LAW 309 Chapter 7 - Public Complaints Bureau & Ombudsman PDF

PREPARED BY: IZYAN FARHANA ZULKARNAIN 1  Ombudsman or public advocate Government official is appointed by the government or by Parliament, but with a significant degree of independence Entrusted with representing the interests of the public by investigat...

PREPARED BY: IZYAN FARHANA ZULKARNAIN 1  Ombudsman or public advocate Government official is appointed by the government or by Parliament, but with a significant degree of independence Entrusted with representing the interests of the public by investigating and addressing complaints of maladministration or violation of rights Ombudsman acts as an external agency, outside the administrative hierarchy, to probe into administrative faults IZYAN FARHANA ZULKARNAIN 9  Reasons for the Growth of Ombudsman: 1. Inadequacy of the Court System 2. Build-up of Biasness 3. Overlapping of Legislative and Executive Powers IZYAN FARHANA ZULKARNAIN 10  1. Inadequacy of the Court System Efficacy of the judicial review of administrative action is diluted by several factors: › Failure of the legislature to lay down articulately the norms and guidelines for exercising vast powers which are conferred on the administration; › Failure to lay down procedures which the administration must follow while exercising its power › Reluctance 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 › Courts do not review the facts as decided by the administrative authorities except to the limited extent; and it becomes difficult because it is not easy to secure evidence on the issues involved, as the courts do not look into departmental files and the government enjoys several privileges in litigation › Judicial proceedings are dilatory, formal and costly as the court fees have to be paid and lawyers have to be engaged IZYAN FARHANA ZULKARNAIN 11  2. Build up of biasness in the department Internal system of remedy under administration department does not guarantee wisdom and fairness in the decision taken (report by Ombudsman in New Zealand) First, the decision is made at lower level of administration - Complaint or not satisfied. Then, it goes up to a higher level for review. At this juncture, the administrator will start building up their defences to maintain and support the earlier decision  bias  no guarantee of fairness in the upper level decision As such, if the complaint is addressed by an independent body or external agency (outside the administrative hierarchy)  easier to find faults of the administrator. As a result, interest of public is not jeopardised IZYAN FARHANA ZULKARNAIN 12  3. Overlapping of legislative and executive Although legislative provides control over administrative actions, it still faces problem to ensure that the control is done effectively Reason: (a) Executive controls the legislative because of the development of a party system (b) Legislative have no time to entertain all complaints because there are more important problems concerning the interest of the country to be given priority to IZYAN FARHANA ZULKARNAIN 13  How does Ombudsman works or functions? *Investigate in order to If there is a Receive find out case, Give *relief Report to complaint whether the proceed to an *legislature or report complaint is with individual justified or hearing not Investigation: Ombudsman is acting as a counsel, hence, the complainant is not required to lead any evidence or to prove his case Relief: Unlike Courts, Ombudsman do not have power to quash administrative decision. Ombudsman can deal with many aspects of administrations which Court have no concerns with. Eg. Ombudsman can give relief to individual for delay in administrative action or when individual complained of bias in the administration decision making or even when an individual complained that the he has received no answer to his communication from the department Legislature: Ombudsman is a watchdog over administrative action. Ombudsman is appointed as the eyes of the legislature and report to it on the results of his investigations into individual grievances IZYAN FARHANA ZULKARNAIN 14  Advantages of Ombudsman As an independent authority, it eliminates the element of dissatisfaction or non-confidence among the public It has access to departmental files 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 Can give *relief to an individual (on many grounds in which the Courts are not able to give relief) Proceedings of the ombudsman are not formalized or routine and do not take long to be completed Since Ombudsman is backed by the legislature, the recommendation made by him are invariably accepted by the department concerned. Reason? IZYAN FARHANA ZULKARNAIN 15