Star Law Analysis
Office of ombudsman: Why the delay?
Barrister Md Abdul Halim
Why is an ombudsman must for Bangladesh
There are some justifiable and practical reasons which necessitates the immediate establishment of ombudsman in Bangladesh.
Firstly, in Bangladesh which is one of the most populous countries in the world, there has been an wide expansion of governmental functions of various kinds. The executive officials are always vested with unlimited and often unguarded discretionary power. And this unlimited power has given rise to widespread abuse and maladministration often causing an indescribable sufferings to the ordinary people. There lack of integrity and corruption in administration. Corruption is the biggest evil in our administration. It is not only an evil but also a fatal disease which has adversely affected it; it is a dangerous evil of democracy. Corruption breeds corruption. When it sets in, it grows like weeds in a garden. Corruption is seen in different forms such as bribery, illegal gratification, frauds, embezzlements and misappropriation in commercial transactions and monetary disbursements of the government, tampering with the official records, use of official position for personal gain and acquisition of property, nepotism and favouritism, violation of official rules for personal interests, involvement in smuggling, investment in others' name inside or outside the country and even unwillingness to perform the official duties properly.
Secondly, though we have a court system to resolve legal disputes of various types, it is beset with some chronic problems. The most prominent of them is the inordinate delay due to which our courts can provide only technical justice rather than 'substantial justice'. Cause of delay lies not in the paucity of judges only but mainly in the totally inadequate controlling system, defective investigation procedure, vertical taking 'illegal gratification, misplacing records, removing documents and sometimes even destroying the records' resulting in hindrances to its smooth functioning. But these artificial and technical problems can easily be mitigated by establishing a department of ombudsman.
Thirdly, in most cases our courts give the declaration of remedy whereas the real remedy lies with the administration and law enforcement agency which frequently flout the decision of the courts. The need of ombudsman in Bangladesh, therefore, came in focus in a number of cases of arbitrariness of the executive which called for remedial measures through a proceeding for writ in the High Court division. The following instances will suffice to substantiate the point.
In Farzana Hoque V. Bangladesh (writ petition no 271 of 1990) Sanaul Hoque Niru was arrested and detained first on 13.9.87 under the Special Powers Act. His detention was challenged in writ petition no 187 of 1988 and the court declared the detention illegal and directed release of the detenu on 10.5.1988. But Niru was not released. Rather another order of detention was served against him on 29.9.88. Niru was not placed before the Advisory Board within the statutory period of 120 days. The High Court Division again declared the detention illegal and directed his release. But government did not release Niru. Another order (3rd time) was passed and it was again challenged by another writ petition (writ petition no 989 of 1989). Again, the court declared the detention order illegal and directed release of the detenu. But even this time Niru was not released. Rather another detention order was served. The matter came up before a Division Bench of the High Court Division in writ petition no 271 of 1990. The High Court Division said :"The least can be said that the detaining authority is paying little regard to the orders of the court. It is unfortunate that the authority which is obligated under Article 32 of the Constitution to protect the liberty of the citizens and further required under Article 112 thereof to act in aid of the courts order should flout the laws by resorting to authoritarian acts ......"
Had there been an ombudsman the government would not be able to flout the court's order in such a manner.
Likewise it is frequently observed that in many cases relating to property matter where the government or the administrative authority is a party the decree holder cannot realise the decree due to artificial barricade created by the administration and law enforcement agencies. In Radha Kanta V. Deputy Commissioner (31 DLR 352) the petitioner's property was requisitioned. This was challenged and the Pakistan Supreme Court declared the requisition order illegal. But the petitioner's property was not released. The Deputy Commissioner asked the petitioner to file a civil suit for restoration of possession of his property thereby giving a permission to the respondent who illegally enjoyed the property already for nine years. This case clearly shows the executive's arbitrariness on the face of it. Nothing is more tyrannical than the tyranny in the name of law. Had there been an ombudsman, the petitioner could easily, through the intervention of the ombudsman, realise the decree and had not to suffer for nine years.
Likewise in another case it is found that Nazrul Islam, a young boy, was illegally detained for 12 years. The then chairman of Satkhira District Council in collaboration with a police officer filed a case against Nazrul Islam. He was sent to jail. This was done by the interested group just for grabbing his paternal property.
Had there been an ombudsman the necessity for bringing the above mentioned cases to courts would not have arisen and the administration would not be able to neglect the court's order.
Fourthly, criminal cases filed in a year are far greater in number than civil cases. And these criminal cases are dealt primarily by Magistrates' courts. But these Magistrates' courts are hot-bet of corruption. It is horrible to hear from advocates about corruption in Magistrates' courts in the form of partial judgment. Had there been an ombudsman these magistrates would not be able to be so corrupt as alleged.
Fifthly, public servants of some autonomous bodies like various corporations and particularly most of the teachers of government universities are doing the most corruption and illegalities by evading their classes and engaging themselves in extra-profitable works. If there is an office and proper functioning of a duly appointed ombudsman by the parliament, then the accountability of these public servants is likely to be well ensured and our public administration will be more effective and clean for the benefit of the people.
Sixthly, every service sector of the Government T&T, BRTA, Police is bedded with corruption and red tepism. Had there been an office of Ombudsman ordinary people could ventilate their grievances to it without any cost.
Conclusion
The above discussion makes it clear that the establishment of an ombudsman in Bangladesh will undoubtedly go a long way in helping to establish a real democratic social order and polity based on parliamentary system of government for the well-being of the people at large. Because the ombudsman will function informally without the assistance of lawyers to be engaged by the complainants. Hence justice may be within the reach of common men who are often unable to pay the fees demanded by the lawyers. And also it will be able to investigate complaints quickly and give redress to the grievances of public. If the government's pledge to the people is to serve them and bring transparency within the administration there is no alternative but to set up an office of ombudsman.
This is the concluding part of the story.
The author is an Advocate, the Supreme court of Bangladesh.
