Ombudsman: Constitutional and legal obligations of the government

The Constitution of Bangladesh provides for the establishment of the office of Ombudsman.  Article 77 says: "(1) Parliament may, by law, provide for the establishment of the office of Ombudsman, (2) The Ombudsman shall exercise such powers and perform such functions as parliament may, by law, determine including the power to investigate any action taken by a Minister, a public officer or a statutory public authority, (3) The Ombudsman shall prepare an annual report concerning the discharge of his functions, and such report shall be laid before parliament."  
Like other bodies such as the Public Service Commission, the Election Commission and the office of Auditor General, the office of Ombudsman is a constitutional body, which ought not to be taken lightly or given less importance.     
In spite of having a clear constitutional provision, no governments since 1972 (when the Constitution was formally adopted) have ever attempted to establish the office of Ombudsman. This is very unfortunate.  Although Prime Ministers or Presidents since 1972 have been liable for violating this clear constitutional provision, the incumbent Prime Minister too cannot escape her liability.  
If all the governments, past and present, have been reluctant to establish the office of Ombudsman, what is the point of keeping such a provision in the Constitution?  They could have deleted the entire provision from the Constitution!  Keeping a provision in the Constitution but not having an intention of implementing that provision amounts to double standard.  It gives a wrong signal to the nation.   
Interestingly, parliament passed the 'Ombudsman Act 1980' in 1980.  It was viewed as a positive step towards good governance.  The Act empowered the government to bring it into force by notification in the official Gazette.  The Act provides for the establishment of the office of Ombudsman and stipulates the terms in conformity with Article 77.  
The Ombudsman has full security of tenure like other constitutional bodies.  Section 3(2) of the Act provides that the Ombudsman shall not be removed from his office except by an order of the President passed pursuant to a resolution of parliament supported by a majority of not less than two-thirds of the total number of members of parliament on the ground of proved misconduct or physical incapacity.
The Ombudsman may investigate any action taken by a Minister, a statutory public authority or a public officer in any case where a complaint in respect of such action has been made to him or her.  If he or she finds that injustice has been caused, he or she shall recommend to the competent authority that injustice should be remedied.  
The authority concerned is to report back informing the Ombudsman the action taken or proposed to be taken. If the Ombudsman is not satisfied with the report of the concerned authority, he or she may make a special report to the President.
The Act has not been brought into force and the office of Ombudsman has not been established yet though more than three decades have elapsed since the Act was passed.  Why has this been so?  
The lack of honest political will of the politicians and apparent barriers put by the bureaucrats are the main reasons for the office of Ombudsman not being established yet.  
Why don't the politicians have the honest will to set up the office of Ombudsman?  And why do the bureaucrats block the way of establishing the office of Ombudsman?  In order to comprehend these questions, one needs to grasp ground realities of politics of Bangladesh and the role the bureaucrats play.
Bangladesh is one of the poorest countries in the world.  Widespread bribery and corruption have been the norms in the country. Bangladesh has several times been at the top of the Transparency International's (TI's) list of the most corrupt countries in the world.  In almost all cases of corruption public officials are directly or indirectly involved.   
There has been frequent allegations of corruption and abuse of power by public authorities which cannot be investigated due to the lack of legal mechanism.  As a result, the victims do not get any relief or remedy.  Often aggrieved persons approach the Supreme Court under the writ jurisdiction but many of their grievances are not amenable to writ jurisdiction and thus the Supreme Curt declines to exercise its jurisdiction.  Also the legal proceedings at the apex court are very expensive. These enable the corrupt bureaucrats, both high and low, to get away easily. The Ombudsman, if established, could investigate those allegations of corruption.  Thus, the bureaucrats, it is alleged, put barriers so that their vested interests are not affected or threatened.
Democracy has not been institutionalised in Bangladesh.  Political instability, street fighting instead of debates in parliament, misleading the public, broken promises, using law enforcement agencies for narrow political purposes, frequent violation of the Constitution and extreme intolerance have been common norms in Bangladeshi politics.
The winner takes it all and the opposition is not tolerated.  Once a party goes to power, it wants to remain in power by using all means they have in hand.  Under these circumstances, the politicians become dependent on bureaucrats.  
Sometimes, politicians, in conjunction with bureaucrats, carry out their corrupt practices to make money or frustrate the democratic avenues to get unfair advantages. In such a situation, the politicians will neither have honest political will nor will be able to face strong bureaucratic pressure to establish the office of Ombudsman in an attempt to combat corruption and malpractice of bureaucracy.
Many democratic countries established the office of Ombudsman a long time ago.  With the passage of time, they have reviewed and evaluated the tasks and duties of Ombudsman through experts.  Where improvement is needed to be made, they have been making without any hesitation.  
For the country to move forward, it needs to have an effective and efficient administration.  With a faulty engine, a car cannot run properly, let alone travelling a long distance smoothly.  Similarly, with a corrupt bureaucracy, a country always struggles, let alone moving forward.
A former Attorney General of Bangladesh and the country's constitutional law expert Mahmudul Islam rightly said, "The evil effect of deficient laws can be mitigated by good officials, but the evil effect of bad administration cannot be surmounted by good laws" (Constitutional Law of Bangladesh, P345).
Modern technological advancement and the expansion of public services have led to the vast extension of administrative functions.  Paralleled with this, at the same time, the administrative corruption and abuse of power have increased.  
History, pattern and experience show that the conventional adversarial judicial system, whose primary function is to resolve disputes/litigations from a neutral position, is not effective in preventing such corruption and abuse of power.
A system must be developed which will enable proper investigation of people's complaints against abuse of power and corruption by the administrative officials and proper redress made or relief given.  In many countries, both developed and developing, the problem has been solved by establishing the office of Ombudsman.  
Bangladesh really needs to establish the office of Ombudsman if it is serious to combat administrative corruption and malpractices.  The mere existence of the office of Ombudsman would not perhaps mean much just as the Anti-Corruption Commission could not make any real impact.  
The men in office really matter.  Therefore, the government, if they are really serious and committed to combat endemic of administrative corruption and malpractice, must establish the office of Ombudsmen with persons of strong backbone and personality.  
The government must do so as this is its constitutional (Article 77) and legal obligation (the Ombudsman Act 1980).
Establishing the office of Ombudsman with right persons would, to some extent, help reduce the ongoing epidemic of administrative corruption and malpractice, even if it could not eliminate those completely.   
The writer, a Barrister, is a
UK-based legal expert, analyst,
writer and columnist.  
 ahmedlaw2002@yaho.co.uk