• Vesting of vast powers in the administration has generated possibilities and opportunities of abuse or misuse of power by the administration resulting in maladministration and corruption.

• An ombudsman is a statutory watchdog over the administration.

• Ombudsman acts as an external agency, outside the administrative hierarchy, to probe into administrative faults.

• In theory, the ombudsman is the projection of the legislative function of supervising the administration

• The quest for some effective control mechanism over the administration has led people to the institution of ombudsman in operation in the Scandinavian countries.

• Sweden was the first country to adopt ombudsman as early as in 1809.

• Finland adopted it in 1919; Denmark in 1953; and Norway in 1963. Australia introduced it in 1976

• Need for ombudsman1. Court do not provide for a complete review of the

entire administrative field. The efficacy of judicial review of administrative action

is diluted by several factors;a) Failure of the legislature to lay down articulately the

norms and guidelines for exercising vast powers which are conferred on the administration

b) Failure to lay down procedures which the administration must follow while exercising its powers

c) Reluctant of the courts to review discretionary administrative action on merits so as to substitute their discretion for that of the official on whom the power is conferred.

2. It is difficult for the court to secure evidence on the issues involved, as the courts do not look into departmental files and the government enjoys several privileges in litigation.The burden of establishing the case lies wholly on the individual challenging the administrative act and it s not easy for him to do so as he has no access to the government records.3. Judicial proceedings are dilatory, formal and costly as court fees have to be paid and lawyers have to be engaged to prosecute individual grievances and this makes it beyond the resources of many to seek judicial redress of their grievances against the administration.

4. The administration itself has its own control mechanism to set right its lapses and faults; but internal administration checks are inadequate and provide no guarantee of good behaviour on the part of administration.5. The legislature whose traditionally function to oversee the administration, can hardly be effective in policing the administration.oThe legislature has limited time and pressure of work, usually engaged in discussing policy matters and proposals for legislation or taxation. oThe legislative procedures are such that there is not much room for ventilating individual grievances on the floor of the house.

• Advantage of ombudsman Ombudsman has access to departmental files. On a

complaint made to him by an individual, he satisfies himself by looking into relevant papers as to whether there has been any fault or lapse on the part of the administration.

The complainant is not required to lead any evidence or to prove his case, before the ombudsman. It is for the ombudsman himself to find out whether the complaint is justified or unjustified .

No court fees are payable for filing a complaint with the ombudsman.

No lawyer need to be engaged because the ombudsman himself is the complainant’s lawyer.

Ombudsman works silently and discreetly and administration gets chance to rectify its mistake without much fuss or loss of face

The proceedings of the ombudsman are not formalised and, unlike the court procedure, do not take long to be completed.

The ombudsman does not only give relief to the aggrieved party in certain circumstances, he also indices more care in the administration while taking decisions so that the future complains against it may be minimised.

The ombudsman helps in removing the crisis of confidence between the administration and the public which otherwise could be the negation of good administration.

• Nature of ombudsman The ombudsman is regarded as a nominee of

the legislature and enjoys the confidence not only of the government but of the whole house

The ombudsman should not be a partisan; he should be objective and above party politics

The ombudsman takes cognisance of complaints made to him by individuals or even suo motu

The ombudsman reports to the legislature on the results of his investigation into individual grievances.

• Known as Parliamentary Commissioner for Administration (PCA) was established by the Parliamentary Commissioner Act 1967, for the investigating of complaints by members of the public of injustice resulting from ‘maladministration’ by specified government departments

• Appointed by the crown on the advice of the PM; his salary is charged on the consolidated fund

• Holds office during good behaviour until he reaches the age of 65

• Can be removed from office only inconsequence of an address by both houses of parliament

• The government departments placed under his jurisdiction are listed in schedule 2 to the Parliamentary Commissioner Act 1967, but the list can be amended by an order in council.

• Matters involving dominant considerations of national or public interest are excluded from his field-

exercise of powers to affecting relations with other countries;

grant of honours and titles etc; administration of colonies; exercise of powers in relation to investigation of crimes; matters concerning extradition; exercise of the prerogative or mercy; actions taken in matters relating to contractual or other

commercial transactions; actions taken in respect of appointment or removal in

the armed forces or civil service.

• Other grounds which the ombudsman might not dealt with The ombudsman does not normally pursue matters which

falls within the competence of the courts. The ombudsman does not investigate any matter in respect

of which the aggrieved person has a right of appeal, reference or review to or before a tribunal constituted under a law or the crown’s prerogative.

The ombudsman has discretion to refuse a case where he thinks that there are insufficient grounds for the complaint or where he does not regard it as within his scope.

Barring special circumstances, the ombudsman does not investigate a matter which more than 12 months’ old.

The ombudsman is concerned with ‘injustice in consequence of maladministration’ in administrative action which include failure to act.

It is not for him to criticize policy, or to examine the merits of a discretionary decision taken by a department without its involving elements of maladministration.

The term ‘injustice’ and ‘maladministration’ have not been defined in the Act.

However, ‘maladministration’ may include corruption, bias, unfair discrimination, faulty procedure, harshness, misleading a member of the public as to his rights etc.

• A person complaining of any personal injury suffered by him by administrative action can send complaints to the ombudsman not directly but through a member of the house of commons.

• A member of the public may thus be deprived of redress for injustice caused by maladministration if the member of parliament chooses not to refer his complaint to the ombudsman.

• When the ombudsman proposes to conduct an inquiry pursuant to a complaint, he is required to afford to the department concerned, and to any person who has taken the action complained of, an opportunity to comment on any allegations contained in the complaint.

• The ombudsman makes investigation in private and is free to adopt such procedure as he my consider appropriate in the circumstances of the case, and has power to call for evidence from any person, minister or department.

• The crown can claim no privilege in respect of the production of documents or giving or evidence which the crown enjoys by law in legal proceedings.

• The ombudsman’s access to government records is its strong point.

• The ombudsman has to send a report of the results of the investigation to the department or the authority concerned.

• If the commissioner finds ‘injustice caused by maladministration’, he may recommend to the department to provide redress to the complainant.

• Redress may be in any form; ex gratia payment, apology, reversal of the impugned decision, but the ombudsman by himself cannot alter or rescind any decision.

• If after the investigation, it appears to him that injustice has been caused to the complainant in consequence of maladministration, and that it has not been, or will not be remedied, he may, if he thinks fit, lay before each house of parliament a special report upon the case.

• Each year the ombudsman is to lay before each house of parliament a general report of the performance of his functions.

• The house of common has set up a select committee to consider he ombudsman and to give him guidance.

• The committee frequently examines the ombudsman and the officials of the department which he criticise.

• In 1967, Sir Guy Powles, the New Zealand Ombudsman, was asked to make a feasibility study for the purpose of setting up ombudsman-lie machinery in Malaysia.

• However, the government dropped the idea and opted for the setting up of the public complaint bureau (BPA).

• Reasons for dropping the idea; The ombudsman can be effective only in unitary-type

state where powers are centralised Such a system has been effective in countries with long

and deep parliamentary traditions Malaysia is a multi-racial society having acute racial

sensitivities and so there exist potentialities for political and racial exploitation arising from consistent and extensive publicity on the activities of an ombudsman.

• BPA was set up in 1971 under the PM’s department as complaint handling mechanism.

• It is headed by a director.• 2 main objectives; To bring about a closer rapport between the

government and the public To establish channel, enabling the public to

put forward their complaint in connection with government administration, or complaint on federal administrative action deemed unjust.

In a Development Administration Circular No 4 of 1992 – the functions and responsibilities of the BPA were laid down;

To receive public complaint on any government administrative action which are alleged to be unfair, against the existing laws and regulations inclusive of misconduct, misappropriation, abuse of power, maladministration, and the like;

To investigate public complaint which are deemed to be valid;

To report the outcome of investigations and make the recommendation to the permanent committee on public complaint and the relevant authorities;

• To forward the decisions of the permanent committee on public complaint to ministers or authorities concerned for the purpose of corrective actions

To monitor the corrective actions taken by the various bodies as mentioned in, and

Subsequently submit such feedback to the permanent committee on public complaint.

The public cannot complaint on the following matters;o Those relating to established government policies;o Those which fall under the jurisdiction of anti-corruption

agency, legal aid bureau, special cabinet committee on government management, and the public account committee.

• The permanent committee on public complaint consists of the following officials;

Chief secretary to the government (Chairman); Director-general of public services; Director general of anti-corruption agency; Senior deputy secretary general of PM’s department; Director general of Malaysian administrative

modernisation and management planning unit.• This committee is to formulate policies on the

management of the BPA, to direct the concerned authorities to attend meetings and give explanations on a particular complaint/case and to direct the bodies concerned to take corrective action to solve a particular case.

• The committee can delegate it power of investigation to the BPA which includes –

requesting and obtaining information Checking files, records and other related documents,

and Seeking explanations from the authorities concerned.• The BPA does not owe its existence to any statute.• Basically, the BPA is a part of the executive – it has no

legal power to investigate into alleged cases of maladministration or to enforce its recommendation.

• Its functioning depends entirely on the co-operation of the various government departments and agencies.

• Obviously the BPA lacks the autonomy and independence of the ombudsman.

The BPA has no access to parliament and does not send its report to parliament.

Thus, the BPA may be of some help to the people having grievances against the federal administration but cannot be regarded as efficacious as an ombudsman to deal with the public grievances against the administration.