could seek proper justice if there were the ombudsman. It
could be a strong way to get justice.

At first, in 1980, Zia Ur Rehman took the last initiative to create the office of ombudsman. Even a
financial proposal was sent to the finance ministry which was regarding the remuneration of the
ombudsman and its employee’s expenses and other expenses of this office. Moreover, 127 office was
proposed for ombudsman office. 35 office was proposed for the ministry of finance and establishment
and got approval.

However, the parliament secretariate held the draft of the ombudsman for 6 months and returned it to
the law ministry. And sent a note where the additional secretary of parliamentary secretariate claimed
that there is no statement regarding the purpose of making of the law mentioned even there is no
signature of minister. That’s why the file is returned. Since then, any activities related to the
ombudsman have not progressed.

Analysis of Ombudsman Act,1980

Here I’ll criticize some particular sections and find the lacking then I’ll try to show what is the effect of
this lacking.

In Section 1(2) it is said that the Act shall come into force on such date as Government may by
notification in the official gazette, appoint. 

This means the enforcement of the law is depending on government discretion. And where there is the
power of discretion there is arbitrariness as a result till now no Government published any official
gazette regarding this law neither created any office of ombudsman.

I think this tricky section is made to not to implement this law. Every government takes advantage of
this section. The office of the ombudsman is a threat to corruption and unlawful activities of public office
and government. So, to keep the corruption continue corruption as well as to prevent accountability no
government implemented the law
In Section 2(d), it is said about the ombudsman rule which is made under this Act. But no rule is found
under the Ombudsman Act.

In Section 3, it is said about the establishment of the office of ombudsman. 

The ombudsman shall be appointed by President on the recommendation of Parliament members. But
members of Parliament can misuse this selection power. They can choose or recommend that person to
be the ombudsman who will work in favor or parliament members. As most of the parliament members
are ministers, therefore can misuse the power to prevent accountability and investigation on their
ministry.

On the contrary we can say that it is a perfect way of selection since parliament members are
recommending a person to be an ombudsman. As we citizen elect our likable person to be MP so they
will elect that person to be ombudsman who will work of welfare or citizen and state.

In Section 4(1), the term of the ombudsman is mentioned here.

 The ombudsman shall hold office for a term of 3 years from the date on which he enters his office. As
we know the term for every Government is 5 years now if a term of ombudsman ends in the middle of
the term of Government it can create an obstacle to complete the ombudsman function. on the other
hand, again, the power goes to the acting government (member of parliament) to recruit a new
ombudsman whoever they like. Resulting in that ombudsman can create difficulties for the next
government. As that new ombudsman will remain in his office for 1 year in the term of another
government.

Section 6(1) (a) deals with the function of the ombudsman. 

Here ombudsman has the power to investigate any action of ministry, statutory public authority, or a
public officer, in case of injustice in any action and giving undue personal benefit. By this function, the
ombudsman can prevent corruption and ensure justice within a very short time. 
Since the ombuds law is not implemented yet. The work that was supposedly done by the ombudsman
is now being done by the High Court by writ/ judicial review. A writ is a lengthy process. Due to the
absence of an ombudsman high court is wasting its valuable time by dealing with this silly matter which
is supposed to be done by the ombudsman.

Section 8(2) is about Evidence. 

here said that for any such investigation the ombudsman shall have all the power of the civil court while
trying a suit under the code of civil procedure but they did not follow the evidence act,1872. If they can
follow the code of civil procedure and penal code 1860 then why they did not follow the evidence Act
while trying suits.

Section 14 says about delegation of power.

Ombudsman may delegate his power to officers, employees, or agencies conferred in section10. When
the power is delegated to another person always a doubt take place whether the work will be
functioned properly and or with honesty. The office ombudsman is based on neutrality, if the person to
whom the power being delegated is not honest and neutral in that case the purpose of this office will
not be fulfilled. As the post is very vital.

Section 15 is about Exemption.

Government has the power to exempt any public officer or class of people by a gazette notification. But
already it is seen that ombudsman’s function is to supervise Government action and courts action. If the
exemption power is given to the government, then govt can curtail the power of the ombudsman. On
the other hand, the government can exempt its own member by misusing this power. Which is a
violation of equality before the law as well as it is unconstitutional. Another point is when excessive
power goes to the executive body then the curtail citizen’s power and rights. 
Recommendation

some amendment needed here in this ombudsman act,1980. they are

 The enforcement of this act should be immediately after passing the bill. The power of
enforcement of this act shouldn’t be given to the government.

 The process of selecting an ombudsman should be more neutral

 The term of the office of ombudsman should be increased to 5 years same as the Government.

 In the part of work regarding evidence, the Act should follow Evidence act 1872 to serve proper
justice.

 At least delegation power should not be given to the ombudsman even the system of delegation
should not be here as the office is vital.

 Excessive power means the power of exemption should be taken away from the government. 

Conclusion
To conclude I would say the office of ombudsman should come in existence. Till now whatever I
discussed will be deemed hypothetical unless the act does not come into force. In light of section 6, I
would definitely suggest that the law should be immediately come into force and implemented as well.
it will decrease the burden upon High Court and solve the problem by himself which will ensure justice
for citizens. A democratic system like Bangladesh has, citizens who are supposed to have sufficient
resources to solve problems. Because the current court system is unable to deal with all situations of
injustice, a system like the Ombudsman might assist in resolving administrative issues and providing
justice to those who have been wronged. However, the Ombudsman is not a "cure-all" for all
bureaucratic ills. An ombudsman’s success is contingent on the existence of a decent and well-managed
state. However, the office of the Ombudsman should create by enforcing the Ombudsman Act. Because
time and situation have changed a lot between these years. So, parliament should make a new
Ombudsman act which suitable with the present time of Bangladesh.