LAW 309

CHAPTER 7
PUBLIC COMPLAINTS BUREAU
&
OMBUDSMAN

1
 INTRODUCTION
• Aside from Judicial Control, the administrator has other control
mechanism in order to address its faults

• However, the Public Complaints Bureau is only applicable in

Malaysia

Public
Ombudsma
Complaint
n
s Bureau

Contr
ol

2
 1. PUBLIC COMPLAINTS BUREAU
• It is also known as Biro Pengaduan Awam

• Established on 23rd July 1971 under the Prime

Minister’s Department (Jabatan Perdana Menteri)

Vision: To be a key organisation which

contributes towards achieving public service
excellence through resolving public
complaints

Mission: To resolve public complaints in a prompt, fair and

courteous manner as well as to obtain public feedback on
government policies and programs towards enhancing the
quality of life of all Malaysians

3
 Objectives of Public Complaints Bureau

To receive and investigate public complaints in

respect of their dissatisfactions on any action or
decision made by the government
administration

Managing the public complaint

To detect issues than can lead to complaints

made by the public

To introduce changes and innovation based on

public complaints received

To implement a pro-active programme in order

to provide a platform for public to make a
complaint

To implement a people caring programme eg.

MESRA
How does the Public Complaints Bureau works or functions?

• Receive complaint on any government actions alleged to be unfair, against the

Re law, abuse of power or etc.
cei
ve

Inve
• Investigate the claims which are considered as valid
stig
ate

• Report the outcome of investigation and make recommendations to Permanent

Re Committee on Public Complaints (PCPC) and relevant authorities
po
rt

• Forward the decision of PCPC to Ministries or government bodies for their

De remedial or corrective actions
cis
ion

• Monitor the corrective measures or actions taken by various bodies and submit
Mo the feedbacks to PCPC
nit
or

5
 Composition and Powers of Public Complaints Bureau

Composition:
• Comprises of Government Chief Secretary (Chairman),
Director General of Public Service, Director General of
Anti-Corruption Agency, Senior Deputy Secretary
General of Prime Minister’s Department and the
Director General of MAMPU

Powers:
• Call relevant authorities for meeting to explain
about the complaints
• To direct the relevant authorities to take corrective
action or measures to solve the issues
• Can delegate its powers to PCB to obtain files,
records, information, explanation from relevant
authorities

6
 Exclusion of Powers

Public Complaints Bureau cannot receive complaints on

matters pertaining to the established government policies; and

Any matters which falls within the jurisdiction of:

• Anti-Corruption Agency
• Legal Aid Bureau
• Court’s Proceedings
• Public Accountant Committee
• Special Cabinet Committee on the Integrity
Government Management

7
 Weakness of Public Complaints Bureau

Existence of PCB is not governed by any statutes. PCB derived its functions and
responsibilities from the Development Administration Circular No. 4 of 1992

PCB is a part of executive (JPM). So, it has no legal power to investigate into alleged
cases of maladministration or to enforce its recommendations

Its function depends entirely on the co-operation of various government departments

and agencies

Difficult to assess the effectiveness of PCB in redressing grievances of the people against the
administration as it does not publish any reports of its activities for public information unlike
Ombudsman

Decision made may be influenced by legislative due to the overlapping of powers

between executive and legislative, and lack of autonomy and independence unlike
Ombudsman

No access to Parliament and does not send reports to Parliament

8
 2. OMBUDSMAN
• 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
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

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
11
have to be paid and lawyers have to be engaged
 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
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

13
 How does Ombudsman works or functions?

*Investiga
te in order
If there is
to find out Give
Receive a case, Report to
whether *relief to
complaint proceed *legislatur
the an
or report with e
complaint individual
hearing
is justified
or 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

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?

15
 OMBUDSMAN in NEW ZEALAND
• A person feeling aggrieved by an administrative action may
make a complaint to the ombudsman

• Ombudsmen are appointed under the Ombudsman Act 1975

• Ombudsman has power to investigate any action, decision,

recommendation or inaction on the part of a department
placed under his jurisdiction

• He can act suo motu (start the action on its own)

• He can refuse to look into trivial, frivolous or vexatious

complaints

• He can review an act even if it is declared final by the

statutes concerned
16
• He cannot review an act of the administration if it is from an
appeal on facts and law is available to the Court or tribunal
under the statutes concerned

• He has emphasized the needs to publicize administrative

procedures; he has critized the issue of defective and confusing
circulars and giving of wrong information to the people

• He has given relief for departmental mistakes, has criticized

unjustifiable delay in deciding matters and has pointed out
lacunae in administrative procedures

• He has found many times the decisions are taken by the

administrative without having full facts before it

• He has held many discretionary decisions as unjust, unfair,

unreasonable, oppressive, and improper discriminatory or not
supported by law and has accordingly, given relief to the
complainants

• He has awarded damages against the department when a person

17
• He has even suggested ex gratia payment to the complainant when
the department was found to have moral, rather than legal,
responsibility for the injury caused to him

• He has criticized the method of exercising discretion powers by the

administration

• He has also criticized an official attitude which adopts a firm rule

in exercising their discretionary powers without having regards to
the merits of each case

• Whenever an ombudsman initiates an investigation, the

department or official must be informed. If the department or
official is going to be affected by the ombudsman’s report, then an
opportunity of being heard must be given to the department or
official

• Ombudsman’s decision are not challengeable or reviewable in the

Court of law except on the ground of lack of jurisdiction
18
 OMBUDSMAN in AUSTRALIA
• Australia has also opted for the ombudsman system

• Australia, being a federation, has a two-tier ombudsman system; each

State has its own separate ombudsman and there is the ombudsman
system at the Centre

• Ombudsman system was established by the Ombudsman Act 1976

• Ombudsman system at present consists of a Commonwealth Ombudsman;

3 Deputy Commonwealth Ombudsmen, and a Defence Force Ombudsman

• Ombudsman’s primary function is to investigate, either on a complaint or

suo motu, into a matter of administration taken by a department or a
prescribed authority

• He cannot investigate into an action taken by a Minister, but an action

taken by a delegate of a Minister is within his jurisdiction

• He may also investigate into department’s advice given to a Minister

19
• He has discretion to refuse to investigate a complaint on the ground that
the complainant does not have sufficient interest in the subject matter
complained of

• Australia Act, unlike British Act, does not use the term
“maladministration” but like New Zealand Act, lays down a catalogue of
circumstances in which the ombudsman may consider as administrative
action to be defective, namely, where the action:

› appears to have been contrary to law

› is unreasonable, unjust, oppressive or improperly discriminatory
› is in accordance with a rule of law, a provision of an enactment or a
practice, but the rule, provision or practice is or may be
unreasonable, unjust, oppressive or improperly discriminatory
› is based either wholly or partly on a mistake of law or of fact or
› is otherwise, in all circumstances, wrong

• Where the action complained of involved a decision to exercise a

discretionary power in particular manner, or not to exercise it at all, the
ombudsman may find that irrelevant considerations were taken into
account or that reasons should have been for the decision

20
• Ombudsman has no power to set aside a decision of an administrator but
he may suggest any of the following remedial actions:

› A defective action should be referred to the appropriate authority for

further consideration;
› Some particular actions should be taken to rectify, mitigate or alter
the effects of the defective decision;
› A decision should be cancelled or varied;
› A rule of law, provision of an enactment or practice on which a
defective decision was based should be altered;
› Reasons should have been, but were not, given for a decision to which
this section applies; or
› Other things should only be done in relation to a defective decision

• Ombudsman thus, enjoys a very wide jurisdiction to investigate official

administrative action with a view to helping a citizen

21
• If a department does not take an action as recommended by the
ombudsman within a reasonable time, he can report to the Prime
Minister

• He has to make an annual report to Parliament of his operations, and

may, from time to time, make reports to the Parliament during parts
of a year

• Ombudsman holds an office for 7 Years and is eligible for

reappointment

• He is appointed by the Governor-General and retires at the age of 65

• In order to ensure his independency, he cannot be removed from his

office except by the 2 Houses of Parliament on the ground of
misbehaviour or physical or mental incapacity

22
 OMBUDSMAN in ENGLAND
• Ombudsman in England, officially known as the Parliamentary
Commissioner, was established by the Parliamentary Commissioner Act
1967

• He is appointed by the Crown and holds office until he reaches the age of
65

• He can be removed from office only in consequence of an address from

both Houses of Parliament

• His tenure has the same security as that of the superior judges

• 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

• He has discretion to act if he thinks that the remedy available in the

courts is not one which the complainant could be reasonably expected to
use but the right of access to the courts is not affected thereby
23
• He does not investigate any matters in respect of which the
aggrieved person has a right of appeal, reference or review to a
tribunal constituted under a law

• He has discretion to refuse to pursue a case where he thinks that

there are insufficient grounds for the complainant or where he
does not regard it as within his scope

• Barring special circumstances, he does not investigate a matter

which is more than 12 months old

• British Ombudsman concerned with maladministration in

administrative action which includes failure to act

• “Maladministration” term has not been defined and it has been

left to the ombudsman to develop the concept from case to case

• “Maladministration” may include corruption, bias, unfair

discrimination, misleading a member of the public, but does not
include an unreasonable exercise of a discretion, unless this has
been due to faulty administration, for example not considering
relevant factors or taking irrelevant matter into account
24
• 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 Common

• 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

• He makes investigations in private and is free to adopt such procedures as he may

consider appropriate in the circumstances of the case, and has power to call for
evidence from any person, Minister and department

• No statutory restriction enjoining secrecy on anyone is to stand in the way of

disclosure of evidence to the ombudsman

• A Crown can claim no privilege in respect of the production of documents or giving of

evidence in which the Crown enjoys by law in legal proceedings

• No person is compelled to produce before the ombudsman any document or give any
evidence which he could not be compelled to give or produce in Court proceedings

• He has to send report of the results of the investigation to the department or

authority concerned

25
• If it appears to him that injustice has been caused to the complainant in consequence
THANK YOU

26