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 ombudsman
1. 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.
o The legislature has limited time and pressure of work,
usually engaged in discussing policy matters and
proposals for legislation or taxation.
o The 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 complainants 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 crowns 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 ombudsmans 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 PMs
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 PMs 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.