December 22, 2007
Further thoughts on Ombudsman
What impressed me most during my recent Young Leaders’ Program trip to Australia in early December 2007 – sponsored by the Australia-Malaysia Institute under Australia’s Department of Foreign Affairs and Trade – was the briefing by the Ombudsman representing New South Wales. The Ombudsman, a Swedish word originating since 1809, meaning “defender of the people”, is a person empowered to ensure fairness and justice in society. The role of the Ombudsman’s office is therefore to investigate and resolve cases, and hence make recommendations for improvement. Many countries around the world have begun adopting a similar mechanism for ensuring accountability of public offices, and Malaysia should be well on its way to establishing such an outfit, as calls for transparency and good governance are escalating. In Australia, the Ombudsman is created by an Act of Parliament with the mission of promoting good conduct and fair decision making in the interests of the community. The Ombudsman is independent, impartial, accessible, fair and accountable to the public at large. The process is squeaky clean, the Ombudsman himself having to be of utmost integrity, distinguished citizen, selected by a joint Parliamentary Committee and totally independent. All staff members must be equally “clean”. They practice full disclosure of all associations and relationships (pecuniary or non) that would have a conflict of interest with work. The three broad functions within the Ombudsman are to investigate individual complaints, monitor and audit systems and their compliance, and finally act as a review and appeal body. Their jurisdictions cover state public sector agencies (including police), local government authorities (local councils), agencies providing children’s services (to ensure no incidences of child abuse take place), and agencies providing community services such as for disability groups. There are also explicit exclusions which are listed down, for example Parliament, and ministers (for which exist other monitoring bodies) and other watchdog bodies. In investigating complaints against the Police, for example, the Ombudsman would monitor and assess quality and timeliness of police investigations and outcomes, audit and investigate policing practices, as well as review and report on new policing powers. In light of recent discussion as to the Special Complaints Commission (SCC) as a weak replacement of the Independent Police Complaints and Misconduct Commission (IPCMC), the functions and duties of the Ombudsman are very thorough. To ensure child protection in the workplace, they scrutinize systems to prevent child abuse by employees, monitor and undertake direct investigations and respond to complaints about any inappropriate handling of, or response to, reportable child abuse allegations. These roles are repeated across the board for other jurisdictions. Grounds for investigation are where complaints disclose conduct that is contrary to law, unreasonable, unjust, oppressive, improperly discriminatory, and based on improper motives, or otherwise wrong, amongst others. Interesting is that the Ombudsman is the only watchdog body that is able to state that the law itself may be wrong. In this case, they would investigate complaints that may be in accordance with any law or established practice, but the law or practice is, or may be, unreasonable, unjust, oppressive or improperly discriminatory. The Ombudsman has investigative powers given to them by the Act, for example requiring a public authority to give information, produce documents, summoning witnesses to give evidence under oath, and inspecting premises. They are also required to give the investigated persons the opportunity to themselves make submissions, in procedural fairness, also reporting to the complainant on the progress of the investigation. These are all valid points to note, especially when making comparisons with watchdog bodies in Malaysia, such as the Anti-Corruption Agency (ACA). After investigations, reports are then submitted to a number of people, including the responsible Minister, head of authority being investigated, and others. However, if the response to that report is not satisfactory, the Ombudsman may make a report to Parliament and recommend the report be made public. Where the public authority investigated is a local council, the Ombudsman can request the Minister for Local Government (in our case, the head of the Dewan Undangan Negeri), to order the council to comply with the recommendations made in the report. In addition to his general investigative powers, the Ombudsman may at any time make a special report to Parliament on any matter arising in connection with the discharge of his functions and make a recommendation that the report be made public. Finally, the Ombudsman publishes best practice guidelines and fact sheets, runs training workshops and symposia on complaint handling skills, international aid programmes in the South Pacific and other countries. While Malaysia has several official watchdog bodies operating to ensure anti-corruption (ACA), promoting human rights (SUHAKAM), maximizing integrity (Institut Integriti Malaysia, IIM), these are largely criticized because they are not independent of Government. Some best practices within the Ombudsman office can certainly be replicated, if not fully established, in Malaysia’s very own system. For example, the full disclosure of any controversial associations or relationships that would conflict with the carrying out of duties is something extremely difficult to envision working in an Asian culture such as ours. In the Asian culture, personal and professional relationships are intertwined, the difficulty in separating the two causing great harm to professional working relationships. Secondly, there currently exist few mechanisms in Malaysia that would allow for a complainant to report wrongdoing of public sector agencies and local government authorities, especially if the cases are not directly related to corrupt practices (for which the ACA is responsible). As citizens become increasingly informed and aware of their leaders’ responsibilities to them, they will demand more out of their elected representatives. It is up to the leaders themselves to take the initiative for accountability and ensuring maximum transparency. In light of these movements towards a more democratic society, it is most recommended that Malaysia takes the lead in the region in implementing such a necessary and important set-up to reflect its earnest desire for public accountability.