DR HASLINDA MOHD ANUAR

SENIOR LECTURER
SCHOOL OF LAW
 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 in1809.
 Finland adopted it in 1919; Denmark in 1953;
and Norway in 1963. Australia introduced it in
1976
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.
• The legislature has limited time and
pressure of work, usually engaged in
discussing policy matters and proposals for
legislation or taxation.
• The legislative procedures are such that
there is not much room for ventilating
individual grievances on the floor of the
house.
1. 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.
2. 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 .
3. No court fees are payable for filing a
complaint with the ombudsman.
4. No lawyer need to be engaged because the
ombudsman himself is the complainant’s
lawyer.
5. Ombudsman works silently and discreetly and
administration gets chance to rectify its
mistake without much fuss or loss of face
6. The proceedings of the ombudsman are not
formalised and, unlike the court procedure,
do not take long to be completed.
7. 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.
8. The ombudsman helps in removing the crisis
of confidence between the administration
and the public which otherwise could be the
negation of good administration.
1. The ombudsman is regarded as a nominee of
the legislature and enjoys the confidence not
only of the government but of the whole
house
2. The ombudsman should not be a partisan; he
should be objective and above party politics
3. The ombudsman takes cognisance of
complaints made to him by individuals or
even suo motu
4. 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-
a) exercise of powers to affecting relations with
other countries;
b) grant of honours and titles etc;
c) administration of colonies;
d) exercise of powers in relation to investigation
of crimes;
e) matters concerning extradition;
f) exercise of the prerogative or mercy;
g) actions taken in matters relating to
contractual or other commercial
transactions;
h) 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-
like 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;
1. To bring about a closer rapport between the
government and the public
2. To establish channel, enabling the public to
put forward their complaint in connection
with government administration, or
complaint if federal administrative action
deemed unjust.
 In a Development Administration Circular No 4 of
1992 – the functions and responsibilities of the
BPA were laid down;
1. 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;
2. To investigate public complaint which are
deemed to be valid;
3. To report the outcome of investigations and
make the recommendation to the permanent
committee on public compliant and the
relevant authorities;
4. To forward the decisions of the permanent
committee on public complaint to ministers
or authorities concerned for the purpose of
corrective actions
5. To monitor the corrective actions taken by
the various bodies as mentioned in, and
6. Subsequently submit such feedback to the
permanent committee on public complaint.
 The public cannot complaint on the following
matters;
1. Those relating to established government
policies;
2. 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;
1. Chief secretary to the government
(Chairman);
2. Director-general of public services;
3. Director general of anti-corruption agency;
4. Senior deputy secretary general of PM’s
department;
5. 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 –
1. requesting and obtaining information
2. Checking files, records and other related
documents, and
3. 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.