Is the ACC a substitute for the office of Ombudsman?

According to the Anti-Corruption Commission Act, 2004, ACC comprises of three commissioners who are appointed by the President from a list of six persons recommended by a five-member selection committee. The President appoints one of the commissioners as chairman of ACC (section 5 and 7 of the Act). In fact, the President appoints the commissioners and the chairman from the list as per advice of the Prime Minister. According to Article 48 (3) of the Constitution, in the exercise of all his functions, save only that of appointing the Prime Minister and the Chief Justice, the President shall act in accordance with the advice of the Prime Minister. Appointed for four-year terms, the commissioners are not eligible for re-appointment. They can be removed in the same way a judge of the Supreme Court is removed.

The functions of the ACC include, inter alia, (i) conducting inquiry into the offences under the Anti-Corruption Act, 2004; (ii) conducting inquiry into the punishable offences under the Prevention of Corruption Act, 1947; (iii) conducting inquiry into the punishable offences under sections 161-169, 217, 218, 409, and 477A of the Penal Code, 1860; (iv) filing and conducting cases relating to (i), (ii), and (iii) above; (v) instituting suo moto inquiry or on the basis of application from aggrieved person(s); (vi) performing duty to be vested by anti-corruption law; (vii) reviewing existing anti-corruption arrangements and making recommendations to the President for their effective implementation; (viii) creating public awareness against corruption; (ix) arranging seminars, symposia, workshops, etc. on the functions and responsibilities of the Commission; (x) identifying the causes of corruption and suggesting remedies to the President.; and (xi) performing any other duty deemed to be necessary for the prevention of corruption.

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Particular reference may be made to the punishable offences under the Prevention of Corruption Act, 1947, and under the aforementioned sections of the Penal Code, 1860. These offences include, among others, submission by any person of a false statement of movable and immovable property held in his own name or held by any other person on his behalf; public servant taking gratification other than legal remuneration in respect of an official act; taking gratification by somebody, by corrupt or illegal means, to influence public servant; public servant obtaining valuable thing, without consideration from person concerned in proceeding or business transacted by such public servant; abetment by any person of these offences; public servant framing an incorrect document with intent to cause injury to any person; public servant unlawfully engaging in trade; public servant unlawfully buying or bidding for property; public servant disobeying direction of law with intent to save person from punishment or property from forfeiture; public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture; breach of trust by public servant, or by banker, merchant, factor, broker, attorney, agent in respect of property entrusted with; willful destruction, alteration, or mutilation of documents and falsification of accounts by any person in his capacity as a clerk, officer, or servant.

The ACC has been empowered to serve summons and interrogate witnesses, reveal any document, collect deposition on oath from witnesses, ask for public record or its copy from any court or office, issue warrants for interrogation of witnesses, and examine documents. The ACC has the power to ask any person to furnish with any information relating to investigation or inquiry and the person concerned will be bound to give that information.

The ACC shall, not later than March each year, submit to the President a report on the performance of its functions during the previous calendar year. The President shall cause the report to be laid before Parliament.

The Ombudsman Act was enacted in 1980 (Act No. 15 of 1980) pursuant to Article 77 of the Constitution that provides for the establishment of the office of Ombudsman. It provides for the appointment of the Ombudsman by the President on the recommendation of Parliament. Appointed for a three-year term, the Ombudsman will be eligible for re-appointment for another term. The Ombudsman can be removed from the office only by a resolution of Parliament supported by a majority of not less than two-thirds of the total number of members of Parliament on the ground of proven misconduct or physical incapacity. Such a resolution will require approval of the President.

According to section 6 of the Ombudsman Act, the Ombudsman will investigate any action taken by a ministry, a public officer, or a statutory public authority when he (a) receives a complaint regarding that action from any person, who (i) claims that injustice has been caused to him through that action, and (ii) affirms that such action has resulted in favour being unduly shown to any person or in accrual of undue personal benefit or gain to any person; and (b) he receives information from any other source that the action is of the nature of (a) above.

When the Ombudsman decides to investigate a case, he will (a) send a copy of the complaint to the concerned ministry, statutory public authority, or public officer for comments. If the Ombudsman is of the opinion that a public officer or any other person is able to furnish with relevant information or records to help investigate a case, he can ask that public officer or person to furnish him with the relevant information or records. For investigating a complaint against a ministry, statutory public authority or public officer, the Ombudsman has been empowered to serve summons and interrogate any person on administering oath, collect deposition on oath from witnesses, ask for public record or its copy from any court or office, issue warrants for interrogation of witnesses, and examine documents.

Section 9 of the Ombudsman Act has made it mandatory for the competent authority to implement the recommendation(s) made by the Ombudsman in his report after investigating a case.

The Ombudsman shall prepare an annual report concerning the discharge of his functions under the Ombudsman Act and submit it to the President who shall cause it to be laid before Parliament.

A close look at the aforementioned functions and responsibilities of the ACC shows that the ACC deals with some punishable offences committed by a public servant or any other person. The offences are mostly related to financial corruption and irregularities. The ACC is not tasked "to defend rights of ordinary people in dispute with government agency or public authority." On the other hand, the functions and responsibilities of Ombudsman reveal that the office of Ombudsman is "(a) to ensure that the ministries, departments and the statutory authorities are responsive, adaptive and sensitive to the needs of citizens, and (b) to investigate the complaints against the decisions or orders of the administration. The role of the Ombudsman is pivotal in providing redress to individual complaints."

It appears from the above discussion that the ACC is not a substitute for the office of Ombudsman. The Ombudsman Act needs to be made functional without further delay in view of the fact it oversees the activities of public sector organisations which are the number one actor in the high corruption drama of Bangladesh. It is learnt that government is considering a few amendments in the Act before it is made functional. It is likely that there are a few holes in the Act. But the present version of the Act could have been put into operation till the amended bill got Parliament's sanction. A constitutional obligation should not remain unimplemented for decades.

M. Abdul Latif Mondal is a former Secretary to the government.