20.09.2016 19:33:01 VERLAG VERLAG ÖSTERREICH Ursula Kriebaum Kriebaum Ursula (eds) Gabriele Kucsko-Stadlmayer legal analysis A comparative Asian Ombudsman Ombudsman Asian Institutions
Kriebaum Kucsko-Stadlmayer Asian Ombudsman Institutions (eds) Univ.-Prof. Dr. Gabriele Kucsko-Stadlmayer Gabriele Kucsko-Stadlmayer Dr. Univ.-Prof. and in Strasbourg Rights Court Human of the European at judge is Vienna. of the University at professor Univ.-Prof. Dr. Ursula Kriebaum Kriebaum Ursula Dr. Univ.-Prof. International and Law International the Section at for professor is Vienna. of the University of Relations www.verlagoesterreich.at ISBN 978-3-7046-7590-3 ISBN This book provides a comprehensive representation of legalof Om- the bases representation a comprehensive provides This book - them in a compa analysing in Asia, institutions public similar and budsman functional di- and their organisational revealing thereby and manner rative to due Asia, in received has been distinctly concept Ombudsman The versity. the to contributing legal traditions, prior and government of systems diverse re- of a result is the study The institutions. such of particulardevelopment the of the auspices under Vienna of the University by conducted project search Institute. Ombudsman the International by commissioned and editors uni- by eighteen followed analysis, legal The startsbook a comparative with regional and States Asian in various institutions on reports structured formly previous the data illustrating and statistics finalcontains The section entities. - ins of legal bases, responses the based applicable is upon sections. All content reports. activity from derived information and questionnaires to titutions Handbook › Asian Ombudsman Institutions_9783704675903.indd 2
Ursula Kriebaum Gabriele Kucsko-Stadlmayer (eds)
Asian Ombudsman Institutions A comparative legal analysis
2016
Handbook Univ.-Prof. Dr. Ursula Kriebaum Professor at the Section for International Law and International Relations of the University of Vienna Univ.-Prof. Dr. Gabriele Kucsko-Stadlmayer Judge at the European Court of Human Rights in Strasbourg and professor at the University of Vienna
Financial support was given by the International Ombudsman Institute.
This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically those of translation, reprinting, re-use of illustrations, broadcasting, reproduction by photocopying machines or similar means, and storage in data banks.
Product Liability: The publisher can give no guarantee for all the information contained in this book. The use of registered names, trademarks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use.
© 2016 Verlag Österreich GmbH, Wien www.verlagoesterreich.at Printed in Germany
Typesetting: Exakta GmbH, Vienna, Austria Printing: Strauss GmbH, Mörlenbach, Germany
Printed on acid-free and chlorine-free bleached paper
Bibliografische Information der Deutschen Nationalbibliothek Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über http://dnb.d-nb.de abrufbar.
ISBN 978-3-7046-7590-3 Verlag Österreich Preface
The present comparative study of Asian Ombudsman institutions is the third publication in a series of comparative studies that have proven to be a valuable resource for scholars and others interested in the development of the modern Ombudsman concept. The International Ombudsman Institute (IOI) strives to facilitate the development of a full series of such comparative studies to enhance the understanding of the various approaches in interpreting the Ombudsman concept and to intensify the exchange of expertise among the international Ombudsman community. The IOI therefore contracted the University of Vienna, namely the editors and main authors of this book, Professor Gabriele Kucsko-Stadlmayer and Professor Ursula Kriebaum, to carry out this research project. The resulting comparative study is not only a helpful book of reference, but also a collection of well-founded information and an interesting overview of the assignments, governance and competences of Asian administrative control bodies. Enhancing and funding research has become a priority matter for the IOI throughout recent years and the present series of comparative studies provides an ideal platform to promote and develop the concept of ombudsmanship. It is research projects like this, which inherit the potential of encouraging the creation and development of new Ombudsman insti- tutions worldwide and of raising awareness on a global level about the fact that Ombudsman institutions make government actions more transparent, public administration more accountable and play an increasingly important role in the protection and promotion of human rights. The present study will not only make a valuable addition to existing publications of the Ombudsman concept, it will furthermore create a better understanding amongst Ombudsman institutions as such and – in return – improve their services to citizens around the world. For the present study a comprehensive survey was carried out among Ombudsman institutions in the Asian Region. It provides an overview of
V Preface the development of Ombudsman offices, their legal foundations, governance and mandates and elaborates their multifaceted nature and diversity. The International Ombudsman Institute (IOI) would like to thank the editors and main authors of this study, Professor Gabriele Kucsko- Stadlmayer and Professor Ursula Kriebaum from the University of Vienna (Austria), as well as the scientific scholars, Philipp Janig and Thomas Eder, who strongly supported the research work of this study. Special thanks go to the Austrian Ombudsman Board for the organizational and financial support in this project and to the Ombudsman institutions who participated in the study for their cooperation. Last but not least, the IOI would like to thank the General Secretariat, in particular Ulrike Grieshofer and her staff, for the excellent overall coordination and organisation of this project and everyone else who contributed to the success of this publication. The IOI regards this publication as an important part of its work in enhancing the understanding of the Ombudsman concept and the important role Ombudsman institutions play as core elements of democracy.
Adv. John R. Walters Dr. Günther Kräuter President of the IOI Secretary General of the IOI
VI Preface from the Editors
The present survey comprises the results of a research project carried out at the University of Vienna between May 2014 and April 2016 under the direction of the editors and supported by the International Ombudsman Institute and the Austrian Ombudsman Board. This project aimed to com- prehensively analyze the Asian Ombudsman institutions in a comparative way and thereby to reveal their organizational and functional diversity. It was also intended to provide an incentive for the discussion of the legal political enhancement of such institutions. Ombudsman institutions in Asia are inspired by various particular legal and political sources. There are large differences among the various Asian institutions but also considerable conceptual dissimilarities to European models. This was an interesting field to explore. This book starts with the comparative legal analysis, followed by 18 reports on the Ombudsman and similar public institutions in different Asian States and regional entities. The reports pursue a uniform scheme of structure to ensure the compatibility of information on the various institutions. They were each based on the country’s constitution and the respective legal basis of the institution, the responses to questionnaires that were sent out in the course of the project, as well as information resulting from the institution’s annual activity reports. Part three of the book contains various tables and diagrams that provide useful complements to the comparative legal analysis. This research had to contend with limitations of differences in style and technique of the various legal frameworks and the extensive reliance on translations (into English); furthermore, not all institutions provided completed questionnaires for the study. Some problems, though by no means all, were resolved by directly contacting employees of the particular institutions. Sincere thanks are given to all persons who contributed to the success of this research project and its publication. Particular thanks are due to Dr. Günther Kräuter, Ombudsman of the Republic of Austria and Secretary General of the International Ombudsman Institute, who initiated and
VII Preface from the Editors facilitated this project as an essential contribution to the dialogue between institutions and enriched it by his contacts as well as to Mag. Ulrike Gries- hofer who provided useful organizational assistance. In addition, we would like to thank Michael Moffatt, who supported us by checking the linguistic quality of the manuscript.
Ursula Kriebaum Gabriele Kucsko-Stadlmayer
VIII List of Abbreviations
AOA Asian Ombudsman Association Art Article BDT Bangladeshi Taka CAT Convention Against Torture, and Other Cruel, Inhuman, or Degrading Treatment or Punishment e.g. for example (Latin: exempli gratia) et al. and others (Latin: et altera) i.a. among other things (Latin: inter alia) ICCPR International Covenant on Civil and Political Rights ICERD International Convention on the Elimination of all Forms of Racial Discrimination ICESCR International Covenant on Economic Social and Cultural Rights INR Indian Rupee IOI International Ombudsman Institute LKR Sri Lankan Rupee NHRI National Human Rights Institution NPM National Preventive Mechanism OHCHR Office of the High Commissioner for Human Rights OICOA Organisation of Islamic Cooperation Ombudsman Association OPCAT Optional Protocol to the Convention Against Torture PKR Pakistani Rupee Sec Section THB Thai Baht
IX
Table of Contents
Preface ...... V Preface from the Editors ...... VII List of Abbreviations ...... IX
Part One: The Legal Structures of Ombudsman and Similar Public Institutions in Asia – Legal Comparative Analysis 1 Thomas Stephan Eder, Philipp Janig, Ursula Kriebaum, Gabriele Kucsko-Stadlmayer
Chapter I: Introduction ...... 3 1. Significance and Historical Development of the Ombudsman Concept in Asia ...... 3 2. Description of Research Focus ...... 6 3. Subject of the Study ...... 6 a. Geographical Scope ...... 6 b. Types of Institutions Analyzed ...... 6
Chapter II: Institutional Structure ...... 9 1. Organization and Legal Status ...... 9 a. Legal Basis ...... 9 b. Appointment of the Head of the Institution ...... 9 c. Qualification Requirements ...... 11 d. Term of Office ...... 12 e. Removal Procedure ...... 13 f. Salaries and Budget ...... 15 g. Staff ...... 16 2. Investigation ...... 17 a. Initiation of Investigations ...... 17 b. Requirements and Other Matters Regarding Individual Complaints ...... 18 c. Requirements of Investigations Ex Officio ...... 21 3. Object of Supervision ...... 21 a. Preface ...... 21 b. Exemptions ...... 23
XI Table of Contents
4. Standard of Supervision ...... 23 a. Laws/Legal Rules ...... 23 b. Good Administration ...... 24 c. Human Rights ...... 26
Chapter III: Relationship with the Administration, Legislature and Judiciary ...... 29 1. Relationship with the Administration ...... 29 a. General Relationship with the Administration ...... 29 b. Investigative Powers vis-à-vis and Reports to the Administration ...... 32 c. Independence ...... 34 d. Disciplinary Proceedings ...... 36 e. Private Legal Entities ...... 37 2. Relationship with the Legislature ...... 37 a. Involvement in the Appointment and Removal of the Head of the Institution ...... 37 b. Reports ...... 38 c. Legislative Proposals ...... 38 d. Investigative Powers ...... 39 3. Relationship with the Judiciary ...... 39 a. Involvement in the Appointment and Removal of the Head of the Institution ...... 39 b. Investigative Powers ...... 40 c. Initiation of Legal Proceedings ...... 40 d. Judicial Review of the Conduct of the Institution ...... 41
Chapter IV: Powers of the Institutions ...... 43 1. Preface ...... 43 2. Investigatory Powers of the Institution ...... 43 a. Obligation to Assist ...... 43 b. Enforcement of Duty of Assistance ...... 44 c. Interrogation of Functionaries and Other Persons ...... 47 d. Access to Places of Detention and Other (Governmental) Premises ...... 48 3. Powers After the Conclusion of Investigations ...... 49 a. Recommendations ...... 49 b. Enforcement of the Findings and Recommendations of the Institution ... 50 c. Annual Reports ...... 52 d. Special Reports ...... 53
%JCRVGT8 %NCUUKƂECVKQPQH+PUVKVWVKQPU ...... 55 1. Preface ...... 55 2. Internal Supervisory Institution ...... 56 3. Administrative Ombudsman ...... 57 4. Anti-Corruption Institution ...... 58 5. Parliamentary Ombudsman ...... 58
XII Table of Contents
Part Two: Different Jurisdictions ...... 61 1. Bahrain (Philipp Janig) ...... 63 2. Bangladesh (Philipp Janig) ...... 76 3. China (Thomas Stephan Eder) ...... 83 4. India (Philipp Janig) ...... 99 5. Indonesia (Thomas Stephan Eder) ...... 140 6. Iran (Philipp Janig) ...... 148 7. Japan (Thomas Stephan Eder) ...... 159 8. Jordan (Philipp Janig) ...... 169 9. Special Administrative Region (SAR) Macao, People’s Republic of China (Thomas Stephan Eder) ...... 177 10. Malaysia (Thomas Stephan Eder) ...... 185 11. Pakistan (Philipp Janig) ...... 191 12. ‘Azad Jammu and Kashmir’ (Pakistan-administered Kashmir) (Philipp Janig) ...... 241 13. Philippines (Thomas Stephan Eder) ...... 250 14. Republic of Korea (South Korea) (Thomas Stephan Eder) ...... 258 15. Sri Lanka (Philipp Janig) ...... 268 16. Thailand (Thomas Stephan Eder) ...... 277 17. Timor-Leste (Thomas Stephan Eder) ...... 290 18. Vietnam (Thomas Stephan Eder) ...... 298
Part Three: Tables and Diagrams ...... 309
I. Preface ...... 311 1. Subject Matter – Geographical Survey ...... 311 2. Subject Matter – Tabular Survey ...... 311 3. Dates of Establishment ...... 315 4. Democracy Ranking (Economist Intelligence Unit – Democracy Index 2014) ...... 316 5. Constitutional Embodiment of the Institution ...... 317 6. Which Branch of Government do the Institutions Associate Themselves With? ...... 318 7. Is There a Specialized Constitutional Court? ...... 319
II. Organization ...... 320 8. Which Organ or Branch of Government is Assigned With the Appointment of the Head of the Institution? ...... 320 9. Which Organ or Branch of Government is Additionally Involved in the Appointment? ...... 322 10. Which Qualifications do Candidates Have to Demonstrate? ...... 324 11. How Many Incumbents are Appointed as the Head of the Institution? ...... 326 12. How Many Deputies are (Currently) Appointed? ...... 328 13. How Long is the Term of Office of the Head of the Institution? ...... 330 14. Can the Term of Office of the Head of the Institution be Renewed? ...... 332
XIII Table of Contents
15. Which Activities is the Office of the Head of the Institution Incompatible With? ...... 334 16. An Organ of Which Branch of Government may Remove the Head of the Institution From Office? ...... 337 17. Which Organ or Branch of Government is Additionally Involved in the Removal of the Head of the Institution? ...... 339 18. For What Reason Might the Head of the Institution be Removed From Office? ...... 341 19. What Does the Remuneration of the Head of the Institution Relate to? ...... 344 20. How Many Persons Does the Institution Employ? ...... 346
III. Access to the Institution ...... 347 21. Does the Complaint Have to be Submitted in Written Form? ...... 347 22. Are There Deadlines for the Lodging of a Complaint Before the Institution? ...... 349 23. Can the Institution or its Head act Ex Officio? ...... 351
IV. Subject of the Investigation ...... 353 24. Can Non-Governmental Legal Entities be Supervised? ...... 353 25. Are Certain Domains of Administration Outside the Jurisdiction of the Main Institution? ...... 355 26. Are Courts Subject to the Supervision of the Institution? ...... 356
V. Standard of Investigation ...... 358 27. What is the Standard of Investigation of the Ombudsman? ...... 358 28. Are Human Rights an Explicit Standard of Supervision of the Ombudsman? ...... 360
VI. Powers ...... 362 29. Are Administrative Organs Obliged to Assist the Ombudsman? ...... 362 30. Can the Duty of Assistance be Enforced (Under Compulsion)? ...... 364 31. Can the (Head of the) Institution Initiate Criminal Proceedings? ...... 367 32. Can the (Head of the) Institution Initiate Disciplinary Proceedings? ...... 369 33. Does the Ombudsman Submit an Annual Activity Report? ...... 371 34. Can Special Reports be Submitted? ...... 373 35. Is the Ombudsman Empowered to Submit Legislative Proposals? ...... 375 36. Which Powers Exist With Respect to Legislation? ...... 377
VII. Miscellaneous ...... 378 37. Have the Institutions Provided an Answered Questionnaire? ...... 378 38. Have the Legal Bases of the Institutions Been Accessible for the Purpose of the Study? ...... 380
Bibliography ...... 383 Index ...... 393 List of Contributors ...... 401
XIV Part One: Legal Comparative Analysis Thomas Stephan Eder, Philipp Janig, Ursula Kriebaum, Gabriele Kucsko-Stadlmayer
Chapter I: Introduction
5KIPKƂECPEGCPF*KUVQTKECN&GXGNQROGPVQHVJG Ombudsman Concept in Asia
The history of grievance redress institutions in Asia is one of different origins and gradual development. In a first phase, Communist governments in the People’s Republic of China (hereinafter: China) and Vietnam established systems of internal supervision – internal in the sense of being part of the executive branch. These would allow the top of the respective parties and States to monitor the entire corpus of public administration on their own initiative. At the same time it allowed for broader public participation through channelling people’s pertinent complaints. The formation of these institutions took place in the late 1940s and early 1950s, without reference to Western European models and without using the term ‘Ombudsman’. However, both the People’s Supervisory Commission (later: Ministry of Supervision) in China and the Special Inspection Board (later: Government Inspectorate) in Vietnam carried on with European Communist traditions.1 Although established during the same period, the other current Chinese institution, the State Bureau for Letters and Calls, has its roots in much older traditions. In a second phase, certain non-Communist governments also went on to establish internal mechanisms of grievance redress in the late 1960s and early 1970s. The Administrative Inspection Bureau (later:
1 The relationship between State and party institutions of administrative supervision was complicated in the Soviet Union. The first relevant institution actually predates the establishment of the State. The ‘Rabkrin’ (‘Workers and Peasants Inspectorate’) was founded in 1920, followed later by the Control Committees of the Communist Party and the Council of Ministers of the Soviet Union. Their branches extended throughout the entire Soviet system. The Ministry of State Security and the Ministry of Internal Affairs carried out similar work.
3 Part One: Legal Comparative Analysis
Administrative Evaluation Bureau) in Japan was established as part of the Ministry of Internal Affairs and the Public Complaints Bureau in Malaysia as part of the Prime Minister’s Office. The Japanese situation became more complicated as Administrative Counselors – citizen volunteers, supported by the National Federation of Administrative Counselors’ Associations, a private organization – became a second part of the overarching Japanese administrative grievance redress system. In a third phase, beginning with the early 1970s and lasting until the present day, the Ombudsman idea spread across Europe and, starting with New Zealand, was further exported to countries of the Commonwealth. Asian countries gradually and increasingly embraced the idea. During this period a series of more independent institutions were formed, most of which explicitly referenced existing Ombudsman traditions or were even named ‘Office of the Ombudsman’ or ‘Ombuds- man’. The first country implementing this idea was India, where federal States established regional institutions, mostly in the 1970s and 1980s.2 The first country to explicitly name an institution ‘Ombudsman’ in its legal basis was Bangladesh in 1980 – however, the institution was never established. In 1981, Sri Lanka followed with the ‘Parliamentary Commissioner for Administration’ and Iran, with the General Inspection Organization.3 Pakistan set up its system of federal and regional Ombudsmen starting with the Federal Ombudsman in 1983. The Philippines followed suit, opening the Office of the Ombudsman in 1988. Next came the Ombudsman of the Republic of Korea (hereinafter: South Korea), which was later renamed Anti-Corruption and Civil Rights Commission, as well as those of Thailand and Indonesia. Portuguese authorities in Macao instituted the High Commission Against Corruption and Administrative Illegality in 1992, which was transformed into the Commission Against Corruption following the transfer of the city to China. Newer additions include Ombudsman institutions in the Arab world, namely the Jordanian Ombudsman Bureau established in 2009 and two Bahraini institutions created in 2012.
2 The Indian institution of Lokayukta (sometimes termed an ‘anti-corruption Ombudsman’) was first established in the Indian State of Maharashtra, in 1971. The oldest Indian institution to be included in this study is the Lok Ayukta Uttar Pradesh, which was founded in 1977. While the Indian institutions share certain features (including their name), their legal bases vary considerably with regard to issues such as independence, scope of supervision and investigatory powers. 3 While the General Inspection Organization refers to itself as ‘Ombudsman’, the institution is part of Iran’s judicial system and has a distinctly different set- up than the European ‘Ombudsman’ model.
4 Chapter I: Introduction
Apart from the Ombudsman concept, Asian institutions sometimes refer to other traditions within their respective legal and historic traditions. Most notably, the Chinese State Bureau for Letters and Calls, which goes back to the much older Imperial Chinese traditions of petitioning against both administrative and judicial decisions. Pakistani officials trace the origins of the Ombudsman back to the medieval Islamic institution of ‘Mohtasib’ 4 (or ‘Muhtasib’).5 The Mohtasib, established in the Caliphate during the eighth century, was a public official charged with supervising markets, guilds and professions, who also exercised religious duties.6 According to these Pakistani officials, during his time in exile in the Ottoman Empire, the Swedish King Charles XII was inspired by his experience with the organization of the local administration, in particular the ‘Mohtasib’, to implement reforms in Sweden upon return. While the historical accuracy of this claim might be disputed,7 it shows a willingness to incorporate the Ombudsman concept into legal traditions and award it political, historical or even theological legitimacy.
4 Some Pakistani institutions are even named ‘Mohtasib’, e.g. the Banking Mohtasib and the Wafaqi Mohtasib (Federal Ombudsman). 5 See OICOA, Conference Report, Conference on Networking of Ombudsmen in the OIC Member States (OICOA Conference, Islamabad, April 2014), at iv, 13, 25–26 (Remarks by President of Pakistan Mamnoon Hussein), see also at 41 (Remarks by the Ombudsman of the Republic of Niger) available at
5 Part One: Legal Comparative Analysis
2. Description of Research Focus
This study aims to provide a comparative legal analysis of Ombudsman institutions and similar public grievance redress systems in Asia. By comparing the applicable legal bases, this study particularly analyzes the mandate and powers of such institutions, as well as their relationship to the different branches of government – namely the executive, legislative and judicial – and, if relevant, other public bodies within their respective States.
3. Subject of the Study a. Geographical Scope Geographically, this study provides a comprehensive overview of relevant institutions in States across the Asian continent. Countries in parts of the Asian continent that have not yet been addressed by previous comparative studies on Ombudsman institutions are examined. Therefore, this study excludes those countries and parts of the Asian continent that have been addressed by Kucsko-Stadlmayer’s study on Europe8 (thus, the Russian Federation, the Caucasus, Turkey, Central Asia and Israel) or by the study concerning Australasia and the Pacific9 (Taiwan and Hong Kong). As a consequence, it deals with countries in the Middle East, South Asia, Southeast Asia and East Asia (see Table 1). b. Types of Institutions Analyzed This study sets out to analyze public institutions of administrative grievance redress in Asia that incorporate typical features of the internationally renowned Ombudsman concept. Only institutions with statutes accessible for research were included, in most cases such institutions form part of the International Ombudsman Institute (IOI) or the Asian Ombudsman Association (AOA). In addition, this study
8 Gabriele Kucsko-Stadlmayer (ed), European Ombudsman-Institutions: A Comparative Legal Analysis Regarding the Multifaceted Realisation of an Idea (Springer Wien New York, 2008). 9 International Ombudsman Institute (ed), Australasia and Pacific Ombudsman Institutions: Mandates Competences and Good Practice (Springer Berlin Heidelberg, 2013).
6 Chapter I: Introduction covers two other regional institutions in India10 and Pakistan.11 These were studied together with their IOI or AOA member peers to provide a more comprehensive picture, as well as the State Bureau for Letters and Calls in China, which in certain respects appears to incorporate typical Ombudsman features more comprehensively than China’s member to the AOA, the Ministry of Supervision. As mentioned above, another significant factor for the choice of institutions to be included, was whether or not the appropriate legal bases were sufficiently accessible in terms of literature, online availability, translations and international cooperation (see Tables 37, 38). Institutions within the scope of this study differ significantly from the concept of the parliamentary Ombudsman prevailing in European States and the European Union. They are mostly part of the relevant States’ executive branch or declared as separate from the legislative, executive and judicial branch. Even those institutions that are, in terms of relative proximity, closest to the legislature do not comport with the European model of a parliamentary Ombudsman. It was thus not expedient to strictly apply the International Bar Association’s 1974 standard definition of an Ombudsman institution in the selection of institutions covered herein. ‘An Office provided for by the Constitution or by action of the Legislature or Parliament and headed by an independent, high-level public official, who is responsible to the Legislature or Parliament, who receives complaints from aggrieved persons against Government agencies, officials and employees, or who acts on own motion, and who has the power to investigate, recommend corrective action, and issue reports.’12 Said definition demands that the institution in question be ‘headed by an independent, high-level public official, who is responsible to the Legislature or Parliament’. Several pertinent Asian institutions, under the categories noted in the preceding paragraph, do not claim in- dependence, while some that do are nonetheless integrated into the administrative branch. Depending on the respective national legislation, these institutions enjoy varying degrees of independence. Primary
10 The Lokayukta institution of Uttar Pradesh, which was a member of the AOA. 11 The Provincial Ombudsman of Khyber Pakhtunkhwa. 12 Ombudsman Committee, International Bar Association Resolution (Vancouver: International Bar Association, 1974), cited in Gerald E Caiden (ed), Inter- national Handbook of the Ombudsman: Evolution and Present Function (1983) 44.
7 Part One: Legal Comparative Analysis responsibility to the legislature, in the sense of the latter having the power to ultimately decide upon the removal of the head of the respective institution from office, can only be found in the Philippines and Timor- Leste. Nonetheless, and despite their relative heterogeneity, institutions mostly share certain common traits that are very much in line with further demands of the International Bar Association’s definition. They do ‘receive complaints from aggrieved persons against government agencies, officials and employees’ (and partly act on their own motion). They do generally have the ‘power to investigate, recommend corrective action, and issue reports’ and ‘investigate’ the administration for alleged maladministration. Moreover, they are usually ‘provided for by the Constitution or by action of the Legislature or Parliament’ (although some are only set up by ordinance). While these institutions have no judicial powers, they are sometimes awarded quasi-judicial ones. The institutions thus selected, on account of only partly com porting with traditional definitions, will sometimes be more generally referred to as ‘administrative grievance redress mechanisms’. As they often refer to themselves as ‘Ombudsman’ and they are indeed mostly part of the International Ombudsman Institute and/or the Asian Ombudsman Association, the term ‘Ombudsman’ will also be used. A certain categorization of such institutions across Asia is possible (see Chapter V for a more detailed discussion on different ‘models’), whereas arguably the most important parameter, independence, shows one group of institutions which explicitly constitute part of the administrative branch13 – as a ministry, part of a ministry or component of a particular Prime Minister’s Office – and others that do not.14
13 Bahrain (though declared independent), China, Japan, Malaysia, South Korea, Vietnam. 14 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bangladesh (institution not yet established), India, Indonesia, Iran, Jordan, Macao, Pakistan, Philippines, Sri Lanka, Thailand.
8 Chapter II: Institutional Structure
1. Organization and Legal Status a. Legal Basis Only a minority of institutions on the national level – and none on the regional level – is embodied in the respective national constitution. These include the Offices of the Ombudsman in the Philippines, Thailand and Bangladesh,15 the Provedor for Human Rights and Justice in Timor- Leste, the Parliamentary Commissioner for Administration in Sri Lanka, the Commission Against Corruption in the Special Administrative Region of Macao in China (hereinafter: Macao) and the General Inspection Organization in Iran. Most institutions on the national and regional level were established by a simple act of the legislature.16 Some are even based on a mere regulation, decree or ordinance.17
D#RRQKPVOGPVQHVJG*GCFQHVJG+PUVKVWVKQP Contrary to the European concept, heads of institutions are almost exclusively appointed by an executive authority and not by parliamentary
15 Institution not yet established. 16 Bahrain, China (Ministry of Supervision), India, Indonesia, Japan (Administrative Evaluation Bureau), Jordan, Pakistan (Banking Mohtasib, Ombudsman for the Protection Against Harassment of Women in the Work- place, Khyber Pakhtunkhwa, Punjab, Sindh), South Korea. 17 Certain Pakistani institutions – in particular those established during times of military rule – were initially set up by ordinance of the President or Governor, but later adopted through acts of the legislature (Federal Ombudsman, Federal Tax Ombudsman, Insurance Ombudsman, Balochistan), likewise the Mohtasib of Azad Jammu and Kashmir (Pakistan-administered Kashmir), China (State Bureau for Letters and Calls), Malaysia, Vietnam.
9 Part One: Legal Comparative Analysis election. The appointing authority might be the Head of State (be it a President or King),18 the (head of) government,19 or another representative of the executive branch on the national20 or regional level.21 Other branches of government – be it legislature,22 judiciary23 or both24 – or special councils25 may additionally be involved, though. Candidates may have to be recommended by parliament or the judiciary respectively, such as in Bangladesh and the Philippines. Their appointment may require consultation with the leader of the opposition in parliament or the relevant Chief Justice, as is the case with several Indian institutions. They might even have to be approved by a committee of the legislature, as is the case regarding the Minister of Supervision in China. In Sri Lanka, the Parliamentary Commissioner must be recommended and approved by the Constitutional Council, while the Banking Mohtasib in Pakistan must be selected in consultation with the Governor of the State Bank. Exceptions to the dominant role of the executive in appointing the heads of institutions can be found in Indonesia, Timor-Leste and Iran. In Indonesia and Timor-Leste, the Ombudsman is elected by the legislature, the former being chosen from a selection of candidates nominated by the President. In Iran, the judicial branch appoints the President of the General Inspection Organization. An unusual model was chosen with regard to the National Federation of Administrative Counselors’ Associations, which is part of Japan’s Administrative Counseling System, but set up as a private corporate body. The President of the Federation is elected by the Board of Directors, which in turn is elected at a general meeting of fifty representatives of prefectural associations composed of 5,000 volunteer administrative counsellors.
18 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bahrain, Bangladesh (institution not yet established), China (Ministry of Supervision), Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Ombudsman for the Protection against Harassment of Women in the Work- place), Philippines, Sri Lanka, Thailand, Vietnam. 19 Jordan, Macao, Malaysia, Pakistan (Insurance Ombudsman), South Korea. 20 China (State Bureau for Letters and Calls), Japan (Administrative Evaluation Bureau). 21 India, Pakistan (Balochistan, Khyber Paktunkhwa, Punjab, Sindh). 22 Bangladesh (institution not yet established), China (Ministry of Supervision). 23 India (Andhra Pradesh), Philippines. 24 India (Delhi, Madhya Pradesh, Uttar Pradesh). 25 Pakistan (Banking Mohtasib), Sri Lanka, Thailand.
10 Chapter II: Institutional Structure
E 3WCNKƂECVKQP4GSWKTGOGPVU In order to be appointed, candidates generally must possess certain qualifications. These vary greatly among the respective institutions. In a number of cases, the legal bases do not specify any requirements.26 Others include a wide variety of (often cumulative) requirements from personal reputation27 or age,28 to candidates having obtained pertinent university degrees (typically law or public administration),29 adequate work experience,30 or even served as a judge or being qualified to do so,31 or any combination of the qualifications listed. Legal bases typically list certain positions that are incompatible with serving as the head of the respective grievance redress institution. Exceptions to this rule can be found in Bahrain, Bangladesh, China, Iran, Japan, Malaysia and Vietnam. Most common among such incompatibilities are public (elected) office,32 membership or function in a political party33 and professional activity in general,34 but there are other variations as well (e.g. working for a union or religious organization, or as a judge or prosecutor).35
26 Azad Jammu and Kashmir (Pakistan-administered Kashmir), China (State Bureau for Letters and Calls), Japan (Administrative Evaluation Bureau), Malaysia, Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Sindh), Vietnam. 27 Bahrain, Bangladesh (institution not yet established), Indonesia, Japan (National Federation of Administrative Counselors’ Associations), Jordan, Macao, Philippines, Pakistan (Banking Mohtasib, Insurance Ombudsman, Khyber Pakhtunkhwa, Punjab), Timor-Leste. 28 Indonesia, Japan (National Federation of Administrative Counselors’ Associations), Philippines, Sri Lanka, Thailand. 29 Indonesia, Jordan, Philippines, Thailand. 30 Bangladesh (institution not yet established), China (Ministry of Supervision), Indonesia, Jordan, Pakistan (Banking Mohtasib, Insurance Ombudsman, Ombudsman for the Protection against Harassment of Women in the Work- place), Philippines, South Korea, Timor-Leste. 31 India, Iran, Pakistan (Banking Mohtasib, Ombudsman for the Protection against Harassment of Women in the Workplace, Khyber Pakhtunkhwa, Punjab). 32 Azad Jammu and Kashmir (Pakistan-administered Kashmir), India, Indonesia, Jordan, Macao, Pakistan, Philippines, South Korea, Sri Lanka, Thailand, Timor-Leste. 33 India, Jordan, Macao, South Korea, Thailand, Timor-Leste. 34 Azad Jammu and Kashmir (Pakistan-administered Kashmir), India, Indonesia, Jordan, Macao, Philippines, Pakistan, South Korea, Sri Lanka, Timor-Leste. 35 Indonesia, Pakistan (Banking Mohtasib, Insurance Ombudsman), Philippines, Sri Lanka, Thailand, Timor-Leste.
11 Part One: Legal Comparative Analysis
F6GTOQH1HƂEG The head of a given institution is generally appointed for a fixed term of office set by legislation.36 Elsewhere, terms might be determined by an executive authority on a case by case basis,37 there may be an age limit38 or no limit at all.39 Terms may vary from three,40 to four,41 five,42 six,43 seven,44 or eight years.45 While those in Bangladesh46 and South Korea are on the lower and those in India and the Philippines on the higher end of the scale. The Sri Lankan Parliamentary Commissioner for Administration, for example, does not serve for a set term, but rather until the age limit of 68 years is reached or the Commissioner is otherwise removed. Despite their fixed term of office, the heads of the federal Pakistani institutions remain in place until a successor takes office.47 Additionally, in those jurisdictions that foresee a fixed term of office, the issue arises whether or not the term of a (former) incumbent may be renewed. This issue is treated rather heterogeneously. Some legal foundations do not give any indication,48 and a large number of heads of institutions may explicitly not be reappointed.49 Ombudsmen in Indonesia, Jordan
36 Bahrain, Bangladesh (institution not yet established), China (Ministry of Supervision), India, Indonesia, Jordan, Macao, Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Insurance Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh), Philippines, South Korea, Thailand, Timor-Leste. 37 Azad Jammu and Kashmir (Pakistan-administered Kashmir). 38 Japan (National Federation of Administrative Counselors’ Associations), Sri Lanka. 39 China (State Bureau for Letters and Calls), Iran, Japan (Administrative Evaluation Bureau), Malaysia, Vietnam. 40 Bangladesh (institution not yet established), South Korea. 41 Jordan, Pakistan, Timor-Leste. 42 Bahrain, China (Ministry of Supervision), India (Andhra Pradesh, Delhi), Indonesia, Macao. 43 India (Madhya Pradesh), Thailand. 44 Philippines. 45 India (Uttar Pradesh). 46 Institution not yet established. 47 Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Insurance Ombudsman, Ombudsman for the Protection against Harassment of Women in the Workplace). 48 China (State Bureau for Letters and Calls), Iran, Japan (Administrative Evaluation Bureau), Malaysia, Sri Lanka, Vietnam. 49 Azad Jammu and Kashmir (Pakistan-administered Kashmir), India, Pakistan (all institutions except Sindh), Philippines, Thailand.
12 Chapter II: Institutional Structure and Bangladesh,50 as well as the Minister of Supervision in China, the Chairperson of the Anti-Corruption and Civil Rights Commission in South Korea, and the Provedor for Human Rights and Justice in Timor- Leste may be reappointed once. Regarding the heads of institutions in Bahrain and Macao, as well as the President of the National Federation of Administrative Counselors’ Associations in Japan, an unlimited possibility of reappointment is provided for. e. Removal Procedure Similar to appointment, the institutions’ heads generally may be removed before the expiry of their term by an executive authority. Once again this may be the Head of State,51 the head of government52 or another representative of the executive branch.53 However, in cases where the executive branch is empowered to remove the head of an institution, other branches of government or special councils may be involved as well. This might be the legislature alone,54 the legislature together with special councils,55 or on ly t he l at t e r. 56 If they are removed by an executive authority, certain Pakistani Ombudsmen may request a public evidentiary hearing before a judicial organ.57 In addition, federal Pakistani Ombudsmen may be removed by the Supreme Judicial Council (an organ of the judiciary).58 The Ombudsman in the Philippines, although appointed by the executive branch, may only be removed through impeachment by the country’s legislature. In Indonesia, it is the other way around, with the legislature
50 Institution not yet established. 51 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bahrain, Bangladesh (institution not yet established), China (Ministry of Supervision), Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Ombudsman for the Protection against Harassment of Women in the Work- place), South Korea, Sri Lanka, Thailand, Vietnam). 52 Jordan, Macao, Malaysia, Pakistan (Insurance Ombudsman), South Korea. 53 China (State Bureau for Letters and Calls), India, Japan (Administrative Evalu- ation Bureau), Pakistan (Balochistan, Khyber Paktunkhwa, Punjab, Sindh). 54 Bangladesh (institution not yet established), China (Ministry of Supervision), Sri Lanka, Vietnam. 55 India. 56 Bahrain (Inspector General Office – National Security Agency). 57 Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Insurance Ombuds- man, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh), see also Azad Jammu and Kashmir (Pakistan-administered Kashmir). 58 Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Insurance Ombudsman, Ombudsman for the Protection against Harassment of Women in the Workplace).
13 Part One: Legal Comparative Analysis appointing the Ombudsman, who may later only be removed by the President. Only the Provedor for Human Rights and Justice in Timor- Leste is both elected and removed by the legislature. The President of the General Inspection Organization in Iran and the President of the National Federation of Administrative Counselors’ Associations in Japan may only be removed by the judicial branch and the described Board of Directors respectively. In removing Ombudsmen, the relevant bodies are subject to different levels of preconditions and must observe more or less stringent procedures. Regarding the heads of institutions in Japan, Macao, Malaysia, Sri Lanka (if the parliament is involved), Thailand and Vietnam, as well as the Director of the State Bureau for Letters and Calls in China, no justification for a removal need be provided – ‘loss of confidence’ suffices. Concerning the remainder of the institutions within the scope of this study, the following reasons might serve as justification for removal: loss of eligibility,59 physical or mental incapacity,60 criminal conviction,61 misbehaviour or failure to carry out the intended functions,62 misconduct,63 loss of citizenship,64 absence,65 insolvency,66 or incompatibilities with the position.67 The legal basis for the General Inspection Organization in Iran does not provide any indication in this regard.
59 Indonesia, Jordan, South Korea. 60 Bangladesh (institution not yet established), India, Indonesia, Japan (National Federation of Administrative Counselors’ Associations – Administrative Counselors, not the President of NFACA), Jordan, Pakistan, Philippines, South Korea, Sri Lanka, Timor-Leste. 61 Indonesia, Jordan, Pakistan (Insurance Ombudsman), Philippines, Timor- Leste. 62 Bahrain (Ombudsman of the Ministry of Interior), India, Japan (National Federation of Administrative Counselors’ Associations – Administrative Counselors, not the President of NFACA), Pakistan (Insurance Ombudsman), Timor-Leste. 63 Bahrain (Inspector General Office – National Security Agency), Bangladesh (institution not yet established), Indonesia, Japan (National Federation of Administrative Counselors’ Associations – Administrative Counselors, not the President of NFACA), Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Insurance Ombudsman), Philippines. 64 Jordan, South Korea. 65 Indonesia, Jordan. 66 Pakistan (Insurance Ombudsman). 67 Indonesia, South Korea, Timor-Leste.
14 Chapter II: Institutional Structure f. Salaries and Budget There are notable differences in salaries paid to Ombudsmen, which may be aligned with the remuneration of (Supreme Court) judges,68 the Prosecutor-General, 69 ministers,70 members of parliament,71 other high of - ficials,72 or instead set independently by parliament73 or an executive auth- ority.74 Many legal bases do not indicate how to proceed in such matters.75 Budgets of Asian grievance redress institutions may constitute special budgets (or independent categories) within the respective States’ general budgets,76 the budget of the judiciary,77 the budget of a ministry,78 or the budget of another institution.79 Where the institution itself is a ministry, the budget is allocated accordingly.80 Some legal bases provide no indication in this regard.81 The budget of one institution does not constitute part of the national budget.82 Institutions may have the right to draft budget proposals,83 or they may not.84 Generally, the budgets of institutions, as part of general
68 Bangladesh (institution not yet established), India (Andhra Pradesh, Madhya Pradesh, Uttar Pradesh), Pakistan (Banking Mohtasib, Insurance Ombudsman). 69 Timor-Leste. 70 China, Indonesia, Jordan, Macao, South Korea. 71 Indonesia. 72 Bahrain (Inspector General Office – National Security Agency). 73 Sri Lanka. 74 India (Delhi), Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh). 75 Bahrain (Ombudsman of the Ministry of Interior), Iran, Japan, Malaysia, Pakistan (Ombudsman for the Protection against Harassment of Women in the Workplace), Philippines, Thailand, Vietnam. 76 Jordan, Macao, Sri Lanka. 77 Iran. 78 Bahrain (Ombudsman of the Ministry of Interior). 79 Bahrain (Inspector General Office – National Security Agency). 80 China (Ministry of Supervision), Vietnam. 81 Bangladesh (institution not yet established), Indonesia, Philippines, South Korea, Thailand, Timor-Leste. 82 The budget of the National Federation of Administrative Counselors Associations in Japan consists of membership fees from prefectural adminis- trative counselors associations, and revenue from other activities such as publications and research. The institution’s board of directors decides on further usage. 83 Bahrain (Ombudsman of the Ministry of Interior), Iran, Jordan, South Korea, Thailand, Vietnam. 84 Bangladesh (institution not yet established), Bahrain (Inspector General Office – National Security Agency), Japan (Administrative Evaluation Bureau), Pakistan, Sri Lanka.
15 Part One: Legal Comparative Analysis
(State) budgets, are allocated by the legislature following a governmental proposal. Conversely, the allocation of the budgets of other institutions lies within the sole discretion of the administrative branch.85 In some cases, institutions are explicitly declared free in their decisions on the usage of allocated budgets.86 Finally, the expenditures of some institutions are externally audited, namely those of the Inspector General Office at the National Security Agency in Bahrain, the General Inspection Organization in Iran (partly), the Parliamentary Commissioner for Administration in Sri Lanka, and the Provedor for Human Rights and Justice in Timor-Leste. g. Staff The dimensions of the institutions studied, as measured by the number of staff members, differ greatly (see Table 20). Within the confines of their budget, institutions usually have administrative authority over their employees, particularly regarding recruitment. Heads of institutions may have no deputies,87 one or up to more than five.88 In some cases, the relevant legal bases do not contain any indications in this regard.89 Deputies may be appointed by the head of the institution, within their discretion, following regulations, or through separate procedures. In the case of the institutions in India, deputies enjoy their own ‘jurisdiction’.90 Concerning overall staff levels, among national organizations, numbers
85 India (Delhi, Uttar Pradesh), Macao, Pakistan. 86 Bahrain, Jordan, Macao, Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Insurance Ombudsman, Ombudsman for the Protection against Harassment of Women in the Workplace), Philippines, South Korea, Thailand, Vietnam. 87 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bahrain (Inspector General Office – National Security Agency), Bangladesh (institution not yet established), Pakistan, Sri Lanka. 88 One deputy: Bahrain (Ombudsman of the Ministry of Interior), India (Madhya Pradesh, Uttar Pradesh), Japan (National Federation of Administrative Counselors’ Associations); two deputies: Indonesia, Jordan, Macao, Malaysia, Thailand, Timor-Leste; three deputies: South Korea; four deputies: China (State Bureau for Letters and Calls); more than five deputies: Indonesia, Philippines, Vietnam; in India (Andhra Pradesh, Delhi) deputies may be appointed, however it is unclear how many there currently are. 89 Iran, Japan (Administrative Evaluation Bureau). 90 Thus, certain public officials generally may only be investigated by a deputy. While the deputies are under the administrative supervision of the institutions’ head, their findings, conclusions and recommendations may not be called into question (see Part Two, ‘India’ for further information).
16 Chapter II: Institutional Structure of paid staff range from seven at Bahrain’s Inspector General Office at the National Security Agency to 1,649 at Japan’s Administrative Evaluation Bureau. Within regional organizations, employee numbers range from 18 at the Lokayukta Institution of Madhya Pradesh (India) to 401 at the Provincial Ombudsman of Sindh (Pakistan).
2. Investigation a. Initiation of Investigations The institutions’ investigations may be initiated in various ways, namely following an individual complaint, ex officio by the institution or by a referral or order of a different body. Nominally, individual complaints are most significant, in part because all institutions allow them. Individual complaints, in particular their formal requirements, which differ from jurisdiction to jurisdiction, will be discussed in detail below. The number of institutions that may also act ex officio (bring suo motu cases) is considerable.91 Again, pertinent requirements will be discussed below. The abovementioned additional possibility of investigations following referral or order by another body is only foreseen in some jurisdictions. Said body may be the government,92 a different executive organ,93 one or both houses of legislature94 (or one of their committees),95 certain courts,96
91 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bahrain (Ombudsman of the Ministry of Interior), Bangladesh (institution not yet established), China (Ministry of Supervision), India (Andhra Pradesh), Indonesia, Iran, Japan (Administrative Evaluation Bureau), Jordan, Macao, Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh), Philippines, Thailand, Timor-Leste, Vietnam. 92 India (Uttar Pradesh), Pakistan (Insurance Ombudsman, Khyber Pakhtunkhwa, Punjab). 93 Azad Jammu and Kashmir (Pakistan-administered Kashmir), India (Andhra Pradesh), Iran, Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Balochistan, Sindh). 94 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh). 95 Iran, Sri Lanka, Thailand. 96 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Insurance Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh).
17 Part One: Legal Comparative Analysis different judicial organs97 or other public institutions.98 Whether the institutions are obliged to follow such a request and initiate an investigation depends on the respective national legal order and the body in question.
D4GSWKTGOGPVUCPF1VJGT/CVVGTU4GICTFKPI Individual Complaints Despite all institutions allowing individual complaints, their legal bases differ considerably concerning formal requirements. Such requirements may assist the institutions in handling their caseload and might contribute to legal certainty. However, if drafted too restrictively, they may seriously hamper access to institutions and thus their ability to work effectively. Almost half of the legal bases require individual complaints to be brought in writing,99 often providing for a specific written form. Those institutions that require complaints to be submitted in written form also impose time limits for lodging such complaints. In addition, the legal bases of several other institutions foresee time limits.100 These time limits are calculated either from the date on which the relevant matter occurred, or the date on which the complainant took notice of it.101 In the latter case, the time frames are, unsurprisingly, usually shorter and range from three,102 six103 and twelve months104 to two years.105 Where periods are
97 Iran (the Head of the Judiciary). 98 Pakistan (Banking Mohtasib (State Bank)). 99 Azad Jammu and Kashmir (Pakistan-administered Kashmir), India, Jordan, Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Insurance Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh), Sri Lanka. 100 Indonesia, Pakistan (Ombudsman for the Protection against Harassment of Women in the Workplace), Philippines, Thailand, Timor-Leste, Vietnam. 101 In the case of Thailand it suffices if the complainant ought to have known about the matter. 102 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Pakistan (Federal Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh), Vietnam (90 days). 103 Pakistan (Federal Tax Ombudsman). 104 India (Andhra Pradesh (in case of ‘allegations’, both time limits must have elapsed, see Part Two for a more detailed explanation)), Uttar Pradesh (in case of ‘grievances’ as opposed to ‘allegations’, see Part Two for an explanation of the distinction). 105 Thailand.
18 Chapter II: Institutional Structure measured from the date of occurrence, stipulated time frames vary from one,106 two,107 and five,108 to as many as six years.109 Sometimes it is required to lodge complaints with a different body, before bringing them to the institution itself.110 The Pakistani institutions that either require or allow for an initial procedure at a different body before lodging a complaint with the institution itself have short time limits. These are measured either from the date on which the complaint is formally rejected by a different body, or the end of the period during which such body may react, and may be thirty days,111 45 days112 or three months.113 Despite the provision of such time limits, a number of institutions may also accept belated complaints where the complainant has sufficient reason for delay,114 the complaint pertains to ‘issues of a general aspect’,115 or there are ‘special circumstances’ warranting the acceptance of the complaint.116 Some Indian institutions have further formal requirements, including the submission of verified affidavits,117 or payment of fees ranging from 25 to 2,000 INR.118
106 Jordan, Philippines. 107 Indonesia. 108 India (Delhi, Madhya Pradesh, Uttar Pradesh (in case of ‘allegations’ as opposed to ‘grievances’, see Part Two for an explanation of the distinction)). 109 India (Andhra Pradesh (in case of ‘allegations’, both time limits must have lapsed, see Part Two for a more detailed explanation)). 110 Bahrain (Ombudsman of the Ministry of Interior), Pakistan (Banking Mohtasib, Insurance Ombudsman), Indonesia. 111 Pakistan (Ombudsman for the Protection against Harassment of Women in the Workplace). 112 Pakistan (Banking Mohtasib). 113 Pakistan (Insurance Ombudsman). 114 India (Uttar Pradesh (in case of ‘grievances’ as opposed to ‘allegations’, see Part Two for an explanation of the distinction)). 115 Jordan. 116 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Pakistan (Federal Ombudsman, Banking Mohtasib, Insurance Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh). 117 India (Andhra Pradesh, Delhi, Madhya Pradesh (not necessary under certain circumstances, see Part Two for a more detailed explanation), Uttar Pradesh). 118 India (Andhra Pradesh, Delhi (as a deposit), Madhya Pradesh (not necessary under certain circumstances, see Part Two for a more detailed explanation), Uttar Pradesh (as a security deposit, only in the context of ‘allegations’ and not necessary under certain circumstances, see Part Two for a more detailed explanation)).
19 Part One: Legal Comparative Analysis
Usually, the decision whether or not to investigate an individual complaint lies within the discretion of the institution.119 Typically, certain reasons are listed that justify the dismissal of a complaint (e.g. the matter or damage already having been addressed, or the matter being outside the scope of the mandate of a given institution). Some institutions are required to inform the complainant if they decide not to investigate, or even state reasons for dismissing the respective complaint.120 In the Philippines, the Ombudsman may refuse to investigate complaints that are ‘trivial, frivolous, vexatious or made in bad faith’. Several South Asian institutions, as well as the Provedor for Human Rights and Justice in Timor-Leste, also have similar provisions dealing with complaints that are considered false, frivolous or vexatious.121 Certain Pakistani institutions may also refuse to investigate false, frivolous or vexatious complaints and cease investigations initiated with regard to such complaints. In case of such complaints, institutions may even award reasonable compensation to the person or body against which the given complaint was directed, recoverable from the complainant.122 Likewise, the Lokayukta institutions of Andhra Pradesh and Uttar Pradesh may refuse complaints that are frivolous, vexatious or not made in good faith and cease investigations that were initiated based on such complaints. In Uttar Pradesh, the relevant institution may additionally impose costs not exceeding 50,000 INR upon the complainant. Should the complaint have caused injustice or defamation, the Lokayukta may award compensation from the indicated amount to the public servant against whom the complaint was directed. In addition, wilfully (or maliciously) making false complaints with any of the named Indian institutions is punishable with prison sentences and/or fines upon conviction by a court. However,
119 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bahrain, Bangladesh (institution not yet established), China, Indonesia, Iran, Japan, Jordan, Macao, Malaysia, Pakistan (all institutions except Ombudsman for the Protection against Harassment of Women in the Workplace), Philippines, South Korea, Thailand, Timor-Leste, Vietnam. 120 Azad Jammu and Kashmir (Pakistan-administered Kashmir), China, Indonesia, Japan, Jordan, Macao, Pakistan (all institutions except Ombudsman for the Protection against Harassment of Women in the Workplace), Philippines, Thailand, Timor-Leste. 121 Azad Jammu and Kashmir (Pakistan-administered Kashmir), India, Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh), Timor-Leste. 122 Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh), see also Azad Jammu and Kashmir (Pakistan-administered Kashmir).
20 Chapter II: Institutional Structure the respective court may only initiate proceedings following a complaint by the relevant institution (and in the case of Andhra Pradesh the person against whom the complaint was directed). The range of punishment depends on the State and may reach prison sentences of three years and/ or fines of up to 10,000 INR. Moreover, the competent court may award (part of) the fine as compensation to the public servant aggrieved by the complaint.123
E 4GSWKTGOGPVUQH+PXGUVKICVKQPU 'Z1HƂEKQ As a general rule, the decision to initiate investigations ex officio lies within the discretion of the institution. Particular requirements are only provided for in a small number of cases.124 The Ombudsman of the Ministry of Interior in Bahrain, for instance, may only take suo motu action, where a negative impact on the public confidence in the Ministry of Interior is at stake. The General Inspection Organization in Iran only conducts investigations ex officio following annual programs that are approved beforehand by the Head of the Judiciary. The Ombudsman in Thailand may take cognizance of an act on their own motion if that act ‘causes injuries to the public’ or if an investigation is ‘necessary to protect public interests’.125 Generally, the powers of a given institution and procedure during an investigation will not depend on the way in which an investigation is initiated. The notable exception is the Jordanian Ombudsman Bureau, the legal basis of which stipulates no standard of supervision for its investigations ex officio.
3. Object of Supervision a. Preface The primary subject of investigation of most institutions is the respect- ive public administrative system in general.126 There are, however,
123 India (Andhra Pradesh (one year, fine), Delhi (three years, 5,000 INR), Madhya Pradesh (two years, 5,000 INR), Uttar Pradesh (three years, 10,000 INR)). 124 Bahrain (Ombudsman of the Ministry of Interior), Iran, Thailand. 125 See Chapter on Thailand in Part Two. 126 According to the Encyclopædia Britannica, public administration is defined as ‘the implementation of government policies’. Pertinent systems are such that involve ‘planning, organizing, directing, coordinating, and controlling of government operations’ (see 21 Part One: Legal Comparative Analysis additional elements to the scope of supervision, as well as certain exemptions and particular orientations of specialized Ombudsman institutions, which will be detailed below. In addition, some remarks will be included on investigative work performed and the respective States’ legislative and judicial branches of government. A number of institutions operate under a specialized mandate. The investigations of the Pakistani Federal Tax Ombudsman (federal tax administration), the Bahraini Inspector General – NSA (staff of the National Security Agency) and the Bahraini Ombudsman of the Ministry of Interior (Ministry of Interior personnel) only pertain to the respective parts of public administration. The Pakistani Ombudsman for the Protection against Harassment of Women in the Workplace, on the other hand, monitors all public and private legal entities, however only with respect to the harassment of women. Particularly notable are the Pakistani Banking Mohtasib and Insurance Ombudsman, both of whom only investigate private legal entities in the banking and insurance sectors, regardless of private or public ownership. The majority of Asian Ombudsman institutions are, in various ways, entitled to investigate certain private legal entities. These might be private legal entities that perform certain public duties127 or such that are (partly) under State supervision.128 In certain cases, supervision of such entities may be limited to certain issues.129 The Commission Against Corruption in Macao, for example, monitors the protection of rights, freedoms and safeguards in relationships between private individuals involving a certain element of dominance.130 Further variations of such responsibilities can be found in Iran (regarding private legal entities which the government supervises or whom it assists) and India (regarding registered cooperative societies). administration> last accessed 12 December 2015); the legal bases of the institutions within the scope of this study often contain a definition of what constitutes ‘public administration’, which are generally in line with the above definition. Jordan, for example, defines ‘public administration’ as ‘ministries, official institutions, municipalities and regulatory bodies that are entrusted with the supervision and regulation of public services in accordance with the relevant laws’. 127 China, Indonesia, Macao, Malaysia, South Korea. 128 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bangladesh (institution not yet established), India, Indonesia, Iran, Japan (Administrative Evaluation Bureau), Macao, Malaysia, Pakistan (Federal Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh), Philippines, Sri Lanka. 129 Macao, Pakistan (Banking Mohtasib, Insurance Ombudsman, Ombudsman for the Protection against Harassment of Women in the Workplace). 130 The legal basis does not specify under which circumstances this might apply. 22 Chapter II: Institutional Structure The institutions in Bahrain, Jordan, Thailand and Vietnam, as well as the National Federation of Administrative Counselors’ Associations in Japan and the Federal Tax Ombudsman in Pakistan, have no mandate whatsoever regarding private legal entities. b. Exemptions A considerable number of national Ombudsman institutions may not investigate the entire public administration. The most common exception is the administration of justice, which is excluded from the scope of supervision of institutions in Bangladesh,131 Japan, Macao, Malaysia, South Korea and Sri Lanka. Additionally, Sri Lanka’s Parliamentary Commissioner for Administration may not monitor the conduct of the Head of State or investigate the conduct of governments and Ministers. The latter also applies to the Iranian General Inspection Organization, which, similar to the Federal Ombudsman in Pakistan, may not investigate matters pertaining to the military or national defence. Courts are generally not subject to the supervision of most Asian Ombudsman institutions.132 Exceptions include the Government Inspectorate of Vietnam, the Ombudsmen of Indonesia and Thailand, the Provedor for Human Rights and Justice in Timor-Leste and the General Inspection Organization of Iran, which may monitor courts with respect to the administration of justice. The Anti-Corruption and Civil Rights Commission in South Korea may investigate judges and courts with regard to corruption and even take corresponding disciplinary action. 4. Standard of Supervision a. Laws/Legal Rules Although the legal bases of the institutions within the scope of this study define the standard of such institutions’ supervision differently, common traits can be identified. Most refer both to any violation of the legal system (be it in the sense of corruption or otherwise) and what is deemed to be ‘good administration’.133 For example, in terms of possible corrupt 131 Institution not yet established. 132 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bangladesh (institution not yet established), Bahrain, China, India, Japan, Jordan, Macao, Malaysia, Pakistan, Sri Lanka. 133 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bahrain (Inspector General Office – National Security Agency), Bangladesh (institution 23 Part One: Legal Comparative Analysis conduct, or corrupt or improper motives, the legal basis for the Federal Ombudsman of Pakistan lists ‘bribery, jobbery, favouritism, nepotism and administrative excesses’. b. Good Administration In (non-exhaustive) enumerations of what would constitute ‘malad- ministration’, aside from breaching the law, several differing approaches can be observed. Ombudsmen are required inter alia to monitor abuse or transgression of competences (apparently also such short of legal violations),134 violations of administrative discipline135 and ignorance or negligence regarding legal obligations (i.e. certain omissions).136 Further examples include the exercise of discretionary powers for improper purposes,137 based on unlawful instructions138 or irrelevant grounds,139 another being departure from established practice without valid reasons140 or against the general course of a given agency’s functions.141 not yet established), China, Indonesia, India (Andhra Pradesh, Delhi, Uttar Pradesh), Iran, Japan, Jordan, Macao, Malaysia, Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Insurance Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh), South Korea, Sri Lanka, Thailand, Vietnam. 134 Azad Jammu and Kashmir (Pakistan-administered Kashmir), India (Andhra Pradesh, Delhi, Uttar Pradesh), Indonesia, Jordan, Malaysia, Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Insurance Ombuds- man, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh), Sri Lanka, Thailand. 135 China (Ministry of Supervision). 136 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bahrain (Ombudsman of the Ministry of Interior), China (Ministry of Supervision), India (Andhra Pradesh, Uttar Pradesh), Indonesia, Japan, Jordan, Malaysia, Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Insurance Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh), Philippines, South Korea, Thailand. 137 Azad Jammu and Kashmir (Pakistan-administered Kashmir), India (Andhra Pradesh, Delhi, Uttar Pradesh), Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh), Philippines, Sri Lanka. 138 Jordan. 139 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Insurance Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh). 140 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Insurance Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh), Sri Lanka. 141 Philippines. 24 Chapter II: Institutional Structure Moreover, some Ombudsmen are tasked with countering infringements upon rights resulting from unfair mechanisms or the lack of appropriate ones142 and ‘unreasonable’ administrative systems being particularly burdensome or causing inconvenience.143 Relevant injuries caused may be material or immaterial,144 inflicted upon an individual or the community as a whole.145 Pertinent practices are referred to as of ‘unsatisfactory quality’,146 ‘unfair’ or ‘unjust’,147 ‘arbitrary’ or ‘unreasonable’,148 ‘op- pressive’,149 ‘biased’ or ‘discriminatory’,150 ‘immoral’,151 ‘perverse’,152 or ‘unjustifiable’.153 Some legal bases of Ombudsman institutions also refer to the improvement of efficiency or the attitude of officials.154 Other legal bases also consider procedural mistakes155 or mistakes of law and fact156 by civil servants as a standard of supervision. 142 Jordan, South Korea. 143 South Korea. 144 Indonesia. 145 Indonesia, Thailand, Vietnam. 146 Malaysia. 147 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bangladesh (institution not yet established), India (Andhra Pradesh, Uttar Pradesh), Japan, Jordan, Malaysia, Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Insurance Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh), Philippines, South Korea, Sri Lanka, Thailand. 148 Azad Jammu and Kashmir (Pakistan-administered Kashmir), India (Andhra Pradesh, Uttar Pradesh), Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Insurance Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh), Philippines, Sri Lanka. 149 Azad Jammu and Kashmir (Pakistan-administered Kashmir), India (Andhra Pradesh, Uttar Pradesh), Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Insurance Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh), Philippines, Sri Lanka. 150 Azad Jammu and Kashmir (Pakistan-administered Kashmir), India (Andhra Pradesh, Uttar Pradesh), Jordan, Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Insurance Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh), Philippines, Sri Lanka. 151 Philippines. 152 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Insurance Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh). 153 Philippines, South Korea. 154 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Japan, Macao, Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Insurance Ombuds- man, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh). 155 Jordan, Malaysia. 156 Jordan, Philippines, Sri Lanka. 25 Part One: Legal Comparative Analysis The Office of the Ombudsman in Thailand is additionally charged with monitoring the ethics of persons holding political positions, and required to apply Thailand’s Code of Ethics as its standard of supervision. The Lokayukta Institution of Uttar Pradesh in India has the additional function of supervising whether, in the process of appointing public officials, the quota reserved for members of a certain caste or tribe has been observed. The Ombudsman of the Ministry of Interior in Bahrain is only charged with monitoring violations of laws and regulations. The Inspector General Office at the National Security Agency in Bahrain is required to focus on ‘ill-treatment’, considering the violation of laws, the violation of international treaties ratified by Bahrain, and ‘principles of human rights’. Furthermore, different standards of supervision apply to the provincial institution in Madhya Pradesh, India, and the thematically specialized Ombudsmen in Pakistan, who have additional functions. In Madhya Pradesh, for instance, only ‘corrupt conduct’ is supervised, defined as an official’s abuse of their position to obtain gains or cause harm, as well as an official’s discharge of their functions on the basis of corrupt or improper motives and an official having amassed wealth disproportionate to their known source of income. The issue of disproportionate wealth is also a part of the work of the Institution of Lokayukta Delhi. For the Ombudsman for the Protection against Harassment of Women in the Workplace in Pakistan, the decisive criterion is ‘harassment’, defined as instances of unwelcome sexual advances, requests for sexual favours, or sexually demeaning attitudes creating offensive work environments. The Tax Ombudsman in Pakistan is tasked with monitoring cases of unnecessary procedural delays, wilful errors, deliberate non-payment of refunds and rebates, coercive methods of tax recovery where no default is apparent, and failure to take disciplinary action against offending officials. The Banking Mohtasib is mandated with taking action in cases of failure to act in accordance with banking laws and regulations, for example delays of various payments and unauthorized or fraudulent withdrawals. Concerning banks in the public sector, the Banking Mohtasib additionally monitors gross derelictions of duty and corrupt practices. With regard to their particular purview, the Insurance Ombudsman is charged with monitoring ‘corruption, nepotism, neglect [and] inordinate delay […] in the administration or discharge of duties and responsibilities’. E *WOCP4KIJVU Generally, the protection of human rights is not an (explicit) standard of supervision for the relevant institutions. This might partly be owed to the 26 Chapter II: Institutional Structure general reluctance of States in the region to implement mechanisms for the enforcement of human rights. For instance, of the States within the scope of this study only the Philippines, South Korea and Sri Lanka have ratified the First Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR), which establishes an individual com- plaint mechanism. By the same token, only the Philippines has ratified the Optional Protocol to the Convention against Torture (OPCAT). Overall, human rights issues are rarely mentioned in the legal bases of the Ombudsman institutions discussed herein.157 Of those institutions whose legal bases mention human rights, only half may take cognizance of human rights violations in general.158 Those few institutions which are tasked with the supervision of human rights-related issues are often limited in their pertinent mandate. Macao’s Commission Against Corruption, for example, is to merely promote ‘the protection of the rights, freedoms, safeguards and legitimate interests’ of individuals, while the Ombudsman of the Ministry of Interior of Bahrain may only ascertain whether the treatment of detainees is in conformity with human rights. Likewise, Pakistani institutions are only concerned with ensuring respect for citizens’ right to freedom of information.159 The South Korean Anti-Corruption and Civil Rights Commission may only request the help of the State’s National Human Rights Commission, when deemed necessary for the performance of its duties, but not act itself in this regard. Overall, there is a large number of separate institutions for the protection of human rights in Asia, with which Ombudsman institutions might communicate and cooperate to varying degrees (such as the Administrative Evaluation Bureau in Japan, which can make certain recommendations). A notable exception in this regard is the Provedor for Human Rights and Justice in Timor-Leste, which is itself a National Human Rights Institution (NHRI) within the International Co- ordinating Committee’s (ICC) network, and accredited with ‘A Status’ under the Paris Principles. One of the Provedor’s four directorates is responsible for human rights, the protection of fundamental rights being an explicit part of its mandate. As a result, recommendations and reports provided to administrative organs and the National Parliament are to, inter alia, address human rights violations. 157 Bahrain, Macao, Pakistan (Federal Ombudsman, Federal Tax Ombudsman), South Korea, Sri Lanka, Thailand, Timor-Leste. 158 Bahrain (Inspector General Office – National Security Agency), Macao, South Korea, Sri Lanka, Timor-Leste. 159 Pakistan (Federal Ombudsman, Federal Tax Ombudsman). 27 Chapter III: Relationship with the Administration, Legislature and Judiciary 1. Relationship with the Administration In contrast to the typical European model, most Asian Ombudsmen or other administrative grievance redress institutions are not ‘par- liamentary’, but rather ‘executive’,160 ‘judicial’161 or claim to have no particular association to one branch of government, in what one could call the ‘mixed’ model.162 Only the Provedor for Human Rights and Justice in Timor-Leste might be categorized as ‘parliamentary’. All institutions’ independence from each branch of government, particularly the executive power, will be reviewed in detail below. a. General Relationship with the Administration Several institutions are part of or incorporated into the executive branch. In China and Vietnam, the Minister of Supervision and the Inspector General of the Government Inspectorate respectively are ministers in their countries’ governments. The State Bureau for Letters and Calls in China is part of the government’s General Office, while the Anti-Corruption and Civil Rights Commission in South Korea and the Public Complaints Bureau in Malaysia are part of the Prime Minister’s Office. The institutions forming the component parts of the Japanese Administrative Counseling System, as well as the Ombudsman of the Ministry of Interior in Bahrain, are part of their countries’ interior 160 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bahrain, China, Japan, Malaysia, Pakistan, South Korea, Vietnam. 161 Iran. 162 Bangladesh (institution not yet established), Indonesia, Jordan, Macao, Philippines, Sri Lanka, Thailand. 29 Part One: Legal Comparative Analysis ministries. Bahrain’s Inspector General Office is part of the National Security Agency. The General Inspection Organization in Iran is part of the judicial branch. The Office of the Ombudsman in Thailand, Indonesia and the Philippines, as well as the Commission Against Corruption in Macao, the Parliamentary Commissioner for Administration in Sri Lanka, the Jordanian Ombudsman Bureau, the Provedor for Human Rights and Justice in Timor-Leste and all Pakistani Ombudsman institutions are not explicitly part of one of the branches of government.163 The overwhelming majority of Asian Ombudsmen and heads of administrative grievance institutions are appointed by the executive power. Appointment might be performed by the Head of State,164 the (head of) government,165 or another representative of the executive branch.166 Other branches of government – be it legislature,167 judiciary,168 or both169 – or special councils,170 may additionally be involved, though. Several countries’ legislation provides that candidates for the position have to first be proposed by other institutions. Exceptions to the dominant role of the executive branch in appointing Ombudsmen can be found in Indonesia and Timor-Leste, where the Ombudsman is elected by the legislature – although in Indonesia from among candidates nominated by the President – and in Iran, where the judicial branch appoints the President of the General Inspection Organization. A unique model is employed by the National Federation of Administrative Counselors’ Associations, which is part of Japan’s Administrative 163 See however, Badshah Gul Wazir v Govt. of Khyber Pakhtunkhwa (Peshawar High Court, 9 June 2014) W.P. No. 2547-P/2014, para 14 (addressing the status of the Provincial Ombudsman of Khyber Pakhtunkhwa): ‘The office of the Ombudsman is an executive office performing quasi-judicial functions on the executive side. The Provincial Ombudsman is responsible to the Provincial Government in terms of Article 138 of the Constitution of Pakistan’. 164 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bahrain, Bangladesh (institution not yet established), China (Ministry of Supervision), Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Ombudsman for the Protection against Harassment of Women in the Work- place), Philippines, Thailand, Sri Lanka, Vietnam. 165 Jordan, Macao, Malaysia, Pakistan (Insurance Ombudsman), South Korea. 166 China (State Bureau for Letters and Calls), India, Japan (Administrative Evalu- ation Bureau), Pakistan (Balochistan, Khyber Paktunkwha, Punjab, Sindh). 167 Bangladesh (institution not yet established), China (Ministry of Supervision). 168 India (Andhra Pradesh), Philippines. 169 India (Delhi, Madhya Pradesh, Uttar Pradesh). 170 Pakistan (Banking Mohtasib), Sri Lanka, Thailand. 30 Chapter III: Relationship with the Administration, Legislature and Judiciary Counseling System. The President of this federation is elected by a Board of Directors, which in turn is elected at a general meeting of fifty representatives of the prefectural associations of the 5,000 volunteer Administrative Counselors of the country. Similar to the process of appointment, the institutions’ heads generally may be removed by an executive authority. Once again, this may be the Head of State,171 (head of) government172 or other representative of the executive branch.173 With regard to removals, other branches of government or special councils may be involved as well. This might be the legislature only,174 the legislature and special councils,175 or other officials.176 Regarding the heads of the federal Pakistani Ombudsman institutions, the judicial branch may be involved as well where removal is effected by the President, as an evidentiary hearing before the Supreme Judicial Council may be requested in such situations.177 The Ombudsman in the Philippines, although appointed by the executive branch, may only be removed through impeachment by the country’s legislature. In Indonesia, it is the other way around, with the legislature appointing the Ombudsman, who is then liable to removal by the President. Only in Timor-Leste does the legislature both elect and remove the Ombudsman. The President of the General Inspection Organization in Iran and the President of the National Federation of Administrative Counselors’ Associations in Japan, are removed as they are appointed; by the judicial branch and the aforementioned Board of Directors respectively. In removing Ombudsmen, the relevant State bodies are subject to varying levels of constraint in terms of preconditions and procedures 171 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bahrain, Bangladesh (institution not yet established), China (Ministry of Supervision), Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Ombudsman for the Protection against Harassment of Women in the Work- place), South Korea, Sri Lanka, Thailand, Vietnam. 172 Jordan, Malaysia, Macao, Pakistan (Insurance Ombudsman), South Korea. 173 China (State Bureau for Letters and Calls), India, Japan (Administrative Evaluation Bureau). 174 Bangladesh (institution not yet established), China (Ministry of Supervision), Sri Lanka, Vietnam. 175 India. 176 Bahrain (Inspector General Office). 177 Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Insurance Ombudsman, Ombudsman for the Protection against Harassment of Women in the Workplace), see also Azad Jammu and Kashmir (Pakistan- administered Kashmir). 31 Part One: Legal Comparative Analysis which must be observed. Regarding the heads of institutions in Japan, Macao, Malaysia, Sri Lanka (if the parliament is involved), Thailand and Vietnam, as well as the Director of the State Bureau for Letters and Calls in China, no justification must be provided; Loss of confidence will suffice. Concerning the remaining institutions within the scope of this study, the following circumstances may serve as justification for removal: Loss of eligibility,178 physical or mental incapacity,179 criminal conviction,180 misbehaviour or failure to carry out the intended functions,181 misconduct,182 loss of citizenship,183 absence,184 insolvency,185 or incompatibilities with the position.186 The legal basis for the General Inspection Organization in Iran does not provide any indication in this regard. b. Investigative Powers XKU¼XKU and Reports to the Administration For a number of institutions, which constitute the main federal adminis- trative grievance redress mechanisms of their countries, certain domains of administration are outside their jurisdiction. The Ombudsman of the Ministry of Interior in Bahrain and the Parliamentary Commissioner for Administration in Sri Lanka, may not investigate the Head of 178 Indonesia, Jordan, South Korea. 179 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bangladesh (institution not yet established), India, Indonesia, Japan (National Federation of Administrative Counselors’ Associations – Administrative Counselors, not the President of NFACA), Jordan, Pakistan, Philippines, South Korea, Sri Lanka, Timor-Leste. 180 Indonesia, Jordan, Pakistan (Insurance Ombudsman), Philippines, Timor- Leste. 181 Bahrain (Ombudsman of the Ministry of Interior), India, Japan (National Federation of Administrative Counselors’ Associations – Administrative Counselors, not the President of NFACA), Pakistan (Insurance Ombudsman), Timor-Leste. 182 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bahrain (In- spector General Office – National Security Agency), Bangladesh (institution not yet established), Indonesia, Japan (National Federation of Administrative Counselors’ Associations – Administrative Counselors, not the President of NFACA), Pakistan (Federal Ombudsman, Banking Mohtasib, Insurance Ombudsman, Tax Ombudsman), Philippines. 183 Jordan, South Korea. 184 Indonesia, Jordan. 185 Pakistan (Insurance Ombudsman). 186 Indonesia, South Korea, Timor-Leste. 32 Chapter III: Relationship with the Administration, Legislature and Judiciary State, government and its Ministers, while the mandate of the General Inspection Organization in Iran explicitly only excludes the government. Additionally, for said institutions in Bahrain and Iran, as well as the Federal Ombudsman of Pakistan, defence and military matters are outside their jurisdiction. Administrative authorities are generally obliged to assist the Ombudsman institutions’ work,187 although there are some exceptions concerning information declared secret or confidential.188 Enforcement capabilities significantly differ in strength between jurisdictions. They range from the option of reporting the official in question to a superior authority,189 disciplinary prosecution190 and recommending suspension,191 to compulsory interrogation,192 penalties and fines,193 or even imprisonment.194 The grievance redress institutions in Bahrain and Japan, as well as the Banking Mohtasib and Insurance Ombudsman in Pakistan, have none of these powers. Chapter IV on ‘Powers of the Institutions’ contains a more detailed discussion of the investigative powers the various Ombudsmen. 187 Bahrain, China, India (Delhi, Madhya Pradesh), Japan, Jordan, Macao, Malaysia, Pakistan (Ombudsman for the Protection Against Harassment of Women in the Workplace), Philippines, South Korea, Sri Lanka, Thailand, Timor-Leste, Vietnam. 188 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bangladesh (institution not yet established), India (Andhra Pradesh, Uttar Pradesh), Iran, Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Insurance Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh), Timor-Leste. 189 Indonesia, Thailand, Timor-Leste. 190 See the separate sub-chapter below. 191 Iran (during an investigation), Philippines (only as a preventive interim). 192 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bangladesh (institution not yet established), India, Indonesia, Malaysia (when the Chief Secretary to the Government as Chairman of the Permanent Committee on Public Complaints (PCPC) requests it on behalf of the Public Complaints Bureau), Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Ombudsman for the Protection Against Harassment of Women at the Workplace, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh), Sri Lanka. 193 Bangladesh (institution not yet established), Indonesia, Philippines (may only be recommended), South Korea, Thailand, Timor-Leste, Vietnam. 194 India (Madhya Pradesh, Uttar Pradesh), Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Ombudsman for the Protection Against Harassment of Women at the Workplace, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh), Sri Lanka, Timor-Leste. 33 Part One: Legal Comparative Analysis Most institutions must submit their annual reports to an executive authority,195 although in many cases such reports are forwarded to the respective legislatures.196 Several institutions also submit special reports,197 while some only do so regarding individual cases.198 These special reports may be addressed to the Head of State,199 the Minister of Interior,200 or the (Lieutenant) Governor of a province.201 c. Independence Against the backdrop of the above mentioned integration into and general involvement in appointment and removal procedures of the executive branch, it is noteworthy that some institutions within the scope of this study are explicitly declared to be independent,202 while others are not.203 However, of higher relevance than the mere stipulation is the actual existence of institutional safeguards for the institutions’ independence. As the institutions are primarily tasked with investigating the public administration, their relationship to the executive branch is necessarily highly relevant in this regard. Consequently, while the appointment and removal procedures already elaborated above provide a first indication in terms of the pertinent level of independence, the following factors lend 195 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bahrain (Ombudsman of the Ministry of Interior), Bangladesh (institution not yet established), China, India, Jordan, Pakistan, Sri Lanka, Vietnam. 196 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bangladesh (institution not yet established), India, Jordan, Pakistan, Vietnam. 197 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bahrain (Ombudsman of the Ministry of Interior), Bangladesh (institution not yet established), China (Ministry of Supervision), Indonesia, India (Delhi, Uttar Pradesh), Macao, Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Balochistan, Khyber Pakhtunkhwa, Sindh), South Korea, Thailand. 198 Bahrain (Ombudsman of the Ministry of Interior), China (Ministry of Supervision), India (Delhi, Uttar Pradesh). 199 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bangladesh (institution not yet established), Pakistan (Federal Ombudsman, Federal Tax Ombudsman). 200 Bahrain (Ombudsman of the Ministry of Interior). 201 India (Delhi, Uttar Pradesh), Pakistan (Balochistan, Khyber Pakhtunkhwa, Sindh). 202 Bahrain, Indonesia, Jordan (the head of the institution is specifically declared to function independently), Macao, Philippines, South Korea, Thailand, Timor-Leste. 203 Bangladesh (institution not yet established), China, India, Japan, Malaysia, Sri Lanka, Vietnam. 34 Chapter III: Relationship with the Administration, Legislature and Judiciary further guidance in reaching such determinations. Firstly, the process of designating terms of office varies significantly. Terms can be set by legis- lation,204 determined by an executive authority on a case-by-case basis,205 subject to an age limit,206 or no limit at all.207 Secondly, the term may vary from three to eight years, with Bangladesh208 and South Korea at the lower and India and the Philippines at the higher end of the scale. Thirdly, regulations differ on the possibility of reappointment. Some legal statutes do not contain any such indication,209 whereas a large number of heads of institutions may explicitly not be reappointed.210 Ombudsmen in Indonesia, Jordan and Bangladesh,211 as well as the Minister of Supervision in China and the Chairperson of the Anti- Corruption and Civil Rights Commission in South Korea, may be re- appointed once. The heads of institutions in Bahrain and Macao, as well as the President of the National Federation of Administrative Counselors’ Associations in Japan, enjoy the unlimited possibility of reappointment. An additional indicator in terms of independence might be found in the design of relevant budgetary framework. Generally, Asian administrative grievance redress institutions draft budget proposals and manage budget distribution and implementation on their own. It is usually the executive branch, though, that decides on the final budget proposal submitted to the legislature. The dimensions of the institutions studied here as measured in number of their staff members differ greatly (see Table 20). Within the confines of their budget, institutions may usually employ and govern their own employees. For a more detailed discussion of budget and staff issues, see above Chapter II, ‘Institutional Structure’. 204 Bahrain, Bangladesh (institution not yet established), China (Ministry of Supervision), India, Indonesia, Jordan, Macao, Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Insurance Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh), Philippines, South Korea, Thailand, Timor-Leste. 205 Azad Jammu and Kashmir (Pakistan-administered Kashmir). 206 Japan (National Federation of Administrative Counselors’ Associations), Sri Lanka. 207 China (State Bureau for Letters and Calls), Iran, Japan (Administrative Evaluation Bureau), Malaysia, Vietnam. 208 Institution not yet established. 209 China (State Bureau for Letters and Calls), Iran, Japan (Administrative Evaluation Bureau), Malaysia, Sri Lanka, Vietnam. 210 India, Pakistan, Philippines, Thailand. 211 Institution not yet established. 35 Part One: Legal Comparative Analysis The independence of Pakistani institutions is limited by the possibility of an administrative appeal (representation).212 Any person aggrieved by a decision or order of an institution may request a representation to the President or (in the case of a regional institution) the Governor, who then may pass such an order as deemed fit. In the case of federal institutions, the implementation of the impugned action is stayed for sixty days, when a representation is made. d. Disciplinary Proceedings Which powers respective administrative grievance redress institutions have with regard to disciplinary proceedings is highly relevant to the institutions’ relations with government. A number of institutions can institute such proceedings themselves,213 while others may merely recommend them214 and a third group can do neither.215 In the case of Bangladesh,216 for example, disciplinary proceedings can be initiated where actions result in ‘undue favour to any person or in accrual of undue personal benefit or gain to any person’. The South Korean Anti- Corruption and Civil Rights Committee (ACRC) may take action where the Code of Conduct for Public Organization Employees was violated. 212 See UNGA, ‘Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism’ (26 September 2012) UN Doc A/67/396, at para 34: ‘[t]he ‘very existence’ of an executive power to overturn the decision of a quasi-judicial body is sufficient to deprive that body of the necessary ‘appearance’ of independence however infrequently such a power is exercised, and irrespective of whether its exercise was, or even could have been, at issue in any particular case’. 213 China, Indonesia, Pakistan (Ombudsman for the Protection against Harass- ment of Women in the Workplace), Philippines, South Korea, Vietnam. 214 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bahrain (Ombudsman of the Ministry of Interior), Bangladesh (institution not yet established), India, Iran, Jordan, Macao, Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Insurance Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh). 215 Bahrain (Inspector General Office), Japan, Malaysia, Sri Lanka, Thailand, Timor-Leste. 216 Institution not yet established. 36 Chapter III: Relationship with the Administration, Legislature and Judiciary e. Private Legal Entities The institutions’ legal bases vary on whether private entities can be subject to an investigation.217 Those that allow for some level of supervision differ on the preconditions for such investigations. In some cases, investigations may only be conducted regarding private legal entities performing public duties,218 being (partly) under State supervision,219 working on certain issues (e.g. children, discrimination),220 or under further specific circumstances.221 2. Relationship with the Legislature a. Involvement in the Appointment and Removal of the *GCFQHVJG+PUVKVWVKQP As discussed in the preceding sub-chapter, the appointment and removal procedures regarding the institutions within the scope of this study mostly lie within the purview of the executive branch. The legislature does, however, appoint the Provedor for Human Rights and Justice in Timor-Leste and the Ombudsman of Indonesia (following a nomination by the President, who in turn relies on the recommendations of a special selection committee). Additionally, the legislature plays a supplementary role in the appointment of the heads of the Ministry of Supervision in China, the Ombudsman institutions in Delhi, Madhya Pradesh and Uttar Pradesh in India, and is designated to play such a role regarding the not yet established Ombudsman of Bangladesh. The Chinese Minister of Supervision is nominated by the Premier and appointed by the President, but the Standing Committee of the National People’s Congress (i.e. the legislature) must approve the appointment. The respective (Lieutenant) Governor appoints the Lokayukta in Delhi, Madhya Pradesh and Uttar Pradesh, but, among others, the Leader of the Opposition in the respective 217 Such monitoring is not possible for the institutions in Bahrain, Jordan, Thailand and Vietnam, as well as the Federal Tax Ombudsman in Pakistan and the National Federation of Administrative Counselors’ Associations in Japan. 218 China, Indonesia, Macao, Malaysia, South Korea, Timor-Leste. 219 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bangladesh (institution not yet established), India, Indonesia, Iran, Japan, Macao, Malaysia, Pakistan (Federal Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh), Philippines, Sri Lanka. 220 Macao, Pakistan (Banking Mohtasib, Insurance Ombudsman, Ombudsman for the Protection against Harassment of Women in the Workplace). 221 India, Iran. 37 Part One: Legal Comparative Analysis Legislative Council or Assembly must be consulted. The Ombudsman in Bangladesh,222 once the institution opens its offices, will be appointed by the President upon recommendation by the legislature. Furthermore, the Provedor for Human Rights and Justice and the Ombudsman of the Philippines (although appointed by the President) may only be removed through impeachment by the legislature. Parliaments are involved in an auxiliary role in the removal of the heads of Ombudsman institutions in India, Sri Lanka and Vietnam, as well as the Minister of Supervision in China. In both China (Ministry of Supervision) and Vietnam, the Presidents remove the heads of administrative grievance redress institutions, but only pursuant to pertinent decisions by the legislature. The President may remove the Parliamentary Commissioner for Administration in Sri Lanka, inter alia, by an order after an address of parliament. The respective (Lieutenant) Governors may remove the heads of Indian institutions, but only after a majority of the members of the State legislature have supported such measure. b. Reports Although many Asian Ombudsman institutions must file their annual reports with the executive branch, a significant number – those of Indonesia, Macao, the Philippines, South Korea, Sri Lanka, Thailand and Timor-Leste, as well as the Administrative Evaluation Bureau in Japan – must submit them to the legislature. Moreover, as listed above, the reports of many other institutions are forwarded to the respective countries’ parliaments by executive authorities.223 A considerable number of institutions may also file special reports to the legislature.224 c. Legislative Proposals The institutions’ powers within the legislative process differ considerably. While approximately half of all Asian Ombudsman institutions are not empowered to and do not take part in the legislative process,225 a large 222 Institution not yet established. 223 Bangladesh (institution not yet established), India, Jordan, Pakistan, Vietnam. 224 Bahrain (Ombudsman of the Ministry of Interior (only on single cases)), Bangladesh (institution not yet established), India (Delhi, Uttar Pradesh (only on single cases)), Indonesia, Macao, Pakistan (Federal Tax Ombudsman, Balochistan, Khyber Pakhtunkhwa, Sindh), South Korea, Thailand, Timor-Leste. 225 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bahrain (Inspector General Office – National Security Agency), India (Delhi, Madhya 38 Chapter III: Relationship with the Administration, Legislature and Judiciary number do have explicit powers in this regard, 226 while several act without such explicit powers.227 Among those endowed with such competence, powers range from the Public Complaints Bureau in Malaysia merely being permitted to recommend the implementation of international treaties, to the Office of the Ombudsman in Thailand and the Provedor for Human Rights and Justice in Timor-Leste being in a position to challenge laws and regulations before their countries’ Constitutional or Supreme Court. The institutions in Bangladesh,228 Indonesia, Iran, the Philippines, South Korea, Thailand and Timor-Leste, as well as the Ministry of Supervision in China and the Administrative Evaluation Bureau in Japan, are authorized to recommend amendments and new legislation. d. Investigative Powers Only the Indian Lokayukta institutions have investigative powers vis- à-vis the legislature. The institutions in Andhra Pradesh, Delhi and Uttar Pradesh may all investigate members of the legislature. The (Deputy) Speaker and (Deputy) Chairman are, however, outside the jurisdiction of the institutions in Andhra Pradesh and Delhi, while the Chief Minister may not be investigated by the Ombudsman in Uttar Pradesh. 3. Relationship with the Judiciary a. Involvement in the Appointment and Removal of the *GCFQHVJG+PUVKVWVKQP As described above, the only head of an administrative grievance redress institution in Asia appointed and removed by the judiciary is the President of the General Inspection Organization in Iran, whereas Pradesh, Uttar Pradesh), Japan (National Federation of Administrative Counselors’ Associations), Jordan, Malaysia, Pakistan (Banking Mohtasib, Fedderal Tax Ombudsman, Insurance Ombudsman, Ombudsman for the Protection Against Harassment of Women in the Workplace, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh), Sri Lanka. 226 Bangladesh (institution not yet established), China (Ministry of Supervision), Indonesia, Iran, Japan (Administrative Evaluation Bureau), Macao, Philippines, South Korea, Thailand, Timor-Leste, Vietnam. 227 Bahrain (Ombudsman of the Ministry of Interior), Pakistan (Federal Ombudsman), India (Andhra Pradesh; usually with regard to its own legis- lation). 228 Institution not yet established. 39 Part One: Legal Comparative Analysis that institution also forms part of Iran’s judiciary. The judicial branch also enjoys a supplementary role in the appointment of the heads of the Indian Lokayukta institutions (Andhra Pradesh, Delhi, Madhya Pradesh, Uttar Pradesh) and the Ombudsman of the Philippines. The Chief Justice of the High Court of the respective province must be consulted in the appointment of the Lokayukta of Delhi, Andhra Pradesh, Madhya Pradesh and Uttar Pradesh. In the Philippines, the Judicial and Bar Council compiles a list of 21 nominees. From this list, the President then chooses and appoints an Ombudsman and six Deputy Ombudsmen. Similar to appointment procedures, parts of the judiciary are also involved in removal procedures of Indian Lokayukta. The Governors of Andhra and Uttar Pradesh may proceed with a removal only after there has been an inquiry involving (depending on whether the head and/or deputy head of the institution is being removed) a judge of the Supreme Court, the Chief Justice or a judge of a High Court. The (Lieutenant) Governors of Delhi and Madhya Pradesh may remove the respective Lokayukta only after the latter has been found guilty by a committee consisting of a Supreme Court Chief Justice or judge, a Chief Justice of a High Court and another distinguished jurist. In Pakistan, either the President or the Supreme Judicial Council may remove the Federal Ombudsman and the Federal Tax Ombudsman of Pakistan. The Supreme Judicial Council may also remove the Banking Mohtasib, the Insurance Ombudsman, and the Ombudsman for the Protection against Harassment of Women in the Workplace. b. Investigative Powers Courts are generally outside the jurisdiction of Ombudsman institutions. Only a few institutions have the power to investigate the administration of justice,229 or allegations of corruption.230 Courts are explicitly excluded from the scope of investigation in Bangladesh,231 India and Pakistan. c. Initiation of Legal Proceedings Only the Ombudsman in Thailand may initiate criminal proceedings, but a large number of heads of Asian institutions may recommend such a 229 Indonesia, Iran, Thailand, Timor-Leste, Vietnam. 230 South Korea. 231 Institution not yet established. 40 Chapter III: Relationship with the Administration, Legislature and Judiciary step.232 The Bahraini Ombudsman of the Ministry of Interior can propose bringing criminal proceedings against Ministry of Interior personnel, by notifying the Public Prosecution and submitting all related information and documentation. The Inspector General Office of the National Security Agency in Bahrain must coordinate with the Public Prosecution for the implementation of their functions (e.g. forwarding cases for legal action, or requesting witness protection). The Ombudsman institution in Thailand may appeal laws it considers unconstitutional before the Constitutional Court. Likewise, the Provedor for Human Rights and Justice in Timor-Leste may request the Supreme Court to review the constitutionality of legislative measures. In Sri Lanka, the Parliamentary Commissioner for Administration may, under certain preconditions, initiate Supreme Court proceedings. They may bring a case before the Supreme Court if, during the course of an investigation, any question of law of exceptional public importance arises relating to the interpretation of the Constitution, or, as to whether there has been or is likely to be an infringement of a fundamental right by a public officer, or officer of a public corporation, local authority, or similar institution. d. Judicial Review of the Conduct of the Institution In South Asian countries, the Supreme Courts (and, in part, the High Courts) enjoy the constitutional power to review the conformity of administrative conduct with fundamental rights following the application of an individual. In exercise of this jurisdiction, courts may issue different ‘writs’ (binding orders) to administrative bodies and may i.a. prohibit (writ of prohibitio) or require (writ of mandamus) a certain conduct, or declare an act or proceeding by a body to be done or taken without lawful authority and without legal effect.233 The roots of this competence lie in British common law. How far the Ombudsman institutions have been affected by the courts’ writ jurisdiction is unclear, in particular as their proceedings are often shielded from interference by courts. Certain decisions of the Parliamentary Commissioner of Administration in Sri Lanka may not be reviewed or quashed in writ proceedings. The legal bases of most Indian and Pakistani institutions include provisions that 232 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bahrain, Iran, Jordan, Pakistan (Federal Ombudsman, Banking Mohtasib, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh), Vietnam. 233 Bangladesh (institution not yet established), India, Pakistan, Sri Lanka. 41 Part One: Legal Comparative Analysis generally prohibit courts to interfere with the institutions’ work.234 However, at least in Pakistan, attempts have been made to influence the institutions’ investigation by resorting to writ proceedings,235 although it appears that these cases usually involve questions of whether the Ombudsman has jurisdiction to resolve certain individual complaints.236 234 India (Andhra Pradesh, Uttar Pradesh), Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh). 235 See e.g. Imtiaz Ahmad Ahibzada, ‘The Role of the Ombudsman in Safeguarding Civil Rights Country’ (8th AOA Conference, Seoul, 26–29 April 2004) in Federal Ombudsman of Pakistan, Annual Report 2004, Annex, at 208: ‘No court or other authority has jurisdiction to question the validity of any action taken by the Ombudsman or to grant an injunction or stay against any proceedings before him. However, the writ jurisdiction of the High Courts under Article 199 of the Constitution has been occasionally invoked’. 236 See e.g. Peshawar Electric Supply Company Ltd v Wafaqi Mohtasib etc (Peshawar High Court, 4 December 2015) WP No. 1796-P/2015 (finding that the petitioner is indeed an ‘Agency’ within the Ombudsman’s jurisdiction); University of Agriculture Faisalabad v Provincial Ombudsman Punjab etc (Lahore High Court, 23 January 2015) WP No. 25717/2013 (affirming that the Ombudsman has no jurisdiction over service matters); M/S Capital Insurance Co. Ltd. v Securities and Exchange Commission of Pakistan etc. (Lahore High Court, 20 September 2012) WP No. 24457/2010 (discussing whether the non- performance of a ‘performance guarantee/bond’ falls within the jurisdiction of the Insurance Ombudsman). 42 Chapter IV: Powers of the Institutions 1. Preface This chapter mainly focuses on the powers of Ombudsman institutions versus the administration. However, as legal bases often do not distinguish between public servants and private individuals, evidence – in particular statements – may also be taken from persons not working for or otherwise connected to the bodies under supervision. Moreover, an important distinction has to be drawn between the powers an institution enjoys during the course of investigations, in particular which instruments it is given to collect evidence, and the powers an institution enjoys following the conclusion of an investigation. 2. Investigatory Powers of the Institution a. Obligation to Assist The institutions’ investigations usually concern the conduct of ad- ministrative bodies or public servants. Thus, effective and correct taking of evidence requires certain assistance by the administration. With regard to this study, the public administrations of all jurisdictions are under the obligation to assist their respective Ombudsman institutions during investigations. This obligation is either unlimited237 or contains exceptions for certain confidential and/or secret information238 (see Table 29). 237 Bahrain, China, Indonesia, India (Delhi, Madhya Pradesh), Japan, Jordan, Macao, Malaysia, Philippines, Pakistan (Ombudsman for the Protection against Harassment of Women in the Workplace), South Korea, Sri Lanka, Thailand, Vietnam. 238 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bangladesh (institution not yet established), India (Andhra Pradesh, Uttar Pradesh), Iran, 43 Part One: Legal Comparative Analysis Exempted issues vary from jurisdiction to jurisdiction. Such exemptions include information declared a State secret by a certain executive authority,239 ‘secret evidence of the government’,240 information that would prejudice the investigation or detection of a crime,241 the security, defence or international relations of the State, or involve the disclosure of proceedings of the cabinet or those of any of its committees.242 In Bangladesh,243 Andhra Pradesh and Uttar Pradesh (both India), a certificate issued by the (Chief) Secretary to the Government in this regard is conclusive and binding. While their legal bases do not stipulate an exception for State secrets, in the proceedings of the Banking Mohtasib and Insurance Ombudsman in Pakistan, insurance or banking confidentiality must be ensured. Regarding the General Inspection Organization of Iran, restricted information still must be provided if the corresponding request was made with the approval of the Head of the Judiciary. b. Enforcement of Duty of Assistance Even when prescribing a duty of assistance, the effectiveness of such a provision hinges on whether compliance depends on the goodwill of the administration, or the institution is granted instruments for its enforcement (Table 30). Only a small number of institutions have no compulsory powers in this regard.244 Certain South Asian institutions are likely granted the broadest powers in this regard, as they generally have the same powers as a civil Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Insurance Ombudsman, Balochistan, Khyber Pakhtunkhwa, Sindh, Punjab), Timor-Leste. 239 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Balochistan, Khyber Pakhtunkhwa, Sindh, Punjab). 240 Iran. 241 Bangladesh (institution not yet established), India (Uttar Pradesh). 242 Bangladesh (institution not yet established), India (Andhra Pradesh, Uttar Pradesh). 243 Institution not yet established. 244 Bahrain, Japan, Pakistan (Banking Mohtasib, Insurance Ombudsman). 44 Chapter IV: Powers of the Institutions court when taking certain evidence, including compelling the production of documents245 or requisitioning public records.246 Similarly, the Indian institutions of Delhi and Madhya Pradesh are given the ‘general principles of power’ under the Indian Evidence Act, 1872, and the Code of Criminal Procedure, 1973, to take certain evidence, such as requiring the production of documents, requisitioning public records or issuing commission for the examination of documents. Some South Asian institutions may punish persons for contempt of court, thus they – or, on their application, a court – may inflict fines and/or prison sentences. Contempt of court includes a wide variety of offences, including obstructing or prejudicing an investigation by the institution, disobeying a legally binding order of the institution, or witness tampering.247 In the Philippines, the institution may also punish persons for contempt should they fail to testify. Usually, however, the legal bases of the institutions list a number of offences for which fines and/or (in rare cases) prison sentences may be pronounced, usually by a court on application of the institution. These offences include non-compliance ‘without reasonable excuse’,248 the obstruction of the institutions’ work or investigations in general,249 or, only with regard to on-site visits,250 failure to produce requested evidence (such as documents) or information,251 or failing to testify.252 245 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bangladesh (institution not yet established), India (Andhra Pradesh, Uttar Pradesh), Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Ombudsman for the Protection against Harassment of Women in the Workplace, Balochistan, Khyber Pakhtunkhwa, Sindh, Punjab). 246 Bangladesh (institution not yet established), India (Andhra Pradesh, Uttar Pradesh). 247 India (Madhya Pradesh (six months, 2,000 INR)), Pakistan (Federal Ombuds- man, Banking Mohtasib, Federal Tax Ombudsman, Ombudsman for the Protection against Harassment of Women in the Workplace, Balochistan, Khyber Pakhtunkhwa, Sindh, Punjab (six months, 100,000 PKR)). 248 Timor-Leste (500 USD). 249 Bangladesh (three months, 2,000 BDT) (institution not yet established), India (Uttar Pradesh (six months, 10,000 INR) (‘interruption’)), Indonesia (two years, 1,000,000,000 IDR), Philippines (5,000 PHP), Macao (crime of dis- obedience), South Korea (5,000,000 KRW), Sri Lanka (one year, 5,000 LKR), Timor-Leste (one year, 3,000 USD). 250 Thailand (one year, 20,000 THB). 251 India (Uttar Pradesh (1 month, 5,000 INR)), Iran (three months and one day to six months, or discharge from duty for three months to one year), Macao (crime of disobedience; only for public entities), Sri Lanka (one year, 5,000 LKR), Thailand (six months, 10,000 THB). 252 Macao (crime of disobedience). 45 Part One: Legal Comparative Analysis The General Inspection Organization of Iran is given broad powers to issue orders and warrants to safeguard evidence. It may order bail, seize assets, prohibit individuals from leaving the country, issue arrest warrants and, in some instances, access personal bank accounts of individuals and issue respective binding orders. The Lokayukt institution of Madhya Pradesh (India) may, for the investigation of certain offences, utilize the Special Police Establishment under its superintendence, which generally has the same powers and duties as other police officers. A large number of institutions, in particular in South Asia, have the power of compulsory interrogation (the issue will be further discussed below).253 Some institutions may utilize the police in that regard,254 or have the general power to issue arrest warrants.255 In cases where public servants fail to assist institutions, several jurisdictions foresee disciplinary proceedings against the relevant public servant.256 While some institutions may only refer the matter to a superior authority,257 others may institute proceedings themselves.258 Sometimes, institutions are provided with other instruments of enforcement, regardless of whether or not they possess the power to recommend or initiate disciplinary proceedings. Indonesia and Thailand are examples of States where institutions report to a superior authority, while the institutions in Iran and the Philippines, may recommend the suspension of a public servant during an investigation. 253 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bangladesh (institution not yet established), India, Indonesia, Pakistan (Federal Ombuds- man, Federal Tax Ombudsman, Ombudsman for the Protection against Harassment of Women in the Workplace, Balochistan, Khyber Pakhtunkhwa, Sindh, Punjab), Philippines, Sri Lanka (one year, 5,000 LKR). 254 India (Madhya Pradesh), Indonesia. 255 Iran. 256 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bahrain (Ombudsman of the Ministry of Interior), Bangladesh (institution not yet established), China, Indonesia, Iran, Jordan, Macao, Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Balochistan, Khyber Pakhtunkhwa, Sindh, Punjab), Philippines, South Korea, Vietnam. 257 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bahrain (Ombudsman of the Ministry of Interior), Bangladesh (institution not yet established), India, Iran, Jordan, Macao, Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Insurance Ombudsman, Balochistan, Khyber Pakhtunkhwa, Sindh, Punjab). 258 China, Indonesia, Pakistan (Ombudsman for the Protection against Harass- ment of Women in the Workplace), Philippines, South Korea, Vietnam. 46 Chapter IV: Powers of the Institutions Additionally, Thailand and Sri Lanka protect the confidentiality of proceedings by penalizing the disclosure of information obtained during investigations.259 Where institutions may inflict penalties themselves, their decisions are sometimes open to appeal in a court of law.260 In several jurisdictions, giving and/or fabricating false evidence before institutions is considered to be an offence.261 c. Interrogation of Functionaries and Other Persons Next to gathering documentary evidence, the examination of witnesses is a significant method of collecting information throughout institutions’ investigations. As a result, the issue arises whether or not persons may be subjected to compulsory questioning. A large number of institutions, particularly in South Asia, enjoy that power.262 Some South Asian institutions are generally granted the same powers as civil courts when taking certain evidence. These include procuring witness statements, summoning and enforcing attendance, examination under oath, receiving evidence on affidavits and issuing commission.263 Similarly, Indian institutions in Delhi and Madhya Pradesh are provided with the ‘general principles of power’ under the Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1973, to take certain evidence by summoning and enforcing the attendance of any person, performing examination under oath, receiving evidence on affidavits and issuing commission for the examination of witnesses. 259 Sri Lanka (one year, 5,000 LKR), Thailand (six months, 10,000 THB). 260 India (Uttar Pradesh), Pakistan. 261 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bangladesh (institution not yet established), China (Ministry of Supervision), India (Andhra Pradesh, Delhi, Madhya Pradesh, Uttar Pradesh (six months, 5,000 INR)), Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Balochistan, Khyber Pakhtunkhwa, Sindh, Punjab), Sri Lanka. 262 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bangladesh (institution not yet established), India, Indonesia, Pakistan (Federal Ombuds- man, Federal Tax Ombudsman, Ombudsman for the Protection against Harassment of Women in the Workplace, Balochistan, Khyber Pakhtunkhwa, Sindh, Punjab), Philippines, Sri Lanka. 263 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bangladesh (institution not yet established), India (Andhra Pradesh, Uttar Pradesh), Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Ombudsman for the Protection against Harassment of Women in the Workplace, Balochistan, Khyber Pakhtunkhwa, Sindh, Punjab). 47 Part One: Legal Comparative Analysis The General Inspection Organization of Iran is equipped with broad powers in terms of issuing orders and warrants to safeguard evidence, including the competence to set bail, prohibit individuals from leaving the country and issue arrest warrants. In Indonesia, upon threefold failure to comply with summons, they may be enforced with the help of the National Police. The Ombudsman of the Philippines is authorized to subpoena witnesses. Failure to testify may constitute contempt, punishable by fine or imprisonment, which may be indefinite where performance of the required act lies within the power of the witness. In China, failing to testify before the Ministry of Supervision constitutes a crime of disobedience. Another distinct but related issue, is the protection of witnesses from harassment or even ‘retribution’ by the administration. In some jurisdictions, this is ensured by a clause stipulating the general secrecy or confidentiality of proceedings,264 while others allow for broader protection. Pursuant to the legal bases of certain Pakistani institutions, statements by persons or authorities may not be used against them, or referenced for the purpose of subjecting them to civil or criminal proceedings (a notable exception being prosecution for the provision of false evidence).265 A similar provision exists in the Philippines, where no one may be criminally prosecuted on the basis of testimony or evidence which they have been compelled to produce by the Ombudsman. In addition, the Ombudsman of the Philippines may grant immunity from criminal prosecution and even enter into plea bargaining agreements. d. Access to Places of Detention and Other (Governmental) Premises Institutions often enjoy a general right to enter and search (governmental) premises.266 However, only the legal bases of the Bahraini Ombudsman of 264 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bahrain (Ombuds- man of the Ministry of Interior), India, Japan (Administrative Evaluation Bureau), Jordan, Macao, Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Balochistan, Sindh), Sri Lanka, Thailand, Timor-Leste. 265 Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Balochistan, Khyber Pakhtunkhwa, Sindh, Punjab), see also Azad Jammu and Kashmir (Pakistan-administered Kashmir). 266 Bahrain (Ombudsman of the Ministry of Interior), Bangladesh (institution not yet established), Indonesia, Japan (Administrative Evaluation Bureau), Macao, Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Ombudsman for the Protection against Harassment of Women in the Workplace, Balochistan, Khyber Pakhtunkhwa, Sindh, Punjab), South Korea, Sri Lanka, Thailand, Vietnam. 48 Chapter IV: Powers of the Institutions the Ministry of Interior and the Provedor for Human Rights and Justice in Timor-Leste explicitly permit institutions to access places of detention. In some cases such a power may be implied from certain provisions of the legal basis,267 and other institutions generally consider themselves empowered to such rights.268 While providing advance notice to authorities before performing on- site inspections is only required by law in Sri Lanka and Thailand, the South Korean institution employs a pertinent practice. 3. Powers After the Conclusion of Investigations a. Recommendations Pursuant to the European concept of the Ombudsman institution, one essential power is providing recommendations to the public administration following an investigation. Such recommendations may address issues raised in the underlying complaint itself, or relate to systematic issues of maladministration. Recommendations are usually not legally binding, but expected to be effective due to the status of Ombudsman institutions. The legal bases of several Asian institutions do not explicitly mention the possibility of recommendations.269 Such institutions will merely issue case reports, addressed to the competent minister/official,270 or the subject of the complaint.271 Most institutions are required to address their recommendations to the body concerned or subject to the complaint,272 some are directed towards superior authorities (particularly where complaints refer to the conduct of individuals),273 others to both.274 267 Sri Lanka. 268 Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Khyber Pakhtunkhwa), Bahrain (Inspector General Office – National Security Agency). 269 Bahrain, Iran, Pakistan (Ombudsman for the Protection against Harassment of Women in the Workplace). 270 Iran. 271 Bahrain (Ombudsman of the Ministry of Interior). 272 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Japan (Adminis- trative Evaluation Bureau), Jordan, Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Insurance Ombudsman, Balochistan, Khyber Pakhtunkhwa, Sindh, Punjab), Sri Lanka, South Korea, Timor-Leste, Vietnam. 273 Bangladesh (institution not yet established), China, India, Japan (National Federation of Administrative Counselors’ Associations). 274 Indonesia, Macao, Thailand. 49 Part One: Legal Comparative Analysis Before recommendations or case reports are issued, some institutions are obliged to attempt amicable settlements,275 or are empowered to work towards an informal resolution of the dispute.276 Once recommendations have been provided, several jurisdictions include various forms of ‘administrative appeal’. In South Korea, the administrative agency concerned may request the competent institution to perform a mandatory review of its recommendations. Similarly, any party aggrieved by a decision, order, finding or recommendation of a pertinent federal institution in Pakistan may file a review petition with the institution itself, which then may result in the alteration, modification, amendment or recall of such action. Any person aggrieved by a decision or order of Pakistani institutions may also request representation with the President, or (in the case of a regional institution) the Governor, who may then pass orders as they see fit. When such representation is related to grievances with federal institutions, implementation of the impugned action is stayed for sixty days. b. Enforcement of the Findings and Recommendations of the Institution Concerning the enforcement of findings and recommendations, distinction is made between unlawful conduct revealed during investigations and more general issues of maladministration. The former may authorize institutions to take special action, such as recommending disciplinary proceedings against a public servant.277 Regarding certain Pakistani institutions, the authority concerned would then be obliged to act on such recommendation within thirty days, with failure potentially resulting in a special report to the President,278 Governor,279 or government.280 The Banking Mohtasib of Pakistan is also authorized to recommend the initiation of criminal proceedings under certain circumstances. In Iran, the General Inspection Organization may report legal breaches to the 275 Pakistan (Banking Mohtasib, Insurance Ombudsman). 276 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Indonesia, Japan, Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh), Timor-Leste. 277 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bahrain (Ombuds- man of the Ministry of Interior, may propose appropriate penalty to be imposed), Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Balochistan, Khyber Pakhtunkhwa, Sindh, Punjab). 278 Pakistan (Federal Ombudsman). 279 Pakistan (Balochistan, Sindh). 280 Pakistan (Khyber Pakhtunkhwa, Punjab). 50 Chapter IV: Powers of the Institutions appropriate authorities.281 The Ombudsman of Thailand is authorized to inform competent investigative authorities and superiors of corruption and other criminal conduct, as well as such requiring disciplinary measures. Both are then required to report on the matter every three months. The Pakistani Ombudsman for the Protection against Harassment of Women in the Workplace may impose penalties of varying degrees upon subjects of complaint. These include censure and withholding promotion (minor penalties), as well as compulsory retirement, removal from service and fines (major penalties). The applicable statute does not, however, specify enforcement measures for these penalties. While institutions’ findings and recommendations are generally not enforceable, various mechanisms are employed to facilitate compliance. Bodies addressed may be explicitly obliged to implement findings or recommendations,282 in some cases only once a resolution by amicable settlement has failed.283 In such cases, the relevant body may be required to act within a time frame of ten,284 thirty285 or forty days.286 Even where findings and recommendations are not declared ‘binding’, bodies may be subject to an obligation to react, requiring notification on actions taken (or reasons for failing to do so) within one month from a specified date,287 two or three months from the date on which the report was received,288 or a period of time specified by the competent institution.289 In South Korea, case reports need only be taken into account and the body addressed must inform the institution of the outcome. The Indonesian Ombudsman and the Japanese Administrative Evaluation Bureau may additionally monitor the implementation of recommendations through on-site inspections. 281 Iran. 282 Indonesia, Iran, Pakistan (Banking Mohtasib, Federal Tax Ombudsman, Insurance Ombudsman). 283 Pakistan (Banking Mohtasib, Insurance Ombudsman). 284 Iran. 285 Pakistan (Federal Tax Ombudsman, Insurance Ombudsman). 286 Pakistan (Banking Mohtasib). 287 India (Uttar Pradesh (in case of ‘grievances’ as opposed to ‘allegations’, see Part Two for an explanation of the distinction)). 288 India (Andhra Pradesh, Delhi, Madhya Pradesh, Uttar Pradesh (in case of ‘allegations’ as opposed to ‘grievances’, see Part Two for an explanation of the distinction)), Timor-Leste. 289 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bangladesh (institution not yet established), Pakistan (Federal Ombudsman, Federal Tax Ombuds man, Balochistan, Khyber Pakhtunkhwa, Sindh, Punjab), Sri Lanka. 51 Part One: Legal Comparative Analysis Different jurisdictions foresee various possibilities to ensure com- pliance should bodies not comply with institutions’ findings and recommendations. Often, where institutions are unsatisfied with the implementation of recommendations, they may approach higher authorities such as the Prime Minister,290 President,291 Chief Executive,292 Council of Ministers,293 People’s Government,294 (a house of) parliament,295 or a supervisory organ296 by means of report. Other institutions enjoy further reaching powers. Failure to implement recommendations of the General Inspection Organization of Iran without justification will result in referral to judicial authorities. Persons responsible are then punishable with prison sentences of three months and one day to six months or discharge from public service for three months up to one year. In Indonesia, the Ombudsman is authorized to adopt administrative sanctions. Lacking appropriate justification, disregarding recommendations of certain Pakistani institutions may be considered ‘Defiance of Recommendation’ and noted in the personal file of the responsible public servant.297 Complainants suffering loss or injury as a result of maladministration may be awarded costs and compensation by certain Pakistani institutions, once the guilty party is heard.298 The Lokayukta institution of Andhra Pradesh is authorized to award reimbursement of costs to complainants. The Pakistani Ombudsman for the Protection against Harassment of Women in the Workplace may also award compensation, which is paid from the relevant imposed fine. c. Annual Reports Almost all institutions are required to publish annual reports on their activities (Table 33), generally including an overview of work performed over the course of the preceding year, statistical data on cases disposed 290 Thailand. 291 Bangladesh (institution not yet established), Indonesia, Sri Lanka. 292 Macao. 293 Thailand. 294 China (Ministry of Supervision). 295 Indonesia, Sri Lanka, Thailand, Timor-Leste. 296 China (Ministry of Supervision), Macao, Thailand. 297 Pakistan (Federal Ombudsman, Federal Tax Ombudsman, Balochistan, Khyber Pakhtunkhwa, Sindh, Punjab), see also Azad Jammu and Kashmir (Pakistan-administered Kashmir). 298 Pakistan (Federal Ombudsman, Balochistan, Khyber Pakhtunkhwa, Sindh, Punjab), see also Azad Jammu and Kashmir (Pakistan-administered Kashmir). 52 Chapter IV: Powers of the Institutions of and selected or general recommendations to the administration. Most institutions must submit their annual reports to an executive authority,299 which itself is then often required to forward such reports to the legislature.300 Other institutions submit their annual reports to the legislature directly.301 The Inspector General Office of the National Security Agency in Bahrain submits confidential biannual reports to the Head of the National Security Agency. A minority of institutions are not required to submit annual activity reports at all.302 d. Special Reports A number of institutions may submit special reports (see Table 34),303 some regarding individual cases,304 in addition to their annual reports. These special reports may be addressed to the pertinent Head of State,305 Minister of Interior,306 (Lieutenant) Governor of a province,307 or legislature.308 299 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bahrain (Ombudsman for the Ministry of Interior), Bangladesh (institution not yet established), China, India, Jordan, Pakistan (Federal Ombudsman, Banking Mohtasib, Federal Tax Ombudsman, Insurance Ombudsman, Balochistan, Khyber Pakhtunkhwa, Sindh, Punjab), Sri Lanka, Vietnam. 300 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bangladesh (institution not yet established), India, Jordan, Pakistan (Federal Ombuds- man, Federal Tax Ombudsman, Balochistan, Khyber Pakhtunkhwa, Sindh, Punjab), Vietnam. 301 Indonesia, Japan (Administrative Evaluation Bureau), Macao, Philippines, South Korea, Sri Lanka, Thailand, Timor-Leste. 302 Iran, Japan (National Federation of Administrative Counselors’ Associations), Malaysia, Pakistan (Ombudsman for the Protection against Harassment of Women in the Workplace). 303 Bahrain (Ombudsman of the Ministry of Interior), Bangladesh (institution not yet established), China (Ministry of Supervision), Indonesia, India (Delhi, Uttar Pradesh), Macao, Pakistan (Federal Ombudsman, Federal Tax Ombuds- man, Balochistan, Khyber Pakhtunkhwa, Sindh), South Korea, Thailand. 304 Bahrain (Ombudsman of the Ministry of Interior), China (Ministry of Super- vision), India (Delhi, Uttar Pradesh). 305 Azad Jammu and Kashmir (Pakistan-administered Kashmir), Bangladesh (institution not yet established), Pakistan (Federal Ombudsman, Federal Tax Ombudsman; the President must forward these reports to the legislature). 306 Bahrain (Ombudsman of the Ministry of Interior). 307 The (Lieutenant) Governor has to forward these reports to the legislature; India (Delhi, Uttar Pradesh), Pakistan (Balochistan, Khyber Pakhtunkhwa, Sindh). 308 Indonesia, Macao, South Korea, Thailand, Timor-Leste. 53 Chapter V: %NCUUKƂECVKQPQH+PUVKVWVKQPU 1. Preface Even from a brief glance it becomes clear that Asian institutions differ significantly from the European concept of a parliamentary Ombudsman. While European Ombudsman institutions have notably been ‘designed very heterogeneously’,309 this observation applies all the more to the Asian institutions included in this study (particularly considering the comparative breadth of this study’s scope, see Chapter I.3.b). While several States have embraced fundamental ideas of the European concept, their implementation varies considerably. This can likely be traced back to the influence of prior or (partly simultaneously) emerging distinctly Asian (national) concepts on the particular implementation of the Ombudsman concept, leading to the ‘cross- fertilization’ of Western influences and Asian thought. The most significant distinguishing factor between the Asian institutions reviewed and the European ‘Ombudsman’ concept certainly is the nature of affiliation within State powers. While the parliamentary Ombudsman is an officer of legislature (more precisely, parliament), this is not the case with Asian institutions. Asian Ombudsman institutions often have closer ties with administrative organs than the respective legislature – a relationship that necessarily demands stronger constitutional and legal safeguards to ensure the independence of investigations. With regard to communist countries (in the present case China and Vietnam), this discrepancy is mainly due to the fundamentally different concept of how States are structured, in particular the general lack of separation of 309 Gabriele Kucsko-Stadlmayer, ‘The Legal Structure of Ombudsman-Insti- tutions in Europe – Legal Comparative Analysis’ in Gabriele Kucsko- Stadlmayer (ed), European Ombudsman-Institutions: A Comparative Legal Analysis Regarding the Multifaceted Realisation of an Idea (Springer Wien New York, 2008) 1, 59. 55 Part One: Legal Comparative Analysis powers – a framework that would render the allocation of an ‘Ombudsman’ institution to the legislature for reasons of independence moot. Despite significant differences, there are also unifying factors regarding the set-up and objectives of such Asian institutions. They pre- dominantly share certain common traits, such as the power to investigate administrations for alleged maladministration, particularly following individual complaints. Most institutions enjoy varying degrees of independence, operating under legal bases (constitution, statute or ordinance), generally lacking but sometimes awarded quasi-judicial powers, and authorized to provide recommendations for the purpose of rectifying maladministration. In addition, and perhaps of greater importance, the Asian institutions pursue quite similar objectives as parliamentary Ombudsman institutions in Europe, namely the redress of administrative grievances and, separately and additionally, good governance. The fight against corruption is often particularly highlighted within Asian institutions.310 Finally, Asian institutions should be viewed not only in a legal, but also in a political context within their respective national systems. The Economist Intelligence Unit (EIU), an independent advisory services business within the Economist Group, quite comprehensively analyzes political systems worldwide in its annual reports. Therein, the countries included in this study range from what the EIU terms ‘full democracies’ (Japan, South Korea) to what it calls ‘authoritarian regimes’ (Bahrain, China, Iran, Jordan, Vietnam) (see Table 4), which naturally has impli- cations for the legal set-up of the institutions themselves. Despite the heterogeneity of institutions several types of ‘models’ can be construed. These are characterised by their degree of independence on the one hand and their investigatory emphasis on the other. These ‘models’ shall not be understood as a description of particular institutions, but rather idealistic forms, which are implemented in the Asian countries to varying degrees. 2. Internal Supervisory Institution Such an institution is part of or closely affiliated with the executive branch. Even where it is a distinct legal body, its legal basis lacks additional safeguards to ensure its independence. While it may be argued that the institution is independent from certain bodies under its supervision, they ultimately remain responsible to higher administrative authorities. 310 See China, India, Macao, South Korea, Vietnam. 56 %JCRVGT8 %NCUUKƂECVKQPQH+PUVKVWVKQPU Thus, while such an institution may be utilized as a ‘watchdog’ by these higher administrative authorities, it cannot serve as an ‘advocate of the people’ versus such authorities or an impartial adjudicator in administrative matters. As a result, such institutions are more focused on internal supervision than grievance redress per se. More often than not their investigatory powers are considerably weaker than those of other models. The most relevant examples of this model are found in ‘authoritarian regimes’ (China and Vietnam) and also in one ‘flawed democracy’ (Malaysia). Whereas in a further ‘authoritarian regime’ (Bahrain) and two ‘full democracies’ (Japan and South Korea) the institutions are integrated within the executive branch and thus fall partly under this model, however are protected by certain safeguards regarding their independence. The systems in Japan and South Korea might be explained with certain East Asian traditions of administrative grievance redress predating the emergence of the European Ombudsman idea. 3. Administrative311 Ombudsman This model is closer to the European Ombudsman concept. The main factor that distinguishes this model from the European concept is ties to the administrative branch. This particularly includes the appointment and removal of the head of an institution through executive authorities and the requirement to report to them. Yet, such institutions enjoy various legal safeguards to ensure their independence (including a fixed term of office of the head of the institution and requirements for their removal). The institution has a broad mandate and scope of supervision (including the entire or almost the entire public administration). It may initiate investigations both following individual complaints as well as ex officio. For the purpose of its investigations, it enjoys broad powers to collect evidence, including instruments to enforce the cooperation of administrative organs and staff (such as the recommendation of disciplinary proceedings, penalties or even prison sentences). Following its investigations, the institution has the power to provide recommendations to the administrative body under supervision. This model is mainly embodied by institutions in ‘flawed democ- racies’ (the Philippines), ‘hybrid regimes’ that used to be part of the British Empire (Bangladesh, Pakistan and Sri Lanka), the ‘hybrid regime’ 311 Administrative in the sense that the institution is not allocated to the legis- lature. 57 Part One: Legal Comparative Analysis Thailand, the formerly Portuguese Macao,312 as well as one ‘authoritarian regime’ (Jordan). 4. Anti-Corruption Institution In most respects, this model resembles the ‘Administrative Ombudsman’ and thus might also be viewed as a more specialized subcategory of that model. The independence of such institution from the bodies under their supervision is safeguarded either by a strict removal procedure (India) or allocation to the judiciary (Iran). Compared to the ‘Administrative Ombudsman’, the mandate of the institution explicitly includes and highlights corruption-related issues. Its scope of supervision is broad and includes public administration operating in both the public and private sectors (see Table 24 for the various forms of supervision of private legal entities). For the purpose of its investigations, it enjoys broad powers regarding the collection of evidence. The institution partially enjoys quasi-judicial powers and might go beyond the mere provision of recommendations. This category includes institutions of the ‘flawed democracy’ India and the ‘authoritarian regime’ Iran. Combatting corruption is not unique to this model. It is a recurring theme within several Asian institutions of various models, such as the institutions of South Korea, Macao and the Philippines. 5. Parliamentary Ombudsman The only Asian institution within the scope of this study that appears to be fully in line with the European Parliamentary Ombudsman model (more specifically the ‘human rights model’ as described in Kucsko- Stadlmayer’s study313) and all other requirements pursuant to the International Bar Association’s definition (see above, Chapter I.3.b.) is the Provedor for Human Rights and Justice in Timor-Leste. The institution has its foundation in the country’s constitution, and its head is a high-level 312 There is no Economist Intelligence Unit categorization for Macao, as it is not an independent State. 313 Gabriele Kucsko-Stadlmayer, ‘The Legal Structure of Ombudsman-Institutions in Europe – Legal Comparative Analysis’ in Gabriele Kucsko-Stadlmayer (ed), European Ombudsman-Institutions: A Comparative Legal Analysis Regarding the Multifaceted Realisation of an Idea (Springer Wien New York, 2008) 1, 64–65. 58 %JCRVGT8 %NCUUKƂECVKQPQH+PUVKVWVKQPU public official that is appointed and removed by the national parliament. It is responsible and reports to the legislature, which it may provide with recommendations (apart from such for administrative agencies) concerning legislative measures. Additionally, the Provedor may also challenge the constitutionality of laws before Timor-Leste’s Supreme Court. Human rights are central to its mandate and scope of supervision, whereas pertinent violations are addressed in the recommendations and reports of the institution to administrative bodies and the national parliament. The Offices of the Ombudsman in Indonesia and the Philippines are similar to this model. The former’s head is elected by the legislature, yet the executive branch possesses power of removal. In the Philippines, it is the other way around. Both issue reports and recommendations to the respective parliaments, while human rights are not within their purview. The investigatory powers of these three institutions are comparable to those described under the ‘Administrative Ombudsman’ model. 59 Part Two: Different Jurisdictions 1. Bahrain Philipp Janig A. Constitutional Background Since 1783, Bahrain has been governed by the al-Khalifa family. During the 19th century, it concluded several treaties with the United Kingdom, effectively turning Bahrain into a protectorate. In 1971, Bahrain gained independence. Two years thereafter it adopted its first constitution, which was replaced by the 2002 constitution, which in turn was amended once in 2012. Pursuant to its Article 1, Bahrain is a ‘sovereign, independent Islamic Arab State’ with a hereditary constitutional monarchy as the ruling regime. Islam is the religion of the State and Islamic Sharia ‘a principal source for legislation’ (Art 2). For administrative purposes, Bahrain is divided into four governorates. It has a mixed legal system with influences from Islamic law and English common law, as well as Egyptian civil, criminal, and commercial codes and customary law. The bicameral National Assembly, the al-Majlis al-Watani, is the legislative authority of Bahrain (Art 51). It consists of the Consultative Council, the Majlis al-Shura, whose forty members are appointed by the King (Arts 33 (f), 52) for four-year terms (Art 54) and the Chamber of Deputies, the Majlis al-Nowab, whose forty members are directly elected by universal suffrage (Art 56) for four-year terms as well (Art 58). Legislative proposals are passed following the acceptance of both houses and ratification by the King (Art 70). A law is ratified either by the express ratification of the King, or it not being returned to parliament for reconsideration within six months. If a legislative proposal, following its return, is re-approved by parliament with a two-thirds vote, the King must ratify it (Art 35). Constitutional amendments necessarily require the approval of the King (Art 120 (a)). In addition, the King may propose constitutional amendments and laws, and is responsible for their promulgation (Arts 35, 120). 63 Part Two: Different Jurisdictions Bahrain’s executive powers lie with the King and his Council of Ministers. The King of Bahrain serves as the Head of State and ‘safeguards the legitimacy of the government and the supremacy of the constitution and the law’. He exercises his powers either directly or through his ministers. By Royal Decree, he appoints and dismisses the Prime Minister and – upon the Prime Minister’s proposal – other ministers. Ministers are jointly and individually answerable to the King (Art 33), who also chairs the Council of Ministers (Art 47 (b)). In addition, each minister is responsible to the Chamber of Deputies for the affairs of their ministry. The Chamber is authorized to dismiss ministers by vote of no confidence supported by two-thirds of its members (Art 66) and also holds the Prime Minister responsible before the National Assembly by the same majority. If two-thirds of National Assembly members then too pass a no-confidence vote, the matter is submitted to the King, who will either relieve the Prime Minister and appoint a new government or dissolve the Chamber of Deputies (Art 67). The court system of Bahrain is regulated by law (Art 105 (a)) and divided into Civil, Sharia and Military Courts. Civil Courts generally have jurisdiction in all criminal, civil and administrative matters, as well as issues relating to the personal status of non-Muslims. The Court of Cassation enjoys jurisdiction over challenges to elections of the Chamber of Deputies (Art 62) and serves as the final court of appeal. Its lower instances are comprised of the High Civil Court of Appeals, the High Civil Courts and the Lower Courts (Art 6 Legislative Decree No. 42 of 2002). Sharia Courts hear cases concerning the personal status of Muslims. These include the High Sharia Court of Appeal as a final appeals court followed by the High Sharia Court and Lower Sharia Court, which contain Sunni and Jaafari (Shia) departments (Art 13 Legislative Decree No. 42 of 2002). Military Courts (Art 105 (b)) include those of the Bahrain Defence Force and the Ministry of Interior. The Constitutional Court reviews the constitutionality of laws and statutes and, on referral of the King, the compliance of draft legislation with the constitution (Art 106). Courts are supervised by the Higher Judicial Council (Art 105 (d)), which is chaired by the King. Judges are appointed by the King, upon proposal of the Higher Judicial Council (Art 33 (h); see also Arts 69–70 Legislative Decree No. 42 of 2002). Fundamental rights are enshrined in Chapter III (‘Public Rights and Duties’) of the Constitution (Arts 17–31) and include the equality of citizens before the law, prohibition of discrimination (Art 18), the protection of personal freedom (Art 19) or the right to petition (Art 29). Political rights of citizens are further enshrined in Art 1 (e). 64 1. Bahrain (Philipp Janig) B. Overview of Existing Ombudsman Institutions Bahrain has recently established two administrative institutions for the redress of grievances, the Ombudsman of the Ministry of Interior and the Inspector General Office – National Security Agency. Both institutions have a mandate limited to the respective parts of administration. No comparable institutions exist on a regional or local level. C. Ombudsman of the Ministry of Interior +*KUVQT[CPF.GICN$CUKU Following violent clashes between protesters and security forces during the Arab Spring, Bahrain established the Bahrain Independent Commission of Inquiry for the purpose of investigating the events and allegations of wrongdoing by authorities in particular. Its report found that human rights abuses were committed by security officials and noted a lack of accountability within the system. As a consequence, the report included the recommendation to establish an independent, internal Ombudsman’s Office for the Ministry of Interior. Subsequently, such an Ombudsman’s Office was established by Royal Decree No. 27 of 2012 (hereinafter: OD) and later amended by Royal Decree No. 35 of 2013, which expanded the Ombudsman’s mandate. II. Organization The Ombudsman’s Office has a Head Ombudsman, assisted by a Deputy Ombudsman. Together, they oversee four directorates, the Directorate of Complaints, the Directorate of Rehabilitation and Detention Centres, the Directorate of International Co-operation and Development and the Directorate of Human and Financial Resources. The staff of the Office is appointed by the Head Ombudsman, in accordance with discretionary terms and conditions that were approved by the Minister of Interior (Art 2 (3) OD). As of 2015, the Ombudsman’s Office has a total of 67 employees, 21 of which are female. 95 % of the employees hold a Bachelor’s or Master’s degree in various fields (such as Human Resources, Finance, I.T. or Public Relations). Additionally, all employees working as investigators receive legal training. The institution has an additional office located in the Male Prison Facility. The Head of the Ombudsman’s Office determines expenditures required for the performance of its functions (Art 3 (2) OD), whereupon 65 Part Two: Different Jurisdictions a separate portion of the Ministry of Interior’s budget sufficient for covering administrative expenses is allocated. Although the Head of the Ombudsman’s Office enjoys sole authority regarding budgetary decisions (Art 16 OD), financial expenditures are audited by the National Audit Court (Art 4 Royal Decree No. 16 of 2002). III. Legal Status The Head of the Ombudsman’s Office and their Deputy are appointed by Royal Decree, based on the recommendation of the Minister of Interior and the approval of the Prime Minister for a tenure of five years. Their reappointment is possible for an unlimited number of further terms. Regarding qualifications, the OD does not stipulate formal criteria for the Head of the Ombudsman’s Office and their Deputy, however their experience and personal abilities must be such that they are recognized for their independence, impartiality and integrity (Art 2 (1) OD). There are no rules regarding incompatibilities or immunity. The Head of the Ombudsman’s Office shall exercise their authority and duties with ‘complete independence’, barring the government or any other authority from issuing any instructions (Art 3 OD). The Ombudsman holds the rank of Under Secretary, their salary thus being determined by the appropriate schedule of the Civil Service Law. The Head of the Ombudsman’s Office or Deputy can be removed from office by Royal Decree upon recommendation by the Minister of Interior and the approval of the Prime Minister, should they ‘fail to carry out the functions of […] office’ (Art 7 OD). IV. Scope of Supervision Subject to the Ombudsman’s Office’s supervision are all personnel of the Ministry of Interior. Internal matters are exempted, thus the institution may not investigate decisions, directions, guidelines and instructions issued by the Minister of Interior or the Chief of Public Security to leaders and members of the Ministry of Interior or Public Security Forces respectively (Art 1 (1) OD). The OD specifies the supervision criterion as ‘misconduct’, which includes unlawful conduct. More precisely, it is defined as ‘any act, or omission to act, or attempt to act or continuing in an act, in contravention of the provisions of the law which justifies the bringing of legal or disciplinary proceedings, and this includes planning, ordering, colluding, inciting, aiding and abetting or omitting to act as required by the law’ (Art 1 (2) OD). 66 1. Bahrain (Philipp Janig) An investigation procedure may be initiated following an individual complaint, which may also originate from an organization, or upon the initiative of the Ombudsman (Arts 1 (1), 12 OD). Individual complaints may be brought by any person (1) who claims to be a victim of misconduct committed by Ministry of Interior personnel because of or during the performance of their duties, (2) who claims to have been adversely affected by such an act, (3) who claims to have personally witnessed that act, or (4) who is acting on behalf of a person falling under any of these categories (Art 1 (1) OD). However, individual complaints first must be lodged with the Ministry of Interior’s Directorate of Audit and Internal Investigations. That Directorate is only obliged to refer complaints to the Ombudsman’s Office under three circumstances. First, in any case where the complaint involves death, physical injury, or serious mistreatment suffered during or following contact with Ministry of Interior personnel. Second, in the case of any misconduct by Ministry of Interior personnel that leads to a negative impact on public confidence. Third, upon request by the Head of the Ombudsman’s Office (Arts 4, 9, 11 OD). Moreover, the Ombudsman’s Office is competent to examine the ‘most serious complaints’, even if they fall within the competence of the Directorate of Audit and Internal Investigations (Art 12 OD). There are no formal requirements for individual complaints, which can be presented both orally and in written form (Art 1 (1) OD). Complaint forms are currently available in Arabic, English, French, Urdu, Hindi, Bengali and Tagalog. If complaints are not brought in Arabic, the Ombudsman’s Office provides translation and bears its cost. Complaints are free of charge. Whether and how to act regarding an individual complaint lies at the Ombudsman’s discretion. Nevertheless, when examining a complaint, the Ombudsman’s Office is obliged to notify the complainant and the subject of the complaint on steps already taken and their result, by way of a report (Art 10 (3) OD). A further obligation of the Ombudsman’s Office is to protect the confidentiality and safety of the parties (Art 6 (6) OD). As a general rule, investigations on the own initiative of the Ombudsman’s Office are only to be performed in cases where an act of misconduct may lead to a negative impact on public confidence in the Ministry of Interior. In addition, the Ombudsman’s Office also has the right to visit prisons or juvenile care and detention centres, to ascertain the legality of the deprivation of liberty of detainees and ensure that they are not subjected to torture or cruel, inhuman or derogatory treatment. If a case of death occurs in such facilities, the Ombudsman’s Office must be informed immediately (Art 12 OD). 67 Part Two: Different Jurisdictions V. Powers V.1. Powers in Relation to Administrative Organs Although the Ombudsman’s Office is established at the Ministry of Interior, Article 3 OD provides that the Head of the Ombudsman’s Office shall exercise their authority and duties with ‘complete independence’, barring the government or any other authority from issuing instructions. Nevertheless, the Ombudsman’s Office has a special relationship to the Ministry of Interior’s Directorate of Audit and Internal Investigation. This Directorate is tasked with the examination of any complaints submitted to it and, where not competent, referral to the appropriate department of the Ministry of Interior or to the Ombudsman’s Office in accordance with the OD (Art 8 OD). Specifically, the Directorate is responsible for receiving, reviewing and examining all complaints regarding misconduct of Public Security Forces personnel (Art 4 OD). If allegations in such complaints justify bringing disciplinary proceedings, the Directorate conducts examinations of its own volition, so long as it is not required to refer the issue to the Ombudsman’s Office pursuant to Article 11 OD (Art 9 OD; see above Part C.IV.). The Head of the Ombudsman’s Office is authorized to supervise and oversee the Directorate (including the allocation of complaints (Art 3 (1) OD)), as well as provide proposals to the Minister of Interior. Based on such proposals, the Minister then issues directives to coordinate the work of the Ombudsman’s Office and the Directorate, in order to achieve the objectives mentioned in Article 6 (Arts 3 (3), 6 OD). In the context of investigations, for the purpose of obtaining information or evidence, the Ombudsman’s Office has access to premises, information, data and documents, as well as any person (Art 13 OD). Ministries, public officials and others are obliged to provide all data, information and documents requested that relate to the subject of a complaint. Moreover, to assist with the discharge of their functions, the Head of the Ombudsman’s Office may request the secondment of Public Security Forces personnel from its Chief (Art 2 (3) OD). As mentioned above, the Ombudsman’s Office also has the right to visit prisons or juvenile care and detention centres, to ascertain the legality of detainees’ deprivation of liberty and ensure that they are not subjected to torture or cruel, inhuman or derogatory treatment. According to the institution’s answers to a questionnaire devised by this study’s authors, this may be done with or without prior announcement. During their visits, the Ombudsman’s Office has the authority to speak to all persons within such facilities in private. In addition, the Ombudsman’s Office must be 68 1. Bahrain (Philipp Janig) informed immediately of every case of death occurring in such facilities (Art 12 OD). After concluding an investigation, the Ombudsman’s Office notifies the complainant and the Ministry of Interior personnel concerned of its results by providing a case report (Art 10 (3) OD). In appropriate cases, the Ombudsman’s Office also notifies the competent department of the Ministry of Interior regarding bases for disciplinary proceedings against its personnel and proposes a suitable penalty (Arts 3 (4), 10 (1) OD). While the OD does not explicitly mention the possibility of recommendations, the Ombudsman’s Office has provided a list of recommendations in its published reports as well as its case reports, as seen in the Annual Reports 2013/14 and 2014/15, as well as the Jau Prison report. The Head of the Ombudsman’s Office must submit such annual reports to the Minister of Interior and may also report on matters concerning any complaints that have been examined with further observations and results (Art 15 OD). V.2. Powers in Relation to Courts The judiciary is outside of the jurisdiction of the Ombudsman’s Office. If the subject matter of a complaint appears to constitute a criminal offence, the Ombudsman’s Office is obliged to propose criminal proceedings against the Ministry of Interior personnel concerned. For this purpose, the Ombudsman’s Office shall notify the Public Prosecution without delay and submit all information and documentation related. A decision by the Public Prosecution not to prosecute does not bar the Ombudsman’s Office from further exercising its powers (Arts 10 (2), 14 OD). V.3. Powers in Relation to Legislative Organs The Ombudsman’s Office has no connection to the legislative organs of Bahrain. V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The protection of human rights is not explicitly mentioned in the OD. However, with regard to the inspection of prisons and places of detention, the Ombudsman’s Office is mandated with ensuring that detainees are not subject to torture or cruel, inhuman or derogatory treatment (Arts 1 (2), 12 OD). 69 Part Two: Different Jurisdictions VI. Practice In 2014/15, the institution received a total of 908 complaints and requests for assistance. While complaints concern the regular investigation procedure under the OD, requests for assistance usually involve a person seeking information on a certain topic within the Ombudsman’s jurisdiction. Cases were mostly brought by individuals (881 or 97 %, of which 331 or 37.6 % were women), 23 (2.5 %) were brought by organizations and four (0.4 %) were initiated by the Ombudsman. Of those cases, 319 (35.1 %) were complaints and 589 (64.9 %) requests for assistance. Of the 319 complaints received, 102 (32 %) were referred to relevant bodies, 21 (6.6 %) were out of the Ombudsman’s jurisdiction, 87 (27.3 %) are in an on-going investigation and in 109 instances (34.2 %) the complaint was either resolved or not upheld. The complaints mostly pertained to prisons or detention centres (128; 40.1 %), the General Directorate for Criminal Investigations and Forensic Evidence (84; 26.3 %) and the Police Directorates (67; 21.1 %). A total of 102 cases were referred to the Public Prosecution (three; 2.9 %), the Security Prosecution (45; 44.1 %) and the Special Investigations Unit (54; 52.9 %). These referrals lead to convictions in seven cases. Of the 589 requests for assistance, 80 (13.6 %) were outside of the Office’s jurisdiction, 473 (80.3 %) were settled and in 36 (6.1 %) cases, investigations are on-going. 196 (33.3 %) requests specifically related to a riot in JAU prison in March 2015. Generally, the areas most concerned were Healthcare (259; 44 %), Education, Skills and Work (59; 10 %) and Detainee Care Arrangements (28; 4.8 %). During the Office’s first year of operation in 2013/14, it was concerned with 242 cases in total, 28 (11.6 %) of which were initiated upon the Ombudsman’s own motion. Of these cases, 107 (44.2 %) pertained to Prisons, 38 (15.7 %) to Criminal Investigations and Forensic Evidence and 37 (15.3 %) to the Police. The majority of cases regarding Prisons (55; 49.6 %) concerned health care. From the 242 cases, 39 are still under investigation. Of the remaining 203, 29 (14.3 %) have been referred to the Special Investigation Unit (two of which have been brought before a Criminal Court), 15 (7.4 %) have been referred to the Security Prosecution (three of which have been brought before the Security Court) and one (0.5 %) has been referred to Public Prosecution. Given the recent establishment of the Ombudsman’s Office, there is no continuous monitoring of facilities. The first ex officio visit, and so far the only one of which a report has been published, was to JAU prison in September 2013. Additionally, in April 2014, a technical support team from the Ombudsman’s Office assisted the Prisoner and Detainee 70 1. Bahrain (Philipp Janig) Rights Commission (PDRC) in its inspection of the Dry Dock Detention Centre. Since then, the Dry Dock Detention Centre was visited by the Ombudsman’s Office’s own investigation team on 16 August 2014, to investigate a hunger strike by prisoners. VII. Reform The Ombudsman’s Office’s authority and mandate were recently ex- panded through Royal Decree No. 35 of 2013, to include the monitoring of prisons and places of detention and place a special emphasis on com- plaints of prisoners and detainees. Currently, there are no further plans for reform. VIII. Information Constitution: http://en.wikisource.org/wiki/Constitution_of_the_Kingdom_of_ Bahrain_%282002 %29 Laws: http://www.ombudsman.bh/en/legal-references/ Annual Reports 2013/14 and 2014/15: http://www.ombudsman.bh/en/periodic-public-reports/ Homepage: http://www.ombudsman.bh/en/ &+PURGEVQT)GPGTCN1HƂEGs National Security Agency +*KUVQT[CPF.GICN$CUKU In its 2011 report, the Bahrain Independent Commission of Inquiry recommended the establishment of an Ombudsman office for the National Security Agency (hereinafter: NSA). Subsequently, Bahrain established the Inspector General Office – NSA through Royal Decree No. 28 of 2012 regarding the Ombudsman Office and Professional Standards Office in NSA (hereinafter: ONSA). The institution opened its office in 2012 and became a member of the IOI the year after. 71 Part Two: Different Jurisdictions II. Organization The Office is headed by the Ombudsman who oversees the Directorate of Administrative and Finance Affairs, the Directorate of Receiving and Examining Complaints and the Directorate of Development and Quality. The Ombudsman has two separate security offices. One of them is located at the NSA headquarters and serves as storage for records separate from those of the NSA. It is the only place where the Ombudsman may conduct inquiries regarding NSA staff or examine information related to the subject matter of a complaint. The other office is in the Ministry of Justice, Islamic and Endowment Affairs and intended for receiving complaints, calls and related information, as well as keeping papers, records and any other confidential information necessary to ensure the safety and security of those concerned with complaints (Art 7 ONSA). Article 6 of the ONSA provides that the Ombudsman be ‘assisted by sufficient numbers of competent staff in performance of his duties and tasks’. As of 2015, the institution has seven full-time employees (none of them female), all of whom dispose of an education in law. In addition, employees receive training in the field of human rights. The budget of the Office is allocated from a separate part of the NSA budget and must be sufficient to cover all expenses. The usage of funds thus allocated lies at the discretion of the Ombudsman (Art 9 ONSA). III. Legal Status The Ombudsman is appointed by Royal Decree, as nominated by the Head of the National Security Agency (hereinafter: HNSA) and recommended by the Prime Minister. The office is held for a five-year term and subject to unlimited renewal. While the ONSA does not mention formal qualification requirements, the Ombudsman should, by virtue of experience and personal abilities, be distinguished with neutrality and impartiality (Art 2 ONSA). The ONSA does not provide for any rules regarding incompatibility. According to the institution, the Ombudsman enjoys immunity as a ‘judge’, however the ONSA makes no reference thereto. The Ombudsman exercises their powers and duties fully independent of any power or supervision by the NSA in connection with complaints and related decisions (Art 3 ONSA). If the Ombudsman ‘breaches his duty’, he can be dismissed by Royal Decree upon recommendation of the HNSA and approval by the Prime Minister (Art 5 ONSA). Possessing the rank of an Undersecretary of the ministry (Art 2 ONSA), the Ombudsman is remunerated as determined by the applicable Civil Service Law and defined in its schedule. 72 1. Bahrain (Philipp Janig) IV. Scope of Supervision The object of the Ombudsman’s supervision is the staff of the NSA (Art 1 ONSA). The NSA serves as an internal intelligence and counter- espionage agency. According to its mandate, the agency is required ‘to detect and uncover all activities that undermine the national security of the Kingdom, its institutions and its regime, or that threaten the security and stability of the nation, or its interests or accomplishments.’314 The powers of the NSA which were subject to protest during the Arab Spring, namely the authority to serve as a law enforcement agency and conduct arrests, were revoked in 2011.315 The relevant supervision criterion is ‘ill-treatment’ in general, as well as the violation of laws and international treaties ratified by Bahrain (Art 1 ONSA; see Part D.V.4). Article 10 (1) of the ONSA further provides that the Prime Minister shall issue a code of conduct for the work of the NSA by decree, which includes the ‘principles of human rights which are implemented in Bahrain and internationally’. The investigation procedure can only be initiated following an individual complaint (Art 1 ONSA), for which the ONSA provides no formal requirements. There is no fee for complaints. When examining a complaint, the Ombudsman must take necessary measures to guarantee the security and safety of complainants and other persons in relation to the subject matter of the complaint (Art 3 (2) ONSA). After dealing with a complaint, the Ombudsman must provide both complainants and subjects of complaints with a statement on measures taken and results of the investigation, insofar as the information is not secret (Art 4 (2) ONSA). V. Powers V.1. Powers in Relation to Administrative Organs While the Ombudsman is established as an office of the NSA (Art 1 ONSA), powers and duties are exercised fully independent of any power 314 Art 4 Royal Decree No. 14 of 2002; Bahrain Independent Commission of Inquiry, ‘Report of the Bahrain Independent Commission of Inquiry’ (10 December 2011) available at 73 Part Two: Different Jurisdictions or supervision by the NSA regarding complaints and related decisions (Art 3 ONSA). Although the ONSA does not provide for a right to on- site visits, for the purpose of investigating complaints, the Ombudsman enjoys safe access to persons and information necessary, which, according to the institution, may also include persons in prison or places of detention. Ministries, officials and others concerned are obliged to provide the Ombudsman with the statements, information and documents requested (Art 3 (1) ONSA). The ONSA does not provide for the possibility of recommendations. The Ombudsman must submit biannual reports to the HNSA, which are then forwarded to the Prime Minister within 15 days (Art 4 (3) ONSA). However, as the Ombudsman is under an obligation to preserve the confidentiality and security of NSA information (Art 4 (1) ONSA), reports are not made available to the public. V.2. Powers in Relation to Courts The judiciary falls outside the jurisdiction of the Ombudsman. However, the Ombudsman is required to coordinate with the Public Prosecution for the purpose of implementing the ONSA’s provisions (Art 8 ONSA). In practice, this might include forwarding a case to the Public Prosecution for legal action or a request for witness protection in order to ensure the safety of a complainant. V.3. Powers in Relation to Legislative Organs The Ombudsman office has no connection to the legislative branch of Bahrain. V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU As specified above in Part D.IV, the supervision criteria of the Ombudsman include international treaties ratified by Bahrain. With regard to international human rights obligations, Bahrain is, inter alia, party to the ICCPR, the ICESCR, the ICERD, the CAT and the Arab Charter on Human Rights. Bahrain has not signed the OPCAT. VI. Practice There is no data on complaints available, as the confidentiality of the NSA’s information is provided by law. 74 1. Bahrain (Philipp Janig) VII. Reform There are currently no plans for reform. VIII. Information Law: http://www.ombudsman.nsa.bh/en/office-of-the-ombudsman/ Ombudsman-Office-Royal-Decree/ Homepage: http://www.ombudsman.nsa.bh/en/ 75 Part Two: Different Jurisdictions 2. Bangladesh Philipp Janig A. Constitutional Background In 1971, East Pakistan, which was later renamed Bangladesh, gained its independence from Pakistan. The following year, its constitution entered into force. It was suspended from 1982 to 1986 during military rule, and amended several times since its enactment, most recently in 2014. Bangladesh is declared a unitary, independent, sovereign Republic (Art 1), with Islam as the State religion (Art 2A). For administrative purposes, the State is divided into seven divisions. The country possesses a mixed legal system of predominantly English common law and Islamic law. The unicameral National Parliament, Jatiya Sangsad, serves as the legislative body. The majority of its 300 members are elected by popular vote in single territorial constituencies via universal suffrage. Additionally, fifty women are elected by the other members on the basis of proportional representation (Art 65). All members serve five-year terms (Art 72). Executive powers lie with the Cabinet and President. The President serves as Head of State and is elected by the National Parliament (Art 48) for a five-year term, which can be renewed once (Art 50). However, such office is largely ceremonial. Primary executive powers are vested in the Prime Minister, who serves as head of Cabinet, and is appointed by the President from Members of Parliament. All other Ministers are appointed by the President on advice of the Prime Minister, at least ninety per cent of whom from Members of Parliament. The Cabinet is collectively responsible to parliament (Arts 55–56). The Supreme Court of Bangladesh is the highest court of the country and consists of the Appellate and High Court Divisions (Art 94). The Appellate Division hears appeals from the High Court Division and thus serves as the final appellate body (Art 103). Upon request of the President, it also possesses the power to render opinions on serious questions of law 76 2. Bangladesh (Philipp Janig) of public importance (Art 106). The High Court Division supervises all subordinate courts and tribunals and hears their appeals. In addition, it enjoys original jurisdiction with regard to writs, allowing it to enforce fundamental rights of citizens (Art 102), and certain other matters, inter alia company and admiralty matters under statutes. Part III of the Constitution (Arts 26–47A) lists fundamental rights, such as the equality of all citizens before law (Art 27) or the protection of personal liberty against arbitrary arrest (Arts 32–33). B. Overview of Existing Ombudsman Institutions The Bangladeshi parliament created the legislative basis for a national administrative Ombudsman institution through an Act in 1980. How- ever, the Act was never implemented. A specialized administrative Tax Ombudsman was established in 2005316 and became operational, but was later disestablished as its legal basis was repealed in 2011.317 There are no comparable regional or local institutions. C. Ombudsman Bangladesh +*KUVQT[CPF.GICN$CUKU Article 77 of the Bangladeshi Constitution authorizes parliament to establish a legal basis for an Ombudsman, by virtue of the abovementioned Ombudsman Act of 1980 (Act No. XV of 1980; hereinafter: OA). However, as the Act did not come into force at the time, the institution was never actually established. As will be demonstrated below, the work of the Ombudsman under the legal framework of the OA is partly connected to the President of Bangladesh. After a constitutional amendment in 1992, the office of the President became largely ceremonial and thus no longer enjoys the same executive powers presumed by the OA.318 The OA only came into force as late as 2002 by government notification,319 with the pledge to draft an amendment in order to adapt the institution to changed 316 Tax-Ombudsman Act, 2005 (Act No. 19 of 2005). 317 Tax-Ombudsman (Repeal) Act, 2011 (Act No. 10 of 2011). 318 Mohammad Imam Hossain, ‘Towards an Evaluation of Ombudsman in Bangladesh’ (2012) 1(1) Bangladesh Research Foundation Journal 183, 187. 319 Bala, Swapan Kumar and Biswas, Pallab Kumar, ‘Tax-Ombudsman in Ban- gladesh: An Analytical Review of the Regulatory Framework’ (2005) 33(6) The Cost and Management 27, 28. 77 Part Two: Different Jurisdictions circumstances. Yet, until now, no Ombudsman has ever been appointed and the office of the Ombudsman has not been established.320 II. Organization The institution is designated to be headed by one Ombudsman who may appoint officers and other employees, but has no deputies. Categories of employees that may be appointed are defined by the government upon consultation with the Ombudsman. In addition, the Ombudsman may utilize the services of any officer, employee or agency of the government provided it has previously consented (Sec 10 OA). The OA contains no provisions concerning the allocation and usage of budgets. III. Legal Status Pursuant to the OA, the Ombudsman would be appointed by the President upon recommendation of parliament (Sec 3 (1) OA), while such recommendation is reserved for persons of known legal or administrative ability and conspicuous integrity (Sec 3 (2) OA). The office of Ombudsman is held for a term of three years, with the possibility of reappointment for one further term (Sec 4 (1) OA). Regarding remuneration, privileges and other conditions of service, the Ombudsman is designated to enjoy the same status as judges of the Supreme Court’s Appellate Division (Sec 5 OA), which is comparable to that of ministers. The OA does not contain any provisions in terms of incompatibilities. The Ombudsman and all members of staff are immune against any legal proceedings in respect of any measures taken or intended to be taken under the OA (Sec 16 OA). As the OA does not explicitly provide for the independence of the Ombudsman, a certain degree of autonomy from the executive branch may only be inferred insofar as provisions regarding term of office and the process of appointment and removal, particularly the involvement of parliament are concerned. An Ombudsman may be removed due to proven misconduct or physical incapacity by order of the President, pursuant to a resolution of parliament supported by a majority of at least two thirds of its members. Before such a resolution may be passed, the Ombudsman must be provided a reasonable opportunity of being heard in person (Sec 4 (2) OA). 320 Mohammad Imam Hossain, ‘Towards an Evaluation of Ombudsman in Bangladesh’ (2012) 1(1) Bangladesh Research Foundation Journal 183, 186. 78 2. Bangladesh (Philipp Janig) IV. Scope of Supervision The object of supervision is public administration, regardless of whether it operates in the public or private sectors. The Ombudsman may investigate actions taken by a ministry, statutory public authority or ‘public officer’ (Sec 6 (1) OA), a ‘public officer’ being a person holding or acting in any office of public remuneration in the service of the Republic (Art 152 (1) of the Constitution) and includes the offices of ‘chairman, mayor, director, member, trustee, officer or other employee of a statutory public authority or of any other authority, corporation, body or organization established, owned, managed or controlled by the government’ (Sec 2 (c) OA). However, the Ombudsman is barred from investigating any civil or criminal proceedings before courts, as well as the functions performed by, or the conduct of a person acting as a member of a court (Sec 6 (2) OA). Moreover, the government may, by notification in the official Gazette, exempt any public officer or class of public officers from the operation of all or any of the provisions of the OA (Sec 15 OA). In addition, if an action is under investigation by another authority under any other law, the Ombudsman shall only investigate such action if of the opinion that it is necessary and shall record reasons for doing so in writing (Sec 7 (4) OA). Section 6 (1) OA defines the supervision criterion as ‘injustice’ sustained by a person in consequence of an action by a body under the supervision of the Ombudsman, or where such action has resulted in an undue favour to any person or in accrual of undue personal benefit or gain by any person. An investigation may be initiated following an individual complaint or upon the Ombudsman’s own motion (Sec 6 (1) OA). The OA provides for no formal requirements for individual complaints. If the Ombuds- man decides to conduct an investigation, a copy of the complaint must be forwarded, or – when acting on an own motion – a statement of reasons, to the authority concerned and afford it an opportunity to comment (Sec 7 (1) OA). V. Powers V.1. Powers in Relation to Administrative Organs Even though the Ombudsman is appointed by the President (see above in Part C.III) and the OA does not explicitly provide for independence from the executive branch, a certain degree of autonomy might be inferred by virtue of applicable provisions regarding term of office and 79 Part Two: Different Jurisdictions the appointment and removal procedures, particularly the involvement of parliament. Section 10 (3) OA generally provides that the Ombudsman may utilize the services of any officer, employee or agency of the government, provided there is prior consent of the government. Moreover, for the purpose of an investigation, the Ombudsman may require any public officer or other person to furnish information and produce necessary documents. The Ombudsman enjoys the same powers as civil courts under the Code of Civil Procedure, 1908 (V of 1908), in respect of compelling witness statements, the production of documents, requiring evidence on affidavits, requisitioning public records, issuing commission and other matters as prescribed by the government. In the context of investigations under the OA, obligations regarding the maintenance of secrecy and other restrictions upon the disclosure of information obtained by or furnished to government or persons in its service are inapplicable. Still, no person may be required or authorized to provide any information, answer or (part of a) document ‘as might prejudice the security or defence or international relations of Bangladesh, or the investigation or detection of crime; or as might involve the disclosure of proceedings of the Council of Ministers or any committee thereof’ (Sec 8 (5) OA). In terms of determining whether any information, answer or document is of such nature, certain certificates issued by a Secretary of Government are conclusive and binding. Moreover, for the purpose of an investigation under the OA, no person may be compelled to provide evidence or documents which they could not be compelled to provide in proceedings before a court of law (Sec 8 OA). Additional powers of the Ombudsman in the context of investigations include the right to enter and inspect any premises and search and seize such books or documents as deemed necessary. Sections 102 and 103 of the Code of Criminal Procedure,1898 (V of 1898), which describe the procedure for entry, inspection, search or seizure, apply mutatis mutandis (Sec 11 OA). Proceedings before the Ombudsman are deemed to constitute judicial proceedings within the meaning of Section 193 of the Penal Code (XLV of 1860), rendering the provision of false evidence punishable by law (Sec 8 OA). Moreover, the Ombudsman may punish any person who obstructs the performance of functions with simple imprisonment not exceeding three months and/or fines not exceeding 2,000 BDT (Sec 13 OA). Without the prior permission of the Ombudsman, no person may publish the content of any proceedings relating to an investigation which is pending before the institution. Contravention is punishable with simple imprisonment not exceeding three months and/or fines not exceeding 2,000 BDT (Sec 12 OA). 80 2. Bangladesh (Philipp Janig) Upon the conclusion of an investigation, the Ombudsman is authorized to issue recommendations where injustice has been caused to a complainant or any other person in consequence of maladministration in connection with a particular action. In such cases, the Ombudsman provides the authority concerned with recommendations on appropriate remedies within a specified time and manner. The competent authority shall then inform the Ombudsman of action taken in compliance with a pertinent report within one month after the specified period has lapsed (Secs 9 (1), (2) OA). The procedure is distinctly different, wherever the Ombudsman finds that the action concerned has resulted in an undue favour or accrual of undue personal benefit or gain. In such cases, the Ombudsman is obliged to communicate findings to the competent authorities and recommend such legal, departmental or disciplinary action as deemed fit. Such authority must then inform the Ombudsman of action taken or proposed to be taken within one month (Secs 9 (3), (4) OA). Should the Ombudsman not be satisfied with the action taken or proposed on the basis of such reports, a special report may be forwarded to the President (Sec 9 (5) OA). In addition, if the Ombudsman discovers any defects in the law during an investigation, an appropriate report may be provided to the government and reforms recommended (Sec 9 (7) OA). The Ombudsman is obliged to prepare annual reports (Art 77 (3) of the Constitution) which are submitted to the President (Sec 9 (6) OA). V.2. Powers in Relation to the Courts Pursuant to the OA, the Ombudsman does not supervise the judiciary. Specifically, the OA provides that civil or criminal proceedings before all courts, or functions and conduct of persons acting as members of a court, are outside the Ombudsman’s jurisdiction (Sec 6 (2) OA). Conversely, in exercises of its writ jurisdiction under Article 102 of the Constitution, the High Court Division of the Supreme Court may be permitted to interfere with the work of the Ombudsman. This competence allows the High Court Division to issue binding orders to administrative bodies following applications of individuals, if no other equally effective remedy is available and only insofar as appropriate for the enforcement of fundamental rights, as enshrined in Part III of the Constitution. Such orders may i.a. prohibit (writ of prohibitio) or require (writ of mandamus) a certain conduct of the respective administrative body or declare any act or proceeding by it to be done or taken without lawful authority and thus without legal effect. How far this competence might be relevant to the work of the Ombudsman remains unclear. 81 Part Two: Different Jurisdictions V.3. Powers in Relation to Legislative Organs The Ombudsman is appointed upon recommendation of the parliament and may only be removed from office following a resolution of parliament supported by at least two-thirds of its members (Secs 3 (1), 4 (2) OA). Pursuant to Article 77 (3) of the Constitution, the annual report of the Ombudsman must be presented to parliament. Section 9 (6) of the OA provides that such reports are to first be submitted to the President, who then – together with an explanatory memorandum – forwards them to parliament. Yet, there are no consequences provided for non-submission. V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The OA does not entrust the Ombudsman with any special functions or powers regarding the protection of human rights. VI. Practice As no Ombudsman has ever been appointed, the office has also not become operative. VII. Information Constitution: http://bdlaws.minlaw.gov.bd/pdf_part.php?id=367 Law: http://bdlaws.minlaw.gov.bd/pdf/599___.pdf 82 3. China Thomas Stephan Eder A. Constitutional Background China was unified with the onset of the Qin Dynasty in 221 BC. In 1912, the monarchy was abolished and on 1 October 1949, the People’s Republic of China (China) was established. Its current constitution was promulgated in 1982 and last revised in 2004. It declares China to be a ‘socialist state under the people’s democratic dictatorship’ (Art 1), wherein all power lies with the people, represented through people’s congresses (legislative organs) at various levels (Art 2). All State organs ‘apply the principle of democratic centralism’ (Art 3). According to Article 30, the State is divided into provinces (23), autonomous regions (five) and municipalities directly under the Central Government (four). Pursuant to Article 31, additional special administrative regions may be established; so far there are two: Hong Kong and Macao. While China generally possesses a mixed legal system of civil and Soviet law, with traditional Confucian and recent customary and common law influences, Hong Kong and Macao have their own legal systems, which are heavily influenced by those of the United Kingdom and Portugal respectively. The National People’s Congress (NPC) is both the ‘highest organ of state power’ (Art 57), and, together with its Standing Committee, exercises legislative functions (Art 58). Its deputies are elected for five-year terms (Art 60) by the people’s congresses of provinces, autonomous regions, municipalities directly under the Central Government, and special administrative regions, as well as the corresponding organs within the armed forces (Art 59). The exact number of deputies varies and is determined by law. In 2013, there were 2,987. Deputies of the abovementioned lower people’s congresses also serve five-year terms and are elected by the people’s congresses of the following level. The deputies of people’s congresses of counties, cities not divided into districts, municipal dis- tricts, townships, nationality townships, and towns are elected directly 83 Part Two: Different Jurisdictions by their constituencies (Arts 97–98). The Standing Committee of the NPC is elected by the NPC for a five-year term, and consists of a Chairman, a Vice-Chairman, a Secretary-General and other members (Arts 65–66). Fig. 1: Parallel structures within the political system of China. One asterisk (*) de notes the power to elect or appoint. Two asterisks (**) show that the General Secretary presides over the Secretariat, three asterisks (***) that the positions of President and General Secretary are held in personal union. The President and Vice-President of China are elected by the NPC for a maximum of two consecutive five-year terms (Art 79). The President promulgates statutes and ratifies treaties pursuant to decisions the NPC and its Standing Committee (Arts 80–81). The State Council, i.e. the Central People’s Government, holds executive power (Art 85). It consists of the Premier, who directs the State Council’s work, Vice-Premiers, State Councillors, Ministers, the Auditor-General and the Secretary- General (Arts 86, 88). The State Council serves for a five-year term, while Premier, Vice-Premiers and State Councillors may serve no more than two consecutive terms (Art 87). The Premier and all other members of the State Council are appointed and removed by the President pursuant to decisions of the NPC (Arts 62 (5), 63 (2), 80). The judicial branch consists of the Supreme People’s Court and lower people’s courts at various levels, as well as military courts and other special people’s courts (Arts 123–124). Local people’s courts are divided into three levels: 1) basic people’s courts (counties, minorities, cities (not divided into districts) and autonomous counties), 2) intermediate people’s courts and 3) higher people’s courts. Special people’s courts include military courts, railway courts, and maritime courts. The Supreme People’s Court is the 84 3. China (Thomas Stephan Eder) highest judicial authority in China (Art 127). Its President is elected and removed by the NPC (62 (7), 63 (4)) and serves a five-year term, subject to one-time re-election (Art 124). The court’s president nominates a vice-president and other justices, who are then appointed by the NPC Standing Committee (Art 67 (11)). China does not have a constitutional court. Constitutional matters are handled by the Supreme People’s Court. Chapter 2 of the Constitution is titled ‘The fundamental rights and duties of citizens’ (Arts 33–56) and lists various fundamental rights, such as equality before the law (Art 33), prohibition of arbitrary detention (Art 37), the right of petition (Art 41) and social and economic rights. B. Overview of Existing Ombudsman Institutions China has established the 中华人民共和国监察部 – Ministry of Super- vision (MOS) – and the 国家信访局 – State Bureau for Letters and Calls (SBLC) – as two State grievance redress institutions on the national level with general mandates, which are both to a certain degree interwoven with party institutions. The two institutions represent the top tier of two parallel grievance redress systems. There are bureaus for letters and calls as well as supervisory organs on every level of government. Bureaus for letters and calls are, moreover, established throughout all State (including people’s congresses and courts) and party institutions. Next to these two organizations, there is also an inner-party grievance redress system under the 中国共产党中央纪律检查委员会 – Central Com- mission for Discipline Inspection of the Communist Party of China (CCDI), which has been largely merged with the Ministry of Supervision since 1993 (see below). The current head of the CCDI, Secretary Wang Qishan, is a member of the Politburo Standing Committee, at the moment a seven-member body, which comprises the Communist Party’s top leadership and is in many respects the most powerful institution in China. The former 中共中央办公厅 and 国务院办公厅信访局 – CCP Central Committee General Office and State Council General Office Bureau for Letters and Calls – have been part of the State Bureau for Letters and Calls since 2000. 85 Part Two: Different Jurisdictions Fig. 2: State and party grievance redress systems and their interrelations (Note: ‘CCP’ stands for the Communist Party of China). C. Ministry of Supervision +*KUVQT[CPF.GICN$CUKU The current legal bases of the Ministry of Supervision consist of the Law of the People‘s Republic of China on Administrative Supervision (‘Administrative Supervision Law’ (hereinafter: ASL)), promulgated on May 9, 1997, Gazette of the Standing Committee of the National People’s Congress) and the Regulations on Letters and Visits of the Peoples’ Republic of China (promulgated on May 1, 2005, Gazette of the State Council; regulating proceedings of supervisory organs and their staff in handling complaints). Its predecessor, the ‘People’s Supervisory Commission’, was established in 1949, renamed Ministry of Supervision in 1954, abolished in 1959 and reintroduced in 1987 by the Standing Committee of the NPC. In 1993, most operations of the Ministry were merged with those of the Central Commission for Discipline Inspection of the Communist Party of China (CCDI), causing most staff to be shared and jurisdictions to overlap since. The CCDI enforces compliance with internal rules and regulations of the Communist Party and investigates corruption, while the Ministry of Supervision enforces compliance with State law. Investigations are only initiated upon corresponding petition, i.e. individual complaints. The abovementioned merge was the result of the two institutions often initiating parallel investigations and the CCDI ultimately claiming jurisdiction, as almost all pertinent officials were party members. Since 1997, the Ministry of Supervision has its basis in statute rather than mere 86 3. China (Thomas Stephan Eder) administrative regulation. The Ministry is not a member of the IOI, but co-founded the AOA in 1996. II. Organization The Minister of Supervision is a Minister of the State Council (i.e. government) and heads a system of supervisory organs on all levels of government throughout the State, which allows the MOS to conduct supervisory work and enforce decisions all the way down to the local level. These supervisory organs are part of the respective local governments but also serve as the Ministry of Supervision’s support structure (Art 7 ASL). All heads or deputy heads of supervisory organs of local people’s governments above the county level are appointed and dismissed with consent of the supervisory organ at the next higher level (Art 11 ASL). Appointments are for five-year terms, with the possibility of one reappointment (Arts 60, 87 of the Constitution). Fig. 3: Different levels of government and administrative divisions of the People’s Re- public of China (excluding the Special Administrative Regions Macao and Hong Kong). Supervisory organs are established on each level of government. Aside from the Minister, the central MOS comprises four Vice Ministers, as well as 21 departments (four departments supervising other ministries and large State-owned enterprises; four departments supervising provinces; 13 comprehensive departments, i.a. the General Office, the Department of Case Review, the Department of Education, the Department of Laws and Regulations, the Department of Law Enforcement Inspection, the Department of Personnel, the Department of Foreign Affairs, the Reporting Center, etc.). Local people’s governments’ supervisory organs 87 Part Two: Different Jurisdictions at or above county level supervise work in their administrative areas, and report to the supervisory organ at the next higher level (Art 7 ASL). The MOS and supervisory organs on all lower levels also comprise dispatched offices in other ministries, commissions and agencies under the State Council or the respective lower level bodies, which they supervise (Art 8 ASL). Scholars, experts and members of different political parties321 are invited to act as part-time supervisors. Overall, the MOS has approximately 800 employees. III. Legal Status The Minister of Supervision, as a Minister of the State Council (i.e. government), is appointed by the President, upon nomination by the Premier and with the approval of the Standing Committee of the NPC for a five year term. Removal from such position does not require justification and is also performed by the President with approval of the Standing Committee of the NPC (Art 11 ASL, Art 80 of the Con- stitution). According to Article 10 ASL, all supervisors ‘shall be familiar with supervision and shall have received an appropriate education and acquired sufficient professional knowledge’. Supervisors are obliged to recuse themselves when close relatives ‘have an interest in the matter of supervision he [or she] is handling’ (Art 14 ASL). They may also be dismissed by the respective local government with consent of the supervisory organ at the next higher level (Art 11 ASL). There are no further regulations on qualifications and incompatibilities. The salary of the head of the institution is that of a Minister of the State Council. According to Article 3 ASL, all supervisory organs ‘shall exercise their functions and powers in accordance with law and shall be subject to no interference from any administrative departments, public organizations or individuals’. This is reinforced by Article 13 ASL, which states that no organization or individual may refuse to cooperate, or obstruct or retaliate against supervisors. It further underlines that supervisors are to be protected by law in their work. Article 9 ASL establishes a certain moral code for supervisors, who ‘shall abide by laws and observe rules of discipline, be faithful to their duties, enforce laws impartially, remain honest and upright and keep secrets’. 321 Formally, China is a multi-party State, whereas the Chinese Communist Party (CCP) leads all other parties in the United Front. All political parties are represented in the Chinese People’s Political Consultative Conference (CPPCC), an advisory body. 88 3. China (Thomas Stephan Eder) IV. Scope of Supervision The MOS may investigate administrative organs and public servants, as well as other persons appointed by administrative organs (Art 2 ASL). It operates throughout China and specifically monitors 1) departments under the State Council and their officials, 2) other persons appointed by the State Council and the departments under it, and 3) the people’s governments of the provinces, autonomous regions and municipalities directly under the Central Government and the leading members of such governments (Art 15 ASL). Supervisory organs under local people’s governments at or above the county level are responsible for their administrative area and report both to their respective local government and the next higher supervisory organ (Art 7 ASL). Specifically, they investigate 1) the departments under the respective people’s government and their officials, 2) other persons appointed by the respective people’s government or the departments under such government, and 3) the people’s government at the next lower level and its leading members (Art 16 ASL). Supervisory organs of people’s governments of counties, autonomous counties and cities not divided into districts or municipal districts are also responsible for officials of people’s governments of townships, nationality townships and towns under the jurisdiction of the people’s government to which they belong, as well as other persons appointed by the governments of these townships, nationality townships and towns (Art 16 ASL). Supervisory organs on higher levels may seize matters under the jurisdiction of lower- level supervisory organs and settle disputes over jurisdiction among lower-level supervisory organs (Art 17 ASL). Investigations may either be initiated by individual complaints or the MOS on its own motion. The MOS is generally required to investigate compliance of administrative organs with laws, rules and regulations, as well as government decisions and decrees (Art 18 (1) ASL). All citizens may file ‘accusations or expositions’, i.e. individual complaints (Art 6 ASL) free of charge, clearly stating requests, facts and reasons, as well as the name and address of the claimant. Grievances may be expressed concerning any violation of law or dereliction of duties by any administrative organ or public servant or other person appointed by administrative organs (Art 6 ASL). Supervisory organs are to then investigate such violations, as well as violations of rules of administrative discipline (Art 18 ASL). While performing their duties, such organs are obliged to operate in accordance with certain Chinese policy principles, such as ‘seeking truth from facts’, ‘laying stress 89 Part Two: Different Jurisdictions on evidence’, ‘investigation and study’, or ‘applying laws and rules of administrative discipline to people on an equal footing’ (Art 4 ASL). The pertinent process begins with conducting preliminary examin- ations as to whether a given complaint requires investigation and re- gistration of cases with sufficient facts to support the alleged violation (Art 30 ASL). In a next step, supervisory organs investigate the re- sponsibility of officials (Art 30 ASL) or transfer matters outside their jurisdiction to the competent authorities (such as the appropriate judicial organ in case of a criminal suspect). The respective authority then informs the supervisory organ of how the relevant matter is handled (Art 43 ASL). V. Powers V.1. Powers in Relation to Administrative Organs Nominated by the Premier and appointed by the President (Art 11 ASL), the Minister of Supervision becomes a member of the State Council and is thus part of the executive branch and subordinate to the Premier. Supervisory organs on all levels act on behalf of the people’s governments on their respective levels (i.e. not the people’s congresses) (Art 2 ASL). ‘Major’ decisions or recommendations, which are not further defined, must be approved not only by the supervisory organ of the next higher level, but also the people’s government on the same level (an exception being the MOS, which reports to the State Council only) (Art 34 ASL). Consequential and complicated cases must be reported to the same authorities as soon as they are registered or quashed (Arts 30, 31 ASL) and furnished with reports on findings where inspections are conducted upon the own initiative of the relevant organ (Art 29 ASL). In performance of their duties, supervisory organs ‘shall abide by laws and observe rules of discipline, be faithful to their duties, enforce laws impartially, remain honest and upright and keep secrets’ (Art 9 ASL), and ‘be subject to no interference from any administrative departments, public organizations or individuals’ (Art 3 ASL). This is reinforced by Art 13 ASL, which states that no organization or individual may refuse to cooperate, obstruct or retaliate against supervisors, and that the latter are to be protected by law in their work. Moreover, all supervisors must recuse themselves when they or close relatives ‘have an interest in the matter of supervision’ (Art 14 ASL). Supervisory organs may require authorities to provide information, documents, data, financial accounts and other materials, as well as explain such materials or clarify questions about them (Arts 19, 26 ASL). 90 3. China (Thomas Stephan Eder) Further powers include temporarily seizing or sealing such materials, ordering authorities not to sell or transfer certain property, or instructing officials to provide information and serve as witnesses (Art 20 ASL). When investigating graft, bribery and misappropriation of public funds, supervisory organs may also require banking institutions to provide information, or request People’s Courts to freeze deposits (Art 21 ASL). If necessary, supervisory organs may also request the assistance of public security, auditing, taxation or customs authorities, as well as the cooperation of administrative departments for industry and commerce (Art 22 ASL). Furthermore, disclosure of units and individuals involved in a given matter (Art 26 ASL) may generally be requested and public hearings warranted in important and complicated cases. In terms of remedies, one possibility is to order authorities to cease violating laws, regulations and administrative discipline (Art 19 ASL), and suggest the suspension of certain officials (Art 20 ASL). Such decisions are open to appeal and requests of re-examination by affected officials. In a next step, appeals may be directed towards the next higher level, whereas implementation of the initial decision will not be suspended (Art 39 ASL). These decisions (or initial ones of the highest supervisory organ, the MOS) are final (Art 41 ASL). Under certain circumstances, supervisory organs may also impose administrative sanctions if officials 1) ‘withhold the truth, provide false evidence or conceal, transfer, alter or destroy evidence [2)] […] deliberately delay providing documents, data, financial accounts or other materials or information relevant to the matters under supervision or refuse to provide them [3)] […] sell off or transfer suspect property during the period of investigation [4)] […] refuse to explain or clarify the questions raised by the supervisory organ [5)] […] refuse to implement the supervisory decision or refuse to adopt the supervisory recommendation without justifiable reasons’, or 6) have committed other serious violations of the ASL (Art 44 ASL), or in case of retaliation or framing of complainants, accusers, exposers or supervisors (Art 45 ASL). Such sanctions might include administrative warning, recording of a (major) demerit, demotion, dismissal from office or discharge. Pursuant to Arts 23 and 24 ASL, supervisory organs may also recommend corrective measures 1) where officials violate or refuse to enforce laws and regulations, 2) where authorities issue decisions or decrees that contravene laws or regulations on a higher level or State policies, 3) where the interests of the State or lawful rights or citizens are impaired, 4) where employment decisions ‘are obviously inappropriate’, 5) where officials should be given administrative penalties and 6) where 91 Part Two: Different Jurisdictions violations of administrative discipline require administrative sanctions, including cases of officials accepting funds or property in violation of the requirements of administrative discipline. The recommendations of the MOS and other supervisory organs are supported by the work of the MOS Reporting Center, Department of Research, and Institution of Anticorruption Research. As a general rule, authorities are required to implement recommendations, ‘unless they have justifiable reasons not to do so’ (Art 25 ASL). In such cases, they may address objections with the supervisory organ. If the latter retains its position and the authority in question still objects, the supervisory organ is obliged to submit the matter to the people’s government of that level or the supervisory organ of the superordinate level (Art 42 ASL). V.2. Powers in Relation to Courts The MOS and other supervisory organs cannot file actions, bring charges, or influence judicial decisions. Whenever they determine that a matter falls within the jurisdiction of judicial organs, they must transfer it accordingly. The relevant judicial organ is then obliged to report on how the pertinent matter is handled (Art 43 ASL). V.3. Powers in Relation to Legislative Organs The NPC is required to approve the appointment of the Minister of Supervision by the President upon nomination by the Premier (Art 11 ASL). The heads of supervisory organs are authorized to attend people’s government meetings at their respective level (Art 27 ASL), but not people’s congress meetings. The MOS is not required to report to the NPC. V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The Ministry of Supervision does not have any special functions or powers regarding human rights protection. VI. Practice Unfortunately, no information could be obtained in this regard. VII. Reform There are currently no publicly known plans to reform the Ministry of Supervision. 92 3. China (Thomas Stephan Eder) VIII. Information Constitution: www.npc.gov.cn/englishnpc/Constitution/node_2825.htm Law: http://www.npc.gov.cn/englishnpc/Law/2007-12/11/content_1383546.htm Homepage: http://www.ccdi.gov.cn/ C. State Bureau for Letters and Calls + *KUVQT[CPF.GICN$CUKU The State Bureau for Letters and Calls322 (SBLC) has its current legal basis in the Decree of the State Council of the People‘s Republic of China ‘Regulations on Letters and Visits’ (RLV) (promulgated by Decree No. 431 of the State Council of the People’s Republic of China on January 10, and effective as of May 1, 2005). It was established in 2000, succeeding a predecessor which had existed since 1951. It is not a member of the IOI or AOA. II. Organization The SBLC, which includes the CCP Central Committee General Office and the State Council General Office Bureau for Letters and Calls, is established as part of the General Office of the State Council (i.e. the government) (Art 6 RLV). The SBLC is headed by a Director with the government rank of Vice-Minister. It has four Deputy Directors, one Leader of the Discipline Inspection Group, and further consists of a secretariat, general leadership department, letters departments (No. 1 and 2), a calls/visits department, research department, supervision department, personnel and education department, an (inner-institution) party committee, monitoring office, national complaint reception office, retirement affairs office and an information centre. 322 The official translation of the name of this institution refers to ‘Letters and Calls’, whereas the official translation of its main legal basis refers to ‘Letters and Visits’. Both names designate the same concept, i.e. a petition system that allows individuals to register complaints in whatever form, be it via a visit, call, letter, fax, email or online form. This book will use the respective official translations. 93 Part Two: Different Jurisdictions The SBLC heads a system of bureaus for letters and calls on all levels of government throughout the State, which allows for the channelling of information regarding complaints from citizens from the local level and all above. Fig. 4: Levels of government and administrative divisions of the People’s Republic of China (excluding the Special Administrative Regions Macao and Hong Kong). Bureaus for Letters and Calls are established on each level of government. Provincial regulations regarding the recruitment of staff vary, e.g. while the Shanghai Bureau for Letters and Calls selects its employees based on their legal knowledge, those in the Gansu Bureau are chosen by virtue of their mediation skills. III. Legal Status The SBLC is established as part of the General Office of the State Council (i.e. the government) (Art 6 RLV), and subject to the ‘leadership of the people’s governments at all levels’ (Art 4 RLV). The Director and staff of the SBLC are appointed and removed by the General Office of the State Council in the same manner as other public officials. According to Art 30 RLV, all staff of bureaus for letters and calls or other administrative organs involved in the handling of complaints are required to recuse themselves wherever they possess a direct interest in a given matter or complainant. There are no further statutory regulations on qualifications, incompatibilities or salary. 94 3. China (Thomas Stephan Eder) IV. Scope of Supervision The State Bureau for Letters and Calls may investigate administrative organs (and staff), organizations authorized to perform administrative functions (and staff), enterprises or institutions providing public services (and staff), individuals in public organizations or other enterprises or institutions who are appointed or dispatched by administrative organs, villagers’ committees and residents’ committees (and their members) (Art 14 (1) – (5) RLV). Investigations are initiated by individual complaints that can be filed by any citizen, legal entity or organization (Art 2 RLV). In addition, according to Art 50 RLV, bureaus for letters and calls shall also handle complaints filed by foreigners, stateless persons and foreign organizations. Complaints can be submitted free of charge and both orally and in written form, via letter, email, fax, phone call or visit (Art 2 RLV). In terms of formal requirements, complaints must include the name and address of the claimant, as well as complaint information, including facts and reasoning (Art 17 RLV). For the purpose of facilitating the filing of complaints, consultation days are held by bureaus for letters and calls on the city (where divided into districts) and county levels, as well as in their relevant departments and people’s governments of towns or townships. Claimants may also be visited at home to discuss their grievances (Art 10 RLV). Complaints regarding matters to be dealt with through litigation, arbitration, administrative review or similar means must be filed with the competent organs and are outside the jurisdiction of bureaus for letters and calls (Art 14 RLV). Whenever such complaints are nevertheless submitted to bureaus, claimants must be notified that their relevant complaint has been rejected and directed towards the competent authority (Art 21 (1) RLV). Where people’s governments at the corresponding level or other departments thereunder, i.e. not the bureau for letters and calls, are responsible, matters shall be transferred to them, in case of complicated or urgent matters, together with suggestions on how to handle the relevant issue (Art 21 (2) RLV). At the county level, the department for letters and calls of the people’s government must regularly notify the corresponding department or unit of the people’s government at the subordinate level of such transferred matters, which must in turn regularly report to the superordinate level regarding their handling. Similarly, bureaus are required to directly transfer matters involving lower-level administrative organs both to the competent administrative authority and bureau of the corresponding level. The latter must also 95 Part Two: Different Jurisdictions regularly be informed of such transfers and in turn regularly inform the superordinate bureau on the handling of transferred matters (Art 21 (3) RLV). Important transferred matters requiring feedback, can be transferred to responsible administrative organs directly, rather than the pertinent institution itself. The administrative organ will then directly provide the necessary feedback (Art 21 (4) RLV). Bureaus for letters and calls at or above the county level must then input all complaints that have not been rejected to a central information system in a timely manner and issue a complaint acceptance certificate (Art 12 RLV). Matters which have already been accepted by a bureau where investigation is pending, may not be accepted by a different bureau (Art 16 RLV). According to Art 6 (6) RLV, bureaus above the county level may issue recommendations to other departments of the government at their own and bureaus at lower levels of government. Bureaus at the county level or above which encounter policy problems during investigations are to report them and provide policy recommendations to the people’s government at the corresponding level (Art 37 RLV). Regarding certain staff members of administrative organs, administrative sanctions may be suggested to the pertinent organ (Art 38 RLV). V. Powers V.1. Powers in Relation to Administrative Organs The letters and calls petition system is part of the executive branch, with the SBLC being administered under the State Council’s General Office (Art 6 RLV) and all ‘leadership of the people’s governments at all levels’ (Art 4 RLV). According to Art 30 RLV, SBLC staff must recuse themselves whenever they have a direct interest in a given complaint or claimant. As bureaus often represent relatively high-level institutions, they enjoy a certain level of discretion to apply informal pressure on administrative agencies under their purview. In the context of its investigations, the SBLC may require the organization or individual subject to a complaint, as well as other organizations and individuals, to provide explanations. For important or complicated cases, open hearings may be held to establish facts and responsibilities through inquiry, debate, appraisal or judgment by a collegiate group (Art 31 RLV). According to Art 10 RLV, complainants may also be visited at home to discuss their complaints. Pursuant to Art 6 (6) RLV, bureaus above the county level may issue recommendations to other departments of the government at the 96 3. China (Thomas Stephan Eder) corresponding level and lower-level bureaus. Policy recommendations are to be provided to the people’s government at the corresponding level (Art 37 RLV). Corrective measures connected with possible administrative sanctions are addressed to individual administrative organs (Art 38 RLV). All bureaus for letters and calls are required to issue periodical reports to the people’s government of the corresponding level (Art 39 RLV). These must provide information regarding 1) statistical data on and areas covered by matters accepted, as well as organs against which relatively large numbers of complaints are lodged, 2) information on matters which are transferred for handling or the handling of which is requested, as well as suggestions regarding improvements accepted by various departments, and 3) policy suggestions provided and accepted (Art 39 RLV). V.2. Powers in Relation to Courts Complaints regarding matters to be dealt with through litigation, arbitration, administrative review or similar means are outside the jurisdiction of the SBLC and must be filed with the relevant judicial organs rather than a bureau for letters and calls (Art 14 RLV). Whenever such complaints are nevertheless submitted to bureaus, claimants must be notified that their relevant complaint has been rejected and directed towards the competent authority (Art 21 (1) RLV). V.3. Powers in Relation to Legislative Organs The NPC is not involved in the appointment or dismissal of the Director of the SBLC. Bureaus for letters and calls are not required to issue periodical reports to the people’s congresses (see Art 39 RLV). Complaints regarding matters within the scope of functions of the people’s congresses or their Standing Committees are outside the jurisdiction of bureaus for letters and calls. Whenever such complaints are nevertheless submitted to bureaus, claimants must be notified that they must present the relevant matter to the respective people’s congress or its Standing Committee (Arts 15, 21 (1) RLV). V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The State Bureau for Letters and Calls does not have any special functions or powers regarding the protection of human rights. 97 Part Two: Different Jurisdictions VI. Practice Unfortunately, no information could be obtained in this regard. VII. Reform There are currently no publicly known plans to reform the State Bureau for Letters and Calls. VIII. Information Law: http://www.gjxfj.gov.cn/2009-11/24/c_133327663.htm Homepage: www.gjxfj.gov.cn 98 4. India Philipp Janig A. Constitutional Background From the 19th century onwards, the Indian subcontinent was largely ruled by the British Empire, with small parts being colonized by other European powers, such as Portugal and France. In 1947, following a long non-violent resistance movement led by Mahatma Ghandi, the United Kingdom partitioned British India into the dominions of India and Pakistan and granted them independence through the Indian In- dependence Act, 1947. The 635 Princely States of the subcontinent, which were nominally sovereign entities, were given the choice to accede to either India or Pakistan or remain independent. With regard to the former Princely State of Kashmir this process lead to a partially violent and ongoing dispute between India and Pakistan. In 1949, India adopted its constitution, which has been often amended since, most recently in 2013. The common law system of India is based on the English model, with separate personal law codes applicable to Muslims, Christians and Hindus. India is a Union of States (Art 1) and currently consists of 29 States and seven union territories. The States have their own legislative and executive powers and organs, while union territories are generally directly ruled by the Central Government. However, Puducherry (the former French India) and New Delhi (the ‘National Capital Territory of Delhi’) enjoy a special status, as they, despite being union territories, have their own legislature and executive. The powers of the Union government are enshrined in Part V of the Constitution, whereas those of the States are laid down in Part VI. Part VIII sets out the status of union territories, while Part XI deals with the relations between the Union and States. The legislative power of the Union rests with the bicameral parliament, the Sansad, which consists of the Council of States, the Rajya Sabha and the House of the People, the Lok Sabha (Art 79). The Council of States 99 Part Two: Different Jurisdictions has up to 250 members (currently: 245), who are partly appointed by the President (twelve) but mostly elected through a proportional representation system by elected members of State and territorial assemblies (Art 80). The Council of States is chaired by the Vice-President (Art 64). The House of the People has up to 552 members (currently: 545). Most of them, up to 530, are elected from territorial constituencies within the state, while as many as twenty further members represent union territories (Art 81). The President may additionally appoint up to two members from among the Anglo-Indian community, if considered not adequately represented (Art 331). The executive powers of the Union lie with the President, who may exercise them directly or through subordinate officers (Art 53). The President is elected by an electoral college consisting of the elected members of both houses of parliament and the legislatures of states (Art 54) for a five-year term (Art 56). The President acts on advice of the Council of Ministers, which is headed by the Prime Minister (Art 74). The President appoints the Prime Minister and, on the Prime Minister’s advice, the other ministers. The Council of Ministers is collectively responsible to the House of the People (Art 75). In the States, legislative powers are vested in the Governor, together with the State legislature. State legislature is usually unicameral, but consists of two chambers in some States (Art 168). Each State legislature has a Legislative Assembly, the Vidhan Sabha, the members of which are directly elected from territorial constituencies (Art 170) for five-year terms (Art 172). Seats are reserved for Scheduled Tribes and Castes based on their proportion to the total population. Governors may appoint one additional member to Legislative Assemblies from among the Anglo- Indian community, if it is not adequately represented. Bicameral State legislatures additionally possess a Legislative Council, the Vidhan Parishad. Generally, one third of its members are elected by an electorate consisting of members of local authorities, one-third by the members of the Legislative Assembly, one-twelfth by university graduates residing in the state and one-twelfth by persons engaged in teaching, with the remaining members being nominated by the Governor (Art 171). The exact number within a particular State’s legislature is laid down in the Representation of the People Act, 1950 (Central Act No. 43 of 1950). Legislative Councils must consist of at least forty members (see Sec 10, Third Schedule Representation of the People Act, 1950), while Legislative Assemblies range from 60–500 members (Secs 7, 7A, Second Schedule Representation of the People Act, 1950). States generally enjoy executive powers concerning such matters as they are also empowered to legislate (Art 162). Executive powers within a 100 4. India (Philipp Janig) State lie with the respective Governor, who is appointed by the President of India (Art 155) and exercises powers directly or through subordinate officers (Art 154). Each Governor appoints a Chief Minister and, upon the Chief Minister’s advice, all other ministers (Art 164). Every Chief Minister heads a Council of Ministers, which aids and advises the relevant Governor in the exercise of their functions (Art 163) and is collectively responsible to the Legislative Assembly (Art 164). The Supreme Court serves as India’s final court of appeal (Arts 132–134).The law declared by it is binding upon lower courts (Art 141). It enjoys original jurisdiction to solve disputes between the Government of India and/or states (Art 131) and also to issue writs, such as habeas corpus, mandamus, prohibition, quo warranto and certiorari, to ensure the enforcement of fundamental rights enshrined in Part III of the Constitution (Art 32). The Supreme Court may also provide reports on questions of law or fact of public importance to the President if so referred (Art 143). The High Courts of India are the highest courts on the State level. They enjoy administrative supervision over all courts and tribunals within their territorial jurisdiction (Art 227), for which they also serve as an appellate body. Additionally, they enjoy original jurisdiction to issue writs for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose within such territorial jurisdiction (Art 226). Subordinate courts and tribunals are predominantly established by State statutes and only partly by central legislation. Nevertheless, they are generally similar in nature and form throughout India and comprised of the Judicial Magistrate and Civil Judge Class I and II, the Chief Judicial Magistrate, as well as the Court of Additional District and Sessions Judge. They all report to the appropriate District and Sessions Judge who is appointed by the High Court. Further tribunals have been established for certain special matters, such as rent supervision, customs or administrative tribunals. Fundamental rights are listed in Part III of the Constitution of India titled ‘Fundamental Rights’ (Arts 12–35) and include equality of all persons before the law (Art 14), prohibition of discrimination on certain grounds (Art 15), protection of personal liberty (Art 21) and prohibition of arbitrary arrest (Art 22). B. Overview of Existing Ombudsman Institutions The Indian system of grievance redress institutions is envisioned as a complementary system with the Lokpal on the national and Lokayukta on the state level (without comparable institutions on a local level). This 101 Part Two: Different Jurisdictions system was proposed in an Interim Report of the Administrative Reforms Commission in 1966.323 Over the following years, states began to enact legislation implementing the recommendations of the Commission.324 As of 2015, 19 Indian States, as well as the National Capital Territory of Delhi, have established such Lokayukta (also: Lokayukt, Lok Ayukta, or Lok Ayog) institutions with a mandate to investigate individual complaints regarding corruption in state administrations. The four institutions that are discussed in this study, those of Uttar Pradesh, Madhya Pradesh, Andhra Pradesh and Delhi, are or have been members of the Asian Ombudsman Association. Several attempts to implement a national institution have remained unsuccessful. Only in 2013, India enacted the Lokpal and Lokayukta Act, 2013 (Central Act No. 1 of 2014), which calls for the establishment of regional Lokayukta institutions on the State level and serves as the legal basis for the Lokpal, a national institution mandated with investigating corruption (i.a. upon individual complaints). Its jurisdiction includes public administration, certain private legal entities (partly) under State supervision and members of the legislature, but it has not yet been established to date. As a result and under consideration of its limited mandate and resemblance with a prosecuting authority (including the restricted role of individual complaints), the Lokpal has not been included in this study. C. The Lok Ayukta Institution of Uttar Pradesh +*KUVQT[CPF.GICN$CUKU The Lok Ayukta Institution of Uttar Pradesh was established through the Uttar Pradesh Lokayukta and Up-Lokayuktas Act, 1975 (Uttar Pradesh Act No. 42 of 1975; hereinafter: UPLA) and last amended in 2012. Procedural rules are stipulated in the Uttar Pradesh Lokayukta and Up-Lokayuktas (Complaint) Rules, 1977 (hereinafter: UP Complaint Rules) and the Uttar Pradesh Lokayukta and Up- Lokayuktas (Competent Authority) Rules, 1977. Under the UPLA, the institution is mandated with investigating instances of corruption and maladministration of most officials in the public administration and 323 See Administrative Reforms Commission, ‘Interim Report of the Adminis- trative Reforms Commission on Problems of Redress of Citizens Grievances’ (1966) available at 102 4. India (Philipp Janig) certain private legal entities (partly) under State supervision, as well as members of the legislative. The institution opened office in 1977, two years after its legal basis was enacted and was a member of the AOA from 2008 until 2012. II. Organization The institution is headed by a Lokayukta, with one Up-Lokayukta currently acting as deputy. The Up-Lokayukta is under the administrative control of the Lokayukta and subject to their general and special directions in principle. However, the Lokayukta may not question the findings, conclusions or recommendations of an Up-Lokayukta (Sec 3 (3) UPLA). The Lokayukta may appoint, or authorize an Up-Lokayukta or subordinate officer to appoint, officers and other employees. The number and categories of offices and employees that may be appointed, their salaries, allowances and other conditions of service, as well as the administrative powers of the Lokayukta and Up-Lokayukta, are determined by general or special order of the State Government, upon consultation with the Lokayukta. In addition, any person holding a position under the Central or the State Government may be appointed on deputation with the consent of that government (Sec 14 UPLA). As of 2015, the institution has 65 employees (five of whom are female), most of whom are university graduates. The budget of the institution is covered by the Consolidated Fund of Uttar Pradesh (Sec 20A UPLA; see Art 202 of the Constitution) and its allocation thus within the discretion of the State Government and not subject to a vote of the Legislative Assembly (Art 203 (1) of the Constitution). The Lokayukta may decide upon the usage of the budget. III. Legal Status The Lokayukta if chosen from present or former judges of the Supreme Court or a High Court (Sec 4 UPLA) and appointed by the Governor, upon consultation with the Chief Justice of the Allahabad High Court and the Leader of the Opposition in the Legislative Assembly (Sec 3 (1) UPLA). One or more Up-Lokayuktas are appointed by the Governor after consultation with the Lokayukta (Sec 3 UPLA). There are no qualification requirements for an Up-Lokayukta. The Lokayukta and Up-Lokayukta are appointed for a term of eight years, with no possibility for reappointment, but continue to hold office until a successor assumes office (Sec 5 UPLA). 103 Part Two: Different Jurisdictions The positions of Lokayukta and Up-Lokayukta are incompatible with any business or profession or other office, trust or profit and closed to current or former members of parliament or state legislature as well as persons affiliated with any political party (Sec 4 UPLA). Upon cessation of functions, a Lokayukta or Up-Lokayukta is ineligible for further employment under the Government of Uttar Pradesh (Sec 5 (3) UPLA). Section 17 UPLA provides for the immunity of the Lokayukta, the Up-Lokayukta and any officer, employee, agency or person working for the institution under Section 14 UPLA. Such immunity extends to all legal proceedings in respect of all acts done or intended to be done in good faith under the UPLA (Sec 17 UPLA). The UPLA does not explicitly provide for the independence of the Lokayukta or Up-Lokayukta. As a result, only a certain degree of independence may be inferred from their term of office and the removal procedure, in particular the involvement of the state legislature. The salary of the Lokayukta and Up-Lokayukta depends on the position held before appointment and may be the same as that of a judge of the Supreme Court, Chief Justice of a High Court (Lokayukta), judge of a High Court or Additional Secretary of the Government of India (Up- Lokayukta) (Sec 5 (4), Second Schedule UPLA). Allowances, pension and other conditions of service are such as prescribed by the State Government and amended by state legislature and should be oriented on the rules applicable to the Chief Justice of a High Court (Lokayukta) or a judge of a High Court (Up-Lokayukta) (Sec 5 (5) UPLA). The Lokayukta or an Up-Lokayukta may be removed from office by the Governor subject to Article 311 of the Constitution on grounds of misbehaviour or incapacity. This may only be done upon inquiry of a former or current judge of the Supreme Court (in the case of an inquiry against a Lokayukta or Up-Lokayukta), Chief Justice of a High Court (against a Lokayukta) or judge of a High Court (against an Up-Lokayukta). Reports of such inquiries are submitted to the Governor who then forwards them to the state legislature. In order to remove a Lokayukta or Up-Lokayukta, such action must be supported by all houses of state legislature and carried by a majority of all members of each house, with no less than two-thirds of them being present. Appropriate votes must be presented to the Governor in the same session as desired removal (Sec 6 UPLA). According to Article 311 (2) of the Constitution, the Lokayukta or Up-Lokayukta to be removed must be informed of the charges brought against them in the course of a given inquiry and given a reasonable opportunity of being heard. This requirement is waived, where removal is either initiated on grounds of conduct which has led to conviction on a 104 4. India (Philipp Janig) criminal charge, where the competent authority is satisfied that for certain reasons (to be recorded by in writing), it is not reasonably practicable to hold such inquiry, or finally, where the Governor is satisfied that it is not expedient to hold an inquiry in the interest of the security of the state. IV. Scope of Supervision The bodies under supervision of the Lokayukta and Up-Lokayukta are all ‘public servants’, a term that includes persons in the public administration, certain private legal entities (partly) under State supervision and members of the legislature. ‘Public servant’ is defined as a person that holds or has held the position of (1) a Minister for the State of Uttar Pradesh (including a Minister of State and Deputy Minister),* (2) a member of the State Legislature of Uttar Pradesh,* and (3) any officer, i.e. a person appointed to public service or a post in connection with the affairs of Uttar Pradesh. The term further includes higher officials in the local rural and urban administration*.325 Moreover, a ‘public servant’ includes any person who is or has been an unofficial Chairman or Managing Director of a district level central society, or an apex society registered under any law relating to co-operative societies.* Further persons under supervision are such in the service or pay of certain entities notified by the State Government, including (1) local authorities in the State of Uttar Pradesh, (2) other corporations established by or under an Uttar Pradesh or Central Act and societies registered under the Societies Registration Act 1860 (Central Act No. 21 of 1860) that are owned or controlled by the State Government, as well as (3) government companies within the meaning of Section 617 Companies Act, 1956 (Central Act No. 1 of 1956), in which no less than fifty-one per cent of the paid-up share capital is held by the State Government or any company which is a subsidiary of such a company or any company notified by the State Government in this regard in the appropriate Gazette (Sec 2 (j) UPLA).326 Government Companies are such companies in which no less than fifty-one per cent of the paid-up share capital is held by the Central Government and/or any State Government(s) (solely or jointly), in- 325 Namely a President (Pramukh) of a Region (Kshettra Samiti),* a Chairman (Adhyaksha) of a District Board (Zila Parishad),* a Mayor (Nagar Pramukh) of a Municipal Corporation (Nagar Mahapalika)* or President of the Municipal Board of a city as defined in Section 2 (4) Uttar Pradesh Municipalities Act, 1916 (Uttar Pradesh Act No. 2 of 1916)*. 326 For notifications in this regard see http://lokayukta.up.nic.in/ under ‘Notifi- cation’. 105 Part Two: Different Jurisdictions cluding subsidiary companies of such companies (Sec 617 Companies Act, 1956). In terms of subject matter, the Lokayukta may investigate any action taken by or with the general or specific approval of a Minister, Secretary or a public servant falling within any of the categories marked above (*), as well as public servants of a (sub-)class of public servants notified by the State Government in consultation with the Lokayukta in this regard. Although all actions that were taken by or with the approval of any other public servant fall within the jurisdiction of the Up-Lokayukta, the Lokayukta may, for reasons to be recorded in writing, also investigate any action falling within the jurisdiction of the former (Sec 7 UPLA).327 Regarding supervision criteria, exemptions and formal requirements for complaints, the UPLA distinguishes between such that involve an ‘allegation’ and those that concern a ‘grievance’. An ‘allegation’ is the affirmation that a public servant ‘(i) has abused his position as such to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person, (ii) was actuated in the discharge of his functions as such by personal interest or improper or corrupt motive, or (iii) is guilty of corruption, lack of integrity in his capacity as such public servant’ (Sec 2 (b) UPLA). A ‘grievance’ is a claim that a person ‘sustained injustice or undue hardship in consequence of mal-administration’ (Sec 2 (d) (i) UPLA), thus by an ‘action taken or purporting to have been taken in exercise of administrative function in any case, (i) where such action or the administrative procedure or practice governing such action is unreasonable, unjust, ‘utpirak’,328 oppressive or improperly discriminatory, or (ii) where there has been negligence or undue delay in taking such action, or the administrative procedure or practice governing such action involves undue delay’ (Sec 2 (f) UPLA). A ‘grievance’ further includes complaints that an authority, empowered to make appointments to a public service or post in connection with the affairs of Uttar Pradesh, made any appointment in breach of the quota reserved for members of scheduled castes or tribes (Sec 2 (d) (ii) UPLA). However, certain persons and matters are either wholly or partly (regarding grievances) excluded from the jurisdiction of the Lokayukta and Up-Lokayukta. With regard to complaints involving a grievance, the Lokayukta or an Up-Lokayukta is barred from initiating an investigation in a variety of matters. Firstly, if that complaint is made against a public servant referred 327 See ibid. 328 Hindi for ‘oppressive’ or ‘suppressive’. 106 4. India (Philipp Janig) to in Section 2 (j) (iv)–(v) (Sec 8 (6) UPLA). These are the public servants of municipal and rural local administration, as well as certain private legal entities (partly) under State supervision that are generally within the jurisdiction of the institution (see above). Secondly, if the claimant has or had any other remedy by way of proceedings before any tribunal or court of law, except where the Lokayukta or Up-Lokayukta is satisfied that the claimant could not or cannot, for sufficient cause, have recourse to that remedy. Thirdly, if the action subject to the complaint relates to a matter listed in the Third Schedule (Sec 8 (1) (b) UPLA). The Third Schedule i.a. lists actions taken for the investigation of crimes or the protection of the security of the state, in exercise of powers relating to the decision whether a matter shall be prosecuted in court or not and in respect of certain conditions of service of public servants. Fourthly, investigations may not be initiated where the administrative action involves the exercise of discretion, except where the Lokayukta or an Up-Lokayukta is satisfied that the elements involved in the exercise of such discretion are absent to such an extent that discretion cannot be regarded as having been properly exercised (Sec 8 (5) UPLA). In addition, the Lokayukta or Up-Lokayukta shall not investigate any action in respect of which a formal and public inquiry has been ordered under the Public Servants (Inquiries) Act, 1850 (Central Act No. 37 of 1850) or which has been referred for inquiry under the Commissions of Inquiry Act, 1952 (Central Act No. 60 of 1952), either by the Government of India or a State Government (Sec 8 (2) UPLA). The Chief Minister of Uttar Pradesh is not considered a ‘public servant’ or ‘Minister’ and thus lies outside the jurisdiction of the Lokayukta and Up-Lokayukta (Secs 2 (g), (j) (i), 7 UPLA). Moreover, Section 22 UPLA explicitly excludes members of the judicial service as defined in Article 236 (b) of the Constitution, in particular the Chief Justice or any judge of the High Court, officers or servants of any court, the Accountant General of Uttar Pradesh, members of the Uttar Pradesh Public Service Commission and its staff, the Chief Election Commissioner, the Election Commissioners and the Regional Commissioners referred to in Article 324 of the Constitution, as well as the Chief Electoral Officer of Uttar Pradesh, any member of the Secretariat staff of either house of state legislature, or member of the staff of the Governor Secretariat from the jurisdiction of the institution. Additionally, the State Government may, by notification and in consultation with the Lokayukta, exclude complaints involving a grievance or an allegation against persons belonging to any class of public servants specified within the jurisdiction of the Lokayukta or Up-Lokayukta, if it is satisfied that such exclusion is necessary, expedient, or in the public 107 Part Two: Different Jurisdictions interest. However, no such notification may be issued in respect of public servants holding posts carrying a minimum monthly salary (excluding allowances) of 1,000 INR or more. If the State Government does issue such notification, it must be laid before each house of state legislature while in session and for a total period of thirty days, as soon as possible. During that period, the given house may agree to make modifications to such notification or annul it. Such modifications or annulments are effective from the date of publication in the official Gazette and without prejudice to the validity of actions previously taken by virtue of the relevant notification (Sec 19 UPLA). Conversely, by notification and after consultation with the Lokayukta, the State Government may also confer additional functions in relation to the eradication of corruption on the Lokayukta or an Up-Lokayukta. When such additional functions are conferred, the same powers are exercised and functions discharged as in the case of an investigation concerning an allegation (the provisions of the UPLA apply accordingly). By order in writing and upon consultation with the Lokayukta, the State Government may also confer upon the Lokayukta or an Up-Lokayukta various powers of a supervisory nature over agencies, authorities or officers set-up, constituted or appointed by the State Government for the eradication of corruption (Sec 18 UPLA). An investigation may be initiated following an individual complaint or order of the State Government (Secs 8 (1), 9 (1), 18 (3) UPLA). Regarding individual complaints, the UPLA partly foresees different formal requirements depending on whether they involve a ‘grievance’ or an ‘allegation’. Every complaint, whether relating to a grievance or an allegation, shall be made ‘as far as practicable’ in the form provided in the Annex of the UP Complaint Rules and i.a. must specify whether it pertains to an allegation or a grievance (Sec 3 UP Complaint Rules). Furthermore, complaints must be accompanied by the claimant’s own affidavit, as well as affidavits of all persons from whom information on facts relating to the accusation have been received, verified before a notary. Every complaint and affidavit must be verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings and affidavits respectively. The claimant must submit at least three copies of a given complaint, including annexes (Sec 9 (2)–(4) UPLA). Complaints regarding allegations may be lodged by any person other than a sitting public servant (Sec 9 (1) (b) UPLA) and made within five years from the date on which the action subject to the given complaint is alleged to have taken place (Sec 8 (4) UPLA). Furthermore, claimants are required to provide a security deposit in the amount of 2,000 INR (Sec 9 (2) UPLA). This requirement is waived, if the complaint is made 108 4. India (Philipp Janig) by persons in police custody, or jail (gaol), or in an asylum or other place for ‘insane persons’ (Sec 9 (6) UPLA). Additionally, the Lokayukta may, for sufficient cause to be recorded in writing, exempt claimants from this requirement, either wholly or in part (Sec 4 (1) UP Complaint Rules). Upon disposal of a given complaint, such security deposits may, wholly or partly, be declared forfeited and paid as compensation to the person subject of the complaint, with the remaining portion being refunded to the claimant (Sec 4 UP Complaint Rules). A complaint involving a grievance may be brought by any person aggrieved329 (Sec 9 (1) (a) UPLA) and must be made within twelve months of the date on which the alleged violation became known to the complainant. Belated complaints may be considered if the Lokayukta or Up-Lokayukta is satisfied that the claimant had sufficient cause for failing to submit a complaint in time (Sec 8 (4) UPLA). If a complaint does not comply with procedural requirements, the claimant is offered an opportunity for amendment within a specified period and manner (Sec 5 UP Complaint Rules), with failure resulting in non-consideration (Sec 9 (5) UPLA). The Lokayukta or an Up-Lokayukta may, at their discretion, re- fuse to investigate or cease to investigate a complaint if it is frivolous or vexatious, not made in good faith, lacking sufficient grounds for (continued) investigation, or if other, more fitting remedies are available to the claimant. Whenever (continued) investigation is refused by the Lokayukta or an Up-Lokayukta, they must record the pertinent reasons and communicate them to both the claimant and public servant concerned (Sec 10 (4) UPLA). Proceedings before the Lokayukta and Up-Lokayukta are generally confidential (Sec 10 (2), 15 UPLA). V. Powers V.1. Powers in Relation to Administrative Organs The UPLA does not explicitly provide for the independence of the Lokayukta or Up-Lokayukta. Therefore, a certain degree of in- 329 If the person aggrieved is dead or otherwise unable to act, the complaint may also be made by any person who in law represents the given estate or is authorized by the deceased in such regard. In the case of a grievance relating to an appointment in breach of a quota reserved for members of scheduled castes or tribes laid down by the State government, the complaint may also be made by an organization recognized in such regard by the State government (Sec 9 (1) UPLA). 109 Part Two: Different Jurisdictions dependence from the executive may only be inferred from their fixed term of office and the removal procedure, in particular the involvement of state legislature. For the purpose of conducting investigations under the UPLA, the Lokayukta or an Up-Lokayukta may utilize the services of any officer or investigation agency of the State or Central Government with the concurrence of that government (Sec 14 (3) UPLA), which is then under the obligation to act on the directives of the Lokayukta or Up-Lokayukta. They may also utilize the services of any other person or agency (Sec 14 (3) UPLA). For the purposes of an investigation, the Lokayukta or an Up- Lokayukta may require any public servant or other person to furnish information or produce documents relevant to a given investigation. As a result, they have the same powers enjoyed by a civil court under the Code of Civil Procedure, 1908 (Central Act No. 5 of 1908), in respect of summoning and enforcing the attendance of persons and examining them under oath, requiring the discovery and production of documents, receiving evidence on affidavits, requisitioning public records or copy thereof from courts or offices, issuing commissions for the examination of witnesses or documents and such other matters as prescribed by the State Government (Sec 11 (2) UPLA). Obligations to maintain secrecy or other restrictions upon the disclosure of information obtained by or furnished to the State Government or any public servant do not apply to the disclosure of information for the purpose of investigations under UPLA. In relation to such investigations, neither the State Government nor public servants are entitled to any such privilege in respect of the production of documents or giving evidence, as otherwise allowed under enactments or rules of law in legal proceedings (Sec 11 (4) UPLA). Nevertheless, no person shall be required or authorized to provide any information, answer or document that may prejudice the security of the State, defence or international relations of India (including India’s relations with the government of any other country or an international organization), investigation or detection of crime, or that may involve the disclosure of proceedings of the Cabinet of the State Government or any Committee of that Cabinet. A certificate issued by the Chief Secretary certifying that any information, answer or portion of a document is of the nature specified above, is binding and conclusive (Sec 11 (5) UPLA). Also, no person shall be compelled to provide any evidence or produce a document for the purpose of a UPLA investigation, which that person could not be compelled to provide or produce in proceedings before a court (Sec 11 (6) UPLA). 110 4. India (Philipp Janig) The Lokayukta or an Up-Lokayukta may take cognizance of certain offences, as described in Sections 175, 178, 179 and 180 of the Indian Penal Code, 1860. These are failure to produce documents to a public servant despite being legally bound to do so (Sec 175 Indian Penal Code), refusing to make an oath or affirmation despite being duly required by a public servant (Sec 178 Indian Penal Code), refusing to answer a public servant authorized to question (Sec 179 Indian Penal Code) and refusing to sign a statement (Sec 180 Indian Penal Code). If such an offence is committed in the view or presence of the Lokayukta or an Up-Lokayukta, they may cause the offender to be detained and may, on the same day and after giving the offender reasonable opportunity to be heard, sentence the offender to simple imprisonment not exceeding one month and/or a fine not exceeding 5,000 INR. If such action is taken, the Lokayukta or Up- Lokayukta must record relevant facts, findings and the given sentence (Sec 13 (6), (7) UPLA). Persons thus convicted may appeal to the High Court, while the provisions of Chapter XXIX of the Code of Criminal Procedure, 1973, regarding appeals, apply (Sec 13 (8) UPLA). A further offence under the UPLA is wilfully or intentionally making false complaints, punishable with imprisonment for a term not exceeding three years and subject to a fine of up to INR 10,000. The courts (the Court of Session in the case of a complaint before the Lokayukta or the Court of Magistrate, First Class in the case of a complaint before the Up-Lokayukta) may only take cognizance of such offences upon written complaints submitted by the Public Prosecutor at the direction of the Lokayukta or Up-Lokayukta. Upon conviction, courts may then award compensation as they see fit, payable from the incurred fine to the person aggrieved on account of such false complaint (Sec 13 (1)–(4) UPLA). If, during proceedings before the Lokayukta or an Up-Lokayukta, it appears that any person appearing in proceedings or who has filed an affidavit in support of a complaint has knowingly and wilfully given or fabricated false evidence with the intention of it being used in such proceedings, the Lokayukta or Up-Lokayukta may, if it is necessary and expedient in the interest of justice, take cognizance of such offence and, after giving the offender reasonable opportunity to be heard, try such offender summarily in accordance with the procedure prescribed for summary trials under the Code of Criminal Procedure, 1973 and pass a sentence of imprisonment not exceeding six months and/or fines not exceeding 5,000 INR (Sec 13 (5) UPLA). If the Lokayukta or an Up-Lokayukta is, at any stage of an investigation, satisfied that a complaint is false or vexatious, not made in good faith or filed in order to defame a public servant, they may – at their dis cretion and upon providing a reasonable opportunity of demonstrating cause to 111 Part Two: Different Jurisdictions the claimant – cease to investigate the complaint and impose costs not exceeding 50,000 INR. If such costs are not paid within two months from the date of the relevant order, they are to be enforced through a collector as land revenue from the property of the claimant (Sec 13 (5-a) UPLA). Whoever intentionally offers any insult or causes any interruption to the Lokayukta or Up-Lokayukta, while conducting an investigation under the UPLA, shall, upon conviction, be punished with simple imprisonment for a term not exceeding six months and/or a fine not exceeding INR 10,000. Similarly, whoever, by words spoken or intended to be read, makes or publishes a statement or performs an act which is calculated to bring the Lokayukta or Up-Lokayukta into disrepute, shall, upon conviction, be punished with simple imprisonment for a term not exceeding six months and/or a fine not exceeding INR 10,000. The provisions of Section 199 (2)–(6) of the Code of Criminal Procedure, 1973, apply in relation to such offences as they do in relation to those referred to under Section 199 (2). Yet, no complaint in respect of such offence may be made by the Public Prosecutor, except with the previous approval of the concerned Lokayukta or Up-Lokayukta (Sec 16 UPLA). All proceedings before the Lokayukta or an Up-Lokayukta are considered judicial proceedings within the meaning of Section 193 Indian Penal Code, 1860 (Central Act No. 45 of 1860) (Sec 11 (3) UPLA). Thus, providing false evidence is a punishable offence. If, in the context of grievances, upon investigating a certain action following a complaint, the Lokayukta or Up-Lokayukta is satisfied that such action has resulted in injustice or undue hardship for the claimant or any other person, the Lokayukta or Up-Lokayukta must provide the public servant and competent authority concerned with a written report containing a recommendation on the manner of and period of time for remedy or redress. The competent authority must then inform the Lokayukta or Up-Lokayukta of the action taken in compliance with the report within one month of expiration of the specified period (Sec 12 (1), (2) UPLA). Similarly, in the context of allegations, if, upon investigating a certain action following a complaint, the Lokayukta or Up-Lokayukta is satisfied that such allegation can be (partly) substantiated, they must also provide a written report communicating findings and recommendations to the competent authority, which must then within three months of the date of receipt, report back to the Lokayukta or Up-Lokayukta regarding action taken or proposed to be taken on the basis of such report (Sec 12 (3), (4) UPLA). If the Lokayukta or Up-Lokayukta is not satisfied with the action taken or proposed to be taken on the basis of such report under Section 12 (1), (3) UPLA, they may forward a special report to the pertinent Governor (Sec 12 (5) UPLA). 112 4. India (Philipp Janig) Should the Lokayukta or an Up-Lokayukta find that an investigation has resulted in loss by reason of injustice or defamation to the public servant concerned, upon application, compensation not exceeding the maximum amount of pertinent costs may be awarded, payable from costs imposed upon the claimant pursuant to Section 13 (5-a) UPLA. The compensation shall be charged on the Consolidated Fund of the State (Sec 13 (5-b) UPLA). Pursuant to Section 12 (6) UPLA the Lokayukta and Up-Lokayukta shall annually present a consolidated report to the Governor. Subject to the provisions regarding confidentiality, the Lokayukta may at their discretion make the substance of cases disposed of by them or an Up- Lokayukta, which are of general, public, academic or professional interest, available in such manner and to such persons as they deem appropriate (Sec 12 (8) UPLA). V.2. Powers in Relation to Courts Section 22 UPLA explicitly excludes the Chief Justice or any judge of the High Court, members of a judicial service as defined in Article 236 (b) of the Constitution and officers or servants of the court from the jurisdiction of the Lokayukta and Up-Lokayukta. By the same token, except on grounds of jurisdiction, no proceedings or decisions of the Lokayukta or the Up-Lokayukta may be challenged, reviewed, quashed or called in question before courts. Moreover, the Lokayukta, Up- Lokayukta and any officer, employee, agency or person working for the institution under Section 14 UPLA, are immune from legal proceedings in respect of all acts done or intended to be done in good faith under the UPLA (Sec 17 UPLA). V.3. Powers in Relation to Legislative Organs While only the Leader of the Opposition in the Legislative Assembly participates in the appointment of the Lokayukta, as the Governor must consult it, the state legislature as a whole is involved in the process of removing a Lokayukta or Up-Lokayukta (see above, Part C.III.). The institution may investigate complaints regarding allegations and grievances against former and present members of the Legislative Assembly or the Legislative Council of Uttar Pradesh, excluding the Chief Minister (Sec 2 (j) (ii) UPLA). Members of the Secretariat staff of either house of the state legislature, however, are explicitly excluded from the jurisdiction of the institution (Sec 22 UPLA). Regarding complaints against members of the state legislature, the same rules apply as to investigations against 113 Part Two: Different Jurisdictions administrative organs (see above, Part C.V.1.). The competent authority with regard to members of the state legislature is the Chief Minister (Sec 2 (c) (i) UPLA). The Governor is under the obligation to forward a copy of all annual and special reports of the Lokayukta and Up-Lokayukta, together with an explanatory memorandum, to both houses of the state legislature (Sec 12 (7) UPLA). The UPLA does not designate any particular con- sequences for non-submission. V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The UPLA does not provide the Lokayukta or Up-Lokayukta with special functions and powers for the purpose of protecting human rights. VI. Practice In 2013, the institution dealt with 3,932 complaints, as compared to 5,148 in 2012. In both years, the complaints mainly concerned social matters, such as education and retirement benefits of public servants. VII. Reform No information available. VIII. Information Constitution: http://lawmin.nic.in/coi/coiason29july08.pdf The Uttar Pradesh Lokayukta and Up-Lokayuktas Act, 1975 (Uttar Pradesh Act No. 42 of 1975), the relevant Rules, as well as Annual Reports from 2006–2012 are available on the homepage of the institution: http://lokayukta.up.nic.in/ D. The Lokayukt Institution of Madhya Pradesh +*KUVQT[CPF.GICN$CUKU The Lokayukt Organization of Madhya Pradesh was established through the Madhya Pradesh Lokayukt Evam Up-Lokayukt Adhiniyam, 114 4. India (Philipp Janig) 1981 (Madhya Pradesh Act No. 37 of 1981; hereinafter: MPLA) and opened office the following year. Under the MPLA, the institution may investigate allegations of maladministration and corrupt conduct by persons in public administration and certain private legal entities (partly) under State supervision. Procedural aspects of the pertinent mandate are detailed in the Madhya Pradesh Lokayukt Evam Up-Lokayukt (Investigation) Rules, 1982 (hereinafter: MP Investigation Rules), issued by the Governor of Madhya Pradesh pursuant to Section 17 MPLA. The Central Provinces and Berar Special Police Establishment Act, 1947 (Madhya Pradesh Act No. 17 of 1947; hereinafter: SPEA) constitutes the legal basis for a Special Police Establishment that conducts investigations under the superintendence of the Lokayukt. The institution joined the AOA in 2001 and the IOI in 2015. II. Organization The institution is headed by the Lokayukt (Ombudsman), currently assisted by one Up-Lokayukt (Deputy Ombudsman). The Up-Lokayukt is under the administrative supervision and subject to the general and special directions of the Lokayukt, who may both withdraw cases from or assign own cases to an Up-Lokayukt (provided that such case may be considered by an Up-Lokayukt pursuant to Sec 7 MPLA). Similarly, the Lokayukt may not question any findings, conclusions or recommendations of an Up-Lokayukt (Sec 3 (4) MPLA). The institution consists of several departments under the Lokayukt, namely the Administrative and Enquiry Section (headed by a Secretary and assisted by seven senior and several subordinate staff), the Legal Section (with three Legal Advisors and one Deputy Legal Advisor on deputation from the High Court) and the Technical Cell (headed by a Chief Engineer with 13 further engineers or assistants). Officers and other employees are appointed by the Lokayukt, who may also authorize the Up-Lokayukt or a subordinate officer to do so. The various categories of officers and employees who may be appointed, their salaries, allowances and other conditions of service, as well as the administrative powers of the Lokayukt and Up-Lokayukt, are prescribed by the Governor in the pertinent rules (Sec 13 MPLA). The Lokayukt may also dispose of the abovementioned Special Police Establishment and Divisional Vigilance Commissions, which are also under the authority of the Lokayukt (see below, Part D.V.1.). The institution has seven branches, located in seven divisional headquarters of Madhya Pradesh, all of which enjoy authority to receive 115 Part Two: Different Jurisdictions and investigate complaints and possess a police division. In addition, the Lokayukt periodically holds public camps in all divisional headquarters which have a Divisional Vigilance Committee and Special Police Establish- ment Offices. According to the institution’s answers to the questionnaire devised for the purposes of this study, the Secretary of the Lokayukt determines the budget based on past and future requirements. The budget is disbursed by the Secretary of the Lokayukt to subordinate units, which themselves have budget disbursing officers, or Drawing and Disbursal Officers. III. Legal Status The Lokayukt is appointed by the Governor upon consultation with the Chief Justice of the High Court of Madhya Pradesh and the Leader of the Opposition in the Legislative Assembly (Sec 3 (1) (a) MPLA). One or more Up-Lokayukt may be appointed by the Governor upon consultation with the Lokayukt and, if a sitting judge of a High Court is to be appointed, the Chief Justice of the High Court concerned (Sec 3 (1) (b) MPLA). The term of office for both the Lokayukt and Up-Lokayukt is six years, excluding the possibility of reappointment (Sec 5 (a) MPLA). In order to be appointed as Lokayukt, a person must have been a judge of the Supreme Court, Chief Justice or judge of any High Court in India (Sec 3 (2) (a) MPLA). A person to be appointed as Up-Lokayukt must be or have been a judge of any High Court in India, or held the Office of Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is no lower than that of an Additional Secretary to the Government of India (Sec 3 (2) (b) MPLA). Pursuant to Section 5 (4) MPLA, the salary, allowances, pension and other perquisites, as well as other conditions of service of a Lokayukt, are the same as such applicable prior to appointment, pursuant to the rules laid out in the Supreme Court Judges (Conditions of Service) Act, 1958 (Central Act No. 41 of 1958), or the High Court Judges (Conditions of Service) Act, 1954 (Central Act No. 28 of 1954). According to Section 5 (5) MPLA, a respective arrangement is applicable to all Up-Lokayukt by reference to sitting judges of a High Court under the High Court Judges (Conditions of Service) Act, 1954. The office of Lokayukt or Up-Lokayukt is incompatible with holding office as a Member of Parliament or the legislature of any state, as well as any other office of trust or profit, acting as an officer of a Co-operative Society, or being connected to any political party and even carrying out 116 4. India (Philipp Janig) any business, practice or profession (Sec 4 MPLA). Additionally, upon resigning from office, a Lokayukt or Up-Lokayukt is ineligible for further employment within the Government of Madhya Pradesh, as well as any employment or office in a Co-operative Society, Government Company or Corporation under the administrative supervision of the Government of Madhya Pradesh (Sec 5 (3) MPLA). The Lokayukt, the Up-Lokayukt and any officer, employee, agency or person referred to in Section 13 MPLA (thus, persons working under the direction of the Lokayukt or Up-Lokayukt) are immune against any suit, prosecution or other legal proceeding for anything done or intended to be done in good faith under the MPLA (Sec 15 MPLA). According to the institution itself, no executive authority may give directives to the Lokayukt or Up-Lokayukt. While the MPLA does not explicitly provide for such independence, it might be inferred from the fixed term of office of the Lokayukt and Up-Lokayukt and the procedure for their removal, in particular the involvement of state legislature. Both the Lokayukt and Up-Lokayukt can be removed from duty on grounds of misbehaviour or incapacity by an order of the Governor, requiring the prior support by majority vote of at least two-thirds of Madhya Pradesh Legislative Assembly members. Regarding this process, the pertinent provisions for the removal of a judge under the Judges (Inquiry) Act, 1968 (No. 51 of 1968) apply mutatis mutandis (Sec 6 MPLA). Thus, a committee consisting of a Supreme Court Chief Justice or judge, a Chief Justice of a High Court and another distinguished jurist must find the Lokayukt guilty of the relevant allegations (Secs 3, 6 Judges (Inquiry) Act, 1968). IV. Scope of Supervision The bodies under supervision of the Lokayukt and Up-Lokayukt are ‘public servants’ in the public administration and certain private legal entities (partly) under State supervision. The term ‘public servants’ includes any Minister, any person having the rank of Minister, any officer (thus, a person appointed to a public service or post in connection with the affairs of the State of Madhya Pradesh) and any officer of an Apex Society or Central Society as defined by the Madhya Pradesh Co-operative Societies Act, 1960 (No. 17 of 1961). This also includes any person holding any office in or any employee of a Government Company within the meaning of Section 617 Companies Act, 1956 (No. 1 of 1956), or a Corporation or Local Authority established by State Government under a Central or state enactment. In addition, certain senior staff members of universities 117 Part Two: Different Jurisdictions are under the jurisdiction of the Lokayukt and Up-Lokayukt (Sec 2 (g) MPLA).330 Government Companies are such companies in which no less than fifty-one per cent of the paid-up share capital is held by the Central Government and/or any State Government(s) (solely or jointly), including subsidiary companies of such companies (Sec 617 Companies Act, 1956). Certain persons and matters are explicitly excluded from the jurisdiction of the institution, such as the Speaker and Deputy Speaker of the Legislative Assembly of Madhya Pradesh, who are not considered ‘public servants’ (Sec 2 (g) (ii) MPLA). In addition, members of the judicial service under the administrative supervision of the High Court pursuant to Article 235 of the Constitution, as well as the Chairman and all members of the Madhya Pradesh State Public Service Commission are explicitly excluded from the jurisdiction of the Lokayukt and Up- Lokayukt (Sec 18 MPLA). Also, no investigation may be conducted in respect of matters in which a formal and public inquiry has been ordered under the Public Servants Inquiries Act, 1850 (Central Act No. 37 of 1850) or which have been referred for inquiry under the Commission of Inquiry Act, 1952 (Central Act No. 60 of 1952) (Sec 8 MPLA). In terms of supervision criteria, the Lokayukt and Up-Lokayukt investigate allegations of corrupt conduct by public servants. ‘Allegations’ are defined as the affirmation that a public servant 1) has abused their position as such to obtain any gain or favour for themselves or any other person, 2) caused undue harm to any person, 3) has been actuated in the discharge of their functions as such public servant by improper or corrupt motives, 4) is guilty of corruption, or 5) in possession of pecuniary resources or property disproportionate to their known source of income and being held by the public servant personally, any member of their family or some other person on their behalf (Sec 2 (b) MPLA). However, only the Lokayukt is authorized to investigate allegations made against a Minister or Government Secretary. Allegations against other public servants generally are investigated by the Up-Lokayukt, although the Lokayukt is also appropriately authorized (Secs 2 (h), 7 MPLA). 330 These are the Vice-Chancellor (Up-Kulpati) and Registrars (Kul Sachiva) of the Indira Kala Sangeet Vishwavidyalaya, the Chancellor (Kulpati) and Registrar of the Jawaharlal Nehru Krishi Vishwavidyalaya, as well as the Chancellor, Rector and Registrar of a University (Vishwavidyalaya) constituted under Section 5 of the Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973 (No. 22 of 1973). 118 4. India (Philipp Janig) Investigations may be initiated following an individual complaint (Sec 7 MPLA), lodged no later than five years from the date on which the pertinent conduct is alleged to have been committed (Sec 8 (c) MPLA). The MPLA foresees no possibility to consider belated complaints. All complaints must be brought in such form as prescribed by law (Sec 9 (1) MPLA) and thus filed in written form and signed by the complainant (Rule 6 MP Investigation Rules). Additionally, sworn affidavits and fees of 25 INR are required for complaints lodged against public servants in respect of whom the competent authority is the Chief Minister (thus, a Minister or Government Secretary) or whenever else required by the Lokayukt or Up-Lokayukt. These additional requirements are waived for claimants in police custody, an asylum or other place for ‘insane people’ (Sec 9 (1), (1-a) MPLA; Rules 7, 8 MP Investigation Rules). Proceedings before the Lokayukt and Up-Lokayukt are generally confidential (Sec 14 MPLA). V. Powers V.1. Powers in Relation to Administrative Organs The Lokayukt and Up-Lokayukt are appointed by the Governor. According to the institution itself, no executive authority may issue directives to the Lokayukt or Up-Lokayukt. While the MPLA does not explicitly provide for such independence, it may be inferred from the fixed term of office of the Lokayukt and Up-Lokayukt and the procedure for their removal, in particular the involvement of state legislature (see above, Part D.III.). For the purpose of investigations by the Lokayukt or Up-Lokayukt, the general principles of powers conferred by the Evidence Act, 1872 (Central Act No. 1 of 1872) and Code of Criminal Procedure, 1973 (Central Act No. 2 of 1974) apply mutatis mutandis insofar as concerning matters of summoning and enforcing the attendance of any person as well as their examination under oath, requiring the discovery and production of documents and proof thereof, receiving evidence on affidavits, requisitioning any public record or copy thereof from any court or office, issuing commission for examination of witnesses or documents, and such other matters as prescribed. Notwithstanding these formal requirements, no proceeding before the Lokayukt or Up-Lokayukt may be invalidated merely on account of want of formal proof, if the principles of natural justice are satisfied. In addition, when summoning government servants in their official capacity, statements on affidavits are deemed sufficient as evidence (Sec 11 (1) MPLA). 119 Part Two: Different Jurisdictions Compliance with orders of the Lokayukt and Up-Lokayukt is ensured through Section 11 (3) MPLA, which provides that the institution is to be deemed a court within the meaning of the Contempt of Court Act, 1971 (Central Act No. 70 of 1971). Thus, persons wilfully disobeying pertinent orders are guilty of civil contempt and subject to imprisonment no longer than six months and/or a fine of no more than 2,000 INR, handed down by the High Court (Sec 2 (a), (b), 12 Contempt of Court Act, 1971). One further power enjoyed by the Lokayukt, is enlisting the support of the Special Police Establishment and Divisional Vigilance Commissions, particularly in the context of taking evidence. The Special Police Establishment was created by the SPEA for the purpose of investigating certain offences affecting the public administration. The specific offences or classes of offences which may be investigated by the Special Police Establishment are specified by notification of the State Government (Sec 3 SPEA). All such investigations fall under the superintendence of the Lokayukt (Sec 4 (1) SPEA). When deployed in such context, the Special Police Establishment generally enjoys the same powers, duties, privileges and liabilities as other police officers (Sec 2 (2) SPEA). As mentioned above, the Lokayukt may also enlist the support of Divisional Vigilance Committees, which themselves enjoy jurisdiction over one or more further divisions. Such committees consist of three members who are appointed by the State Government for three-year terms. They work under the administrative supervision of the Lokayukt, who may direct them to conduct inquiries and take evidence. When taking evidence, they possess such powers as conferred by the Code of Criminal Procedure, 1973 upon the Lokayukt or Up-Lokayukt when taking evidence (Secs 13 (3) (i), 13-A MPLA). If the Lokayukt or Up-Lokayukt is satisfied that an allegation is established, pertinent findings are communicated together with a recommendation to the competent authority. Within three months, that authority must then inform the Lokayukt or Up-Lokayukt of action taken or proposed to be taken. The Lokayukt or Up-Lokayukt may provide a special report to the Governor, if not satisfied with such response. In any event, the claimant must be informed of developments (Sec 12 MPLA). Whenever complaints are directed against the Chief Minister or Leader of the Opposition (Neta Prati Paksha), the Lokayukt must forward the relevant report including recommendations to the Governor, who may then take such action as deemed fit or expedient. Any report or order then issued by the Governor must be forwarded to the Legislative Assembly (Sec 12-A MPLA). 120 4. India (Philipp Janig) Persons wilfully or maliciously making false complaints under the MPLA are subject to imprisonment not exceeding two years and/or a fine not exceeding 5,000 INR. In such case, the competent court may order that a sum deemed fit be paid therefrom by way of compensation to the person against whom such complaint was directed, provided that the relevant complaint was made by or under the authority of the Lokayukt or Up-Lokayukt (Sec 9 (2) MPLA). Pursuant to Section 12 (4) MPLA, the Lokayukt and Up-Lokayukt must annually present a consolidated report to the Governor. V.2. Powers in Relation to Courts Members of the judicial service under the administrative supervision of the High Court are explicitly excluded from the jurisdiction of the Lokayukt and Up-Lokayukt (Sec 18 MPLA), which, according to the institution, i.a. prohibits them from investigating delays in the administration of justice. No court is entitled to compel the Lokayukt, an Up-Lokayukt or any public servant to provide evidence relating to information obtained in the course of or for the purpose of an investigation under the MPLA, or to produce evidence so reported or collected (Sec 14 (1) MPLA). Moreover, the Lokayukt, Up-Lokayukt and any officer, employee, agency or person referred to in Section 13 MPLA (thus, persons working under the direction of the Lokayukt or Up-Lokayukt) are personally immune against any suit, prosecution or other legal proceeding for anything done or intended to be done in good faith under the MPLA (Sec 15 MPLA). However, the MPLA contains no general provision that shields the acts of the Lokayukt or Up-Lokayukt (such as orders given) from interference through courts. Also, according to the institution, orders passed by it may be contested in a court of law. V.3. Powers in Relation to Legislative Organs While only the Leader of the Opposition in the Legislative Assembly participates in the appointment of the Lokayukt through mandatory consultation with the Governor, the Legislative Assembly as a whole is involved in the removal of a Lokayukt or Up-Lokayukt. The Speaker and Deputy Speaker of the Legislative Assembly are explicitly excluded from the jurisdiction of the institution (Sec 2 (g) (ii) MPLA) and the MPLA contains no mandate for the investigation of other members. Although the Governor is required to forward copies of the reports by the Lokayukt and Up-Lokayukt to the Legislative Assembly (Sec 121 Part Two: Different Jurisdictions 12 (6) MPLA), the MPLA does not provide any consequences for non- submission. V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The MPLA does not provide the institution with any particular functions or powers in the field of human rights. VI. Practice In the working year 2012/13, the institution handled 6,135 complaints, compared to 4,923 complaints in 2011/12. In both years, complaints mostly concerned revenue officials, municipal or local self-government officials and the public works department. Allegations of corruption investigated by the Lokayukt most often relate to social welfare, old-age pension, the Indira Awas Yojana (a housing program for the rural poor), or projects carried out by various engineering agencies of government (such as the public works department, the rural engineering services or the public health engineering department). The Lokayukt also takes notice of allegations of corruption published in newspapers and other publications, including electronic media. VII. Reform No information available in this regard. VIII. Information Madhya Pradesh Lokayukt Evam Up-Lokayukt Adhiniyam, 1981 (Madhya Pradesh Act No. 37 of 1981) and other relevant laws and rules: http://mplokayukt.nic.in/actsandrules.htm Annual Reports of 2006/07 and 2007/08 (in Hindi): http://mplokayukt.nic.in/ar.htm Homepage: http://mplokayukt.nic.in/ 122 4. India (Philipp Janig) E. Institution of Lokayukta of Andhra Pradesh +*KUVQT[CPF.GICN$CUKU The legal basis of the institution of Lokayukta of Andhra Pradesh is the Andhra Pradesh Lokayukta Act, 1983 (Andhra Pradesh Act No. 11 of 1983; hereinafter: APLA), which has been repeatedly amended, most recently in 2011. The Government of Andhra Pradesh has also issued a variety of rules that deal with procedural and other issues connected with the work of the institution, including the Andhra Pradesh Lokayukta and Upa-Lokayukta (Investigation) Rules, 1984 (hereinafter: AP Investigation Rules), the Andhra Pradesh Lokayukta and Upa-Lokayukta (Competent Authority) Rules, 1984, the Andhra Pradesh Lokayukta and Upa-Lokayukta (Conditions of Services) Rules, 1987 and the Andhra Pradesh Lokayukta and Upa-Lokayukta (Officers and Employees) Service Rules, 1986 (hereinafter: AP Service Rules). The institution became operational in 1983 and later became a member of the AOA. II. Organization The institution is headed by a Lokayukta who supervises one or more Upa-Lokayukta, subject to general and special directions. However, the decisions, findings and recommendations of an Upa-Lokayukta may not be called into question by the Lokayukta (Sec 3 (3) APLA). The institution is divided into four departments; administrative, judicial, legal and investigatory. Officers and other employees are appointed by the Lokayukta, who may also authorize the Upa-Lokayukta or a subordinate officer thereto. The categories of officers and employees who may be appointed, their salaries, allowances and other conditions of service, as well as the administrative powers of the Lokayukta and Upa- Lokayukta are prescribed by government, upon consultation with the Lokayukta (Secs 14, 20 APLA; see AP Service Rules). The budget of the institution is determined by the State Government, based upon a proposal by the institution. III. Legal Status The Lokayukta is appointed by the Governor upon consultation with the Chief Justice of the pertinent High Court. The Upa-Lokayukta are appointed by the Governor from a selection of five persons nominated by the Chief Justice of the High Court of Andhra Pradesh (Sec 3 APLA) for a term of five years, without the possibility of reappointment (Sec 123 Part Two: Different Jurisdictions 5 (1) (3) APLA). Lokayukta candidates must be judges or retired Chief Justices of the High Court, while Upa-Lokayukta candidates must hold the rank of a District Judge Grade I (Sec 3 (1) (a), (c) APLA). The office of the Lokayukta or Upa-Lokayukta is incompatible with parliament or state legislature membership, as well as holding any other office of trust or profit. Further incompatibilities include connection with a political party, or carrying on any business, practice or profession (Sec 4 APLA). Moreover, once a Lokayukta or Upa-Lokayukta has relinquished office, they are ineligible for further employment within the government or any local authority, corporation, government company or society listed in Section 2 (k) (v) APLA for a period of five years (Sec 5 (3) APLA). The entities listed therein are such that either constitute local administration or private legal entities (partly) under State supervision and thus fall within the jurisdiction of the institution (see below, Part E.IV.). The Lokayukta and Upa-Lokayukta, together with all officers, employees, agencies or persons appointed or utilized by the Lokayukta or Upa-Lokayukta pursuant to Sec 14 APLA, are immune against any suit, prosecution or other legal proceeding in respect of anything done or intended to be done in good faith under the APLA (Sec 17 (1) APLA). The salary, allowances and pension of the Lokayukta are the same as that of the Chief Justice of the High Court of Andhra Pradesh, those of the Upa-Lokayukta the same as that of a judge of the High Court of Andhra Pradesh (Sec 5 (4), (5) APLA). Lokayukta and Upa-Lokayukta may only be removed by the Governor on grounds of misbehaviour or incapacity upon a vote by each house of state legislature and the relevant Lokayukta or Upa-Lokayukta having been given a reasonable opportunity of being heard over the course of an inquiry. Such inquiry must be performed either by a person appointed by the Governor, who (in the case of the Lokayukta) is or has been a judge of the Supreme Court or the Chief Justice of a High Court, or who (in the case of an Upa-Lokayukta) is or has been a judge of the Supreme Court or the High Court of Andhra Pradesh. The relevant vote must be carried by a majority of votes cast by at least two thirds of all members of the pertinent house and presented to the Governor during the same session (Sec 6 APLA). IV. Scope of Supervision The bodies under supervision of the Lokayukta or Upa-Lokayukta are ‘public servants’, including persons working in public administration, private legal entities (partly) under State supervision, as well as members of the legislative (Secs 2 (k), 7 APLA). The definition of ‘public servant’ 124 4. India (Philipp Janig) includes every person who is or was at any time a Minister (including the Deputy Chief Minister, a Minister of State, a Deputy Minister or a Parliamentary Secretary), a Member of either house of the state legislature (including the Chief Whip), an Officer (a person appointed to a public position in connection with the affairs of the State of Andhra Pradesh), or one of certain higher officials in local rural or urban administration.331 Moreover, every Chairman, President, Director or member of, (1) any local authority in the State, (2) any statutory body or other corporation established by or under a State Act or a Central Act and owned or con- trolled by the Government of Andhra Pradesh and any other board or corporation in which the State Government has a financial interest and that was notified by the State Government in the relevant Gazette, (3) any Government Company within the meaning of Section 617 Companies Act, 1956 (Central Act No. 1 of 1956), in which no less than fifty-one per cent of paid-up share capital is held by the Government of Andhra Pradesh or any Company which is a subsidiary of such company, (4) any society registered under the Andhra Pradesh Societies Registration Act, 2001 (Andhra Pradesh Act No. 35 of 2001) which is subject to the control of the government, (5) any Co-operative Society registered or deemed to be registered under the Andhra Pradesh Co-operative Societies Act, 1964 (Andhra Pradesh Act No. 7 of 1964) and the Andhra Pradesh Mutually Aided Co-operative Societies Act, 1995 (Andhra Pradesh Act No. 30 of 1995) with its area of operation either wholly or partly in Andhra Pradesh, (6) any Member of a Committee or Board, statutory or non-statutory, constituted by the Government of Andhra Pradesh. In addition, the insti- tution may investigate any Vice-Chancellor or Registrar of a University in Andhra Pradesh established by state law, as well as any officer (thus, a person appointed to a public service in connection with the affairs of Andhra Pradesh) in the service or pay of a local institution, University, Statutory Body or Corporation, Society or other institution under the jurisdiction of the Lokayukta or Upa-Lokayukta (Sec 2 (k) APLA). Government Companies are such companies in which no less than fifty-one per cent of paid-up share capital is held by the Central Govern- 331 Every Chairperson, Vice-Chairperson and Member of a District Council (Zilla Praja Parishad), as well as the Heads and Members of the local rural administrative units (Mandal Praja Parishad and Gram Panchayat), constituted by or under the Andhra Pradesh Panchayat Raj Act, 1994 (Andhra Pradesh Act No. 13 of 1994), as well as every Mayor, Deputy Mayor and elected member of a Municipal Corporation constituted by or under the relevant law and every Chairperson, Vice-Chairperson or elected member of a Municipal Council constituted under the Andhra Pradesh Municipalities Act, 1965 (Andhra Pradesh Act No. 6 of 1965). 125 Part Two: Different Jurisdictions ment and/or any State Government(s) (solely or jointly), including sub- sidiary companies of such companies (Sec 617 Companies Act, 1956). Division of responsibilities between the Lokayukta and Upa- Lokayukta is such that only the Lokayukta is competent to investigate actions taken by, with the approval, or at the behest of a Minister, Secretary, Member of either house of state legislature, Mayor of a Municipal Corporation, Vice-Chancellor or Registrar of a University, or such classes or sections of public servants that have been notified by the government upon consultation with the Lokayukta (Sec 7 (1) APLA).332 The Upa-Lokayukta may investigate any action taken by or with the approval of public servants that are not under the jurisdiction of the Lokayukta. However, the Lokayukta may, for reasons to be recorded in writing, investigate any allegation in respect of an action which otherwise would be investigated by an Upa-Lokayukta (Sec 7 (2), (3) APLA). Certain persons and matters are explicitly excluded from the jurisdiction of the Lokayukta and Upa-Lokayukta. The Chief Minister of Andhra Pradesh is not considered a ‘public servant’ and thus lies outside their jurisdiction (Sec 2 (g) APLA). Moreover, the Lokayukta and Upa- Lokayukta may not investigate allegations (see below for the distinction between ‘allegation’ and ‘grievance’) against the Chief Justice or any judge of the High Court, a member of the judicial service as defined in Article 236 (b) of the Constitution, any officer or servant of any Court in Andhra Pradesh, the Accountant-General of Andhra Pradesh, the Chairman or a Member of the Andhra Pradesh Public Service Commission, the Chief Election Commissioner, Election Commissioners and Regional Commissioners referred to in Article 324 of the Constitution, the Chief Electoral Officer of Andhra Pradesh, the Speaker and Deputy Speaker of the Legislative Assembly, the Chairman and Deputy Chairman of the Legislative Council, the staff of the Legislature Secretariat, the Chairman or a Member of the Andhra Pradesh Administrative Tribunal, or any Officer or Servant of the Andhra Pradesh Administrative Tribunal (Sec 21 APLA). In addition, no investigation may be conducted where a formal and public inquiry has been ordered under the Public Servants Inquiries Act, 1850 (Central Act No. 37 of 1850) or which has been referred for inquiry under the Commission of Inquiry Act, 1952 (Central Act No. 60 of 1952) (Sec 8 (1) APLA). 332 See Notification under Andhra Pradesh Lokayukta and Upa-Lokayukta Act, 1983 (G.O.Ms.No.158, General Administration (S.C.D.) Dt.13-3-1984), published in Andhra Pradesh Gazette, Part 1, Ext., Issue No. 135, Dt. 13-3- 1984. 126 4. India (Philipp Janig) Further to their regular mandate, for the purpose of eradicating cor- ruption, additional functions may be conferred upon the Lokayukta or Upa-Lokayukta by notification through the Governor upon consultation with the Lokayukta. In such case, the same powers are exercised and functions discharged as in the case of an investigation concerning an allegation, while the provisions of the APLA apply accordingly. Similarly and for the same purpose, upon written order and consultation with the Lokayukta, the State Government may confer powers of a supervisory nature over agencies, authorities or officers set up, constituted or appointed by the State Government (Sec 18 APLA). Regarding supervision criteria and formal requirements of complaints, the APLA distinguishes between complaints that involve an ‘allegation’ and such concerning a ‘grievance’. An ‘allegation’ in relation to a public servant is defined as any affirmation that such public servant (1) has abused their position as such to obtain any gain or favour to themselves or to any other person, or to cause undue harm or hardship to any other person, (2) was actuated in the discharge of their functions by improper or corrupt motive and thereby caused loss to the State or any member or section of the public, or (3) is guilty of corruption, or lack of integrity in their capacity as a public servant (Sec 2 (b) APLA). In this context, ‘corruption’ includes all conduct punishable under Chapter IX of the Indian Penal Code, 1860 (Central Act No. 45 of 1860) (titled ‘Of Offences by or Relating to Public Servants’) or the Prevention of Corruption Act, 1988 (Central Act No. 49 of 1988) (Sec 2 (d) APLA). The term ‘grievance’ refers to claims regarding sustained injustice or undue hardship in consequence of maladministration (Sec 2 (ea) APLA). ‘Mal administration’ is defined as action taken or purporting to have been taken in exercise of administrative functions in any case where (1) such action, the administrative procedure or practice governing such action is unreasonable, unjust, oppressive or improperly discriminatory, or (2) there has been wilful negligence or undue delay in taking such action or the administrative procedure or practice governing such action involves undue delay (Sec 2 (fa) APLA). An investigation of the Lokayukta or Upa-Lokayukta may be initiated upon their own motion, following an individual complaint, or pursuant to an order of the Governor (Secs 7, 9, 18 (3) APLA). Complaints regarding allegations may be brought by any person, while claims involving grievances are reserved for persons who are themselves aggrieved (Sec 9 (1) APLA). Individual complaints involving allegations are precluded either after six years from the date on which an alleged 127 Part Two: Different Jurisdictions action occurred, or one year from the date on which the relevant action became known to the claimant, depending on which date is the later one (Sec 8 (2) APLA). Section 9 (2) APLA provides that complaints are to be made in such form and accompanied by such affidavits as prescribed hereinafter. Complaints must include the name and address of both the claimant and public servant subject to the complaint (form No. I AP Investigation Rules), be submitted in writing, signed by the claimant and include an own affidavit as well as affidavits of witnesses, all duly affirmed and attested by a competent public official (Sec 3 AP Investigation Rules). The applicable fee for the submission of complaints amounts to 150 INR (Sec 3 (2) AP Investigation Rules). The Lokayukta or Upa-Lokayukta may, at their own discretion, refuse to investigate or discontinue investigation of complaints which are frivolous, vexatious, not made in good faith, lacking sufficient grounds for (continued) investigation, or where other and more proper remedies are available to the claimant. If a Lokayukta or Upa-Lokayukta decides not to consider a complaint or discontinue an investigation, the reasons therefore must be recorded and communicated both to the claimant and public servant concerned (Sec 10 (4), (5) APLA). The Lokayukta or Upa-Lokayukta may also either award costs to a claimant or impose them where a complaint is found to be malicious, vexatious or false (Sec 13-A APLA). Proceedings before the Lokayukta and Upa-Lokayukta are generally confidential (Secs 10 (2) (b), 15 APLA). V. Powers V.1. Powers in Relation to Administrative Organs The Lokayukta and Upa-Lokayukta are appointed by the Governor. As the APLA does not explicitly provide for their independence, it may only be inferred by reference to the pertinent term of office and removal procedure, notably including the involvement of state legislature. For the purpose of an investigation, the Lokayukta and Up-Lokayukta may require any public servant or other person to furnish any information and produce any document relevant to the investigation. During inves- tigations, the Lokayukta or Upa-Lokayukta possess the same powers as a Civil Court pursuant to the code of Civil Procedure 1908 (Central Act 5 of 1908) in terms of summoning and enforcing the attendance of any person, as well as their examination under oath, requiring the discovery and production of documents, receiving evidence on affidavits, requisitioning public records or copies thereof from any court or office, 128 4. India (Philipp Janig) issuing commission for the examination of witnesses or documents and any such other matters as prescribed (Sec 11 (1), (2) APLA). Obligations regarding the maintenance of secrecy or other restrictions upon the disclosure of information obtained by or furnished to the State Government or any public servant do not apply to the disclosure of information for the purpose of any investigation under APLA. As a result, in such context neither the State Government nor any public servant is entitled to any such privilege in respect of the production of documents or giving of evidence as otherwise permitted by law or an instrument having the force of law in legal proceedings (Sec 11 (4) APLA). The main limitation in this regard applies to national interest insofar as no person shall be required or authorized to provide any information, answer or document that may prejudice the security, defence or international relations of India, or that might involve the disclosure of proceedings of the Council of Ministers of Government or any committee of that Council. Certificates issued by the Chief Secretary certifying that any information, answer or portion of a document is of the nature specified above, is binding and conclusive (Sec 11 (5) APLA). Furthermore, no person may be compelled to provide any evidence or produce any document for the purpose of an investigation which they could not be compelled to provide or produce in proceedings before a court of law (Sec 11 (4) APLA). All proceedings before the Lokayukta or an Up-Lokayukta are deemed to be judicial proceedings within the meaning of Section 193 of the Indian Penal Code, 1860 (Central Act No. 45 of 1860) (Sec 11 (3) APLA). Thus, giving false evidence is a punishable offence. Intentionally offering insult or causing interruption to the Lokayukta or Upa-Lokayukta, while conducting an investigation under the APLA, is punishable with simple imprisonment for a term not exceeding six months and/or a fine. Similarly, making or publishing any statement or performing any other act, by words spoken or intended to be read, which is calculated to bring the Lokayukta or Upa-Lokayukta into disrepute, is punishable with simple imprisonment for a term not exceeding six months and/or a fine. The provisions of Section 199 Code of Criminal Procedure, 1973, apply in relation to such offence by reference to Section 199 (1), with the exception that no complaints may be brought by the Public Prosecutor, except with the previous sanction of the Lokayukta or Upa-Lokayukta concerned (Sec 16 APLA). As soon as a Lokayukta or Upa-Lokayukta is satisfied that an alle - gation has been sufficiently substantiated, their findings and re com men- dations are forwarded to the competent authority, as prescribed by Section 2 (c) APLA or the pertinent Rules (see above). Within three 129 Part Two: Different Jurisdictions months, the competent authority must then inform the Lokayukta or Upa-Lokayukta of action taken or proposed to be taken. If a particular report recommends that a public servant falling within Section 2 (k) (iv)–(v) APLA – thus such members of local administration and private legal entities (partly) under State supervision which are under the juris- diction of the institution – is to be removed from office, the government may render such public servant ineligible for election to any office specified by the government. A Lokayukta or Upa-Lokayukta must inform the claimant of progress in any event and, if not satisfied with the action thus taken or proposed, submit a special report to the Governor (Sec 12 APLA). Wilfully or maliciously making false complaints under the APLA is an offence falling within the exclusive jurisdiction of the Court of the Judicial Magistrate of the First Class, and punishable with imprisonment for a term not exceeding one year and/or a fine. Pertinent claims may only be brought by persons subject to such false claims upon obtaining the previous consent of the competent Lokayukta or Upa-Lokayukta. In such cases, compensation may be awarded, payable from the imposed fine (Sec 13 APLA). Finally, pursuant to Section 12 (4) APLA, both the Lokayukta and Upa- Lokayukta must present annual consolidated reports to the Governor, who in turn must forward copies to each house of state legislature. V.2. Powers in Relation to Courts Section 21 APLA explicitly excludes the Chief Justice or any judge of the High Court, members of a judicial service as defined in Article 236 (b) of the Constitution and officers or servants of any court in the state from the jurisdiction of the Lokayukta and Upa-Lokayukta. Likewise, no proceeding, decision, finding or recommendation of a Lokayukta or Upa-Lokayukta are liable to be challenged, renewed, quashed or called in question before any court or tribunal (Sec 17 (3) APLA). Moreover, Lokayukta and Upa-Lokayukta, as well as all officers, employees, agencies or persons appointed or utilized by Lokayukta or Upa-Lokayukta pursuant to Sec 14 APLA, are immune against any suit, prosecution or other legal proceeding in respect of anything which is done or intended to be done in good faith under the APLA (Sec 17 (1) APLA). V.3. Powers in Relation to Legislative Organs Although state legislature is not involved in the appointment, it is included in the removal procedure of Lokayukta and Upa-Lokayukta (see above, Part E.III.). 130 4. India (Philipp Janig) The institution may investigate allegations against former and present members of both houses of state legislature, including Chief Whips (Sec 2 (k) (ii) APLA). However, the Speaker and Deputy Speaker of the Legislative Assembly, Chairman and Deputy Chairman of the Legislative Council and staff of the Legislature Secretariat are explicitly excluded from the jurisdiction of the Lokayukta and Upa-Lokayukta (Sec 21 (f) APLA). Generally speaking, in case of complaints against members of a legislative organ, the same rules apply as with regard to investigations against administrative organs (see above, Part E.V.1.), the competent authority with regard to members of a house of state legislature being the Speaker of the Legislative Assembly or Chairman of the Legislative Council (Sec 2 (c) (ii) APLA). Although the Governor is under an obligation to forward copies of all reports received from the Lokayukta and Upa-Lokayukta to both houses of state legislature (Sec 12 (6) APLA), the APLA does not contain any consequences for failure to do so. V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The Lokayukta and Upa-Lokayukta do not enjoy any particular functions or powers regarding the protection of human rights. VI. Practice In the year 2011, the institution received 3,060 complaints which mostly concerned the Revenue Department (1,187; 38.8 %), Municipal Administration (298; 9.7 %) and Panchayat Raj333 (253; 8.3 %), carrying over 2,286 pending complaints. Over the course of the year, out of these 5,346 complaints, it disposed of 1,769, conducted a final investigation in two and redressed grievances in 214. VII. Reform No information is currently available in this regard. 333 A system of local administration on the village, block and district level. 131 Part Two: Different Jurisdictions VIII. Information Laws: http://lokayukta.ap.nic.in/act-pdfs/A.P.Lokayuta%20Act,%201983.pdf Annual Reports 2007–2011: http://lokayukta.ap.nic.in/annual-reports.html Homepage: http://lokayukta.ap.nic.in/ F. The Institution of Lokayukta of Delhi +*KUVQT[CPF.GICN$CUKU The institution was established through the Delhi Lokayukta and Upalokayukta Act, 1995 (Delhi Act No. 1 of 1996; hereinafter: DLA) and took up operations in 1997. Procedural issues are addressed by the Delhi Lokayukta and Upalokayukta (Investigation) Rules, 1998 (No.F.9/3/97- AR; hereinafter: DL Investigation Rules), whereas the conditions of service for the Lokayukta and Upalokayukta are laid down in the Delhi Lokayukta and Upalokayukta (Conditions of Service) Rules, 1998 (No.F.9/3/97-AR/; hereinafter: DL Service Rules). The institution is a member of the AOA. II. Organization The institution is headed by one Lokayukta, with one or more Upalokayukta under their administrative supervision. The Lokayukta is authorized to issue general or special directions to Upalokayukta and may request their assistance with own cases, or reassign matters just as they may be withdrawn (provided that such cases fall within the jurisdiction of Upalokayukta pursuant to Sec 7 DLA). However, the Lokayukta may not question any findings, conclusions or recommendations of Upalokayukta (Sec 3 (4) DLA). The Lokayukta oversees their personal staff and the three investigatory, administrative and accounting departments of the institution. The Government of Delhi provides, in consultation with the Lokayukta, officers and other employees to assist the Lokayukta and Upalokayukta in the performance of their functions under the DLA (Sec 13 (1) DLA). The headquarters of the institution are located in Delhi (Rule 4 DL Service Rules). 132 4. India (Philipp Janig) As the budget of the institution is charged to the Consolidated Fund of Delhi as an expenditure (Sec 5 (9) DLA), its allocation is determined by the Lieutenant Governor with the previous consent of the President (Sec 27 Government Of National Capital Territory Of Delhi Act, 1991 (Central Act No. 1 of 1992)) and not subject to a vote in the Legislative Assembly (Sec 28 (1) Government Of National Capital Territory Of Delhi Act, 1991). III. Legal Status The Lokayukta is appointed by the Lieutenant Governor with the approval of the President and upon consultation with both the Chief Justice of the High Court of Delhi and Leader of the Opposition in the Legislative Council. The appointment of one or more Upalokayukta is also performed by the Lieutenant Governor with the approval of the President, but merely requires prior consultation with the Lokayukta (Sec 3 DLA). The term of office for both positions is five years, excluding the possibility of reappointment (Sec 5 DLA). In order the be appointed as a Lokayukta, the relevant candidate must have been or currently act as either Chief Justice of a High Court in India, or have been judge of a High Court for a duration of seven years. Persons to be appointed as Upalokayukta, must be or have been either a Secretary to the Government, District Judge in Delhi for a period of seven years, or have held the position of Joint Secretary to the Government of India (Sec 3 (2) DLA). The office of a Lokayukta or Upalokayukta is incompatible with holding office as a Member of Parliament, the legislature of any state or Union Territory or any other office of profit, being connected to any pol- itical party, or carrying out any business, practice or profession (Sec 4 DLA). Additionally, upon resigning from office, a Lokayukta or Upalo- kayukta is ineligible for reappointment as well as further employment with the Government of Delhi, or any government company, local auth- ority or corporation under the administrative supervision of the govern- ment, or Statutory Commission set up by the government, as referred to in Section 2 (m) (iv) DLA (Sec 5 (6) DLA). This includes positions as Chairman, Vice-Chairman, Managing Director or Member of a Board of Directors under the jurisdiction of the institution (see below, Part F.IV.). The Lokayukta and Upalokayukta, as well as all members of that office or any office, agency or person whose services have been utilized by it (pursuant to Sec 13 (2) DLA), are immune against any suit, prosecution or other legal proceedings for anything done or intended to be done in good faith under the DLA (Sec 15 DLA). 133 Part Two: Different Jurisdictions The Lokayukta and Upalokayukta are entitled to such salaries as specified in the Second Schedule of the DLA. Allowances, pensions and other terms of service are prescribed by the Lieutenant Governor, and must be based on the provisions applicable to occupations performed prior to appointment as Lokayukta or Upalokayukta (Sec 5 (7), (8) DLA). Both the Lokayukta and Upalokayukta may be removed from duty on grounds of misbehaviour or incapacity by an order of the Lieutenant Governor, with the approval of the President and prior support by majority vote of at least two thirds of Legislative Assembly members (presented to the Lieutenant Governor during the same session). Regarding this process, the pertinent provisions for the removal of a judge under the Judges (Inquiry) Act, 1968 (Central Act No. 51 of 1968) apply mutatis mutandis (Sec 6 DLA). Thus, a committee consisting of a Supreme Court Chief Justice or judge, a Chief Justice of a High Court and another distinguished jurist must find the Lokayukta or Upalokayukta guilty of the relevant allegations (Secs 3, 6 Judges (Inquiry) Act, 1968). IV. Scope of Supervision The bodies under supervision of the Lokayukta and Upalokayukta are ‘public functionaries’, including persons in public administration, certain private legal entities (partly) under State supervision and members of the legislature. The term ‘public functionary’ is defined as any person holding or having held the position or rank of (Chief) Minister, Member of the Legislative Assembly or Municipal Corporation of Delhi as defined in Section 2 (27) of the Delhi Municipal Corporation Act, 1957 (Central Act No. 66 of 1957). In addition, the definition includes any former or present Chairman, Vice-Chairman, Managing Director or Member of a Board of Directors of (1) an (Apex) Co-operative Society constituted or registered under the Delhi Co-operative Societies Act, 1972 and subject to the control of the Government of Delhi, (2) a Government Company within the meaning of Section 617 of the Companies Act, 1956, insofar as engaged in connection with the affairs and under the control of the Government of Delhi, (3) a local authority established under any law in relation to Delhi (with the exception of any local authority constituted under an enactment relatable to Entry No.18 of the State List of the Seventh Schedule of the Constitution), (4) a corporation engaged in the affairs and under the control of the Government of Delhi, or (5) any commission or body set up by the Government of Delhi which is owned and controlled by it (Sec 2 (m) DLA). Government Companies are such companies in which no less than fifty-one per cent of paid-up share capital is held by the Central 134 4. India (Philipp Janig) Government and/or any State Government(s) (solely or jointly), including subsidiary companies of such companies (Sec 617 Companies Act, 1956). Certain persons and matters are explicitly excluded from the jurisdiction of the institution, such as the Speaker and Deputy Speaker of the Legislative Assembly, who are not considered public functionaries (Sec 2 (m) (iii) DLA). In addition, no inquiries may be made regarding allegations against members of judicial services under the administrative supervision of the High Court pursuant to Article 235 of the Constitution, or members of a civil service of the Union, the All India Service, or civil service of a state, as well as any person who holds a civil post under the Union or within a state in connection with the affairs of Delhi (Sec 17 DLA). Also, no investigations may be performed regarding any matters which have been referred for inquiry under the Commissions of Inquiry Act, 1952 (Central Act No. 60 of 1952) (Sec 8 DLA). In terms of supervision criteria, the DLA provides that a Lokayukta or Upalokayukta may provide recommendations, if satisfied that an ‘allegation’ is established. This includes corrupt conduct, maladministration and the violation of legal rules. ‘Allegation’ is defined as the affirmation that a public functionary acting in such capacity has failed to perform in accordance with the norms of integrity and conduct which ought to be followed by public functionaries or persons of the relevant class, abused or misused their position to obtain any gain or favour to themselves or any other person, caused loss, undue harm or hardship to any other person, been actuated in the discharge of their functions as such public functionary by improper, corrupt motives or personal interest, or at any time during their period of office been in possession of pecuniary resources or property disproportionate to their known resources of income held by the public servant personally, a member of their family or any other person on their behalf (Sec 2 (b) DLA). However, only the Lokayukta is authorized to investigate allegations against public servants subject to the direct authority of the President or Lieutenant Governor (thus, (Chief) Ministers, Members of the Legislative Assembly or any other public servant referred to in Rule 5 of the DL Investigation Rules). Allegations against other public servants are generally investigated by the Upalokayukta, although the Lokayukta is also appropriately authorized (Secs 2 (d), 7 DLA). Investigations may only be initiated following individual complaints (Sec 9 DLA) as the Lokayukta or Upalokayukta may not initiate inquiries on their own motion. Regarding formal requirements, complaints must be lodged no later than five years from the date on which the pertinent conduct is alleged to have been committed (Sec 8 (b) DLA). The DLA does not foresee 135 Part Two: Different Jurisdictions any possibility for the consideration of belated complaints. Complaints must state the name of the claimant (and their father), their residence and occupation (see Forms I and II, as prescribed by Rule 6 DL Investigation Rules), be submitted in the prescribed from and accompanied by a deposit of 500 INR (in judicial stamps), as well as sworn affidavits (Sec 9 (1) DLA; Rules 6, 7 DL Investigation Rules) attesting the veracity of statements made therein (Form III, as prescribed by Rule 6 DL Investigation Rules). Proceedings before the Lokayukta and Upalokayukta are generally confidential (Sec 14 DLA). V. Powers V.1. Powers in Relation to Administrative Organs The Lokayukt and Upalokayukta are appointed by the Lieutenant Governor. Although the DLA does not explicitly provide for the independence of the Lokayukta or Upalokayukta, a certain degree may be inferred from the fixed term of office and removal procedure, particularly considering the involvement of the Legislative Assembly (see above, Part F.III.). The provisions of the Evidence Act, 1872 (Central Act No. 1 of 1872), and the Code of Criminal Procedure, 1973 (Central Act No. 2 of 1974) apply mutatis mutandis to the procedure of inquiry before the Lokayukta or Upalokayukta in terms of summoning and enforcing attendance, examination under oath, discovery and production of documents as well as proof thereof, receiving evidence on affidavits, requisitioning public records or copies from any court or office, issuing commission for the examination of witnesses or documents, as well as such other matters as prescribed. Notwithstanding these formal requirements, no proceeding before the Lokayukta or Upalokayukta may be invalidated merely on account of want of formal proof, if the principles of natural justice are satisfied (Sec 11 (1) DLA). For the purpose of conducting inquiries and with the permission of the respective government, the Lokayukta or an Upalokayukta may also utilize the services of any officer or investigation agency of the State or Central Government (Sec 13 (2) DLA). Proceedings before the Lokayukta or Upalokayukta are considered judicial proceedings within the meaning of Sections 193 and 228 of the Indian Penal Code, 1960 (Central Act No. 45 of 1960) (Sec 11 (2) DLA). Thus, providing or fabricating false evidence or intentionally insulting or interrupting the Lokayukta or Upalokayukta in the course of proceedings are punishable offences. Given that the institution is considered a civil 136 4. India (Philipp Janig) court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (Sec 11 (3) DLA), a Lokayukta or Upalokayukta aware of such an offence throughout proceedings, may hold an inquiry and i.a. forward the pertinent case to the competent Magistrate First Class, and order the accused to provide appropriate security and appear before the Magistrate so as to provide evidence (Sec 340 Code of Criminal Procedure, 1973). Alternatively, if the Lokayukta or Upalokayukta is of the opinion that a person has intentionally insulted or interrupted proceedings pursuant to Section 228 of the Indian Penal Code, 1960, they may detain the accused and, upon providing a reasonable opportunity of showing cause, impose a fine not exceeding 200 INR the same or following day. Failure to settle fines may result in imprisonment of up to one month (Sec 345 Code of Criminal Procedure, 1973), notwithstanding the possibility of appeal (Sec 351 Code of Criminal Procedure, 1973). If a Lokayukta or an Upalokayukta considers a higher fine or longer imprisonment appropriate, the relevant case may be forwarded to the competent Magistrate, who may then require the offender to provide a security with failure resulting in detention (Sec 346 Code of Criminal Procedure, 1973). Wilfully or maliciously submitting false complaints pursuant to the DLA is punishable with imprisonment not exceeding three years and/or a fine not exceeding 5,000 INR, however only following a complaint by the Lokayukta or Upalokayukta. The competent court may order that a portion of such fine be paid as compensation to the subject of such false complaint (Sec 9 (2) DLA). If the Lokayukta or an Upalokayukta is satisfied that an allegation has been established, pertinent findings and recommendations are communicated to the competent authority (Sec 12 (1) DLA), which may be the President, Lieutenant Governor or an authority prescribed in the DL Investigation Rules passed by the Lieutenant Governor, depending on the subject of the complaint (Sec 2 (d) DLA). Within three months, that authority must then inform the Lokayukta or Upalokayukta of action taken or proposed to be taken. The Lokayukta or Upalokayukta may then provide a special report to the Lieutenant Governor, if not satisfied with such response. In any event, the claimant must be informed of developments (Sec 12 (2), (3) DLA). The Lokayukta may also bring incidents to the attention of the government and suggest such improvement as deemed fit, if, in the course of performing their functions under the DLA, the Lokayukta notices a practice or procedure which afforded an opportunity for corruption or maladministration (Sec 16 DLA). 137 Part Two: Different Jurisdictions Pursuant to Section 12 (4) DLA, the Lokayukta and Upalokayukta must present annual consolidated reports to the Lieutenant Governor, who then forwards copies to the Legislative Assembly. V.2. Powers in Relation to Courts Members of the judicial services under the administrative control of the High Court pursuant to Article 235 of the Constitution are explicitly excluded from the jurisdiction of the Lokayukta and Upalokayukta (Sec 17 (a) DLA). The Lokayukta and Upalokayukta, together with all members of that office or any office, agency or person whose services have been utilized by them (pursuant to Sec 13 (2) DLA), are personally immune against any suit, prosecution or other legal proceedings for anything done or intended to be done in good faith under the DLA (Sec 15 DLA). Conversely, the DLA contains no provision that shields the acts of the Lokayukta or Upalokayukta (such as orders given) from interference through courts. V.3. Powers in Relation to Legislative Organs While only the Leader of the Opposition in the Legislative Council participates in the appointment of the Lokayukta through mandatory consultation with the Lieutenant Governor, the Legislative Assembly of Delhi as a whole is involved in the removal of a Lokayukta or Upalokayukta (see above, Part F.III.). The institution may investigate allegations against all members of the Legislative Assembly (Sec 2 (m) (ii) DLA), with the exception of the Speaker and Deputy Speaker (Sec 2 (m) (iii) DLA). In the context of such investigations, the same rules apply as when investigating administrative organs (see above, Part F.V.1.), the competent authority being the Lieutenant Governor (Sec 2 (d) DLA). Although the Lieutenant Governor is under an obligation to forward copies of annual and special reports of the institution to the Legislative Assembly together with an explanatory memorandum (Sec 12 (6) DLA), the DLA does not stipulate any consequences for non-submission. V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The Lokayukta and Upalokayukta are not provided any particular functions or powers for the purpose of protecting human rights. 138 4. India (Philipp Janig) VI. Practice No information available in this regard. VII. Reform No information available in this regard. VIII. Information Laws: http://delhi.gov.in/wps/wcm/connect/doit_lokayukta/Lokayukta/ Home/The+Delhi+Lokayukta+and+UpLokayukta+Act Rules: http://delhi.gov.in/wps/wcm/connect/doit_lokayukta/Lokayukta/ Home/Rules/ Homepage: http://delhi.gov.in/wps/wcm/connect/DOIT_Lokayukta/lokayukta/ home 139 5. Indonesia Thomas Stephan Eder A. Constitutional Background Formerly colonized by the Netherlands, Indonesia was occupied by Japan during the Second World War and declared its independence in 1945. Its first constitution, the Undang Undang Dasar 1945, was adopted that year. After four amendments in October 1999, August 2000, November 2001 and August 2002, the basic law of Indonesia is now called the 2002 Constitution. The legal system of Indonesia follows the Roman-Dutch civil law model, with influences from customary law. According to Arts 1 and 4 of the 2002 Constitution, Indonesia is a unitary, presidential republic. Legislative powers rest with the People’s Consultative Assembly, the Majelis Permusyawaratan Rakyat Republik Indonesia (MPR) (Arts 2, 3). This body consists of the House of People’s Representatives, the Dewan Perwakilan Rakyat (DPR), whose members are elected through universal suffrage every five years, and the Council of Representatives of the Regions, the Dewan Perwakilan Daerah (DPD), the members of which are elected from every province through universal suffrage every five years. The President, assisted by the Vice-President, holds executive power (Art 4 of the 2002 Constitution). The two are elected as a pair through universal suffrage for a five-year term. They can be re-elected for one additional term (Art 6A of the 2002 Constitution). According to Chapter VI, Indonesia is divided into 31 provinces. There are also two autonomous provinces (Papua and West Papua), two special regions (Yogyakarta and Aceh), and one national capital district. The judicial branch in Indonesia has six arms: 1) General Courts (Civil & Criminal Courts), 2) Administrative Courts, 3) Religious Courts, 4) Tax Courts, 5) Military Courts and 6) Special Courts within the General Courts system (Children Courts, Human Rights Courts, Labour Courts, Corruption Courts, Commercial Courts and Fisheries 140 5. Indonesia (Thomas Stephan Eder) Courts). The Supreme Court has jurisdiction over and is the highest court for all matters and courts listed above (Arts 24, 24A). A separate Constitutional Court (Arts 24 (2), 24C) was introduced in 2003 and serves as a court of first instance and appeal. It reviews laws, decides on conflicts between State institutions, the dissolution of political parties, conflicts over the results of general elections, and on alleged (by the House of People’s Representatives (DPR)) serious criminal acts, dishonest behaviour or incapability of fulfilling the relevant requirements on the part of the President and the Vice-President. Fundamental rights are covered by Chapter X (Art 27), Chapter X.A (Arts 28 to 28J) and Chapter XI (Art 29) of the 2002 Constitution. Among the rights listed are, inter alia, the equality of citizens before the law (Art 27), freedom of assembly and association (Art 28), freedom of religion (Art 29) and social and economic rights. B. Overview of Existing Ombudsman Institutions The Ombudsman Republik Indonesia – Ombudsman of the Republic of Indonesia (ORI) – is a federal level administrative Ombudsman institution with a general mandate (Arts 1 (1), 5 (1) Law on the Ombudsman 2008 (LO)). The ORI has regional offices around the country (Arts 5 (2), 43 LO). Moreover, local governments have created local Ombudsman institutions e.g. in the Special Province of Yogyakarta in Central Kalimantan Province and Makassar City. There are a number of other institutions charged with grievance redress who have special mandates. These are the Human-Rights National Commission, the Judicial Commission (overseeing judges), the Police Commission (overseeing police performance), the Prosecutor Commission (overseeing the public prosecution apparatus) and the Corruption Eradi- cation Commission, which is a component of law enforcement. %1HƂEGQHVJG1ODWFUOCPQHVJG Republic of Indonesia (ORI) +*KUVQT[CPF.GICN$CUKU The ORI was first established and took up operations on the basis of Presidential Decree No. 44/2000, as the National Ombudsman Com- mission. Since 2008, Law No. 37/2008 provides a new legal basis for the renamed organization. 141 Part Two: Different Jurisdictions The ORI became a member of both the IOI and the AOA in 2000. It has close relations with the OICOA, with the Commonwealth Ombuds man of Australia and the National Ombudsman of the Nether- lands. II. Organization The ORI consists of nine members; one Chief Ombudsman, one Deputy Chief Ombudsman and seven ordinary members (Art 11 (1) LO). All members are aided in executing their duties and jurisdiction by Ombudsman Assistants (Art 12 LO). The latter are split into two divisions, the complaint handling division and the prevention division. The ORI is further aided by a secretariat headed by a General Secretary, who is appointed and dismissed by the President and tasked with administrative activities (Art 13 LO). The Chief Ombudsman represents the ORI and is replaced by the Deputy Chief if impeded (Art 11 LO). The Deputy Chief Ombudsman replaces the Chief Ombudsman in case of resignation or removal (Art 22 (3) LO). The ORI has 415 employees (128 (30.8 %) of whom are women), of these, 32 are heads of regional representative offices (one (3.1 %) of whom is a woman), 209 are assistants (70 (33.5 %) of whom are women), and 168 are supporting staff (57 (34 %) of whom are women). Employees have various backgrounds, such as, in descending order, law, state administration, economics and information technology. The ORI proposes a budget to the Ministry of Finance, which must then be sanctioned both by the government and parliament. The ORI then determines itself how the allocated amount is used. III. Legal Status The Chief, Deputy Chief and further members of the ORI are elected by the House of People’s Representatives (DPR) from a selection of candidates nominated by the President (Art 14 LO). The President nomi- nates 18 candidates on the basis of recommendations by a selection com mittee, consisting of ‘governmental elements, law practitioners, aca- demicians, representative[s] of the community’ (Art 15 LO). All Ombuds- men serve five-year terms and may be re-elected once (Art 17 LO). The Ombudsmen must be devout (according to their religion (Art 21 LO)) citizens, of good health and reputation, and dispose of a Bachelor’s degree and at least 15 years of experience in law or public administration. Candidates must be between 40 and 60 years of age, not have been con- 142 5. Indonesia (Thomas Stephan Eder) victed of a crime punishable by five years of imprisonment or more and may not be members of the executive board of any political party (Art 19 LO). Moreover, Ombudsmen may not concurrently act as state officials in certain positions ‘according to laws and regulations’, entre- preneurs, managers of State owned enterprises, civil servants, or exercise any other profession that would potentially lead to a conflict of interest (Art 20 LO). According to Art 2 LO, the ORI has an independent character, and ‘does not have [an] organic relationship with other State organ[s] and public agencies, and in executing its duties and power it is free from intervention of other authorities’. All Ombudsmen are obliged to take an oath on the impartial performance of their functions (Art 21 LO). Art 44 LO stipulates that obstructing investigations of the ORI constitutes a crime punishable by imprisonment of up to two years or a fine of up to one billion Rupiah. While executing duties within their jurisdiction, Ombudsmen may not be arrested, detained, interrogated, prosecuted or sued before a court (Art 10 LO). The Chief Ombudsman receives a salary amounting to 70 % of that received by members of government or parliament. Ombudsmen do not, however, enjoy absolute immunity and may be removed from office by the President upon being found to have abused their authority or subject to criminal punishment based on a final court judgment (Art 22 (2) (d), (f) LO). Further grounds for removal include moving outside the Republic of Indonesia, no longer fulfilling the qualifications listed above, pronouncing to have violated the abovementioned oath, taking up a prohibited concurrent position, suffering a continuous impediment to fulfilling assignments for a period of more than three months (Art 22 LO), or breaching the code of conduct of the Ombudsman (Ombudsman Regulation 2013). IV. Scope of Supervision The ORI enjoys jurisdiction over State and government institutions, including State-owned companies, local government-owned companies, as well as private companies and individuals who deliver public services funded through either the national or local budget systems (Art 1 (1) LO). According to Art 7 (h) LO, the ORI may also carry out ‘additional tasks granted by other statutes’. Complaints must be rejected if the relevant matter is the object of ongoing court proceedings, unless it is related to maladministration in court administration (Art 36 LO). The ORI may not in any case interfere with the independence of the judiciary in delivering judgments 143 Part Two: Different Jurisdictions (Art 9 LO). Moreover, complaints are to be rejected, if they are not first filed with the subject of complaint, the latter is currently dealing with the complaint within the proper time frame or has already complied with the request of the claimant, if the matter otherwise lies outside the jurisdiction of the ORI or has been resolved under a mutual agreement by the parties after mediation by the ORI, or if an Ombudsman finds no evidence of maladministration (Art 36 LO). The Ombudsmen also may not investigate grievances where a conflict of interest would arise (Art 40 LO). Claimants must be informed whether or not their complaints are accepted (Art 36 LO). The ORI is obliged to issue recommendations whenever it discovers instances of maladministration. Maladministration is defined as a ‘behavior or act against the law, exceeding the authority, using power for purposes other than those which become the objective of such power, including ignorance or negligence of legal obligation in administering public services as conducted by the State Officials and Public Officials who affect damage to the community and/or individual, both materially and immaterially’ (Art 1 (3) LO). The protection of human rights is not part of the mandate of the Ombudsman. Recommendations are to include a description of the grievance, the findings of the pertinent investigation, a classification of the maladministration discovered and a conclusion as well as suggested steps to be taken (Art 37 LO). The Ombudsmen may initiate investigations themselves (Art 7 (4) LO) or act upon individual complaints (Arts 23, 24 LO). Individual complaints may be filed free of charge via mail, in person, phone, fax, e-mail or the ORI website by any citizen or resident (Art 23 LO). Complaints must include the name of the claimant, their place and date of birth, marital status, occupation and complete address, as well as describe the relevant grievance. Moreover, as indicated above, the claimant must have already directly submitted the relevant grievance to the party subject to the complaint or their superior, without the matter having been properly resolved (Art 24 LO). Art 24 (3) LO stipulates a statute of limitations of two years from the date on which a relevant grievance occurred. Translation costs for all complaints not submitted in Bahasa Indonesia are covered by the ORI. If all formal requirements are fulfilled, the ORI is obliged to immediately conduct substantive investigations (Arts 25, 26 LO). In the context of own-motion systemic investigations, the ORI may recommend improvements to the organization of public services and suggest amendments to laws and regulations (Art 8 LO). 144 5. Indonesia (Thomas Stephan Eder) V. Powers V.1. Powers in Relation to Administrative Organs Ombudsman candidates are nominated by the President on the basis of the recommendations of a selection committee and appointed by the House of People’s Representatives (DPR) (Arts 14–16 LO). All Ombudsmen are subject to an oath on the impartial performance of their functions (Art 21 LO) and may be removed from office by the President under certain conditions (Art 22 LO). According to Art 2 LO, the ORI is of an independent character and does not have an ‘organic relationship with other State organ[s] and public agencies’, and ‘in executing its duties and power it is free from intervention of other authorities’. Such intervention, if obstructing the work of an Ombudsman, may result in criminal liability (Art 44 LO). The Ombudsmen may require authorities to provide information and written explanations (Art 28 (1) (b) LO), documents and copies thereof (Art 28 (2) LO). They may summon parties concerned, witnesses, experts and interpreters (Art 28 (1) (a) LO), and require them to take an oath (Art 32 LO). Persons who fail to comply with three consecutive summons without due reason, may be subject to enforcement with the support of the National Police (Art 31 LO). Moreover, obstruction of investigations of the ORI is punishable with imprisonment of up to two years or a fine of up to one billion Rupiah (Art 44 LO). The ORI may also conduct on-site investigations (Art 28 (1) (b) LO) without advance notice (Art 34 LO). The ORI recommends corrective measures to parties subject to complaints and their superiors, who must then comply with such and report upon their implementation (Art 38 LO). The Ombudsman may also request on-site investigations to ensure compliance (Art 38 LO). If compliance is lacking without due reason, the ORI may file a report with the House of Representatives (DPR) and the President, publish such case and adopt administrative sanctions (Art 39 LO). V.2. Powers in Relation to Courts The judiciary, as it is not part of the ‘public administration’, lies outside the jurisdiction of the ORI. According to Art 36 LO, the ORI shall reject complaints if the relevant matter is subject to ongoing court proceedings, unless related to maladministration in court administration. The ORI may, in any event, not interfere with the independence of the judiciary in delivering judgments (Art 9 LO). 145 Part Two: Different Jurisdictions The Ombudsman may adjudicate certain cases (see Art 50 (5) Law on Public Service 2009), e.g. where a dispute concerning compensation cannot be resolved through mediation or conciliation. V.3. Powers in Relation to Legislative Organs The Ombudsmen are elected by the House of People’s Representatives (DPR) (Art 14 LO). They are, however, designated to be entirely in- dependent and lack any ‘organic relationship’ with any branch of government (Art 2 LO). The ORI is required to provide quarterly and annual reports to the House of People’s Representatives (DPR) and the President (Art 42 (1) LO), which the latter relies upon when developing policies on public services. Annual reports must include the number and classification of complaints received, non-compliant officials or agencies, reasons given by officials or agencies and their superiors for non-compliance, the number and classification of grievances rejected for investigation, and a financial report (Art 42 (5) LO). Occasionally, the House of People’s Representatives (DPR) invites the Chief Ombudsman to discuss specific current issues involving public services. Moreover, there are regular hearings on the annual budget and performance of the ORI. On the occasion of such debates, the Ombudsman may provide advice to the parliament. Such advice is regularly requested during the drafting of laws related to public service issues. According to Art 8 (2) (b) LO, the ORI may submit ‘suggestions’ to the houses of parliament, the President or heads of regions regarding amendments to laws and regulations for the purpose of preventing maladministration. V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The ORI does not enjoy any particular functions or powers for the purpose of protecting human rights. VI. Practice In 2010, the ORI dealt with 1,124 complaints. Complaints largely pertained to police (21.2 %), the judiciary (13.6 %), land affairs (8.4 %) and employment affairs (8.4 %). Regarding police-related grievances, complaints largely related to undue delays when handling complaints and the abuse of power in the context of investigations. Grievances related 146 5. Indonesia (Thomas Stephan Eder) to the judiciary predominantly concerned transparency issues regarding judgments and undue delays in the implementation of judgments. These primarily involved disputes regarding land ownership and corresponding certificates, as well as public administration complaints over work performance assessments and dismissals. In 2009, the ORI dealt with 1,237 complaints, i.e. the number of complaints decreased slightly from 2009 to 2010. In 2009, the most grievances also involved the police (23.2 %), the judiciary (11.8 %) and land affairs (9.7 %). The main subjects of complaint were the same as in 2010. VII. Reform The Indonesian government does not have any plans to reform its Ombudsman institution at this time. VIII. Information Constitution: http://www.asianlii.org/id/legis/const/2002/ Law: http://www.flevin.com/id/lgso/translations/Laws/Law%20No.%20 37 %20of%202008 %20on%20Ombudsman%20(Ombudsman).pdf Homepage (in Bahasa Indonesia): http://www.ombudsman.go.id/ 147 6. Iran Philipp Janig334 A. Constitutional Background For a significant portion of its history, Iran, which was known as Persia until 1935, was a monarchy under a Shah. In the early 20th century, the country was the target of foreign interventions, leading to the regime of Shah Reza Pahlavi, supported by Western powers. Growing discontent over his government lead to uprisings in 1978, which were later termed ‘the Islamic Revolution’. Over the course of these protests the monarchy was overthrown, resulting in the proclamation of an Islamic Republic and the adoption of its Constitution in 1979. The Constitution was amended once in 1989, following the death of the Supreme Leader Ruhollah Khomeini and the appointment of his successor, Ali Hosseini-Khamenei. The country is divided into 31 provinces for administrative purposes. Iran has a religious legal system with roots in both secular and Islamic law. Iran is an Islamic Republic (Art 1 of the Constitution). The funda- mental principles of this system are outlined in Article 2 and include the belief in the ‘One God […] his exclusive sovereignty and right to legislate’. Article 3 stipulates goals to be pursued by the government of the Islamic Republic. Legislative powers are primarily vested in the unicameral Islamic Consultative Assembly, the Majles-e Shura-ye Eslami, whose 290 members (Art 64) are elected by popular vote through universal suffrage in single and multimember districts for four-year terms (Art 63). Certain recognized religious minorities are allocated representatives (five in total) (Art 64). However, all legislation must be approved by the Guardian Council (see below). The Islamic Consultative Assembly is also barred from amending 334 The author would like to extend his thanks to Sara Mansour Fallah for her most valuable assistance in preparing this chapter by providing necessary translation of source material. 148 6. Iran (Philipp Janig) the Constitution, which requires a national referendum for proposals made by the Council for Revision of the Constitution (Art 177). The highest executive organ is the Supreme Leader (currently Ali Hosseini-Khamenei). The functions of the executive branch outside his jurisdiction are exercised by the President and his Council of Ministers (Art 60), all of which operate under the supervision of the Supreme Leader (Art 57). The Supreme Leader is appointed for life by the Assembly of Experts (Art 107). His powers are listed in Art 110 and i.a. include defining the general policies of Iran and supervising their execution, appointing certain senior officials and resolving differences between the three powers of the State. The highest official beneath the Supreme Leader is the President, who presides over the executive outside the jurisdiction of the Supreme Leader (Art 113). The President is elected by popular vote for a four-year term (Art 114) and responsible to the Supreme Leader and Islamic Consultative Assembly (Art 122). Ministers are appointed by the President, require the approval of the Islamic Consultative Assembly (Art 133) and are responsible to both of these institutions (Art 137). There are three oversight bodies which are also considered part of the executive branch. The Guardian Council, the Shora-ye Negahban-e Qanon-e Asasi, has twelve members, half of them selected by the Supreme Leader and half elected by the Islamic Consultative Assembly from a selection of Muslim jurists nominated by the Head of the Judiciary (Art 91), for six-year terms (Art 92). The Islamic Consultative Assembly does not enjoy any legal status if the Guardian Council is inoperative (Art 93). All legislation must be submitted to the Guardian Council, which determines its compatibility with Islamic law and the Constitution (Arts 4, 94–96). Additionally, the Guardian Council supervises elections and referenda (Arts 99, 118) and approves candidates for popular elections (Art 110 (9)). The Assembly of Experts, the Majles-e Khobregan, is a body of senior clerics elected by popular vote and mandated with the election (Art 107), supervision and dismissal of the Supreme Leader (Art 111). The Nation’s Exigency Council, the Majma-ye Tashkhis-e-Maslahat-e- Nezam, whose members are appointed by the Supreme Leader, resolves legislative disputes between the Islamic Consultative Assembly and the Guardian Council (Art 112). Additionally, it advises the Supreme Leader on the general policies of Iran (Art 110) and every other matter referred to it (Art 112). The highest judicial authority of Iran is the Head of the Judiciary, who is appointed by the Supreme Leader for a period of five years (Art 157) and i.a. responsible for administrative matters relating to the courts, including the appointment of judges and the drafting of judiciary bills (Art 158). 149 Part Two: Different Jurisdictions The Supreme Court is the final body of appeal (Arts 161–162) and revises judgments by the Military Courts, the Public and Revolutionary Courts. The Courts of Appeal review cases decided by Public and Revolutionary Courts. The Dispute Settlement Councils (for minor cases) and Public Courts generally serve as courts of first instance. The Public Courts are divided in Civil Public Courts, some branches of which are set up as Family Courts, and Criminal Public Courts. There are three types of specialized courts. The Military Courts (Art 172) investigate particular crimes committed by members of the Armed Forces, the Police, and the Islamic Revolution Guards Corps. The Islamic Revolutionary Courts try a variety of cases, such as offences against the internal and external security of Iran (including conspiracy, terrorist acts and espionage), corruption cases, cases involving the slander of the founder of the Islamic Republic of Iran and the Supreme Leader, or crimes involving smuggling and narcotics. The Special Clerical Court tries crimes committed by Muslim clerics. Its judgments are final and cannot be appealed. Additionally, there is a Court of Administrative Justice (Arts 170, 173) and the General Inspection Organization (Art 174), both of which possess the authority to, among other things, investigate individual complaints against acts of the executive branch. The Iranian Constitution lists fundamental rights in its Chapter III – The Rights of the People (Arts 19–42), including the equality of citizens (Art 19), the inviolability of a person’s dignity, life, property, rights, residence and occupation (Art 22) and the prohibition of arbitrary arrest (Art 32). B. Overview of Existing Ombudsman Institutions Iran has established the General Inspection Organization (hereinafter: GIO), an organization affiliated with the judiciary. The GIO works under a comprehensive mandate on the national level. There are no comparable institutions on a regional or local level. C. General Inspection Organization (GIO) +*KUVQT[CPF.GICN$CUKU Article 174 of the Iranian Constitution proclaims that the GIO shall be established by law. This has been done through the Establishment Law of the General Inspection Organization (enacted in the Iranian year 1360 (1981), amended in 1375 (1996), 1387 (2008) and 1393 (2014); 150 6. Iran (Philipp Janig) hereinafter: ELGIO). Its provisions are specified and elaborated upon in the Implementation Regulation on the Law Establishing the General Inspection Organization, 1388 (2009) (hereinafter: IRGIO), which was prepared by the GIO and approved by the Head of the Judiciary (see Art 14 ELGIO). Issues pertaining to the staff of the institution are addressed in the Administrative and Employment Regulations of the General Inspection Organization of 31/02/1363 (1984) (hereinafter: AER), which were defined by the judiciary and approved by the Islamic Consultative Assembly (Art 3 (Note 2) ELGIO). Under its legislation, the GIO is tasked with supervising the administration in the proper conducting of affairs and the correct implementation of laws. The institution is a member of the IOI, AOA and OICOA. II. Organization Currently, the governing body of the GIO has one president (the Head of the GIO), one vice-president and six deputies.335 The structure of the institution is recommended by the Head of the GIO and approved by the Head of the Judiciary (Art 71 IRGIO). The GIO operates through inspectors or inspectorate teams, which are appointed to individual cases by the Head of the GIO (Arts 5, 6 IRGIO). These inspectors either work permanently for the institution or are temporarily placed at the disposal of the institution for a certain period of time or matter. Employees of ministries or other governmental institutions may be temporarily transferred to the GIO following a request by the GIO and the consent of the relevant institution. For a permanent transferral, the consent of the competent ministry as well as the employee themself is required. Inspectors must be judges or persons, whose judicial competence has been confirmed by the judicial authority of Iran, or certain other employees whose determination and moral as well as professional skills have been confirmed by the GIO (Art 3 ELGIO; Arts 1, 2, 4 AER). Judges working for the institution are protected by Article 164 of the Constitution. The employment of ministerial employees and, subsidiarily, all employees of the institution, is governed by the Public Servant Law (Arts 4, 11 AER). In 2006, the institution established the Office for Public Supervision, which comprises honorary inspectors and NGOs. Within the framework of the ‘Supervision through Public Eye’ program, the institution currently utilizes the services of over 7,000 volunteers, including businessmen, 335 General Inspection Organization, Informational Brochure (on file with the author) 16. 151 Part Two: Different Jurisdictions lecturers and doctors who cooperate with the GIO.336 The institution draws its authority for conducting the program from Article 11 (A) ELGIO and Article 65 IRGIO. The budget, requirements, facilities and non-judicial staff are provided by the government, based on the estimates and recommendations of the GIO (Art 72 IRGIO). The budget of the GIO is part of the national budget of Iran, in which it is listed as an independent category under the judiciary. One fifth of the budget of the GIO is not subject to the provisions of the General Audit Law (Art 13 ELGIO). In addition to the headquarters of the institution in Tehran, there are general directorates for supervision and inspection in each province, which inspect and supervise local issues and fulfill their functions under the supervision of the GIO (see Art 7 IRGIO). III. Legal Status The Head of the GIO is appointed by the Head of the Judiciary for an indefinite tenure. Only judges with a certain judicial ranking (ten to eleven) may be appointed (Art 4 ELGIO). The ELGIO and IRGIO do not contain any provisions regarding incompatibilities or immunity. The salary received by the Head of the GIO is not determined by law. As part of the judiciary, the GIO is independent from the executive branch, but operates under the supervision of the Head of the Judiciary (Art 174 of the Constitution, Art 1 ELGIO). There is no provision protecting the Head of the GIO from being removed from office. IV. Scope of Supervision The bodies under supervision of the GIO include such within the public administration, certain private legal entities partly under State supervision, parts of the private sector and parts of the judiciary. More precisely, these include all ministries and offices, the financial department of the judiciary, organizations affiliated with the judiciary, the police, public offices and companies, municipalities, charity organizations and such organizations whose assets at least partly belong to the government or which the government supervises or assists and all other organizations to which the ELGIO is expressly applicable (Art 2 (a) ELGIO). However, the GIO may not investigate crimes of the staff of the judiciary, the government, the armed forces of the Guardian Council, or organizations supervised by the Supreme Leader (Art 2 (Note) ELGIO). 336 General Inspection Organization, Informational Brochure (on file with the author) 56 ff. 152 6. Iran (Philipp Janig) The supervision criteria employed are defined as violations of legal rules and maladministration (Art 2 (c) ELGIO, Art 1 (D) IRGIO). Supervision and investigations conducted by the GIO may be pre- planned, extraordinary or performed on a case-by-case basis (Art 2 ELGIO, Art 2 IRGIO). Pre-planned investigations are conducted pursuant to an annual program that is approved by the Head of the Judiciary for the subsequent year (Art 2 (a) ELGIO, Art 1 (c), 4 IRGIO). Extraordinary investigations are initiated following an order of the Supreme Leader, the Head of the Judiciary, a request of the President, the Majlis Article 90 Committee (the petition committee of parliament), the Minister or official responsible for executive systems, or where deemed necessary by the head of a system (Art 2 (b) ELGIO, Art 1 (e) IRGIO). Investigations on a case-by-case basis are initiated following individual complaints and proclamations (Art 1 (d) IRGIO). In addition, the GIO may also investigate the reasons behind major events in the country and report results to the Head of the Judiciary and related authorities (Art 46 IRGIO). Regarding cases brought by individuals, the IRGIO distinguishes between complaints and proclamations, with only the former entailing procedural rights of individuals. Complaints may be brought both verbally or in writing. Written complaints must be endorsed by signature. Verbal complaints are recorded and endorsed as well (Arts 12, 13 IRGIO). Proclamations of individuals may be received through any means. Anonymous proclamations are not considered, unless found to contain important information warranting an inspection by the GIO (Art 15 IRGIO). Complaints and proclamations are not subject to fees. The GIO is not obliged to initiate investigations following complaints or proclamations (Art 12 IRGIO). However, claimants must be advised if their complaints fall outside the jurisdiction of the GIO. In any event, claimants must be informed of the outcome of pertinent investigations (Art 14 IRGIO). Specialists and inspectors of the GIO may not share information on investigations with the public, unless given permission by the Head of the GIO or their appointees (Art 66 (Note 2) IRGIO). V. Powers V.1. Powers in Relation to Administrative Organs and 2TKXCVG|#EVQTU As part of the judiciary, the GIO is not subordinate to the executive branch. 153 Part Two: Different Jurisdictions During inspections, the GIO may obtain information through ob- servation, inquiries of witnesses, informants, experts, or officials and staff of the organ under inspection as well as studying available records and cases (Art 22 IRGIO). All officials in ministries and organizations under the jurisdiction of the GIO are under the obligation to cooperate with its investigators and immediately submit evidence and information required for investigations. Violations may result in imprisonment of three months and one day to six months or suspension from public service for three months up to one year (Art 8 (Note 1) ELGIO) and prosecuted upon request of the GIO (Art 30 (Note 2) IRGIO). However, confidential government evidence must only be submitted to the GIO, if the corresponding request of the Head of the GIO has been approved by the Head of the Judiciary (Art 8 (Note 2) ELGIO). When supervising or investigating, the GIO may i.a. utilize military or security personnel. A regulation for the implementation of this provision is issued by the Head of Judiciary on a proposal of the GIO (Article 2 (f) ELGIO). Moreover, the GIO may get assistance from private organizations and individuals (Art 11 (a) ELGIO). In addition, in order to safeguard evidence, certain inspectors of the GIO may issue particular writs (orders). Thus, they may order bail, seize assets (writ of attachment), prohibit individuals from leaving the country (writ of ne exeat) and issue arrest warrants (including writs of commitment). However, arrest warrants may only be issued with the approval of the head of the investigation committee and the Head of the Judiciary. Writs of attachment may only be issued for the purpose of seizing objects for the period of inspections (Art 5 (Note 2) ELGIO, Arts 35–38 IRGIO). Certain inspectors may also access the personal bank accounts of individuals accused of financial offences and issue binding orders in this regard (Art 29 IRGIO). An inspector may, through the GIO, request the suspension of an employee of an inspected organization for the duration of ongoing inspections, if that employee impedes or disrupts the investigation. As soon as the impediment or disruption is removed, or the investigation ends, the investigator shall, through the GIO, request to lift the sus- pension (Art 40 IRGIO).337 Once an investigation is completed, the GIO drafts a report in which it may provide recommendations and proposals. The Minister or relevant official is then obliged to take action within ten days for the purpose of implementing recommendations made and must inform the GIO regularly. 337 The underlying statutory provision was repealed in 2014; therefore it is unclear whether the regulation by itself is legally relevant. 154 6. Iran (Philipp Janig) The GIO is required to pursue cases until a final conclusion is reached. If a person fails to implement the recommendations of the GIO without due justification, the GIO must refer the case to the judicial authorities. Such person then may be convicted by a competent court based on Note 1 of Article 8 ELGIO (Art 1 (Note), 10 (Note) ELGIO, Art 54 IRGIO), which foresees prison sentences of three months and one day to six months or discharge from public service for three months up to one year (Article 8 (Note 1) ELGIO). The GIO may also issue warning reports to relevant officials in order to avoid crimes and possible violations of law (Art 11 (c) ELGIO). If the GIO arrives at the conclusion that a violation of law has taken place, which authority such result is reported to depends on the identity of the perpetrator. In the case of ministries and revolutionary organizations, the appropriate authority is the President, for State-run organizations the government, for municipalities and organizations affiliated to the Ministry of Interior and non-governmental organizations which receive assistance from the government the relevant Minister, and for organizations affiliated with the judiciary the Head of the Judiciary (Art 2 (c) ELGIO). Cases of administrative and disciplinary crimes must be pursued by the GIO and are reported to the relevant officials (Art 2 (d) ELGIO). If a GIO report discovers crimes committed by persons holding the rank of Director General, Minister or an equal level, such case is referred to the criminal headquarters of the presidential office. The head of the committee responsible for the subsequent investigation must supervise the registration of the case, determine the time for processing and inform a representative of the GIO (Art 2 (e) (Note) ELGIO). In addition, the GIO may report violations and proclamations regarding administrative and financial malfeasance or violations of rules and regulations to bureaus of oversight, performance evaluation and investigation of complaints, security and counter-intelligence departments and legal inspectors of organizations subject to oversight and inspection, and may request the investigation of such matter as well as notification of pertinent results within a certain period of time (Art 64 IRGIO). Committees for the investigation of administrative crimes must consider the reports of the GIO in a preferential manner and within three months. In the event of a delay, relevant officials must explain the reasons therefor. The resulting reports of the committees may be amended within 20 days following a request of the relevant public authority (Art 6 ELGIO). Legal and administrative authorities investigating crimes and violations are generally obliged to inform the GIO about their investigations and prosecutions. If so required, the GIO may submit documents or send 155 Part Two: Different Jurisdictions representatives to participate in investigation sessions or court hearings, in order to provide explanations. Authorities are obliged to provide copies of pertinent decisions or verdicts to the GIO (Art 55 (Note) IRGIO). In addition, by means of recommendation, the GIO may request the Court of Administrative Justice to nullify regulations, decisions, circulars and guidelines of an organization subject to inspection, if they violate the law or Sharia (Art 50 (g) IRGIO). V.2. Powers in Relation to Courts The GIO is under the supervision of the Head of the Judiciary (Art 174 of the Constitution, Art 1 ELGIO). It may investigate the financial and monetary affairs of judiciary departments and organizations affiliated with the judiciary (Art 2 (a) ELGIO). When doing so, as a general rule, the same rules apply as to investigations of the administrative branch (see above, Part C.V.1.). Which authorities the GIO reports discovered legal violations to depends on the identity of the perpetrator. Where the subject of an investigation is a member of an organization affiliated with the judiciary, the competent authority is the Head of the Judiciary (Art 2 (c) ELGIO). Crimes involving public defamation are pursued to their conclusion and require a copy of the pertinent report by the GIO to be forwarded to judicial bodies. Incidents of administrative and disciplinary crimes are pursued in a similar manner and reported to the relevant officials (Art 2 (d) ELGIO). Whenever inspection reports reveal instances of violations or crimes with public ramifications, a special report must be prepared and approved by the inspector of the GIO and submitted to the competent judicial authority (Art 53 IRGIO). Legal authorities investigating crimes and violations are obliged to inform the GIO of investigations. If so required, the GIO may submit documents or send representatives to participate in investigative sessions or court hearings, in order to provide explanations. Authorities are obliged to forward copies of such decisions or verdicts to the GIO (Art 55 (Note) IRGIO). Judicial verdicts which contravene the law or Sharia must be indicated in the recommendations of the GIO (Art 50 (h) IRGIO). If the GIO finds that a final verdict of a court is in explicit contradiction of Sharia, it submits a report to the Head of the Judiciary and requests legal action (Art 60 IRGIO). Judicial offices must consider reports of the GIO in a preferential manner and within three months. In the event of delay, relevant officials 156 6. Iran (Philipp Janig) must provide an explanation. The resulting reports of the judicial offices may be amended within 20 days, following a request of the GIO and with consent of the relevant Prosecutor-General. They too must be treated in a preferential manner (Art 6 ELGIO). The GIO may also investigate the reasons for major events which take place within the country and report the result of such investigations to the Head of the Judiciary and related authorities (Art 46 IRGIO). While the GIO is not obliged to submit annual reports, it does publish annual ‘research reports’. V.3. Powers in Relation to Legislative Organs There is no general connection between the GIO and the legislative organs of Iran. However, an extraordinary investigation by the GIO may be initiated following a request by the Majlis Article 90 Committee (the petition committee of parliament). In such case, the results of its inquiries are to be announced to that committee (Art 2 (c) ELGIO). V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The GIO does not enjoy any particular functions or powers for the purpose of protecting human rights. VI. Practice338 In the Iranian year 1392 (2013/14), 3,528 pre-planned inspections were foreseen. In the same year, the GIO issued several reports on the non- conformity of decisions by the government or public agencies with the law or rights of citizen. These reports have led to at least 15 rulings by the Court of Administrative Justice, eight of which concerned the annulment of those decisions. In the Iranian year 1391 (2012/13), the GIO received 60,149 complaints, compared to 36,841 complaints received in 1390 (2011/12). In 1391, the institution also undertook 203 ‘unexpected visits’. These were conducted in municipalities (122 visits (60.1 %)), medical and health centres (46 visits (22.7 %)), disciplinary forces (21 visits (10.3 %)) and prison organizations (14 visits (6.9 %)). 338 See General Inspection Organization, Informational Brochure (on file with the author) 21–22, 26, 39. 157 Part Two: Different Jurisdictions VII. Reform No information could be obtained in this regard. VIII. Information Laws: Research Report No 79, 1394 (2015/16): http://bazresi.ir/uploads/gozareshe-pazhouheshi_79.pdf (only in Farsi) Homepage: http://www.bazresi.ir/ (only in Farsi) 158 7. Japan Thomas Stephan Eder A. Constitutional Background As part of the modernization brought about by the Meiji reforms of the 19th century, Japan adopted a constitution in 1890. The current consti- tution of 1947 was adopted as an amendment of the latter after the Second World War. It represents a civil-law system based on the German model, although both traditional Japanese and recent common law influences are also included. The Head of State of the hereditary constitutional monarchy is the Emperor (Arts 1–8), whereas the Prime Minister acts as head of government and appoints a cabinet that leads the executive branch (Arts 65, 66 and 68 of the Constitution). The Prime Minister is designated by the Diet (parliament) and appointed by the Emperor (Arts 6, 67). Japan is divided into 47 prefectures for administrative purposes. The bicameral legislature, the Diet, consists of the House of Representatives and the House of Counselors (Arts 41, 42). Members of the former are elected for four-year, members of the latter for six-year terms (Arts 45, 46). Bills passed by both houses of the Diet enter into law (Art 59). All judicial powers rest with the Supreme Court and subordinate courts as established by law (Art 76). These include summary courts, district courts, high courts and family courts. Japan does not have a constitutional court, instead, the Supreme Court enjoys jurisdiction in constitutional issues as well (Art 81). It consists of a Chief Justice and 14 Associate Justices (Art 79). The Chief Justice is appointed by the Emperor upon designation by the Cabinet (Art 6). Associate Justices are appointed by the Cabinet and merely confirmed by the Emperor. All justices of the Supreme Court are ‘reviewed’ in a popular referendum at the first general election of the House of Representatives following the appointment of each judge as well as every ten years thereafter. Supreme Court justices are dismissed if a majority of voters favour their dismissal (Art 79). 159 Part Two: Different Jurisdictions Chapter 3 of the Constitution is titled ‘Rights and Duties of the People’ (Arts 10–40) and lists various fundamental rights, such as equality before the law (Art 14), the prohibition of arbitrary detention (Art 33), the right of petition (Art 16) and social and economic rights. B. Overview of Existing Ombudsman Institutions Japan has established a three-fold Administrative Counseling System (ACS) overseen by its Ministry of Internal Affairs and Communications (MIC). This system also encompasses, firstly, the 行政評価局 – Administrative Evaluation Bureau (AEB) (formerly: Administrative Inspection Bureau), an administrative Ombudsman institution on the national level with a general mandate. Besides its main office in Tokyo, the AEB has 50 local offices around the country. Secondly, the ACS includes the National Federation of Administrative Counselors’ Associations (NFACA), a nationwide federation of prefecture-level associations, independently organized by the 5,000 volunteer Administrative Counselors commis- sioned by the MIC. It supports the activities of Administrative Counsel- lors. Counsellors are private citizens who work pro bono and are com- missioned for two-year terms (renewable until 80 years of age is reached). There must be at least one counsellor per municipality. Thirdly and lastly, the ACS contains the Administrative Grievance Resolution Promotion Council (AGRPC), which is an advisory body that consists of high-level experts from non-governmental circles. Besides the national ACS, there are approximately 60 prefectural or municipal Ombudsman institutions with general or special mandates, which will not be covered in this study.339 C. Administrative Evaluation Bureau +*KUVQT[CPF.GICN$CUKU The AEB was established through Art 4 of the Act for the Establishment of the Ministry of Internal Affairs and Communication (Law No. 91 of 1999), with Arts 24–27 referring to government regulations for further organization. It was preceded by the Administrative Inspection Bureau (established in 1966), joined the IOI in 1994 and co-founded the AOA in 339 No information on these institutions and their legal bases could be found in English. None of them are members of the IOI or AOA. 160 7. Japan (Thomas Stephan Eder) 1996. It has signed a Memorandum of Cooperation with the Government Inspectorate of the Socialist Republic of Vietnam. II. Organization The AEB is headed by a Director General, who is hired in the same fashion as any other civil servant. The AEB is made up of several divisions; Administrative Counseling, Policy Evaluation, Evaluation and Inspection, Planning and General Affairs. The AEB has 1,649 employees nationwide (of whom 245 work in the main office and the remaining in the field offices; 54 (22 %) of those in the main office are women). While most employees of the main office hold a Bachelor’s degree, some have a Master’s degree and a few have a PhD. The Director General as well as all other staff are appointed and dismissed in the same fashion as other civil servants and do not enjoy any special treatment. The AEB uses the Administrative Counseling General System software to connect to its field offices and store data on complaints (administrative area, character of complaint, type of solution, etc.) as well as biographical data, work and expense records of Administrative Counselors. This data is used to supervise and manage the work of counsellors. The AEB also has a liaison council linking it to the grievance and counselling divisions of various Ministries, as well as a liaison council linking it to comparable divisions in public corporations and Incorporated Adm i n istrative Agencies (I A A). A n nua l meeti ngs a re held w ith prefect ura l and municipal Ombudsmen for the purpose of exchanging information. The budget of the AEB, as with other government departments, is determined by the Diet, which also decides upon its usage. III. Legal Status The Director General and staff of the AEB are appointed and dismissed in the same fashion as other civil servants and do not enjoy any special treatment. The Director General does not have a specific tenure and no specific qualifications are required. There are, moreover, no specific rules on incompatibilities with other positions or on salaries and the Director General does not enjoy immunity. The legal basis of the AEB neither mentions the independence of the Director General, nor may it be inferred. IV. Scope of Supervision The AEB may investigate central government organs, as well as the activities of local government organs as far as they are delegated or 161 Part Two: Different Jurisdictions subsidized by the central government. Moreover, the mandate of the AEB covers Incorporated Administrative Agencies (IAA) (e.g. the National Hospital Organization), public corporations (e.g. the Nippon Telegraph and Telephone Corporation) and corporations established by statutes that have been authorized by a specific administrative organ, if more than half of their capital is held by the State and their operations are subsidized by the State (e.g. the Japan Health Insurance Association). The Court system is exempted from the jurisdiction of the AEB. Investigation procedures may be started both on the own initiative of the AEB and by individual complaints filed directly with the AEB or through Administrative Counselors. Complaints are free of charge and may be filed by every citizen. They may concern maladministration in the sense of infringement of legal rights or unjust or unfair practices, as well as the attitude of public employees. Complaints may be submitted orally or in writing, via visit, phone call, fax, letter, e-mail or the website filing system. The AEB holds regular counselling sessions across the country and an ‘administrative counseling week’ every autumn. The AEB is obliged to receive complaints, notify claimants whether their cases may be treated as administrative complaints and to advise them on the appropriate method for solving the pertinent issue. Investigations are only performed if an issue is indeed categorized as a complaint rather than a request or inquiry. Most cases filed with Administrative Counselors are referred to the AEB for investigation. V. Powers V.1. Powers in Relation to Administrative Organs The AEB is part of the MIC. Its Director General and all staff are appointed and dismissed by the executive branch in the same fashion as all other civil servants. The Director General neither enjoys a specific tenure nor immunity or any other special treatment. The budget of the AEB and its usage are determined by the legislature as with any other government department. The AEB may require officials to provide information and docu- ments and to cooperate with mediation efforts. AEB staff may also perform on-site visits. When necessary, the AEB invites witnesses. Building on the advisory opinions of Administrative Counselors, the AEB issues recommendations to pertinent government agencies on how to correct administrative procedures, monitors implementation and enforces recommendations through inspections. 162 7. Japan (Thomas Stephan Eder) V.2. Powers in Relation to Courts Courts of law are excluded from the jurisdiction of the AEB. This, inter alia, includes reviewing final court decisions, monitoring pending cases and exerting disciplinary authority over judges. If a significant number of complaints of the same type indicate the necessity of revising laws and regulations, the AEB proceeds to Administrative Evaluation and Inspection. The latter especially concerns particularly urgent, important or highly publicized matters. The AEB reports to the MIC on its in- vestigations and proposes draft changes to the pertinent Minister (or other appropriate Ministries), who may then issue recommendations to the Diet based on the work of the AEB. V.3. Powers in Relation to Legislative Organs The legislature is not involved in the appointment or dismissal of the Director General, who is not entitled to, but sometimes requested to attend debates in parliamentary committees if deemed necessary. The Director General is required to report to the legislature on the investigations of the AEB, while the MIC may issue recommendations to the Diet on the basis of the work of the AEB. In such cases, the AEB will propose draft changes to the relevant Minister (or other appropriate Ministries), which will then consult with the Cabinet Legislation Bureau before approaching parliament. Although the Diet is not obliged to do so, it has changed laws in the past on account of complaints received by the AEB (e.g. a recent amendment to the Real Property Registration Act). The annual reports of the AEB (only available in Japanese) are addressed to the general public and cover the activities of the institution. No State body is required to react to such reports. V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The AEB does not enjoy any particular functions or powers for the purpose of protecting human rights. Japan has signed the OPCAT, but the mandate of the AEB does not include acting as a NPM. VI. Practice In 2013, the AEB (including Administrative Counselors within the NFACA system) dealt with 53,811 complaints (of the 168,076 complaints filed that year, 80,004 (47.6 %) were filed by women). These pertained 163 Part Two: Different Jurisdictions mainly to road affairs (5,220 (9.7 %)), health insurance/pension issues (4,628 (8.6 %)) and social security (4,197 (7.8 %)). This constitutes a small increase from the 52,471 complaints dealt with during the previous year (167,610 complaints were filed). These pertained to social security (4,880 (9.3 %)), road affairs (4,722 (9.0 %)) and health insurance/pension issues (4,617 (8.8 %)). VII. Reform There are currently no plans to reform the AEB. VIII. Information Constitution: http://japan.kantei.go.jp/constitution_and_government_of_japan/ constitution_e.html Law: http://www.theioi.org/asia/japan/ministry-of-internal-affairs- communications (Act for the Establishment of the Ministry of Internal Affairs and Communication) http://www.soumu.go.jp/main_content/000142521.pdf (Administrative Counselors Act) Homepage: http://www.soumu.go.jp/english/index.html D. National Federation of Administrative Counselors’ Associations +*KUVQT[CPF.GICN$CUKU The system of Administrative Counselors was established as an informal tool in 1961 and gained legal status in 1966. In 1969, the NFACA was set up as a private organization for the purpose of acting as a supporting body for Administrative Counselors (from the perspective of the private sector) within the framework of the national Administrative Counseling System of the MIC (Ministry of Internal Affairs and Communication). In 1980, the NFACA was incorporated as a corporate legal body. It inter alia 164 7. Japan (Thomas Stephan Eder) provides training and guidance to counsellors, which are commissioned under the Administrative Counselors Act (ACA) (Law No. 99/1966 of 30 June). The NFACA joined the IOI in 1995. II. Organization The NFACA is a nationwide federation of local associations on the pre- fecture level, organized by Administrative Counselors on an independent basis. Its purpose is to support the activities of Administrative Coun- selors. A President and Vice-President head the institution. The President is elected by the Board of Directors, which in turn is elected at a general meeting of 50 representatives of the prefectural associations of Administrative Counselors. The President serves a two-year term, may be re-elected, neither receives a salary, nor enjoys immunity and is not subject to regulations regarding incompatibilities with other positions. The NFACA comprises 5,000 Administrative Counselors (1,750 (35 %) of whom are women) all over Japan who are commissioned volunteers that receive complaints (in the main office there are six full-time employees, most of them retired civil servants, including a Managing Director and a Secretary General (two (33 %) of whom are women)). In addition to the NFACA, there are eight regional Administrative Counselors’ associations, one for each of the eight regional blocks of Japan. Being volunteers, Administrative Counselors do not receive salaries, but may receive allowances for necessary expenditures (Art 8 ACA). The budget of the NFACA is composed of the membership fees paid by all prefectural Administrative Counselor associations, as well as further income from publications and paid research. The allocation of the budget is determined by a Board of Directors. III. Legal Status Administrative Counselors are appointed by the MIC upon recommen- dation by the mayor of a given community. They must ‘enjoy social confidence’ and have a ‘deep understanding and ardor for improvement in administrative operations’, i.e. be knowledgeable and trusted private citizens (Art 2 (1) ACA). They remain private citizens after their appointment and do not become public employees. Their tenure must be set at less than two years (Art 2 (2) ACA) and may be renewed until 80 years of age is reached. Administrative Counselors may be dismissed by the competent Minister in case of mental or physical illness preventing the performance of duties, negligence of duties, infringement of the duties 165 Part Two: Different Jurisdictions listed in Art 5 ACA (i.e. confidentiality, impartiality and not using the office for political purposes), or malfeasance (Art 6 ACA). IV. Scope of Supervision Administrative Counselors may investigate the activities of central government and local government organs insofar as they are delegated or subsidized by the central government (‘statutory delegated affairs’) (Art 2 (1) ACA). The NFACA serves as a support system for the activities of Administrative Counselors. Private entities or persons cannot be investigated by Administrative Counselors. Moreover, the court system lies outside the jurisdiction of Administrative Counselors. Complaints outside the pertinent jurisdiction are referred to the respective competent organization. The investigation procedure is initiated by individual complaints, requests or opinions, filed with Administrative Counselors by any citizen or legal entity, free of charge. Complaints must be submitted orally or in writing and must concern government action. In cooperation with the AEB, local government offices and other public organizations, Administrative Counselors hold consultation days all around the country in regular intervals. Counselling booths are set up at public places such as city or public halls at least once a month. Administrative Counselors then ‘give necessary advice to the complainant’ and ‘inform the [MIC] or the administrative organs and the like concerned of the complaint in accordance with the instruction of the [MIC]’ (Art 2 (1) ACA). Administrative Counselors may submit suggestions to the MIC regarding the improvement of administrative operations (Art 4 ACA). If a significant number of complaints of the same type necessitates the revision of laws and regulations, the AEB proceeds to Administrative Evaluation and Inspection (see above). V. Powers V.1. Powers in Relation to Administrative Organs Administrative Counselors are explicitly subject to the guidance of the MIC (Art 7 ACA). They are appointed and dismissed by the pertinent Minister (Arts 2, 6 ACA). The budget of the NFACA mainly consists of membership fees paid by all prefectural Administrative Counselors associations, while budget allocation is determined by a Board of Directors. 166 7. Japan (Thomas Stephan Eder) Administrative Counselors may require officials to provide certain information (Art 2 ACA). More complicated cases requiring investigative efforts are relayed to the AEB. The same applies where particular laws or regulations cause complaints. Counselors may express opinions to the MIC regarding possible improvements of administrative operations (Art 4 ACA). The AEB has encouraged annual submissions of this kind, in order to build on them and carry out pertinent inspections of administrative agencies. V.2. Powers in Relation to Courts Courts of law are not within the jurisdiction of Ad m i n i s t r a t i ve C ou n s e lor s and thus also not within that of the NFACA as defined in Art 2 (1) ACA. Counselors may thus not review final court decisions, monitor pending cases or exert disciplinary authority over judges. They may also neither file actions in court, nor bring charges, or influence judicial decisions. V.3. Powers in Relation to Legislative Organs The legislature is not involved in the appointment or dismissal of Administrative Counselors or the leadership of the NFACA. The latter do not attend debates in parliamentary committees, are not required to report to the legislature on their work and are not entitled to legislative initiatives. The annual reports of the AEB also cover the work of Administrative Counselors. V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The NFACA does not enjoy any particular functions or powers for the purpose of protecting human rights. VI. Practice Data on the practice of Administrative Counselors is contained in the AEB information listed above (see above, Part C.VI.). VII. Reform There are currently no plans to reform the NFACA. 167 Part Two: Different Jurisdictions VIII. Information Law: http://www.soumu.go.jp/main_content/000142521.pdf (Administrative Counselors Act) Homepage: http://www.zensoukyou.or.jp/index.php 168 8. Jordan Philipp Janig A. Constitutional Background After World War I and following the dissolution of the Ottoman Empire, the Emirate of Transjordan was declared a British mandate. In 1946, it gained independence as the Hashemite Kingdom of Jordan. Its constitution was initially adopted on 28 November 1947 and then revised and ratified in 1952 (promulgated in the Official Gazette No. 1093 of 8/1/1952). It has been amended several times since, most recently in 2014. The Jordanian system of government is declared to be a parliamentary one with a hereditary monarchy (Art 1) and Islam as the religion of State (Art 2). Jordan has a mixed legal system of civil law and Islamic religious law. Legislative powers are vested in the parliament, the Majlis al-’Umma, and the King. The parliament consists of the Senate, the Majlis al- Ayan, and the House of Representatives, the Majlis al-Nuwaab (Art 25). Members of the Senate, whose number should not exceed half of the Members of the House of Representatives (Art 63), are appointed by the King (Art 36) to serve four-year terms (Art 65). The 150 Members of the House of Representatives are mostly (108) elected from single and multi- member electoral districts. Of these, twelve seats are reserved for certain minorities. 25 further members are elected by way of a separate national list system based on proportional representation. Additionally, fifteen seats are reserved for women, who are selected from female candidates who were not elected to district seats. All members serve four-year terms (Art 68). All laws are ratified and promulgated by the King, who orders the enactment of regulations necessary for their implementation (Art 31). The executive powers lie with the King, who exercises them through his Ministers (Art 26). He also serves as Head of State (Art 30). The Council of Ministers includes the Prime Minister, who is appointed by the King and as many other Ministers as necessary, who are appointed upon 169 Part Two: Different Jurisdictions recommendation by the Prime Minister (Art 35). The Prime Minister and other Ministers are jointly responsible to the House of Representatives (Art 51). Article 99 divides the judiciary into civil (regular), religious and special courts. Religious courts include Sharia courts and the tribunals of other religious communities (Art 104), which largely adjudicate on matters concerning personal status. Special courts may be established by law (Art 110) such as the State Security Court and Military Courts. All civil and criminal matters that do not fall within the competence of these courts are dealt with by the civil courts (Art 102). The civil courts are divided into four levels, with the Supreme Court (or Court of Cassation) acting as the final court of appeal. Jordan has a Constitutional Court that oversees the constitutionality of laws and regulations and renders opinions on the interpretation of constitutional provisions (Art 59). Administrative jurisdiction is divided into two levels (Art 100), with the Higher Court of Administration representing the upper one. A High Judicial Council, comprised of senior judges manages the internal affairs of the judiciary, including disciplinary proceedings against judges. Chapter 2 of the Constitution is titled ‘Rights and Duties of Jordanians’ (Arts 5–23) and lists various fundamental rights, such as equality before the law (Art 6), the prohibition of arbitrary detention (Art 8), the right of petition (Art 17) and social and economic rights. B. Overview of Existing Ombudsman Institutions Jordan has established the Jordanian Ombudsman Bureau, an administrative Ombudsman institution on the national level with a general mandate. There are no comparable regional or local institutions. C. Jordanian Ombudsman Bureau +*KUVQT[CPF.GICN$CUKU The institution was set up through the Ombudsman Bureau Law, Number (11) for the year 2008 (hereinafter: OBL) and took up operations in 2009. It derives its mandate from Article 17 of the Constitution, which enshrines the right of Jordanian citizens to approach public authorities in personal matters and matters pertaining to public affairs, in accordance with the law. 170 8. Jordan (Philipp Janig) The Ombudsman Bureau became a member of the IOI in 2011 and is an executive committee member of the AOM (Association of Mediterranean Ombudsmen), as well as a member of the OICOA. II. Organization The Ombudsman Bureau is headed by a President (Art 5 OBL), who appoints two assistants to perform the duties entrusted to them (Art 6 OBL). The senior assistant assumes the responsibilities of the President once their term ends (Art 9 (b) OBL) and, following referral by the President, handles their cases if a cause for disqualification, removal or recusal is given (Art 17 OBL). As of 2015, the Bureau has 53 employees (17 (32.1 %) of whom are women). Of those, two have a PhD, 17 a Master’s degree, 20 a Bachelor’s degree, four a diploma and twelve a high school degree. The President may also call upon remunerated councillors and experts for technical expertise in specified cases (Art 7 OBL). The President prepares the budget of the Ombudsman Bureau, which is subject to the approval of the Council of Ministers (Art 13 (a) (4) OBL). The budget of the institution constitutes a special budget within the general budget of the State (Art 22 OBL). The expenditures of the Bureau are overseen by the President (Art 13 (a) (1) OBL). III. Legal Status The President of the Ombudsman Bureau is appointed by the Council of Ministers upon the recommendation of the Prime Minister, endorsed by Royal Decree (Art 5 (a) OBL). Candidates for the office of President must fulfil certain qualification requirements. These include holding at least an undergraduate university degree, fifteen years of experience in the areas of law or administration or both and being renowned for integrity and impartiality. Additionally, candidates must be Jordanian nationals, who have full civil capacity and enjoy all civil and political rights and are not convicted of a felony, or an honor or public morality misdemeanour (Art 4 OBL). Once appointed, the President holds office for a term of four years, which can be renewed once (Art 5 (d) OBL). The President holds the rank and salary of a working Minister (Art 5 (e) OBL). The OBL does not grant immunity to the President. Regarding incompatibilities, the President may, at the time of appointment, not be a President or member of an elected or non-elected board or civil entity, official or public institution and not be affiliated with 171 Part Two: Different Jurisdictions a political party (Art 4 (g), (h) OBL). During their term, the President may not engage in any other work, employment or profession (Art 5 (b) OBL). The President is obliged to exercise all authorities and duties in full independence and is not subject to any authority with the exception of such determined by law. The President may not receive any instructions or orders from any party or authority (Art 8 OBL). The premises of the Ombudsman Bureau are immune from search, unless a judicial order has been issued, the Public Prosecutor is present and the President was notified (Art 3 (c) OBL). The President is automatically removed from office, if convicted of a felony, or an honor or public morality misdemeanour by a competent court, as soon as such ruling becomes final (Art 11 (a) OBL). Additionally, under certain circumstances, removal from office may be performed in the same manner as appointment. This may be the case, if the President is physically or mentally incapable of carrying out official duties and authorities, pursuant to a medical report issued by an official governmental body. Moreover, in the event of absence from work for more than three months without justified cause and in the case of loss of any of the eligibility conditions listed above pursuant to Art 4 OBL (Art 11 (b) OBL). The qualification requirements for the two assistants of the President are the same as those for the President, with the exception that they only require ten (rather than fifteen) years of experience in the areas of law and/or administration to be eligible for office (Art 6 OBL). An assistant may only be relieved from duties by the President in the event of such conviction as mentioned above, physical or mental incapability or absence without justified cause for more than fifteen consecutive or thirty total days (Art 11 (c) OBL). IV. Scope of Supervision The Ombudsman Bureau may investigate decisions, recommendations, procedures, actions or omissions by the ‘Public Administration’ and its employees. The ‘Public Administration’ is defined as ‘ministries, official institutions, municipalities and regulatory bodies that are entrusted with the supervision and regulation of public services in accordance with the relevant laws’ (Art 2 OBL). Investigations may be initiated following individual complaints (Art 12 (a) OBL) or upon own motion of the President (Art 19 OBL). Individual complaints may be brought by any party injured by relevant conduct of the Public Administration (Art 14 OBL). However, complaints may not be accepted if not all administrative and judicial 172 8. Jordan (Philipp Janig) remedies are exhausted, a given complaint is subject to review before a judicial body, or a judicial ruling pertaining to it has been issued (Art 12 (a) OBL). Additionally, complaints must be submitted using a prescribed form and signed by the claimant or their attorney (Art 14 OBL). Although complaints must be lodged within one year from the incident subject to the complaint, the President may accept belated complaints which relate to issues of a general nature (Art 16 (b) OBL). Complaints may be brought in Arabic or English and are not subject to fees. The President may accept or reject complaints and is required to provide a substantiated justification in any event (Art 14 (c) OBL). If a complaint is accepted, all procedures must be taken to resolve it (Art 15 (a) OBL). Such are confidential and may not be disclosed, unless the President decides otherwise (Art 15 (b) OBL). The President then sends a memo including a copy of the relevant complaint to the party subject to the complaint, which then has fifteen days to respond. The President may extend such period in appropriate cases (Art 15 (c) OBL). If the party subject to the complaint fails to respond, the President may communicate the matter to the Prime Minister for the purpose of taking necessary measures (Art 15 (d) OBL). In terms of supervision criteria, when examining individual complaints, the OBL provides that recommendations are to be issued, if the relevant act of Public Administration (1) constitutes a violation of law, (2) involved an injustice, abuse or inequality, (3) was based on unlawful instructions or unfair procedures, or (4) displayed carelessness, negligence or error. In such cases, the President submits a detailed report to the body subject to complaint and may present appropriate recommendations (Art 18 OBL). Additionally, the President may review any matter related to any decision, measure or practice of Public Administration ex officio and issue recommendations (Art 19 OBL). The OBL does not provide for exemptions or supervision criteria in this context. V. Powers V.1. Powers in Relation to Administrative Organs The President is appointed by the executive branch and the budget of the Ombudsman Bureau is subject to its approval. Nevertheless, the Ombudsman Bureau enjoys financial and administrative autonomy (Art 3 OBL) and its President must exercise all powers in full independence. The President may not receive any instructions or orders from any party or authority (Art 8 OBL). 173 Part Two: Different Jurisdictions For the purpose of investigating complaints, the President may request copies of related documents or information from the party subject to the complaint and the Public Administration in general. The President is authorized to communicate a matter to the Prime Minister for the purpose of taking necessary measures, should such party fail to supply the requested material (Art 15 OBL). Moreover, all employees working in Public Administration are under an obligation to provide requested information and documentation and otherwise subject to disciplinary and criminal proceedings (Art 21 OBL). The OBL does not provide for a right to on-site visits. If the President considers an individual complaint substantiated (Art 18 OBL) or acts on their own initiative, recommendations may be submitted to the relevant member of the Public Administration (Art 19 OBL). Authorities are not required to react to recommendations. The President is obliged to submit an annual report to the Council of Ministers, including conclusions on actions taken and the opinion of the relevant administration (Art 20 OBL). V.2. Powers in Relation to Courts The judiciary, as it is not part of the ‘Public Administration’, lies outside the jurisdiction of the Bureau. In addition, administrative conduct which is open to judicial review, subject to pending legal proceedings, or has been subject to a judicial ruling is exempted from the jurisdiction of the Ombudsman Bureau (Art 12 (a) OBL). If the President arrives at the conclusion that a complaint involves a criminal offence, such complaint must be submitted to the competent authorities. It then lies at the discretion of the President whether the administrative portion of such complaint is further pursued (Art 16 (a) OBL). V.3. Powers in Relation to Legislative Organs While the OBL does not entitle the President to participate in parliamentary debates, it does not prohibit it either. Once a report of the President has been submitted to the Council of Ministers, the Prime Minister is obliged to forward copies to the upper and lower houses of parliament at the beginning of every ordinary session (Art 20 OBL). The OBL neither requires the parliament to react nor provides any consequences for non- submission. 174 8. Jordan (Philipp Janig) V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The Ombudsman Bureau does not enjoy any particular functions or powers for the purpose of protecting human rights. VI. Practice In 2013, the Ombudsman Bureau dealt with 1,027 complaints submitted by Jordanian citizens (263 (25.6 %) of whom were women). These mostly pertained to administrative decisions (728 (70.9 %)), requests for employment or re-employment (98 (9.5 %) and requests for services or improvement of services (57 (5.6 %)). This constitutes a significant caseload decrease compared to 2012, when 1,516 complaints (456 (30.1 %) from women and 28 (1.8 %) from non-Jordanians) were lodged. These mostly pertained to administrative decisions (955 (63 %)), requests for employment or re-employment (228 (15 %)) and requests for services or improvement of services (83 (5.5 %)). VII. Reform Efforts are ongoing to set up a new institution under the National Center for Integrity Act of 2014. The Act was drafted following a report presented by a Royal Commission, approved by the Cabinet on 21 December 2014 and is currently under further review. The National Center for Integrity shall replace the Jordanian Ombudsman Bureau and serve as its de jure and de facto successor. It is linked to the Prime Minister and will enjoy a legal personality with financial and administrative independence. Its mandate is to combat corruption and safeguard the rights of citizens, including transparency regarding the work of the executive branch. VIII. Information Constitution: www.representatives.jo/pdf/constitution_en.pdf Law: http://www.theioi.org/downloads-ioi/f3seh/Jordanian%20 Ombudsman%20Bureau%20Law.pdf Annual Reports: http://www.ombudsman.org.jo/Pages/viewpage.aspx?pageID=84 (2009- 2013; in Arabic) 175 Part Two: Different Jurisdictions http://www.theioi.org/ioi-members/asia/jordan/jordanian-ombudsman- bureau (2010-2011, in English) Homepage: http://www.ombudsman.org.jo/ (in Arabic) 176 9. Special Administrative Region (SAR) Macao, People’s Republic of China Thomas Stephan Eder A. Constitutional Background After being a Portuguese colony since the 16th century, Macao was handed over to the People’s Republic of China (PRC) on 20 December 1999. Pursuant to the ‘one country, two systems’ formula, Macao became a Special Administrative Region (SAR) within China. In order to accommodate this situation, China’s National People’s Congress adopted the Basic Law of the Macao Special Administrative Region, a quasi-constitution, on 31 March 1993. The Basic Law reflects a civil law system based on the Portuguese model and came into effect with the abovementioned transition in 1999. Under the Basic Law, Macao’s Head of State is the Chinese President (Arts 1 and 12–14 Basic Law, 1982 Chinese Constitution), while the head of government acts as the Chief Executive of Macao (Art 45 Basic Law). The Chief Executive is appointed by the Central People’s Government of China following an election by the 400-member Macao Election Committee and serves a five-year term with the possibility of one re-election (Arts 47 and 48 Basic Law). The Election Committee is constituted by regional groups, municipal organizations, government bodies and elected officials (Annex I Basic Law). The Chief Executive is assisted by the (seven to eleven) Members of the Executive Council. Members are appointed and removed by the Chief Executive and must have acted as principal officials, members of the Legislative Council or other public figures prior to such engagement. Their term expires with that of the Chief Executive who appointed them (Arts 50 (8) and 56–58 Basic Law). Administratively, Macao is divided into seven freguesias (parishes). Legislative powers rest with the unicameral, 33-seat Legislative Assembly (Art 67 Basic Law). Of the members, who all serve four- 177 Part Two: Different Jurisdictions year terms, 14 are elected by popular vote for geographically-divided constituency seats, twelve are elected by indirect vote for functional constituency seats, and seven are appointed by the Chief Executive (Arts 68 and 69 Basic Law, Annex II Basic Law). The popular vote is universal for permanent residents of Macao who have lived there for the past seven years. The indirect vote for functional constituency seats is limited to organizations registered as ‘corporate voters’ (973 in 2009) (Art 26 and Annex II Basic Law). The court system of Macao consists of the Lower Court, the Court of Second Instance, the Administrative Court, the Criminal Court and the Court of Final Appeal of the Macao SAR (Arts 84–86 Basic Law). The Court of Final Appeal consists of a President and two Associate Justices. All three justices are appointed by the Chief Executive upon recommendation by a commission consisting of judges, lawyers, and ‘eminent persons’ (Art 88 Basic Law). There is no constitutional court in Macao. ‘Fundamental rights and duties of the residents’ are contained in Chapter III (Arts 24–44) of the Basic Law. Among the listed rights are equality before the law (Art 25), freedom of speech (Art 27), human dignity (Art 30) and a series of economic and social rights. B. Overview of Existing Ombudsman Institutions The 澳門特別行政區廉政公署 – Commission against Corruption (CCAC) of Macao – encompasses an Anti-Corruption Bureau and an Ombudsman Bureau. The Ombudsman Bureau has a general mandate and jurisdiction over the entire Macao SAR. There are no comparable institutions on lower levels and the CCAC does not have local offices. There are a number of other grievance redress institutions with special mandates, such as the Consultative Commission for Women’s Affairs, the Senior Citizen’s Committee, and the Commission for Rehabilitation Affairs. C. Commission against Corruption (CCAC) of Macao +*KUVQT[CPF.GICN$CUKU The CCAC derives its mandate from Art 59 Basic Law. It was established through the Organic Law of the Commission Against Corruption of the Macao Special Administrative Region (CCAC OL) (Law No. 10/2000 as amended by Law no. 4/2012) and the Administrative Bylaw on the 178 9. SAR Macao, People’s Republic of China (Thomas Stephan Eder) Organisation and Operation of the Commission against Corruption (CCAC ABL) (Law No. 3/2009 as amended by Administrative Bylaw No. 3/2013). The CCAC is rooted in the ‘High Commission Against Corruption and Administrative Illegality’ (ACCCIA), which was established by Portuguese authorities in Macao in 1992 and was a founding member of the AOA in 1996 and joined the IOI in 1997. The Ombudsman institution has been operating under the new name since 1999. II. Organization The CCAC is headed by a Commissioner (Art 16 CCAC OL, Art 3 (1) CCAC ABL), who may nominate and delegate powers to two Deputy Commissioners, who are appointed and dismissed by the Chief Executive (Arts 16 and 24 CCAC OL, Art 3 (1) CCAC ABL). The Deputy Commissioners serve as Ombudsman Bureau Director and Anti- Corruption Bureau Director respectively (Arts 4, 17 (3) and 22 (3) CCAC ABL). Deputy Commissioners must be ‘competent individuals with well- recognized merit, probity and independence’ (Art 24 (1) CCAC OL). The Commissioner appoints one Deputy to take over responsibilities in the event of absence or impediment (Art 25 (1) CCAC OL). The more senior Deputy Commissioner assumes the powers of the Commissioner if the office becomes vacant (Art 25 (2) CCAC OL). The Ombudsman Bureau of the CCAC employs 53 staff (36 (67.9 %) of whom are women), whereas 30 are ‘Ombudsmen’ (17 (56.7 %) of whom are women) and 23 are supporting staff (who serve both the Ombudsman Bureau and the Anti-Corruption Bureau). Of the ‘Ombudsmen’, one is the Commissioner, one is the Deputy Commissioner heading the Ombudsmen Bureau, one is a consultant, two are department heads, and 25 are investigators or senior investigators. Investigators are required to have concluded eleven years of schooling and CCAC training courses, whereas all higher-level staff are required to dispose of a university degree or be recognized as highly competent (Art 29 CCAC OL) (currently ten staff members hold a Master’s degree and 18 a Bachelor’s degree). The budget of the CCAC, which is a global item within the Macao SAR budget, is prepared by the Commissioner in advance (Art 3 (2) CCAC ABL) and then approved by the Chief Executive, before the Commissioner determines specific allocations (Art 40 CCAC OL, Art 40 CCAC ABL). The Service of CCAC, which provides administrative and technical support, enjoys financial autonomy (Art 37 (2) CCAC OL). 179 Part Two: Different Jurisdictions III. Legal Status According to Art 50 (6) Basic Law and Art 17 CCAC OL, the Commissioner is nominated by the Chief Executive and appointed by China’s Central People‘s Government for a term equivalent to that of the Chief Executive (i.e. five years) (see Art 1 (2) Administrative Bylaw No. 24/2010, Art 48 Basic Law) and not subject to any limitations regarding the possible number of reappointments. The Commissioner may renounce their post (Art 23 (3) CCAC OL), be suspended if served ‘with a decision of indictment or with a decision designating a date for a trial hearing for the commitment of any intentional crime’ (Art 23 (1) CCAC OL), or dismissed without justification by the Central People’s Government upon recommendation of the Chief Executive (Art 50 (6) Basic Law and Art 23 (2) CCAC OL). Deputy Commissioners are nominated by the Commissioner and appointed and dismissed by the Chief Executive (Art 24 CCAC OL). The Commissioner freely appoints and dismisses advisers, investigators and other necessary staff, determines their functional status, and enjoys disciplinary power over them (Arts 30 and 38 CCAC OL). While in office, the Commissioner is prohibited from undertaking any public or private professional activity, remunerated or not, and may not hold positions in trade unions or political organizations, unless the Chief Executive grants an exception in the public interest (Art 18 CCAC OL). While candidates for the position of Commissioner are not subject to any specific qualification requirements pursuant to the CCAC OL and CCAC ABL, Deputy Commissioners must be recognized as competent and independent individuals (Art 24 CCAC OL) (for necessary employee qualifications see above). Remuneration of the Commissioner is equal to that of Secretaries (i.e. Ministers of the government of Macao) (Art 21 CCAC OL), while Deputy Commissioners receive 70 per cent of the salary of the Commissioner (Art 24 (3) CCAC OL). According to Art 59 Basic Law and Art 2 CCAC OL, the CCAC functions independently. The Commissioner is not bound to instructions of the Chief Executive. The same Article, however, also establishes accountability to the Chief Executive. The CCAC is granted autonomy of administration, finance and property (Art 37 (2) CCAC OL), as well as procedural autonomy (Art 10 CCAC OL). The Commissioner cannot be held liable, civilly or criminally, for the performance of duties, and may only be arrested or kept in pre-trial detention after having been served with a decision of indictment or once a trial date has been set – except if caught in the act of committing a crime punishable with more than three years imprisonment (Art 22 CCAC OL). 180 9. SAR Macao, People’s Republic of China (Thomas Stephan Eder) IV. Scope of Supervision The Ombudsman Bureau may investigate all bodies of public administration, as well as corporate entities with public majority shareholders and concessionaires of public services or commercial exploitation of assets belonging to the public domain. It may also investigate ‘relationships between private individuals involving a special relation of dominance, within the scope of the protection of rights, freedoms and safeguards’ (Art 2-A (2) CCAC OL). The CCAC may not influence judicial decisions, but must follow up criminal proceedings on matters within its jurisdiction (Art 4 (7) CCAC OL). Copies of accusations, indictments and final court decisions must be provided to the CCAC (Art 11 (7) CCAC OL). Judicial confidentiality applies to the investigations and inquiries of the CCAC (Art 6 (5) CCAC OL). Investigations may be initiated by the CCAC on its own initiative if certain facts come to its attention (Art 9 CCAC OL) or following individual complaints. All residents may approach the Ombudsman Bureau and file oral or written complaints, which are not subject to formal requirements or fees. Complaints may be brought in Chinese or Portuguese, although English complaints have also been processed in the past. Complaints may concern administrative illegalities, embezzlement and fraud, or the efficiency of administrative procedures, as the CCAC oversees both the legality and rationality of administrative procedures. This includes grievances related to the violation of rights, freedoms, safeguards and legitimate interests of individuals, or illegality in the exercise of public authority, injustice and inefficiency of public administration (Art 3 (5) CCAC OL). The CCAC may at any point during proceedings determine that ‘facts lie outside its scope of activity’ or that evidence is insufficient and thus close proceedings (Art 12 (3) CCAC OL. Claimants must remain informed and are entitled to receive reasoned decisions (Art 12 (3), (4) CCAC OL). The CCAC may determine that a certain matter is subject to other administrative or judicial remedies provided by law and refer claimants to the appropriate authorities (Art 13 (1) CCAC OL). In any event, claimants should always be informed of all available remedies (Art 13 (2) CCAC OL). The CCAC may provide recommendations on the rectification of illegal or unfair administrative acts and the performance of due acts to authorities which are subject to complaints, as well as recommendations on the adoption of administrative measures and normative acts to the Chief Executive (Art 4 (9)-(12) CCAC OL). Regarding matters within the power of the Legislative Assembly, the CCAC may issue recommendations 181 Part Two: Different Jurisdictions ‘concerning their interpretation, amendment or repeal, or make suggestions for new legislation’, if ‘rights, freedoms, safeguards or any legitimate interests’ are involved. If recommendations are rejected without due reason, the CCAC may approach the relevant superiors or supervisory entities and possibly the Chief Executive (Art 12 (6) CCAC OL). V. Powers V.1. Powers in Relation to Administrative Organs The Commissioner is accountable to and nominated by the Chief Executive, appointed by the Central People’s Government and dis- missed by it upon recommendation of the Chief Executive (Arts 50 (6) and 59 Basic Law and Arts 2, 17 and 23 (2) CCAC OL). However, Art 59 Basic Law and Art 2 CCAC OL also determine that the CCAC functions independently. It is not part of the legislative, executive or judicial branch and even though the Chief Executive may recommend the dismissal of the Commissioner, the work of the CCAC may not be directed. The budget of the CCAC is approved by the Chief Executive, but the institution initially proposes and then autonomously administers it with financial, administrative and procedural autonomy (Arts 10, 37 (2) and 40 CCAC OL, Arts 3 (2), 40 CCAC ABL). Pursuant to Art 6 (1), (2) and (4) CCAC OL, the CCAC may demand that authorities provide information, documents and other materials, or conduct investigations, inquiries, analyzes or any other necessary measures. The Commissioner may access all ‘information kept in the files of the Administration and of public and autonomous entities’, where necessary for investigations. The CCAC may inspect, with or without prior notice, any premises of public units, take evidence and conduct inquiries and investigations (Art 4 (2)-(4) and Art 6 (4) CCAC OL). It may also summon any person for testimony where deemed necessary (Art 12 (2) CCAC OL). All public and private, legal and natural persons are subject to a general duty to cooperate with the CCAC, notwithstanding the safeguard of their rights and legitimate interests (Art 5 CCAC OL). Refusing to testify without justification after having rejected a repeated pertinent request pursuant to Art 12 (2) CCAC, constitutes a crime of disobedience and is subject to penalties (Art 14 (1) CCAC OL). All in- dividuals are subject to increased penalties for aggravated disobedience with the exception of persons subject to complaints regarding the obstruction of the work of the CCAC, public entities failing to comply with information requests under Art 6 (2) CCAC OL and public servants committing acts of corruption (Art 14 (2) CCAC OL). In such cases, 182 9. SAR Macao, People’s Republic of China (Thomas Stephan Eder) criminal proceedings do not preclude civil or disciplinary liability (Art 14 (3) CCAC OL). V.2. Powers in Relation to Courts The CCAC may not interfere with judicial decisions. Claimants must be referred to the appropriate authorities where matters are determined to be subject to judicial remedies (Art 13 (1) CCAC OL). Nevertheless, the Commissioner is obliged to follow up criminal proceedings on all matters within the jurisdiction of the CCAC (Art 4 (7) CCAC OL) and demand copies of accusations, indictments and final court decisions (Art 11 (7) CCAC OL). Judicial confidentiality pursuant to the Penal Code and Penal Procedure Code also apply to investigations and inquiries of the CCAC (Art 6 (5) CCAC OL). Within their jurisdiction, the Commissioner and Deputies enjoy the status of criminal police authorities when carrying out acts of criminal procedure. In the context of CCAC inquiries, this includes all acts and measures performed by criminal police authorities as well as searches and seizures as may be carried out by the Procuratorate under penal procedure legislation (Art 11 (3) and (4) CCAC OL). V.3. Powers in Relation to Legislative Organs The Legislative Assembly is not involved in the appointment or dismissal of the Commissioner, who is not entitled to participate in debates of the Legislative Assembly, but may do so if explicitly requested. The annual reports of the CCAC are addressed to the Chief Executive and general public (Art 15 (1) CCAC OL) and not the Legislative Assembly. The CCAC OL does not require any institution to react to the annual report. The CCAC may provide recommendations on legislation, if ‘rights, freedoms, safeguards or any legitimate interests’ are involved. In all other cases, opinions may only be expressed to the Chief Executive. V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The CCAC does not enjoy any particular functions or powers for the purpose of protecting human rights. Macao does not have an institution accredited as a NHRI with the International Coordinating Committee (ICC) of the OHCHR. The CCAC does, however, hold the status of a member of the delegation of China, which participates in the universal periodic review by the Human Rights Council of the United Nations. 183 Part Two: Different Jurisdictions VI. Practice In 2013, the CCAC dealt with 959 complaints (604 newly filed cases and 355 carried over from 2012) and concluded 510. The latter mainly pertained to issues within the public service, such as personnel rights, discipline and recruitment (104 (20.4 %)), municipal affairs (44 (8.6 %)), law enforcement (43 (8.4 %)) and land and public works (illegal construction and use of property) (40 (7.8 %)). Compared to 2012, this constitutes an increase of complaints from the previous 929 (502 newly filed cases and 427 carried over from 2011) and a decrease in concluded cases from the previous 563. The latter mainly pertained to issues within the public service, such as personnel rights, discipline and recruitment (111 (21.8 %)), law enforcement (86 (16.9 %)), land and public works (illegal construction and usage of property) (68 (13.3 %)) and health care (62 (12.2 %)). VII. Reform There are no plans to reform the Ombudsman Bureau of the CCAC in the near future. VIII. Information Constitution (Basic Law of the Special Administrative Region Macau): http://bo.io.gov.mo/bo/i/1999/leibasica/index_uk.asp#c3 Law: http://www.ccac.org.mo/en/ Homepage: http://www.ccac.org.mo/en/ 184 10. Malaysia Thomas Stephan Eder A. Constitutional Background Territories of the Malay Peninsula formed the Federation of Malaya in 1948 and became independent in 1957. In 1963, the Federation of Malaya was joined by Sabah and Sarawak on Borneo Island, as well as Singapore for a period of two years, and became Malaysia. The constitution of the parliamentary monarchy was initially adopted in 1957 and last amended in 2007. The nominal Head of State and nominal head of the executive is a paramount ruler (King), who is elected by a Conference of Rulers for a five-year term (Part IV Art 32 (1) and (3) and Art 39 of the Constitution). Peninsular Malayan states, except for Malacca and Penang, are ruled by hereditary rulers (Sultans), while the others are directed by State- appointed Governors (Arts 70 and 71 of the Constitution). Legislative powers rest with a bicameral parliament, which consists of a partly elected and partly appointed upper house (Senate) and an elected lower house (House of Representatives), for three- and five-year terms respectively (Arts 44, 45 and 66 (1) of the Constitution). The Prime Minister acts as head of government and must command a parliamentary majority of the lower house and be appointed by the paramount ruler (Art 40 (2) (a) and Art 43 (2) (a) of the Constitution). The Cabinet of Ministers is also appointed by the paramount ruler upon recommendation by the Prime Minister, while all Ministers are also Members of Parliament (Art 43 (2) (b) of the Constitution). The Cabinet of Ministers leads the executive branch (Art 39 of the Constitution). The Malaysian court system, with a dual hierarchy of civil and Sharia courts, consists of Magistrates’ Courts, Sessions Courts, High Courts and Courts of Appeal. The highest court is the Federal Court, composed of a Chief Justice and four other judges. The latter are appointed by the King upon recommendation of the Prime Minister (Arts 121 and 122 of the Constitution). 185 Part Two: Different Jurisdictions Part II of the Constitution is titled ‘Fundamental Liberties’ (Arts 5 to 13) and lists various fundamental rights, such as equality before the law (Art 8), the prohibition of arbitrary detention (Art 5), the right of assembly (Art 10) as well as social and economic rights. B. Overview of Existing Ombudsman Institutions Malaysia has established the Biro Pengaduan Awam – Malaysia Public Complaints Bureau (PCB) –, an administrative Ombudsman institution on the federal level with a general mandate. The PCB has local offices in ten states. There are no comparable regional or local institutions. In addition to the PCB, there are several other complaint redress systems, such as the Human Rights Commission of Malaysia (SUHAKAM), the Malaysian Anti-Corruption Commission (MACC), the Auditor General Office, the National Consumer Complaints Sector, the Enforcement Agency Integrity Commission (EAIC) and the Special Task Force to Facilitate Business (PEMUDAH). C. Public Complaints Bureau +*KUVQT[CPF.GICN$CUKU The institution was initially set up as a part of the General Planning Division of the Prime Minister’s Office in 1971. Through the Development Administration Circular No. 4 of 1992 (hereinafter: DAC 1992), the PCB became a full-fledged department under the Prime Minister’s Office. In 2009, its position was further strengthened by the Development Administration Circular No. 1 of 2009 (hereinafter: DAC 2009). The PCB was a founding member of the AOA in 1996, but is not a member of the IOI. II. Organization The PCB is headed by a Director General, with two deputies respectively responsible for management and complaints. The PCB comprises three divisions and ten units as well as a Permanent Committee on Public Complaints (PCPC) and an Advisory Board. The PCPC is chaired by the Chief Secretary to the Government – i.e. the head of the civil service of Malaysia. Its members include the Director General of the PCB, the Director General of the Public Service Malaysia, 186 10. Malaysia (Thomas Stephan Eder) the Director General of the Malaysia Administrative Modernization & Management Planning Unit, the Chief Commissioner of the Malaysia Anti-Corruption Commission, the Senior Deputy Secretary General of the Prime Minister’s Department and the Secretary General of the Treasury, Ministry of Finance. The PCPC drafts, directs department heads and takes decisions on reports submitted by the PCB. The Advisory Board was established in 2006 and comprises ten representatives from government, media, the private sector and NGOs/ academia. It advises the PCB on management and monitoring in complaint handling, project execution, cooperation with other agencies and project evaluation. Moreover, the PCB has established a Public Complaints Management System (iSPAAA). The iSPAAA is an integrated computerized public complaints management platform intended to more efficiently channel complaints. The PCB implements the iSPAAA (Integrated Public Agencies Complaints Monitoring System) in all Ministries and government agencies, allowing for a more efficient management of public complaints. The public will be able to channel complaints through this web-based system to any government agencies ‘anytime, anywhere’ and to check the status of their complaints electronically. The PCB can use the iSPAAA to conduct more holistic analyzes of frequent complaints and their root causes, as well as propose remedial measures and preventive action. III. Legal Status The Director General of the PCB is appointed and removed as other civil servants and does not have a specific tenure. IV. Scope of Supervision The PCB may investigate any activities of administrative agencies on the federal, state and local level (except in Sabah and Sarawak), as well as the activities of privatized former government agencies and private entities that have a monopoly and provide public services. The judiciary is excluded from the scope of supervision of the PCB, as are cases under the purview of the Public Accounts Committee (PAC), the Enforcement Agency Integrity Commission (EAIC), the Malaysian Anti-Corruption Commission (MACC) and the Legal Aid Bureau. Nor may the PCB investigate complaints regarding government policies. The PCB investigates illegal behaviour amounting to an abuse of power, other maladministration or procedural mistakes, as well as unjust or unfair action and misconduct of civil servants. Moreover, 187 Part Two: Different Jurisdictions complaints may concern inadequacies in policy implementation as well as (the enforcement of) laws and the quality of public services. Investigations may be initiated on the own initiative of the PCB and through individual complaints by both citizens and non-citizens. The PCB has established Mobile Complaints Counters (MCC) and Integrated Mobile Complaints Counters (IMCC) to pro-actively provide opportunities for claimants to submit their grievances. They may do so orally or in the written form, in person, by telephone, text message, fax, letter or e-mail, without incurring fees. Complaints should include the name, gender, occupation and contact details of claimants, as well as the subject of the complaint and agency complained against, the state and district concerned, actions requested from such agency and actions requested from the PCB. Complaints may be submitted on behalf of other persons and may also be anonymous. Investigations are only initiated if sufficient information is provided and warranted by public interest. Generally, the PCB is only obliged to carry out investigations, if a complaint is deemed to dispose of a certain basis. Complaints of public interest are brought to the attention of the PCPC and the Cabinet. Measures taken by the relevant government agencies are monitored. According to the Standard Operating Procedures of the PCB (SOP), all complaints must be resolved within 15 days. V. Powers V.1. Powers in Relation to Administrative Organs The PCB is an administrative agency subordinate to the Prime Minister’s department. Its Director General is appointed and removed in the same fashion as other civil servants. The PCB is not equipped with any legal powers, but may require any government department or agency to provide any necessary information through Circulars by the Chief Secretary to the Government of Malaysia, who serves as Chairman of the PCPC (see above). The PCB reports to the PCPC, which then decides upon appropriate actions to be taken, e.g. instituting investigations and directing officials to appear before it. The PCB recommends a certain outcome of investigations to the PCPC, whose decisions it then forwards to the pertinent agencies for corrective measures and actions. Complaint managers within all government agencies regularly provide suggestions regarding the improvement of administrative services. The PCB cooperates with them, provides advice and its own suggestions. 188 10. Malaysia (Thomas Stephan Eder) The PCB prepares weekly reports on its work regarding preventive measures, which are filed with the Secretaries General of the various Ministries and published on the website of the PCB, as well as ‘Monthly Complaints Management Reports’ for cabinet meetings, Secretaries General and meetings of heads of services. It also submits quarterly reports to the Cabinet that cover complaints received and resolved by the respective Ministries. Finally, it compiles annual statistics. V.2. Powers in Relation to Courts Courts of law are exempted from the jurisdiction of the PCB. The PCB neither monitors the administration of justice, nor influences judicial decisions or requests information on pending court cases. V.3. Powers in Relation to Legislative Organs Parliament is not involved in any way in the appointment or dismissal of the head of the PCB or its staff. The PCB is not obliged to report to parliament. V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The PCB does not enjoy any particular functions or powers for the purpose of protecting human rights. The Malaysian Human Rights Commission (SUHAKAM) is accredited as NHRI with the International Coordination Committee according to the Paris Principles (Status A). VI. Practice Unfortunately, no information could be obtained in this regard. VII. Reform There are currently no efforts to reform the PCB. VIII. Information Constitution: http://www.jac.gov.my/images/stories/akta/federalconstitution.pdf Law: http://www.pcb.gov.my/en/complaint/circulars 189 Part Two: Different Jurisdictions Homepage: http://www.pcb.gov.my/en 190 11. Pakistan Philipp Janig A. Constitutional Background Pakistan gained independence from the United Kingdom in 1947, but did not have a formal constitution until 1956. Its current constitution was enacted in 1973, following the secession of East Pakistan (now Bangladesh) two years prior. It has been amended numerous times, most recently in 2015. The State has repeatedly come under military rule, causing the repeated suspension and subsequent restoration of its constitution. Pakistan has a common law system influenced by Islamic law. Article 1 of the Constitution declares Pakistan to be a federal republic, composed of four provinces (Balochistan, the Khyber Pakhtunkhwa, the Punjab and Sindh) and two territories (the Islamabad Capital Territory and the Federally Administered Tribal Areas (hereinafter: FATA)). The relationship between the Federation and Provinces is largely governed by Part V of the Constitution (Arts 141–159), which divides the legislative and executive powers between the Federation and Provinces. All such matters listed in the Federal Legislative List, enshrined in the Constitution’s Fourth Schedule, fall within the legislative competence of the Federation. The Provinces may pass laws in all other matters. The FATA are directly administered by the President and federal administration, with the territory generally being outside the jurisdiction of the Federal Parliament and Supreme Court (Art 247). Islam is declared as the State religion of Pakistan (Art 2). The international status of the two territories that form Pakistan- administered Kashmir, namely Azad Jammu and Kashmir and Gilgit- Baltistan, is subject to a dispute between Pakistan and India and remains unsettled. The region will be discussed in a separate chapter below, annexed to this chapter. The legislative powers of the Federation are exercised by the parliament, the Majlis-e-Shoora, which consists of the President and two houses 191 Part Two: Different Jurisdictions (Art 50). The lower house, the National Assembly, has 342 members, 272 of whom are elected by popular vote in single-member territorial constituencies. Of the remaining seats, sixty are reserved for women and ten for non-Muslims. These members of the National Assembly are elected by way of a proportional representation system based on lists provided by political parties. The constituency for all seats reserved for women is the respective province, for non-Muslims it is the whole country (Art 51). Members serve for a period of five years (Art 52). The 104 members of the upper house, the Senate, are indirectly elected by provincial assemblies and such territories’ representatives in the National Assembly for six-year terms, with each half being elected every three years. Several seats are reserved for women, technocrats and non-Muslims (Art 59). The Head of State is the President, who is elected for a five-year term by an electoral college comprising the Members of Parliament and provincial assemblies (Art 41, Second Schedule). The Federal Government exercises the executive authority of the Federation and consists of the Prime Minister and Federal Ministers (Art 90). The Cabinet is collectively responsible to the Parliament (Art 91 (6)). In the provinces, the legislative body is the unicameral Provincial Assembly with differing numbers of seats (65 to 371), some of which are reserved for women and non-Muslims. The majority of members are elected from single member territorial constituencies (Art 106) for five- year terms (Art 107). Every province is headed by a Governor, who is appointed by the President of Pakistan on advice of the Chief Minister of the relevant province (Art 104). The Chief Minister is elected by the Provincial Assembly and is the head of the Provincial Government, the provincial executive body (Art 129). The Supreme Court of Pakistan serves as a final court of appeal for the High Courts (Art 185) and the Federal Shariat Court (Art 203F). In addition, it enjoys original jurisdiction with regard to declaratory judgments in disputes between different governments, federal and/ or provincial, and to issue writs for the enforcement of fundamental rights enshrined in Chapter I of Part II of the Constitution (Art 184). Upon request of the President, the Supreme Court also renders advisory opinions on questions of law of public importance (Art 186). The Federal Shariat Court may render decisions on the conformity of laws with Islamic values and nullify laws it finds ‘repugnant’ to the injunctions of Islam (Art 203D). In addition, it may revise judgments of criminal courts regarding penalties arising from Islamic Law on its own motion (Art 203DD). The High Courts have original jurisdiction to issue various writs following applications (Art 199) and enjoy appellate jurisdiction over 192 11. Pakistan (Philipp Janig) subordinate courts. Under the High Courts are provincial, district civil and criminal courts. In addition, further special courts and tribunals are established. Judges are supervised by the Supreme Judicial Council, which consists of the Chief Justice of Pakistan, the two next most senior judges of the Supreme Court and the two most senior Chief Justices of High Courts (Art 209). The Constitution also contains a list of fundamental rights in Chapter I of Part II (Arts 8–28), i.a. stipulating the prohibition of arbitrary detention (Art 10), right to a fair trial (Art 10A), right to information (Art 19A) and equality of citizens before the law (Art 25). B. Overview of Existing Ombudsman Institutions Pakistan has a national Ombudsman institution with a comprehensive mandate, the Federal Ombudsman (Wafaqi Mohtasib). There are also several other national institutions with a limited mandate, namely the Federal Tax Ombudsman, two institutions in the financial sector (the Federal Banking Ombudsman and the Federal Insurance Ombudsman), as well as an Ombudsman for the Protection against Harassment of Women in the Workplace. On the regional level, all provinces of Pakistan have established their own Provincial Ombudsman institutions. Punjab and Sindh additionally have a Provincial Ombudsman for the Protection against Harassment of Women in the Workplace. All Pakistani Ombudsman institutions are administrative ones. There are no comparable institutions on a local level. C. Federal Ombudsman of Pakistan 9CHCSK/QJVCUKD +*KUVQT[CPF.GICN$CUKU The institution was set up through the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (President’s Order No. 1 of 1983; hereinafter: OO), during the military rule of General Muhammad Zia-ul-Haq. The legal basis was first amended through an Ordinance in 2002, and then again through the Federal Ombudsmen Institutional Reforms Act, 2013 (Act No. XIV of 2013; hereinafter: FOIRA), an act of parliament. Under that legislation, the Ombudsman 193 Part Two: Different Jurisdictions is given a comprehensive mandate to investigate maladministration in federal administration and private legal entities (partly) under State supervision. Furthermore, the Freedom of Information Ordinance, 2002 (Ordinance No. XCVI of 2002; hereinafter: FIO) has granted the office additional powers to safeguard citizens’ right to freedom of information. Procedural aspects concerning individual complaints and investigations by the Ombudsman are laid down in the Wafaqi Mohtasib (Investigation and Disposal of Complaints) Regulations, 2013 (hereinafter: Regu- lations), which have been promulgated by the Ombudsman, with the consent of the President (see Art 36 OO). The Federal Ombudsman of Pakistan is a member of the IOI, the AOA, the Organisation of Islamic Cooperation Ombudsmen Association (OICOA) and the Forum of Pakistan Ombudsman (FOP). He has been elected as Regional President of the IOI for Asia and is currently the Asian Director on the IOI Board of Directors. The Ombudsman Office is one of the founding members of the AOA, the secretariat of which is located on the premises of the office of the Federal Ombudsman of Pakistan in Islamabad. II. Organization The Federal Ombudsman is headed by one Ombudsman, with no deputies. The institution enjoys administrative and financial autonomy (Sec 17 (1) FOIRA; Art 24 OO). Staff members of the Ombudsman Office are appointed by the President (or a person thus authorized) and entitled to such salary and allowances as prescribed, which must be comparable to those of federal government employees under the National Pay Scales (Art 8 OO). Such appointments require the Ombudsman’s acceptance. Only a few administrative positions are filled from a pool of government servants, as the Ombudsman has the power to appoint aides (such as interns, advisers or experts) and may set their remuneration (Arts 20, 26 (1) OO). As of 2015, the institution has a total of 538 employees (32 of whom are female). Their qualifications vary depending on the nature or requirements of the position and range from primary level education to Master’s degrees. The budget of the institution is charged as an expenditure to the Federal Consolidated Fund (Art 35 OO; Sec 17 (2) FOIRA; see Art 81 of the Constitution). Thus, its allocation lies at the discretion of the Federal Government and is not subject to a vote in the National Assembly (Art 82 of the Constitution). The institution enjoys financial autonomy, and the Ombudsman may freely decide upon usage of the allocated budget (Sec 17 FOIRA). 194 11. Pakistan (Philipp Janig) In addition to its main office in Islamabad, the institution has regional offices in Lahore, Karachi, Peshawar, Quetta, Sukkur, Multan, Faisalabad, Dera Ismail Khan and Hyderabad (its power to establish such offices is enshrined in Art 9 (4) OO). Such offices possess the same equipment as the Head Office. III. Legal Status The Ombudsman is appointed by the President (Art 3 OO) for a four- year term (Art 4 OO) and generally not eligible for any extension or reappointment (Art 4 OO), but continues to hold office until a new Ombudsman is installed (Sec 3 FOIRA). There are no formal qualification criteria for the position. The salary, allowances and privileges of the Ombudsman are determined by the President and not subject to change during a running term of office (Art 6 (1) OO). According to the institution, the salary of the Ombudsman is high in comparison to that of a Minister, Member of or other public servant. The office is incompatible with any other office of profit in the service of Pakistan or any other position in which the Ombudsman’s services are remunerated. In addition, the Ombudsman may not hold any office of profit in the service of Pakistan, other than judicial or quasi-judicial, for a period of two years at the end of tenure. The Ombudsman is not eligible for election as a Member of Parliament, Provincial Assembly or local body and may not take part in any political activity during their term or two years thereafter (Art 5 OO; Secs 19, 20 FOIRA). The Ombudsman and all other persons are immune from criminal, civil and all other legal proceedings for anything done or intended to be done in good faith under the OO or the FIO (Art 30 OO; Sec 22 FIO). The Ombudsman is independent from the executive branch in the performance of their functions (Art 3 (3) OO). Consequently, no court or other authority has jurisdiction to question the validity of any action taken or intended to be taken, order made, or anything done or purporting to have been taken, made or done under the OO (Art 29 OO). Moreover, no court or other authority has jurisdiction over any matter that falls within the jurisdiction of the Ombudsman, or may assume jurisdiction over any matter that is pending with or has been decided by the Ombudsman (Sec 18 FOIRA). The Ombudsman can be removed from office by the Supreme Judicial Council, if incapable of properly performing duties due to physical or mental incapacity or found guilty of misconduct (Sec 5 FOIRA). Additionally, the Ombudsman may be removed by the President for the same reasons. In such case, the Ombudsman may request an open public 195 Part Two: Different Jurisdictions evidentiary hearing before the Supreme Judicial Council. Should that hearing not be held within thirty days and proceedings not be concluded within ninety days, the removal is void (Art 6 OO).340 IV. Scope of Supervision The bodies under supervision of the Ombudsman pursuant to the OO are those parts of federal public administration and private legal entities (partly) under State supervision that are considered to constitute an ‘Agency’. An ‘Agency’ is defined as a ‘Ministry, Division, Department, Commission or office of the Federal Government or statutory body corporation or other institution established or controlled by the Federal Government’ (Art 2 (1) OO) and includes an ‘Agency in which the Federal Government has any share or which has been licensed or registered by the Federal Government and notified by the Federal Government in the Official Gazette’ (Sec 2 (a) FOIRA). The Ombudsman has no jurisdiction regarding matters that are currently sub-judice (pending) before a competent court, tribunal or board, or are related to either the external affairs or defence of Pakistan, the military, naval and air forces or matters covered by laws relating to those forces (Art 9 (1) OO). Also, the Ombudsman may not accept complaints regarding service matters, thus complaints by public servants or functionaries in matters concerning terms and conditions of service at a federal agency in which they have been working (Art 9 (2) OO). Such complaints fall within the jurisdiction of the Federal Service Tribunal. In addition, Article 31 (3) OO empowers the President to exclude specified matters, public functionaries or Agencies from the scope of the OO, and thus the jurisdiction of the Ombudsman. The President has exercised this power with regard to the Federal Public Service Commission (see Ministry of Law, Justice and Parliamentary Affairs from 22 January 1995, S.R.O. 82(I)/95) and Pakistan Telecommunications Ltd. (PTCL). The supervision criterion enshrined in the OO is ‘mal-administration’, which includes the violation of legal rules and other forms of bad administration. The OO contains an extensive definition of what is to 340 It is unclear whether this particular provision is still in force. While the institution has claimed that it was repealed by the FOIRA, the Federal Tax Ombudsman (with a similar provision in its legislation) has stated otherwise. Moreover, the FOIRA neither explicitly repeals that provision, nor does the language of Section 5 FOIRA indicate an intention to derogate Article 6 OO (as it provides that the ‘Ombudsman may be removed from office through [the] Supreme Judicial Council’ (emphasis added)). 196 11. Pakistan (Philipp Janig) be considered ‘mal-administration’, namely ‘a decision, process, re- commendation, act of omission or commission which is contrary to law, rules or regulations or is a departure from established practice or procedure, unless it is bona fide and for valid reasons; or is perverse, arbitrary or unreasonable, unjust, biased, oppressive, or discriminatory; or is based on irrelevant grounds; or involves the exercise of powers or the failure or refusal to do so, for corrupt or improper motives, such as, bribery, jobbery, favouritism, nepotism and administrative excesses; and neglect, inattention, delay, incompetence, inefficiency and ineptitude, in the administration or discharge of duties and responsibilities‘ (Art 2 (1) OO). Investigations under the OO may be initiated upon an individual complaint, following a reference by the President, the Federal Council, the National Assembly, a motion of the Supreme Court or a High Court during its proceedings, or on the Ombudsman’s own motion (Art 9 (1) OO). Individual complaints are free of charge. Under the OO, any aggrieved person may lodge a complaint. Com- plaints must be brought in writing and provide a solemn affirmation that the allegations therein are truthful, not subject to a complaint already filed and not sub-judice. Online complaints are possible. Anonymous or pseudonymous complaints are not entertained. Complaints must be lodged no later than three months from notice of the matter alleged, however, the Ombudsman may conduct an investigation thereafter if special circumstances make it feasible to do so (Art 10 OO; Sec 3 (3), (4) Regulations). In principle, complaints may be brought in Urdu, English or any regional language of Pakistan (Sec 3 (1) Regulations), but they are also accepted in any other language with all translation costs being borne by the Ombudsman’s office. The Ombudsman may decide not to conduct investigations in a given case, but is then required to provide a statement detailing reasons for doing so to the claimant (Art 10 (10) OO). According to the institution, the Ombudsman conducts investigations in all admissible matters. Investigations by the Ombudsman are conducted in private (Sec 10 (5) OO). The Ombudsman may, at any time during proceedings, attempt to informally resolve the dispute without having to docket a complaint or issue an official notice (Art 33 OO). The procedure under the FIO is initiated by individual complaint (Sec 19 FIO), which only Pakistani citizens may submit (Sec 12 FIO). Complaints under the FIO are possible in cases of refusal by a public body, such as bodies of the Federal Government, the parliament and the judicial branch, to provide information or copies of certain public records. Under Section 19 of the FIO, after such information has been denied, the claimant must first file a complaint with the head of the pertinent public 197 Part Two: Different Jurisdictions body within 30 days. Only if such action is unsuccessful, may recourse to the Ombudsman be taken. V. Powers V.1. Powers in Relation to Administrative Organs and Private Actors The Ombudsman is appointed by the President but is independent from the executive branch in the performance of functions (Art 3 (3) OO). Consequently, no authority has jurisdiction to question the validity of any action taken or intended to be taken, order made, or anything done or purporting to have been taken, made or done under the OO (Art 29 OO). Moreover, no authority has jurisdiction over any matter that falls within the jurisdiction of the Ombudsman, or may assume jurisdiction over any matter that is pending with or has been decided by the Ombudsman (Sec 18 FOIRA). Art 3 (3) OO states that all executive authorities of Pakistan must provide aid to the Ombudsman. During an investigation, the Ombudsman may require any office or member of the Agency subject to a given complaint to provide any information or document. In such context, Agencies are under no obligation to maintain secrecy, unless the President permits a claim of privilege regarding information or documents as State secrets (Art 10 (9) OO). With the consent of the respective provincial government, the Ombudsman may also compel any Agency, public servant or functionary under the provincial government’s administrative control to undertake certain matters of taking evidence (Art 21 OO). Additionally, for the purpose of performing official functions under the OO, the Ombudsman may generally compel the assistance of any person or authority as far as it is within their power or capacity (Art 23 OO). The Ombudsman has the authority to enter any premises for the purpose of an inspection or investigation, if there is reason to believe that an article, book of accounts or any other document may be found that relates to the subject matter of inspection or investigation. During the search, the Ombudsman may inspect, copy, impound or seal such articles, books of accounts or other documents and make an inventory of them. Searches must be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898 (Art 15 OO). The Ombudsman enjoys the same powers as a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908) concerning the taking of certain evidence. This includes powers regarding witness statements (summoning and enforcing attendance of any person and their examination 198 11. Pakistan (Philipp Janig) under oath), compelling the production of documents, receiving evidence on affidavits and issuing commission (Art 14 OO). The Ombudsman may require any claimant or party connected or concerned with a complaint, inquiry or reference to submit an affidavit within a certain period of time (Art 25 OO). No statement given by a person or authority as evidence before the Ombudsman may be used against them in civil or criminal proceedings or to subject them to such proceedings, except regarding prosecution for giving false evidence (Art 23 (3) OO). Additionally, the Ombudsman has the same powers as a civil court in terms of granting temporary injunctions (Sec 10 (i) FOIRA), for the purpose of staying the operation of the impugned order or decision for a period up to sixty days (Sec 11 FOIRA). If the Ombudsman finds an individual complaint to be false, frivolous or vexatious reasonable compensation may be awarded to the Agency, public servant or functionary subject to the complaint. The amount of compensation is recoverable from the claimant as arrears of land revenue and its award does not debar the aggrieved party from seeking further civil and criminal remedy (Art 14 (4) OO). In cases where the Ombudsman finds instances of maladministration, recommendations are provided to the Agency concerned. That Agency then must inform the Ombudsman of the action taken or reasons for failing to comply with it, within a period of time specified by the Ombudsman. If the Agency does not comply with the recommendations of the Ombudsman and fails to provide sufficient reasons for non-compliance, such action is considered ‘Defiance of Recommendations’. In such case, a report by the Ombudsman becomes part of the personal file or character roll of the public servant primarily responsible for such ‘Defiance of Recommendations’, but only if that public servant has been granted the opportunity to be heard in the matter. In addition, the Ombudsman may refer the matter to the President, who may direct the relevant Agency to implement the pertinent recommendation and appropriately inform the Ombudsman (Arts 11, 12 OO). If, upon conclusion of investigations of a given complaint, it appears to the Ombudsman that injustice has been caused to the claimant in consequence of maladministration which has not been or will not be remedied, a special report may be submitted to the President (Art 11 (4) OO). Additionally, the Ombudsman may, if the claimant has suffered any loss or damage due to maladministration by a public servant, other functionary or agency, and after hearing the wrongdoer, award reasonable costs or compensation to the claimant, recoverable as arrears of land revenue from the pertinent public servant, functionary or agency (Art 22 (1) OO). 199 Part Two: Different Jurisdictions The OO and the FOIRA grant the Ombudsman certain coercive powers in the context of investigations and for the purpose of ensuring the implementation of recommendations. Failure to comply with a direction of the Ombudsman over the course of investigations may lead to referral of the matter to the appropriate authority for disciplinary action against such Agency, public servant or functionary failing to comply. Additionally, if the Ombudsman has reason to believe that any public servant or functionary has acted in a manner warranting disciplinary proceedings, the matter may be referred to the appropriate authority for necessary action to be taken within a period of time specified by the Ombudsman (Sec 14 (5), (6) OO). Moreover, the Ombudsman may punish any person for contempt and in such regard enjoys the same powers as the Supreme Court (Art 16 OO) under the Contempt of Court Ordinance, 2003 (V of 2003) (Sec 12 FOIRA). Article 16 OO stipulates the circumstances under which a person may be punished for contempt, including if obstructing the process of the Ombudsman, disobeying their orders or doing anything which tends to prejudice the determination of a matter pending before the Ombudsman. However, fair comments on the work of the Ombudsman or their staff that are made in good faith and in the public interest do not constitute contempt. Any person sentenced for contempt may appeal to the Supreme Court within thirty days (Art 16 OO). The Contempt of Court Ordinance, 2003, defines further circumstances under which a person may be punished for contempt (i.a. for interfering with a witness or disregarding an order) punishable with imprisonment not exceeding six months and/or fines not exceeding 100,000 PKR. Under Section 10 FOIRA, the Ombudsman has the ‘powers of a civil court’ to implement ‘recommendations, orders and decisions’. According to the institution, this encompasses measures such as imprisonment and confiscation of property. Whether this provision entails the possibility to enforce recommendations (which would go beyond the usual powers of an Ombudsman institution) is unclear. Should the Ombudsman be of the opinion that a person is guilty of maladministration, the case may be referred to the concerned authority for corrective or disciplinary action. Within thirty days, the authority then must inform the Ombudsman of action taken, with the matter otherwise being brought to the notice of the President for actions thus deemed fit (Art 13 OO). Parties aggrieved by a decision, order, finding or recommendation of the Ombudsman may file a review petition within thirty days. The Ombudsman may then alter, modify, amend or recall the action petitioned against within 45 days (Sec 13 FOIRA). 200 11. Pakistan (Philipp Janig) Any person aggrieved by a decision or order of the Ombudsman may, within thirty days of the decision or order, make a representation to the President (Art 32 OO; Sec 14 (1) FOIRA). If such representation is made, the operation of the impugned order or decision is suspended for sixty days. Such representation shall be processed in the office of the President by a person who either has been or still is qualified to be a judge of the Supreme Court, or has acted as Federal Ombudsman or Federal Tax Ombudsman. The President then passes an appropriate order within 90 days (Sec 14 FOIRA). Under Article 28 OO the Ombudsman must submit annual reports on their work to the President. Additional reports may be relayed to the President if deemed necessary by the Ombudsman or desired by the President. Also, the Ombudsman may perform studies or research, which the office may make available to the public, similar to conclusions, recommendations, ideas or suggestions in matters being dealt with by the office (Art 28 OO). V.2. Powers in Relation to Courts Under the OO, the Ombudsman has no powers in relation to Courts, as the bodies of the federal judiciary (namely the Supreme Court, Supreme Judicial Council, Federal Shariat Court, as well as the High Courts) are not considered ‘Agencies’ and are thus outside of their jurisdiction (Art 2 (1) OO). Moreover, matters that are sub-judice (pending in court) are specifi- cally excluded from the jurisdiction of the Ombudsman (Art 9 (1)(a) OO). Vice versa, no court has jurisdiction over any matter that falls within the jurisdiction of the Ombudsman, or may assume jurisdiction over any matter that is pending with or has been decided by the Ombudsman. In addition, no court may question the validity of an action taken or order made by the Ombudsman under the OO or grant interim measures in relation to any proceedings before the Ombudsman (Art 29 OO; Sec 18 FOIRA). Moreover, all persons are immune against criminal, civil and all other legal proceedings for anything done or intended to be done in good faith under the OO or the FIO (Art 30 OO; Sec 22 FIO). In particular, no statement given by a person or authority as evidence before the Ombudsman may be used against them in civil or criminal proceedings or be used to subject them to such, except in the context of prosecution for giving false evidence (Art 23 (3) OO). Conversely, over the course of proceedings before it, the Supreme Court or a High Court may bring cases before the Ombudsman (Art 9 (1) OO). In addition, when exercising writ jurisdiction, the Supreme Court or a High Court may interfere with the work of the Ombudsman. 201 Part Two: Different Jurisdictions If the Ombudsman has reason to believe that a public servant or functionary has acted in a manner warranting criminal proceedings, the matter may be referred to the appropriate authority for necessary action to be taken within the time specified by the Ombudsman (Art 14 (6) OO). Under the FIO, the Ombudsman may order a court to hand over public information or documents to a Pakistani citizen following a complaint by that citizen. V.3. Powers in Relation to Legislative Organs The parliament is not involved in the appointment or removal of the Ombudsman. While the Ombudsman does not participate in parliamentary debates, in practice, written answers to questions raised by Members of Parliament regarding specific issues are provided. The annual report, as well as additional reports or documents published by the Ombudsman are to be placed before the President and the National Assembly. There are no consequences by law for non-submission (Art 28 (5) OO). V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The OO does not grant the Ombudsman any particular functions or powers relating to the protection of human rights, the violation of which is investigated and redressed by the Ministry of Human Rights. However, Section 19 of the FOIRA provides citizens with the possibility to complain against violations of their right to information (Art 19A Constitution of Pakistan). VI. Practice In 2014, the institution received 41,659 new complaints under the OO, in addition to a backlog of 38,191 cases (a total of 79,850), and disposed of 77,311. Of new complaints, 20,781 (49.9 %) pertained to Power Distribution Companies (DISCOs), 5,254 (12.6 %) to Natural Gas Providers (SNGPL- SSGCL) and 3,195 (7.7 %) to the National Database Registration Authority (NADRA). Approximately 95 % of complaints directed against these agencies were admitted. In addition, the institution received 127 complaints under the FIO, of which 101 (79.5 %) were admitted. The Ombudsman disposed of 94 (93 %) admitted cases, offering relief in 16 (17 %), rejecting two (2.1 %) and closing a further 76 (80.8 %). 202 11. Pakistan (Philipp Janig) Review petitions were filed with the Ombudsman in 1,010. 772 (76.4 %) were decided and of these, 96 (12.4 %) admitted. In addition, 371 representations were filed with the President, of which 26 (7 %) were accepted for decision. In 17 (65.4 %), the decision of the Ombuds- man was upheld and four (15.4 %) cases were remanded back to the insti- tution. In 2013, the institution received 35,276 complaints under the OO. Of these, 16,745 (47.5 %) pertained to Power Distribution Companies (DISCOs), 4,910 (13.9 %) to Natural Gas Providers (SNGPL-SSGCL) and 1,941 (5.5 %) to the National Database Registration Authority (NADRA). Thus, by far the most complaints concerned public corporations, in particular within the energy sector. According to the 2013 Annual Report, most of these complaints revolved around denial and delay of entitlements or arbitrary actions. The National Database Registration Authority was the most complained-against agency that is not a public corporation. Most such complaints concerned the delay or non-issuance of ID Cards. There is no specific information on the number of representations made to the President against orders or decisions of the Ombudsman or on complaints under the FIO during 2013. During 2011 and 2012, complaints were lodged with the institution under the OO and investigated as usual. However, these investigations could not be finalized, as the position of the Ombudsman was vacant throughout that period, leading to a significant backlog. VII. Reform The office has recently been reformed by the Federal Ombudsmen Institutional Reforms Act, 2013, in order to make the service more citizen-friendly and effective. While this reform has not changed the mandate or scope of jurisdiction of the institution, the Office has been given more authority to implement its findings, as well as procedural tools, such as the power to grant injunctions. The Ombudsman is now also required to complete an investigation and issue pertinent findings within 60 days (Sec 9 (5) FOIRA). Effectively, the mandate of the Ombudsman has also been extended by government action. A presidential order that excluded the Federally Administered Tribal Areas (Chief Martial Law Administrator’s Secretariat Pakistan Notification from 13 August 1984, No.57/104(15)/ML-IBA) from the Ombudsman’s jurisdiction has recently been lifted. Another order by the Ministry of Law, Justice & Human Rights has declared the Karachi Electric Supply Company (KESC) an ‘Agency’ under the Federal Ombudsmen Institutional Reforms Act, 2013, and thus brought it under 203 Part Two: Different Jurisdictions the jurisdiction of the Ombudsman (Notification of 11 September 2013, No. F.516/2013-LAW-1). VIII. Information Constitution: Constitution of the Islamic Republic of Pakistan http://www.na.gov.pk/uploads/documents/1333523681_951.pdf Laws and Regulations: Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, as amended by Ordinance No. LXXII of 2002 http://goo.gl/n3Thhn Federal Ombudsmen Institutional Reforms Ordinance, 2013 http://goo.gl/qNlmgC Wafaqi Mohtasib (Investigation and Disposal of Complaints) Regulations, 2013: http://goo.gl/Lu1uco Annual Reports: Annual Report 2014 http://goo.gl/GFViLx Annual Report 2013 http://goo.gl/0SJ4ai Homepage: http://www.mohtasib.gov.pk D. Federal Tax Ombudsman +*KUVQT[CPF.GICN$CUKU The Federal Tax Ombudsman was set up through the Establishment of the Office of Federal Tax Ombudsman Ordinance, 2000 (Ordinance No. XXXV of 2000; hereinafter: FTOO), which was later amended by the FOIRA. Under this legislation, the Federal Tax Ombudsman has the mandate to investigate maladministration by the federal tax administration. In addition, the FIO has granted the Federal Tax Ombudsman the same powers as enjoyed by the Federal Ombudsman with regard to ensuring citizens’ right to information. Procedural aspects of the Ombudsman’s work are laid down in the Federal Tax Ombudsman Investigation 204 11. Pakistan (Philipp Janig) and Disposal of Complaints Regulations, 2001 (hereinafter: FTO Regulations). The institution opened office in 2000 and later became a member of the IOI (2002), the AOA (2002) as well as the OICOA. The Federal Tax Ombudsman also hosted the first meeting of the OICOA in April 2014. II. Organization The institution enjoys administrative and financial autonomy (Sec 17 (1) FOIRA; Sec 24 FTOO). The staff members of the Ombudsman Office are appointed by the Federal Tax Ombudsman and entitled to such salary and allowances as prescribed by law, which must be comparable to those of Federal Government employees under the Basic Pay Scales (Sec 8 FTOO). The Ombudsman also has the power to appoint aides to assist with the performance of duties (such as interns, advisers or experts) and may set their remuneration (Secs 20, 26 (1) FTOO). As of 2015, the institution has 175 employees, seven of whom are female. While upper staff members are mostly university graduates, lower ones possess various levels of education. Illiterate staff is not recruited. In addition to its main office in Islamabad, the institution has regional offices in Karachi, Quetta, Lahore and Peshawar. The budget of the institution is charged as an expenditure to the Federal Consolidated Fund (Sec 17 (2) FOIRA; see Art 81 of the Constitution). Thus, its allocation lies at the discretion of the Federal Government and is not subject to a vote in the National Assembly (Art 82 of the Constitution). Section 17 FOIRA provides that the Federal Tax Ombudsman enjoys full financial autonomy and thus may freely decide upon budget usage. III. Legal Status The Federal Tax Ombudsman is appointed by the President (Sec 3 FTOO), holds office for four years and is not eligible for extension or reappointment (Sec 4 FTOO), but continues to hold office until a successor is installed (Sec 3 FOIRA). The FTOO does not stipulate any qualification requirements. The salary of the Federal Tax Ombudsman, allowances and privileges are determined by the President and not subject to change during the term of office of the Ombudsman (Sec 6 (1) FTOO). Such salary and allowances are linked to the salaries and allowance of judges of the Supreme Court, which, according to the incumbent Ombudsman, are higher than those of Federal Ministers and Federal Secretaries. 205 Part Two: Different Jurisdictions The office is incompatible with any other office of profit in the service of Pakistan or any other position in which services provided by the Ombudsman are remunerated. In addition, the Ombudsman may not hold any office of profit in the service of Pakistan, other than judicial or quasi-judicial, for a period of two years after the end of tenure, and is not eligible for election as a Member of Parliament, Provincial Assembly or any local body and may not take part in any political activity while in office or for two years thereafter (Sec 5 FTOO; Secs 19, 20 FOIRA). The Federal Tax Ombudsman and all other persons are immune against criminal, civil and all other legal proceedings for anything done or intended to be done in good faith under the FTOO or FIO (Sec 30 FTOO; Sec 22 FIO). The Federal Tax Ombudsman is independent from the executive branch in the performance of functions (Art 3 (3) FTOO). Consequently, no court or other authority has jurisdiction to question the validity of any action taken, or intended to be taken, order made, or anything done or purporting to have been taken, made or done under the OO (Art 29 FTOO). Moreover, no court or other authority has jurisdiction over any matter that falls within the jurisdiction of the Ombudsman, or may assume jurisdiction over any matter that is pending with or has been decided by the Ombudsman (Sec 18 FOIRA). The Federal Tax Ombudsman can be removed from office by the Supreme Judicial Council, if incapable of properly performing official duties due to physical or mental incapacity or found guilty of misconduct (Sec 5 FOIRA). The Ombudsman may also be removed by the President for such reasons, but then may request an open public evidentiary hearing before the Supreme Judicial Council. Should that hearing not be held within thirty days and proceedings not concluded within ninety days, the removal is void (Sec 6 FTOO). IV. Scope of Supervision The bodies under supervision of the Federal Tax Ombudsman are ‘Revenue Divisions’, thus the federal public administration dealing with fiscal issues (Sec 2 (7) FTOO). Matters currently sub-judice before a competent court, tribunal or board, as well as other matters concerning a broad range of issues,341 if 341 Those relating to assessment of income or wealth, determination of liability of tax or duty, classification or valuation of goods, interpretation of law, rules and regulations relating to such assessment, determination, classification or valu- ation. 206 11. Pakistan (Philipp Janig) they are open to appeal, review or revision under the relevant legislation are exempted from the jurisdiction of the Federal Tax Ombudsman (Sec 9 (1) FTOO). Furthermore, the Ombudsman may not accept complaints regarding service matters, i.e. complaints by public officers in matters concerning their service at the Revenue Division (Sec 9 (2) FTOO). The supervision criterion employed is ‘mal-administration’, which includes the violation of legal rules and other forms of poor administration. The exact definition is largely identical to that enshrined in the legislation of the Federal Ombudsman (see above, Part C.IV) and additionally includes ‘repeated notices, unnecessary attendance or prolonged hearings while deciding cases involving assessment of income or wealth, determination of liability of tax or duty, classification or valuation of goods, settlement of claims of refund, rebate or duty drawback, or determination of fiscal and tax concessions or exemptions; wilful errors in the determination of refunds, rebates or duty drawbacks; deliberate withholding or non- payment of refunds, rebates or duty drawbacks already determined by the competent authority; coercive methods of tax recovery in cases where default in payment of tax or duty is not apparent from record; and avoidance of disciplinary action against an officer or official whose order of assessment or valuation is held by a competent appellate authority to be vindictive, capricious, biased or patently illegal’ (Sec 2 (3) FTOO). Investigations may be initiated upon individual complaint, following a reference by the President, the Senate, the National Assembly, motion of the Supreme Court or a High Court throughout proceedings, or upon the Ombudsman’s own motion (Sec 9 (1) FTOO). Under the FTOO, any aggrieved person may submit an individual complaint. Complaints must be brought in writing together with the solemn affirmation of the claimant that no complaint has yet been filed and representation to the department subject to the complaint either been unsuccessful or not made. Complaints must be lodged no later than six months from notice of the matter alleged, although the Federal Tax Ombudsman may conduct investigations thereafter if special circumstances render it feasible (Sec 10 FTOO; Sec 3 (2) FTO Regulations). Individual complaints are free of charge. The Ombudsman may decide not to conduct an investigation, in which case the claimant must be provided with a statement detailing reasons for doing so (Sec 10 (10) FTOO). Investigations by the Ombudsman are conducted in private (Sec 10 (5) FTOO). In addition, the Ombudsman may, at any time throughout proceedings, attempt to informally resolve the dispute without having to docket a complaint or issue an official notice (Sec 33 FTOO). The procedure under the FIO is initiated by individual complaints (Sec 19 FIO) which may only be submitted by Pakistani citizens (Sec 12 FIO). 207 Part Two: Different Jurisdictions Complaints under the FIO may be made against the refusal of public bodies, such as those of the Federal Government, parliament and the judicial branch, to provide information or copies of certain public records. Pursuant to Section 19 of the FIO, after an information request has been denied, a claimant must first file a complaint with the head of the public body within 30 days. Only after such measure is unsuccessful, recourse to the Ombudsman may be taken. V. Powers V.1. Powers in Relation to Administrative Organs The Federal Tax Ombudsman is appointed by the President, but independent from the executive branch in the performance of functions (Art 3 (3) FTOO). Consequently, no other authority has jurisdiction to question the validity of any action taken, or intended to be taken, order made, or anything done or purporting to have been taken, made or done under the OO (Art 29 FTOO). Moreover, no authority has jurisdiction over any matter that falls within the jurisdiction of the Ombudsman, or may assume jurisdiction over any matter that is pending with or has been decided by the Ombudsman (Sec 18 FOIRA). Section 3 (3) FTOO stipulates that all executive authorities of Pakistan must provide aid to the Federal Tax Ombudsman. Throughout investigations, the Ombudsman may require all fiscal public officers to provide any information or document. Agencies are not subject to obligations to maintain secrecy, unless the President issues a claim of privilege regarding information or documents considered State secrets (Sec 10 (9) FTOO). With the consent of the respective provincial government, the Federal Tax Ombudsman may also compel any agency, public servant or functionary under the provincial government’s administrative supervision to take evidence (Sec 21 FTOO). Generally, under the FTOO, for the purpose of performing official functions, the Ombudsman may compel the assistance of any person or authority within the limits of their power or capacity (Sec 23 FTOO). For the purpose of inspections and investigations, the Federal Tax Ombudsman enjoys the authority to enter any premises if there is reason to believe that an article, book of accounts or other document may be found that relates to the subject matter of the inspection or investigation. During such search, the Ombudsman may inspect, copy, impound or seal such articles, books of accounts or other documents and make an inventory thereof. Such search must be carried out in accordance 208 11. Pakistan (Philipp Janig) with the provisions of the Code of Criminal Procedure, 1898 (Sec 15 FTOO). Concerning the taking of certain evidence, the Federal Tax Ombudsman enjoys the same powers as a civil court under the Code of Civil Procedure, 1908 (Act V of 1908). This includes powers regarding witness statements (summoning and enforcing attendance of any person and their examination under oath), compelling the production of documents, receiving evidence on affidavits and issuing commission (Sec 14 FTOO). The Ombudsman may require any claimant or party connected or concerned with a complaint, inquiry or reference to submit an affidavit within a specified period of time (Sec 25 FTOO). No statement given by a person or authority as evidence before the Federal Tax Ombudsman may be used against them in civil or criminal proceedings, or subject them thereto, except in the context of prosecuting the provision of false evidence (Sec 23 (3) FTOO). The Federal Tax Ombudsman possesses the same powers as a civil court in terms of granting temporary injunctions (Sec 10 (i) FOIRA), for the purpose of staying the operation of an impugned order or decision for a period of up to sixty days (Sec 11 FOIRA). Regarding coercive powers, the Federal Tax Ombudsman has the same powers as those enjoyed by the Supreme Court in terms of penalizing contempt, i.a. if a person disobeys an order of the Ombudsman. Such coercive measures are open to appeal before the Supreme Court (Sec 16 FTOO; Sec 12 FOIRA). The Federal Tax Ombudsman may refer a given matter to the appropriate authority for disciplinary action, should a public official of the Revenue Division or other fiscal official fail to comply with an order of the Ombudsman throughout investigations. Additionally, if the Ombudsman has reason to believe that such an official has acted in a manner warranting disciplinary proceedings, the matter may be referred to the appropriate authority for necessary action to be taken within a specified time (Sec 14 (5), (6) FTOO). If the Federal Tax Ombudsman finds an individual complaint to be false, frivolous or vexatious, reasonable compensation may be awarded to the public official subject to the complaint. Any such compensation is then recoverable from the claimant as arrears of land revenue and does not debar the aggrieved party from seeking further civil or criminal remedy (Sec 14 (4) FTOO). In cases of maladministration, the Ombudsman provides recom- mendations to the Revenue Division concerned. The Revenue Division (and fiscal official) concerned are then under the obligation to implement such findings within thirty days. Thereafter, they must either inform 209 Part Two: Different Jurisdictions the Ombudsman within a specified time of action taken upon such recommendation or reasons for failing to do so. If the given Revenue Division does not comply with the recommendations of the Ombudsman or provides insufficient reasons for non-compliance, such conduct is considered ‘Defiance of Recommendations’, resulting in a report of the Ombudsman becoming part of the personal file or character roll of the pertinent official primarily responsible for such ‘Defiance of Recommendations’ (after being granted the opportunity to be heard). In addition, the Ombudsman may refer a given matter to the President, who may direct the Revenue Division to implement the recommendation and appropriately inform the Ombudsman (Sec 11, 12 FTOO). In cases of maladministration, the Federal Tax Ombudsman may refer the case to the concerned authority for corrective or disciplinary action. That authority must then inform the Ombudsman of action taken within thirty days, otherwise resulting in the Ombudsman potentially bringing the matter to the notice of the President for such action as deemed fit (Sec 13 FTOO). In cases where the Federal Tax Ombudsman finds that injustice has been caused to the claimant as a consequence of maladministration which has not been or will not be remedied, a special report may be submitted to the President (Sec 11 (4) FTOO). Under Section 10 FOIRA, the Federal Tax Ombudsman has the ‘powers of a civil court’ to implement ‘recommendations, orders and decisions’. According to the Federal Ombudsman, this encompasses measures such as imprisonment and confiscation of property. Whether this provision entails the possibility of enforcing recommendations (which would go beyond the usual powers of an Ombudsman institution) is unclear. A party aggrieved by a decision, order, finding or recommendation of the Federal Tax Ombudsman may file a review petition within thirty days. The Ombudsman may then alter, modify, amend or recall the action petitioned against within 45 days (Sec 13 FOIRA). Any person aggrieved by a decision or order of the Federal Tax Ombuds- man may, within thirty days of the decision or order, request representation to the President (Sec 14 (1) FOIRA). If such representation is made, operation of the impugned order or decision is suspended for sixty days. Such representation must then be processed at the office of the President by a person who has been or is qualified to be a judge of the Supreme Court, or has acted as Federal Ombudsman or Federal Tax Ombudsman. The President then passes an order within 90 days (Sec 14 FOIRA). Pursuant to Section 28 FTOO, the Federal Tax Ombudsman must submit an annual report to the President within three months of con- clusion of a given calendar year. Moreover, the Ombudsman may submit 210 11. Pakistan (Philipp Janig) additional reports relating to official functions to the President, deemed necessary or so desired by the President. Also, the Ombudsman may perform studies or research, which the office may make available to the public, similar to conclusions, recommendations, ideas or suggestions in matters being dealt with by the office (Sec 28 FTOO). V.2. Powers in Relation to Courts The judiciary and its conduct are outside the scope of the FTOO. Moreover, matters that are sub-judice are excluded from the jurisdiction of the Federal Tax Ombudsman (Sec 9 (1)(a) FTOO). Vice versa, no court has jurisdiction over any matter that falls within the Ombudsman’s jurisdiction or that is pending with or decided by the Ombudsman. In addition, no court may question the validity of an action taken or order made by the Federal Tax Ombudsman under the FTOO or grant interim measures in relation to any proceeding before to Ombudsman (Sec 29 FTOO; Sec 18 FOIRA). Furthermore, all persons are immune against criminal, civil and all other legal proceedings for anything done or intended to be done in good faith under the FTOO or FIO (Sec 30 FTOO; Sec 22 FIO). In particular, no statement given by a person or authority as evidence before the Ombudsman may be used against them in civil or criminal proceedings, or subject them thereto, except in the context of prosecuting the provision of false evidence (Art 23 (3) FTOO). Conversely, the Supreme Court or a High Court may bring cases before the Federal Tax Ombudsman in the context of proceedings (Sec 9 (1) FTOO) and interfere with the work of the Ombudsman in exercise of their writ jurisdiction. If the Federal Tax Ombudsman has reason to believe that a public servant has acted in a manner warranting criminal proceedings, the matter may be referred to the appropriate authority for necessary action to be taken within a period of time specified by the Ombudsman (Sec 14 (6) FTOO). V.3. Powers in Relation to Legislative Organs Legislative organs have no influence in the context of the appointment or removal of the Federal Tax Ombudsman. Although the annual report, as well as additional reports or documents published by the Ombudsman are to be submitted to the Senate (the upper house of parliament) or the National Assembly (the lower house of parliament), no consequences for non-submission are provided by law (Sec 28 (5) FTOO). 211 Part Two: Different Jurisdictions V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The Federal Tax Ombudsman does not enjoy any particular functions or powers for the purpose of protecting human rights under the FTOO. However, Section 19 of the FIO provides that citizens may contest violations of their right to information (Article 19A, Constitution of Pakistan). VI. Practice In 2014, 1,624 new individual complaints were brought before the institution. Of those, 835 (51.4 %) concerned income tax, 536 (33 %) sales tax and 219 (13.5 %) customs. In the same year, 43 complaints were informally resolved. 72 review petitions were filed and 167 representations brought against the decisions of the institution. In 2013, the institution received 1,898 individual complaints. 886 (46.7 %) of those pertained to income tax, 721 (38 %) to sales tax and 281 (14.8 %) to customs. This demonstrates an increase compared to the numbers of 2012, in which 1,689 complaints were brought. Of those, 883 (52.3 %) concerned income tax, 517 (30.6 %) sales tax and 269 (15.9 %) customs. VII. Reform The institution was recently amended by the FOIRA. For further information, see above Part C.VII (Federal Ombudsman). VIII. Information Establishment of the Office of Federal Tax Ombudsman Ordinance, 2000 (Ordinance No. XXXV of 2000): http://www.fto.gov.pk/LegalFramework.php Annual Reports 2000–2013: http://www.fto.gov.pk/AnnualReports.php Homepage: http://www.fto.gov.pk/ 212 11. Pakistan (Philipp Janig) E. Banking Mohtasib of Pakistan +*KUVQT[CPF.GICN$CUKU The legal basis of the institution is laid down in Part IVA of the Banking Companies Ordinance, 1962 (Ordinance No. LVII of 1962; hereinafter: BCO), which was inserted into the BCO by an amendment in 1997. The abovementioned FOIRA included amendments to the legal framework of the institution as well. The Banking Mohtasib is mandated with investigating maladministration in the private and public banking sectors. The Banking Mohtasib took up office in 2005 and is a member of the AOA (2009), IOI (2013) and also the OICOA. II. Organization The Ombudsman is provided with a Secretariat (Sec 82B (3) BCO) and enjoys administrative autonomy (Sec 17 FOIRA). Thus, appointments, the creation of new and abolition of old posts are the sole prerogative of the Banking Mohtasib. As of 2015, the institution has 18 employees, of whom seven are female. The institution has regional offices in Lahore, Rawalpindi, Peshawar, Quetta and Multan. The budget of the institution is charged as an expenditure to the Federal Consolidated Fund (Sec 17 (2) FOIRA; see Art 81 of the Constitution). Thus, its allocation lies at the discretion of the Federal Government and is not subject to a vote in the National Assembly (Art 82 of the Constitution). Pursuant to Section 17 FOIRA, the Banking Mohtasib enjoys full financial autonomy and thus may freely decide upon usage of the allocated budget. III. Legal Status The Banking Mohtasib is appointed by the President in consultation with the Governor of the State Bank of Pakistan (Sec 82A BCO) for a term of office of four years and not eligible for any extension of tenure or reappointment, but continues to hold office until a successor is installed (Sec 3 FOIRA). The BCO requires the Banking Mohtasib to be a person of high integrity and unimpeachable banking or legal credentials who is not, and has not been, a bank defaulter (Sec 82A (2) BCO). Pursuant to Section 82B (1), the Banking Mohtasib is entitled to the same salary and allowances as a judge of a High Court (see Article 205, Fifth Schedule, Constitution of Pakistan, read in conjunction with President’s Order No. 3 of 2006). 213 Part Two: Different Jurisdictions The office of the Banking Mohtasib is incompatible with any other office of profit in the service of Pakistan or any other position in which services are remunerated. In addition, the Banking Mohtasib may not hold any office of profit in the service of Pakistan, other than judicial or quasi-judicial, for two years upon end of tenure and is not eligible for election as a Member of Parliament, a Provincial Assembly or any local body and may not take part in any political activity during a term or for two years thereafter (Sec 82A (5) BCO; Secs 19, 20 FOIRA). The Banking Mohtasib is also prohibited from holding shares of a banking company or financial institution (Sec 82A (2) BCO). The BCO does not provide for the immunity of the Banking Mohtasib. The institution enjoys administrative and financial autonomy (Sec 17 (1) FOIRA). Moreover, no authority has jurisdiction over any matter that falls within the jurisdiction, pending with or decided by the Banking Mohtasib (Sec 18 FOIRA). The Banking Mohtasib may be removed from office by the Supreme Judicial Council, if considered incapable of properly performing duties due to physical or mental incapacity or found guilty of misconduct (Sec 82B (2) BCO; Sec 5 FOIRA). IV. Scope of Supervision The bodies under supervision of the Banking Mohtasib are all banks – private and public – operating in Pakistan (Sec 82B BCO). Complaints may not be entertained if the matter is pending before a court or other legal forum. Similarly, no complaints or applications may be considered which have already been disposed of by the State Bank or any court in Pakistan (Secs 82D (4), 82B (5) (c) BCO). Applicable supervision criteria include the violation of legal rules and various forms of poor administration. In particular, the Banking Mohtasib may consider complaints concerning ‘failure to act in accordance with banking laws and regulations including policy directives or guidelines issued by the State bank from time to time […]; delays or fraud in relation to the payment or collection of cheques, drafts or other banking instruments or the transfer of funds; fraudulent or unauthorised withdrawals or debit entries in accounts; complaints from exporters or importers relating to banking services and obligations including letters of credit; complaints from holders of foreign currency accounts, whether maintained by residents or non-residents; complaints relating to remittances to or from abroad; complaints relating to mark-up or interest rates based on the grounds of a violation of an agreement or of State Bank 214 11. Pakistan (Philipp Janig) directives; and complaints relating to the payment of utility bills’ (Sec 82B (5)(a) BCO). Regarding banks in the public sector, the Banking Mohtasib may additionally take cognizance of corrupt or mala fide practices by bank officers, gross dereliction of duty in dealing with customers and inordinate delays in taking decisions (Sec 82B (5)(b) BCO). Investigations may be initiated following individual complaints, reference by a court or if the State Bank requires an inquiry (Secs 82B, 82C, 82G (2) BCO). Individual complaints must be made in writing and on solemn affirmation or oath. Additionally, claimants must contact the relevant banking institution subject to a given complaint in advance and communicate the intention to file a complaint with the Banking Mohtasib. Only if the pertinent bank fails to respond within 45 days or provides an unsatisfactory response, may the claimant lodge a complaint with the Banking Mohtasib within further 45 days. In case of delay, the Banking Mohtasib may still consider the relevant complaint if satisfied that there were reasonable grounds for delay (82D BCO). Individual complaints are free of charge. In practice, the Banking Mohtasib also entertains ‘informal complaints’, which do not follow the formal criteria laid down in the BCO (see below, Part E.VI). The Banking Mohtasib may reject complaints, but is then required to provide a reasoned order detailing grounds for such decision (Sec 82D (5) BCO). Inquiries required by the State Bank are subject to mandatory investigations and appropriate reports detailing relevant results (Sec 82G BCO). V. Powers V.1. Powers in Relation to Administrative Organs and Private Actors The Banking Mohtasib is appointed by the President. Compared to other institutions, the issue of independence from the executive branch is of lesser importance, as the Banking Mohtasib does not investigate the conduct of public administration, but rather that of (public and private) banks. The institution enjoys administrative and financial autonomy (Sec 17 (1) FOIRA) and is not subject to the jurisdiction of any authority regarding matters falling within its own jurisdiction, pending with or decided by it (Sec 18 FOIRA). The institution has the power to receive evidence on affidavits and issue commission for the examination of witnesses (Sec 82B (4) BCO). In 215 Part Two: Different Jurisdictions addition, it may require banks to disclose information relevant to pending complaints, but must ensure banking confidentiality. When investigating cases of corruption, the institution enjoys an extended scope of action. In such context, the Banking Mohtasib may draw adverse inferences and submit appropriate comments in pertinent findings, should a given bank refuse to provide requested information considered relevant (Sec 82F BCO). The institution enjoys the same powers as a civil court in terms of granting temporary injunctions (Sec 10 (i) FOIRA), leading to a stay of operation concerning an impugned order or decision (including private banks) for a period up to sixty days (Sec 11 FOIRA). If the Banking Mohtasib comes to the conclusion that a complaint is justified, an amicable resolution or settlement is attempted in a first step (Sec 82E (1) BCO). If that fails, findings and recommendations are communicated to the relevant bank, which is then under an obligation to implement such within forty days, unless an appeal is submitted to the Governor of the State Bank (according to the institution, such appeals are directed to the President of Pakistan instead) within thirty days. Any order not appealed in time becomes final and operative (Sec 82E (5), (6) BCO). Non-compliance may lead to penalties from the State Bank (Sec 82E (6) BCO) or Banking Mohtasib. The latter can punish persons for contempt as provided in the Contempt of Court Ordinance, 2003 (Ordinance No. V of 2003) (Sec 12 FOIRA). Under Section 10 FOIRA, the Banking Mohtasib has the ‘powers of a civil court’ to implement ‘recommendations, orders and decisions’. This encompasses measures such as imprisonment and confiscation of property. Whether this provision entails the possibility to enforce recommendations (and thus goes beyond the usual powers of an Ombudsman institution) is unclear. If found appropriate, the Banking Mohtasib may also forward a report to the State Bank and recommend an inquiry, the taking of requisite steps or legal proceedings against a bank which has acted in violation of banking laws, procedure, regulations or directives of the State Bank. Additionally, the Banking Mohtasib may recommend the initiation of action to the State Bank, including criminal prosecution or disciplinary proceedings should a bank in the public sector be involved in a case of banking malpractice, corruption, nepotism or gross and flagrant dereliction of duties and responsibilities of bank officers (Sec 82E (2) BCO). An order passed by the Banking Mohtasib that is not appealed within thirty days becomes final and operative and, if not implemented, may be subject to fines or penalties for the bank concerned, and lead to disciplinary or other proceedings for the relevant bank officer, imposed 216 11. Pakistan (Philipp Janig) by the State Bank (Sec 82E (6) BCO). Until now, the State Bank has only resorted to the use of these powers on one occasion. A party aggrieved by a decision, order, finding or recommendation of the Ombudsman may file a review petition within thirty days. The Ombudsman may then alter, modify, amend or recall such action within 45 days (Sec 13 FOIRA). Any person aggrieved by a decision or order of the Ombudsman may, within thirty days, also request representation with the President (Sec 14 (1) FOIRA). If representation is made, the operation of the impugned order or decision is suspended for sixty days. Such representations must be processed in the office of the President, by a person who has acted as or is qualified to be a judge of the Supreme Court, or acted as the Federal Ombudsman or Federal Tax Ombudsman. Appropriate orders are passed by the President within ninety days (Sec 14 FOIRA). Pursuant to Sec 82G BCO, the Banking Mohtasib is required to file an annual report with the State Bank. V.2. Powers in Relation to Courts The judiciary itself, as well as matters pending in court or already decided by a court are outside the jurisdiction of the Banking Mohtasib (Secs 82D (4), 82B (5)(c) BCO). Vice versa, no court has jurisdiction over any matter that falls within the jurisdiction of the Ombudsman, is pending with or been decided by the Ombudsman (Sec 18 FOIRA). Conversely, courts trying cases related to the recovery of loans by banks may, if of the opinion that the relevant bank has prima facie acted mala fide or contrary to laws and regulations, refer the matter to the Banking Mohtasib for inquiry. This does not bar the competent court from deciding the case on the merits (Sec 82C BCO). In addition, the Supreme Court or a High Court may interfere with the work of the Ombudsman in exercise of their writ jurisdiction. V.3. Powers in Relation to Legislative Organs The Banking Mohtasib has no powers in relation to the legislative organs of Pakistan. V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The institution does not enjoy special functions or powers regarding the protection of human rights. 217 Part Two: Different Jurisdictions VI. Practice In 2014, a total of 4,506 complaints were brought before the Banking Mohtasib. These are divided into 3,569 ‘informal complaints’ (complaints that do not follow the procedure laid down in the BCO) and 937 ‘formal complaints’ (that have been made in accordance with the procedure of the BCO). Of all 4,506 complaints, 1,040 (23.1 %) pertained to service inefficiency, delays & other matters, 1,040 (23.1 %) to ATM machines and 810 (18 %) to advances, loans & deposits. The 937 formal complaints mostly concerned ATM machines (261; 27.9 %), consumer products (228; 24.3 %) and service inefficiency, delays & other matters (148; 15.8 %). In 2013, 4,238 complaints were instituted (3,147 ‘informal complaints’ and 1,091 ‘formal complaints’). Of all 4,238 complaints, 988 (23.3 %) pertained to consumer products, 939 (22.2 %) to service inefficiency, delays & other matters and 801 (18.9 %) to advances, loans & deposits. Of the 1,091 formal complaints, 288 (26.4 %) concerned consumer products, 250 (22.9 %) related to ATM machines and 230 (21.1 %) involved service inefficiency/delays/other matters. VII. Reform The institution was recently amended through the abovementioned FOIRA. For further information, see above Part C.VII (Federal Ombuds- man). VIII. Information Law (Banking Companies Ordinance 1962): http://www.bankingmohtasib.gov.pk/lawgb_mohtasib.php Annual Reports 2005-2013: http://www.bankingmohtasib.gov.pk/annual_reports.php Homepage: http://www.bankingmohtasib.gov.pk/ F. Federal Insurance Ombudsman +*KUVQT[CPF.GICN$CUKU The Federal Insurance Ombudsman was established by Part XVI of the Insurance Ordinance, 2000 (Ordinance No. XXXIX of 2000; 218 11. Pakistan (Philipp Janig) hereinafter: IO) and its legal framework amended by the abovementioned FOIRA. The Insurance Ombudsman is tasked with investigating maladministration in the insurance sector. The institution commenced its work in 2006 and is now a member of the IOI, AOA and OICOA. II. Organization The Insurance Ombudsman is supported by a secretariat (Sec 126 (4) IO) and enjoys administrative autonomy (Sec 17 FOIRA). The budget of the institution is charged as an expenditure to the Federal Consolidated Fund (Sec 17 (2) FOIRA; see Art 81 of the Constitution). Thus, its allocation lies within the discretion of the Federal Government and is not subject to a vote in the National Assembly (Art 82 of the Constitution). Section 17 FOIRA grants the Insurance Ombudsman full financial autonomy, allowing for discretionary usage of the pertinent budget. III. Legal Status The Insurance Ombudsman is appointed by the Federal Government (Sec 125 (1) IO), holds office for a period of four years, is not eligible for extension or reappointment (Sec 125 (2) IO) but continues to hold office until a successor is installed (Sec 3 FOIRA). The Insurance Ombudsman may be no older than seventy years of age, must be a person of high integrity and ability and possess unimpeachable insurance or legal credentials (Sec 125 (2) IO). Regarding incompatibilities, the Ombudsman may not have held any office in a corporate body in the field of insurance in Pakistan within the two years prior to appointment (Sec 125 (5) IO). The office is also incompatible with any other office of profit in the service of Pakistan or any other position in which services are remunerated. In addition, no office of profit in the service of Pakistan may be held, other than judicial or quasi-judicial, for two years upon end of tenure. Similarly, the Insurance Ombudsman is not eligible for election as a Member of Parliament, Provincial Assembly or any local body and may not take part in any political activity throughout the relevant term or for two years thereafter (Secs 19, 20 FOIRA). Nor may the Insurance Ombudsman be a shareholder of an insurance company (Sec 125 (2) IO). The IO does not provide for the immunity of the Insurance Ombudsman. Pursuant to Section 126 (1) IO, the Insurance Ombudsman is entitled to the same salary and allowances as a judge of a High Court (see Article 205, Fifth Schedule Constitution of Pakistan, read in con- 219 Part Two: Different Jurisdictions junction with President’s Order No. 3 of 2006). The institution enjoys administrative and financial autonomy (Sec 17 (1) FOIRA). No authority has jurisdiction over any matter that falls within the jurisdiction of the Insurance Ombudsman, or may assume jurisdiction over any matter that is pending with or has been decided by the institution (Sec 18 FOIRA). The Insurance Ombudsman can be removed from office by the Supreme Judicial Council if incapable of properly performing duties due to physical or mental incapacity or found guilty of misconduct (Sec 5 FOIRA). Additionally, appointment may be revoked if the Insurance Ombudsman is convicted of an offence involving moral turpitude, guilty of misconduct, insolvent, incapable of discharging official duties by reason of physical, physiological or mental unfitness and has been so declared by a registered medical practitioner appointed by the Securities and Exchange Commission of Pakistan (hereinafter: SEC), disqualified by virtue of holding any other remunerated office, or fails to discharge all duties under the IO diligently and impartially. However, if such grounds are not based on the judgement of a court or tribunal, the Insurance Ombudsman may only be dismissed subsequent to an inquiry conducted by an impartial person or body of persons (Sec 126 (3) IO). IV. Scope of Supervision The bodies under the supervision of the Insurance Ombudsman are insurance companies incorporated or operating in Pakistan (Sec 2 (xxxi), 127 IO). Matters that are within the jurisdiction of the Federal Ombudsman (Wafaqi Mohtasib), or sub-judice before a court, tribunal or board, are excluded from the jurisdiction of the institution. In addition, the Insurance Ombudsman may not accept complaints brought by insurance corporations which relate to contracts of reinsurance or complaints regarding service matters, i.e. complaints by employees in matters concerning their service at an insurance company (Sec 127 (1), (3), (4) IO). The applicable supervision criterion is ‘mal-administration’, which includes the violation of legal rules and other forms of poor administration. The definition is largely identical to that enshrined in the legislation applicable to the Federal Ombudsman (see above, Part C.IV), but additionally includes ‘corruption, nepotism, neglect [and] inordinate delay […] in the administration or discharge of duties and responsibilities’ (Sec 127 (2) IO). Investigations of the Insurance Ombudsman may be initiated following individual complaints, references by courts or if so required by the Federal Government (Secs 127 (1), 128, 134 (2) IO). 220 11. Pakistan (Philipp Janig) An individual complaint must be made in writing and upon solemn affirmation or oath. Additionally, before filing a complaint with the Insurance Ombudsman, a claimant must contact the insurance corporation subject to the matter and communicate the intention of submitting a complaint. Only if the relevant insurance company then fails to respond within one month or provides an unsatisfactory reply, may the claimant then lodge a complaint with the Insurance Ombudsman within further three months. Belated complaints may still be entertained if the Insurance Ombudsman is satisfied that there were reasonable grounds for the delay (Sec 129 IO). The Ombudsman may also reject complaints, but is then required to provide a reasoned order detailing such decision (Sec 129 (5) IO). Inquiries conducted by the Insurance Ombudsman upon direction of the Federal Government to conduct an inquiry, require the subsequent submission of a report detailing results (Sec 134 (2) IO). There is no fee for complaints. V. Powers V.1. Powers in Relation to Administrative Organs and Private Actors The Insurance Ombudsman is appointed by the Federal Government. However, compared to other institutions, the issue of independence from the executive branch is of lesser importance, as the Insurance Ombudsman does not investigate the conduct of public administration, but rather that of insurance corporations. The institution enjoys administrative and financial autonomy (Sec 17 (1) FOIRA), while no authority has jurisdiction over any matter falling within the jurisdiction of the Insurance Ombudsman, or may assume jurisdiction over any matter that is pending with or has been decided by the institution (Sec 18 FOIRA). The Insurance Ombudsman may require insurance companies to disclose information relevant to pending complaints, but must also ensure insurance confidentiality. When investigating cases of corruption, the institution enjoys extended discretion. The Insurance Ombudsman may draw adverse inferences and comment on such in pertinent findings, should an insurance corporation refuse to provide requested information (Sec 131 IO). Insurance corporations are under the obligation to cooperate with the Ombudsman. Obstructing investigations of the insurance Ombudsman through wilful acts or their omission constitutes an offence (Sec 132 IO). Additionally, the Insurance Ombudsman enjoys the same powers as a civil court in terms of granting temporary injunctions (Sec 10 (i) FOIRA) 221 Part Two: Different Jurisdictions for the purpose of staying the operation of an impugned order or decision for a period of up to sixty days (Sec 11 FOIRA). The Insurance Ombudsman may also report to the SEC if there is reason to believe that an insurer has failed to comply with the IO, failed to act in good faith, or acted in a manner bringing the insurance industry into disrepute. Similarly, reports to the SEC may also be provided regarding any matter arising from investigations into complaints, if deemed fit or appropriate. In such reports, the Insurance Ombudsman may provide recommendations on proposed action (Sec 133 IO). Initially, if the Insurance Ombudsman arrives at the conclusion that a complaint is justified, an amicable resolution or settlement must be attempted. Only if that fails, may findings and recommendations be communicated to the relevant insurance company, which is then under an obligation to implement such, unless an appeal is submitted to the SEC within thirty days. Any order not appealed in time becomes final and operative. Non-compliance with such is punishable with fines or penalties by the SEC and, with regard to the relevant insurance officer, disciplinary or other proceedings (Sec 130 IO). Under Section 10 FOIRA, the Insurance Ombudsman has the ‘powers of a civil court’ to implement ‘recommendations, orders and decisions’. This may encompass measures such as imprisonment and confiscation of property. Whether this provision entails the possibility to enforce recommendations (and thus goes beyond the usual powers of an Ombudsman institution) is unclear. The Insurance Ombudsman enjoys the same powers as the Supreme Court regarding the punishment of persons for contempt, i.a. if an order of the Ombudsman is disobeyed. Persons so sentenced have the possibility of appealing to the Supreme Court (Sec 12 FOIRA). A party aggrieved by a decision, order, finding or recommendation of the Insurance Ombudsman, may file a review petition within thirty days. The Ombudsman may then alter, modify, amend or recall the action petitioned against within 45 days (Sec 13 FOIRA). Any person aggrieved by a decision or order of the Insurance Ombudsman may, within thirty days of the decision or order, also request representation with the President (Sec 14 (1) FOIRA). If such representation is made, the operation of the impugned order or decision is then suspended for sixty days. Such representation is processed in the office of the President by a person who has either acted as or is qualified to act as judge of the Supreme Court, or who has acted as the Federal Ombudsman or Federal Tax Ombudsman. The President then passes an order within ninety days (Sec 14 FOIRA). 222 11. Pakistan (Philipp Janig) Under Section 134 (1) IO, the Insurance Ombudsman must submit annual reports to (and, pursuant to Sec 134 (2) IO additional ones if directed to conduct a particular inquiry by) the Federal Government. V.2. Powers in Relation to Courts The judiciary itself, as well as all matters pending in courts of law are outside the jurisdiction of the Insurance Ombudsman (Secs 127 (1) (b), 129 (4) IO). Vice versa, no court has jurisdiction over any matter that falls within the jurisdiction of the Insurance Ombudsman or that is pending with or been decided by the institution (Sec 18 FOIRA). However, courts may refer matters to the Insurance Ombudsman for inquiry where insurance corporations have prima facie acted mala fide or contrary to laws and regulations. Such referrals do not bar courts from deciding on merits (Sec 128 IO). In addition, when exercising their writ jurisdiction, the Supreme Court and High Courts may interfere with the work of the Ombudsman. V.3. Powers in Relation to Legislative Organs The Insurance Ombudsman does not have any powers in relation to the legislative organs of Pakistan. V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The Insurance Ombudsman does not have any functions or powers for the purpose of protecting human rights. VI. Practice In the working year 2008/09 the institution disposed of 208 cases. No more specific or recent data is available. VII. Reform The institution was recently amended through the abovementioned FOIRA. For further information, see above Part C.VII (Federal Ombuds- man). 223 Part Two: Different Jurisdictions VIII. Information Laws: http://www.theioi.org/downloads-ioi/850l2/Pakistan%20 %20 Insurance%20Ombudsman_2.pdf Annual Reports: Not available online Homepage: www.fio.gov.pk/ (account has been suspended) G. Ombudsman Institutions for the Protection against *CTCUUOGPVQH9QOGPKPVJG9QTMRNCEG +*KUVQT[CPF.GICN$CUKU The Protection against Harassment of Women at the Workplace Act, 2010 (Act No IV of 2010; hereinafter: HWA), foresees the establishment of federal and provincial Ombudsman institutions for the Protection against Harassment of Women in the Workplace. The pertinent legal framework was amended through the FOIRA. The Ombudsman is mandated with investigating incidents of harassment of female employees in the public administration and certain private legal entities. In accordance with the HWA, institutions on the federal, as well as the provincial level in Punjab and Sindh have been established. This chapter will only discuss the federal institution. II. Organization The budget of the institution is charged as an expenditure to the Federal Consolidated Fund (Sec 17 (2) FOIRA; see Art 81 of the Constitution). Thus, its allocation lies at the discretion of the Federal Government and is not subject to a vote in the National Assembly (Art 82 of the Constitution). The Ombudsman enjoys full financial autonomy and thus may freely decide upon the usage of the budget (Sec 17 FOIRA). Furthermore, the Ombudsman enjoys administrative autonomy (Sec 17 FOIRA) and may recruit such staff as required, the necessary funds being provided by the respective government (Sec 7 (2) HWA). 224 11. Pakistan (Philipp Janig) III. Legal Status The Ombudsman is appointed by the President (Sec 7 (1) HWA; Sec 21 FOIRA) for a term of four years and not eligible for extension or reappointment, but continues to hold office until a new Ombudsman is appointed (Sec 3 FOIRA). The Ombudsman must either be or be qualified to act as a judge of a High Court (Sec 7 (2) HWA), or a woman with at least ten years of experience in matters relating to protection of women against harassment (Sec 21 FOIRA). The office of the Ombudsman is incompatible with any other office of profit in the service of Pakistan or any other position in which services are remunerated. In addition, the Ombudsman may not hold any office of profit in the service of Pakistan, other than judicial or quasi-judicial, for two years upon the end of tenure and is not eligible for election as a Member of Parliament, Provincial Assembly or any local body and may not take part in any political activity while in office or for two years thereafter (Sec 19, 20 FOIRA). The Ombudsman enjoys administrative autonomy (Sec 17 (1) FOIRA), while no authority has jurisdiction over any matter that falls within the jurisdiction of the Ombudsman, or may assume jurisdiction over any matter that is pending with or has been decided by the Ombudsman (Sec 18 FOIRA). The Ombudsman can be removed from office by the Supreme Judicial Council, if incapable of properly performing duties due to physical or mental incapacity or if found guilty of misconduct (Sec 5 FOIRA). IV. Scope of Supervision The bodies under supervision of the Ombudsman are such within public administration and private employers that fall within the definition of an ‘organization’. The term includes a ‘Federal or Provincial Government Ministry, Division or department, a corporation or any autonomous or semi-autonomous body, educational institutes, medical facilities established or controlled by the Federal or Provincial Government or District Government or registered civil society associations or privately managed, a commercial or an industrial establishment or institution, a company under the Companies Ordinance, 1984 (XLVII of 1984) and any other registered private sector organization or institution’ (Sec 2 (l) HWA). The supervision criterion is ‘harassment’, which is defined as ‘any unwelcome sexual advance, request for sexual favors or other verbal or written communication or physical conduct of a sexual nature or sexually 225 Part Two: Different Jurisdictions demeaning attitudes, causing interference with work performance or creating an intimidating, hostile or offensive work environment, or the attempt to punish the complainant for refusal to comply to such a request or is made a condition for employment’ (Sec 2 (h) HWA). An investigation may only be initiated upon individual complaint (Sec 8 HWA). The Ombudsman has no power to initiate suo motu actions. Individual complaints may be brought by persons aggrieved, either directly to the Ombudsman (Sec 8 HWA) or as an appeal against the decision of a competent authority (an authority designated by the management of the organization concerned) within thirty days (Sec 6 HWA). There are no formal requirements for complaints or appeals to the Ombudsman, which are also free of charge. Following a complaint or an appeal, the Ombudsman is obliged to carry out an investigation (Sec 8 (3) HWA). V. Powers V.1. Powers in Relation to Administrative Organs and Private Actors The Ombudsman is appointed by the President, but enjoys administrative autonomy (Sec 17 (1) FOIRA). No authority has jurisdiction over any matter that falls within the jurisdiction of the Ombudsman, or may assume jurisdiction over any matter that is pending with or has been decided by the Ombudsman (Sec 18 FOIRA). The Ombudsman may require any office or member of an organization concerned to furnish any information or produce any document which is considered relevant to an investigation (Sec 8 (4) HWA). In addition, the Ombudsman has the same powers as civil courts under the Code of Civil Procedure, 1908 (Act V of 1908) concerning the taking of certain evidence. This includes powers regarding witness statements (summoning and enforcing attendance of persons and their examination under oath), compelling the production of evidence, receiving evidence on affidavits, issuing commission and entering premises for the purpose of inspections or investigations (Sec 10 HWA). Additionally, the Ombudsman enjoys the same powers as civil courts in terms of granting temporary injunctions (Sec 10 (i) FOIRA) for the purpose of staying the operation impugned orders or decisions for a period of up to sixty days (Sec 11 FOIRA). The Ombudsman has the same powers as the Supreme Court regarding the punishment of persons for contempt, i.a. if an order of the 226 11. Pakistan (Philipp Janig) Ombudsman is disobeyed. Such punishment may be appealed before the Supreme Court (Sec 12 FOIRA). Additionally, the Ombudsman may impose other penalties of varying gravity upon subjects of complaint. Minor penalties include censure, withholding promotion or increment for a specific period and recovery of due compensation payable to the claimant from the pay or any other funds of the accused. Major penalties include demotion to a lower post or time-scale, or to a lower stage within a time-scale, compulsory retirement, removal from service, dismissal from service and fines. Portions of such fines may be paid as compensation to claimants. If the complaint concerns the owner of a pertinent company, fines are payable to the claimant (Secs 4 (4), 10 (2) HWA). Under Section 10 FOIRA, the Ombudsman has the ‘powers of a civil court’ to implement ‘recommendations, orders and decisions’. This may encompass measures such as imprisonment and confiscation of property. Whether this provision entails the possibility to enforce recommendations (and thus goes beyond the usual powers of an Ombudsman institution) is unclear. A party aggrieved by a decision, order, finding or recommendation of the Ombudsman may file a review petition within thirty days. The Ombudsman may then alter, modify, amend or recall the action petitioned against within 45 days (Sec 13 FOIRA). Any person aggrieved by a decision or order of the Ombudsman may, within thirty days of the decision or order, request representation with the President (Sec 9 HWA; Sec 14 (1) FOIRA). If such representation is made, the operation of the impugned order or decision is suspended for sixty days. Such representation must be processed in the office of the President by a person who has acted as or is qualified to act as a judge of the Supreme Court, or acted as the Federal Ombudsman or Federal Tax Ombudsman. The President then passes an order within ninety days (Sec 14 FOIRA). The Ombudsman is not required to submit annual reports. V.2. Powers in Relation to Courts The courts are outside of the jurisdiction of the Ombudsman. Vice versa, no court has jurisdiction over any matter that falls within the jurisdiction of the Ombudsman or that is pending with or has been decided by the Ombudsman (Sec 18 FOIRA). 227 Part Two: Different Jurisdictions V.3. Powers in Relation to Legislative Organs The Ombudsman has no powers in relation to the legislative organs of Pakistan. V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The Ombudsman does not have any particular functions or powers for the purpose of protecting human rights. VI. Practice No information is available in this regard. VII. Reform The institution was recently amended through the FOIRA. For further information on that act, see above Part C.VII (Federal Ombudsman). VIII. Information Protection against Harassment of Women at the Workplace Act, 2010 (Act No IV of 2010): http://www.fos-pah.gov.pk/mi-admin/upload/FOS%20Act%202010.pdf HWA, as amended by the Punjab Protection Against Harassment of Women at the Workplace (Amendment) Act, 2012 (III of 2013): http://punjablaws.gov.pk/laws/2426a.html Homepage (Federal): http://www.fos-pah.gov.pk/ *2TQXKPEKCN1ODWFUOCP+PUVKVWVKQPU +*KUVQT[CPF.GICN$CUKU Sindh was the first province to establish its own Ombudsman institution through the Establishment of the Office of Ombudsman for the Province of Sindh Act, 1991 (Sindh Act No. 1 of 1992, as amended by Sindh Act No. IX of 2012; hereinafter: OSA). The province of Sindh was then followed by Punjab, with the Punjab Office of the Ombudsman Act 1997 228 11. Pakistan (Philipp Janig) (Act X of 1997, as amended through Act III of 2003; hereinafter: POA), then Balochistan with the Establishment of the Office of Ombudsman for the Province of Balochistan Ordinance, 2001 (Balochistan Ordinance No. VI of 2001; hereinafter: OBO), and finally the Khyber Pakhtunkhwa, through the Khyber Pakhtunkhwa Provincial Ombudsman Act, 2010 (Khyber Pakhtunkhwa Act No. XIV of 2010, as amended by the Khyber Pakhtunkhwa Act No. XXVI of 2013; hereinafter: KOA). Under the respective legislation, the Ombudsman is granted a comprehensive mandate to investigate maladministration in the public administration and private legal entities (partly) under the supervision of the province. The provinces of Sindh and Balochistan have additionally awarded the Ombudsman functions for the purpose of safeguarding the right to freedom of information of citizens, as stipulated by the pertinent freedom of information legislation, namely the Sindh Freedom of Information Act, 2006 (Sindh Act No. XIV of 2006; hereinafter: SFoIA) and the Freedom of Information Act, 2005 (Balochistan Act No. VI of 2005; hereinafter: BFoIA). While Punjab and Khyber Pakhtunkhwa have also enacted laws regarding freedom of information – the Punjab Transparency and Right to Information Act, 2013 (Act XXV of 2013) and the Khyber Pakhtunkhwa Right to Information Act, 2013 (Khyber Pakhtunkhwa Act No. XXVII of 2013) – these do not foresee pertinent functions for the Ombudsman. As the relevant legislation concerning all provincial institutions is in large part identical, the common features will be described first. Where appropriate, additional details on the individual institutions will be discussed below, in Part H.VI. II. Organization Each pertinent provincial Ombudsman institution is headed by one Ombudsman, with no deputies, with a budget charged as expenditure to the Provincial Consolidated Fund (Sec 34 KOA; Sec 35 OSA, POA, OBO; see Art 121 of the Constitution). Thus, its allocation lies at the discretion of the provincial government and is not subject to a vote in the provincial assembly (Art 122 of the Constitution). The Ombudsman may decide upon budgetary usage. Members of the staff of the Ombudsman offices are appointed by the Governor in consultation with the Ombudsman and entitled to the relevant salaries and allowances prescribed, under consideration of the provisions admissible to employees of the relevant provincial government in the Basic (OBO: National) Pay Scales (Sec 8 of all Acts). In addition, the Ombudsman has the power to appoint aides (such as advisers or experts) and may fix their remuneration (Secs 20, 26 (1) OSA, POA, OBO; Secs 20, 25 (1) KOA). 229 Part Two: Different Jurisdictions III. Legal Status The Ombudsman is appointed by the Governor (KOA: the government) (Sec 3 (1) of all Acts) for a four-year term (KOA: or until the age of 62 is reached), and is generally not eligible for any extension of tenure or reappointment (Sec 4 (1) of all Acts). In Sindh, the term of the Ombudsman may be extended or the Ombudsman may be reappointed by the Governor in appropriate cases and upon advice of the Chief Minister (Sec 4 (1) OSA). The statutes of different provinces have varying qualification criteria. In Punjab and Khyber Pakhtunkhwa, the Ombudsman must be a person who is, has been or is qualified to be a judge of the High Court or any other person of known integrity (Sec 3 (2) POA, KOA). In Balochistan, the Ombudsman must be a person who is or has been a judge of the High Court, or is or has been a District or Session Judge or lawyer who is qualified to be a judge of the High Court (Sec 3 (2) OBO). The legislation in Sindh does not provide any such qualification criteria. The salary of the Ombudsman, allowances and privileges are determined by the Governor and not subject to change while in office (Sec 6 (1) of all Acts). The position of Ombudsman is incompatible with any other office of profit in the service of Pakistan or any other position in which services are remunerated. In addition, the Ombudsman may not hold any office of profit in the service of Pakistan (KOA: or the Province) for two years after the end of tenure (POA: apart from being a sitting judge of the High Court), and is not eligible for election as a Member of Parliament, Provincial Assembly or any local body and may not take part in any political activity while in office or for two years thereafter (Sec 5 of all Acts). The Ombudsman and all other persons are immune against criminal, civil and all other legal proceedings for anything done or intended to be done in good faith under the relevant Acts (Sec 29 KOA; Sec 30 OSA, POA, OBO) or pertinent freedom of information legislation (Sec 21, BFoIA; Sec 22 SFoIA). The functions of the Ombudsman are performed independently from the executive branch (Sec 3 (3) OSA; Sec 3 (4) POA, KOA, OBO). Consequently, no court or other authority has jurisdiction to question the validity of anything done or intended to be done under the relevant Acts or to grant any interim measures relating to any proceedings before or anything done by the Ombudsman (Sec 28 KOA; Sec 29 OSA, POA, OBO). The Governor (OSA/OBO) or government (POA/KOA) may remove the Ombudsman from office on grounds of misconduct or being incapable to perform duties properly due to physical or mental incapacity. In such 230 11. Pakistan (Philipp Janig) case, the Ombudsman may request an open evidentiary hearing before the Supreme Judicial Council (OSA/OBO) or the Division Bench of the High Court (POA/KOA). Should such hearing not be held within thirty days or not concluded within ninety days, the pertinent order of removal is void (Sec 6 (2) of all Acts). In Punjab, the Ombudsman may, if also acting as a sitting judge of the High Court, be called back by the competent authority before expiry of tenure (Sec 4 (1) POA). IV. Scope of Supervision The Ombudsman may investigate allegations against such parts of public administration and certain private legal entities which are considered an ‘Agency’, or against any officer or employee of an ‘Agency’ (Sec 9 (1) of all Acts). An ‘Agency’ is defined as a ‘Department, Commission or Office of the Provincial Government or statutory Corporation or other institution established or controlled by the Provincial Government’. The definition explicitly excludes the High Court (OBO: and the ‘Supreme Court, the Supreme Judicial Council [and] the Federal Shariat Court’; POA/KOA: ‘and courts working under the supervision and control of the High Court, and the Provincial Assembly […] and its Secretariat’) (Sec 2 (1) OSA, POA, OBO; Sec 2 (a) KOA). However, the Ombudsman has no jurisdiction regarding matters that are currently sub-judice (pending) before a competent court, tribunal or board, or that relate to the external affairs or defence of Pakistan, the military, naval and air forces, or matters covered by statutes relating to such forces (Sec 9 (1) of all Acts). Also, the Ombudsman may not accept complaints regarding service matters, thus complaints by public servants or functionaries in matters solely concerning their service (Sec 9 (2) of all Acts). In addition, in Punjab, Sindh and Balochistan the Governor may exclude specified matters, public functionaries or Agencies from the scope of the relevant Acts, and thus the jurisdiction of the Ombudsman (Sec 31 (3) OSA, POA, OBO). The relevant supervision criterion is ‘mal-administration’, which includes the violation of legal rules and various forms of poor administration (Sec 2 (2) OSA, POA, OBO; Sec 2 (f) KOA). The exact definition is identical to the one enshrined in the legislation of the Federal Ombudsman and reproduced above (see Part C.IV). Investigations into allegations of maladministration may be initiated following individual complaints, references by the Governor (OSA/ OBO) or the government (POA/KOA) respectively, the Provincial Assembly, motions of the Supreme Court or the High Court during their proceedings, or upon motion of the Ombudsman (Sec 9 (1) of all Acts). 231 Part Two: Different Jurisdictions Individual complaints must be brought in writing, accompanied by the solemn affirmation of the claimant. Complaints must be lodged no later than three months from notice of the alleged misconduct. The Ombudsman may nevertheless conduct investigations regarding belated complaints, if special circumstances make it feasible to do so. Anonymous or pseudonymous complaints are not entertained. If the Ombudsman decides not to conduct investigations regarding a particular individual complaint, a statement of pertinent reasons must be submitted to the claimant (Sec 10 of all Acts). Complaints are free of charge. The Ombudsman may, at any time during proceedings, attempt to informally resolve a dispute without having to docket a complaint or issue an official notice (Sec 32 KOA; 33 OSA, POA, OBO). Investigations by the Provincial Ombudsmen of Balochistan and Sindh are to be conducted in private (Sec 10 (5) OSA, OBO). Investigation procedures under the freedom of information legislation of Balochistan and Sindh are initiated upon individual complaints (Sec 18 BFoIA; Sec 19 SFoIA), which may only be submitted by Pakistani citizens (Sec 12 BFoIA, SFoIA). Such complaints are admissible in cases of refusal of public bodies (including bodies of the Provincial Government, the Provincial Assembly, the judicial branch and anybody established by or under provincial law) to provide information or copies of certain public records (Sec 2 (h) SFoIA, BFoIA). After such information has been denied, the claimant first must file a complaint with the head of the relevant public body within thirty days. Only after such action is unsuccessful, may recourse be taken to the Ombudsman (Sec 18 BFoIA; Sec 19 SFoIA). Where the Ombudsman finds a complaint pursuant to freedom of information legislation to be false, frivolous or vexatious, it may be dismissed and result in a fine of up to 10,000 PKR (Sec 19 BFoIA; Sec 20 SFoIA). Complaints are free of charge. V. Powers V.1. Powers in Relation to Administrative Organs and Private Actors While the Ombudsman is appointed by the Governor or the government (see above Part H.III), functions are performed independently of the executive branch (Sec 3 (3) OSA; Sec 3 (4) POA, KOA, OBO). In particular, no authority has the jurisdiction to question the validity of anything done or intended to be done under the relevant Act or to grant any interim measures relating to any proceedings before or anything done by the Ombudsman (Sec 28 KOA; Sec 29 OSA, POA, OBO). 232 11. Pakistan (Philipp Janig) All executive authorities of respective provinces must aid the Ombudsman (Sec 3 (3) OSA; Sec 3 (4) POA, OBO, KOA). During investigations, the Ombudsman may require any office or member of an Agency subject to a complaint to provide information or documents. Agencies are not under an obligation to maintain secrecy, unless the Governor (OSA, OBO) or government (POA, KOA) allows claim of privilege regarding certain information or documents as state secrets (Sec 10 (9) of all Acts). In Punjab, Sindh and Balochistan, the Ombudsman may also compel an Agency, public servant or functionary under the administrative control of the Provincial Government to take certain evidence (Sec 21 OSA, POA, OBO). Generally, the Ombudsman may compel the assistance of any person or authority as far as within their power or capacity for the purpose of performing functions under the relevant Act (Sec 22 KOA; Sec 23 OSA, POA, OBO). The Ombudsman also has the authority to enter any premises for the purpose of an inspection or investigation if there is reason to believe that an article, book of accounts or any other document may be found that relates to the subject matter of inspection or investigation. During such search, the Ombudsman may inspect, copy, impound or seal such articles, books of accounts or other documents and make an inventory of them. Such search must be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898 (Sec 15 of all Acts). The Ombudsman has the same powers as a civil court under the Code of Civil Procedure, 1908 (Act V of 1908) concerning the taking of certain evidence. This includes powers regarding witness statements (summoning and enforcing attendance of persons and their examination under oath), compelling the production of documents, receiving evidence on affidavits and issuing commission (Sec 14 of all Acts). The Ombudsman may require any claimant or other party connected to or concerned with a complaint, inquiry or reference to submit an affidavit within the time prescribed (Sec 24 KOA; Sec 25 OSA, POA, OBO). No statement given by a person or authority as evidence before the Ombudsman may be used against them or subject them to civil or criminal proceedings, except for the purpose of prosecuting the provision of false evidence (Sec 22 (3) KOA; Sec 23 (3) OSA, POA, OBO). Regarding coercive powers, the Ombudsman enjoys the same powers as the High Court to punish persons for contempt, subject to appeal before the relevant High Court (Sec 16 of all Acts). 233 Part Two: Different Jurisdictions Should, during the course of investigations, any Agency, public servant or functionary fail to comply with a direction of the Ombudsman, such matter may be referred to the appropriate authority for disciplinary action. Additionally, if the Ombudsman has reason to believe that a public servant or functionary has acted in a manner warranting disciplinary proceedings, the matter may be referred to the appropriate authority for necessary action to be taken within a period of time specified by the Ombudsman (Sec 14 (5), (6) OSA, POA, OBO; Sec 14 (6),(7) KOA). If the Ombudsman finds an individual complaint to be false, frivolous or vexatious, reasonable compensation may be awarded to the relevant Agency, public servant or functionary subject to such complaint, recoverable from the claimant as arrears of land revenue. Such compensation does not debar the aggrieved party from seeking civil and criminal remedies (Sec 14 (4) OSA, POA, OBO; Sec 14 (5) KOA). Wherever the Ombudsman finds instances of maladministration, recommendations are made to the Agency concerned. Such Agency then must inform the Ombudsman of action taken on such recommendation or reasons for not complying with it, within the period of time specified by the Ombudsman. If the recommendations of the Ombudsman are not complied with and insufficient reasons provided for non-compliance, such default is treated as ‘Defiance of Recommendations’ (KOA: ‘Defiance of Findings’), resulting in a pertinent report of the Ombudsman becoming part of the personal file or character roll of the public servant primarily responsible for such ‘Defiance of Recommendations’ (KOA: ‘Defiance of Findings’), but only if that public servant has been granted the opportunity to be heard in the matter. In addition, the Ombudsman may refer the matter to the Governor (OSA, OBO) or the government (POA, KOA), which may direct the relevant Agency to implement the pertinent recommendation and inform the Ombudsman thereof (Secs 11, 12 of all Acts). In cases of maladministration, the Ombudsman may also refer such to the concerned authority for the purpose of taking corrective or disciplinary action. Within thirty days, the authority then must inform the Ombudsman of action taken. Failure may result in the Ombudsman bringing the matter to the attention of the Governor (OSA, OBO) or government (POA, KOA) for actions deemed fit (Sec 13 of all Acts). If, upon the conclusion of investigations, it appears to the Ombudsman that injustice has been caused to the claimant in consequence of maladministration, which has not been or will not be remedied, a special report of the case may be submitted to the relevant Governor (Sec 11 (4) OSA, POA, OBO; Sec 11 (5) KOA). 234 11. Pakistan (Philipp Janig) Additionally, the Ombudsman may, where a claimant has suffered loss or damage due to maladministration by a public servant, other functionary or agency, and after hearing the wrongdoer, award reasonable costs or compensation. Such compensation is recoverable as arrears of land revenue from the relevant public servant, functionary or Agency (Sec 22 (1) OSA, POA, OBO; Sec 21 (1) KOA). Any person aggrieved by a decision or order of the Ombudsman may, within thirty days, request representation to the Governor, who may then pass such order as deemed fit (Sec 31 KOA; Sec 32 OSA, POA, OBO). The Ombudsman is required to submit an annual report to the Governor within three months of conclusion of a given calendar year (Sec 27 (1) KOA; Sec 28 (1) OSA, POA, OBO). Moreover, in Sindh, Balochistan and the Khyber Pakhtunkhwa, the Ombudsman may submit additional reports relating to official functions to the Governor, if deemed necessary or desired by the Governor (Sec 28 (2) OSA, OBO; Sec 27 (2) KOA). Also, the Ombudsman may perform studies or research, which the office may make available to the public, similar to conclusions, recommendations, ideas or suggestions in matters being dealt with by the office (Sec 27 (4) KOA; Sec 28 (3) POA; Sec 28 (4) OSA, OBO). V.2. Powers in Relation to Courts The High Court (POA/KOA: and courts working under its supervision and control; OBO: and the Supreme Court, the Supreme Judicial Council, the Federal Shariat Court) is not considered an Agency and thus outside of the jurisdiction of the Ombudsman (Sec 2 (1) OSA, POA, OBO; Sec 2 (a) KOA). Moreover, matters that are sub-judice (pending in court) are excluded from the jurisdiction of the Ombudsman (Sec 9 (1) (a) of all Acts). Vice versa, no court has jurisdiction to question the validity of anything done or intended to be done under the relevant Acts or to grant interim measures in relation to any proceedings before the Ombudsman (Sec 28 KOA; Sec 29 OSA, POA, OBO). Moreover, all persons are immune against criminal, civil and all other legal proceedings for anything done or intended to be done in good faith under the relevant Acts (Sec 29 KOA; Sec 30 OSA, POA, OBO) or the abovementioned freedom of information legislation (Sec 21, BFoIA; Sec 22 SFoIA). In particular, no statement given by a person or authority as evidence before the Ombudsman may be used against them in, or subject them to civil or criminal proceedings, except for the purpose of prosecuting the provision of false evidence (Sec 22 (3) KOA; Sec 23 (3) OSA, POA, OBO). 235 Part Two: Different Jurisdictions The Supreme Court or High Courts may bring cases before the Ombudsman over the course of any proceedings before them (Sec 9 (1) of all Acts). In addition, the Supreme Court or a High Court may interfere with the work of the Ombudsman in exercise of their writ jurisdiction. In Punjab, the Ombudsman may compel a District Judge to undertake certain matters of taking evidence (Sec 21 POA). If the Ombudsman has reason to believe that a public servant or functionary has acted in a manner warranting criminal proceedings, the matter may be referred to the appropriate authority for necessary action to be taken within a period of time specified by the Ombudsman (Sec 14 (6) OSA, POA, OBO; Sec 14 (7) KOA). V.3. Powers in Relation to Legislative Organs Although Provincial Assemblies are not involved in the appointment or removal of the Ombudsman, annual reports, as well as additional reports or documents published by the Ombudsman are to be submitted to them. There are no consequences for non-submission provided by law (Sec 28 (5) OSA, OBO; Sec 28 (4) POA; Sec 27 (5) KOA). V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The provincial Ombudsman institutions generally do not have any particular functions or powers for the purpose of human rights. Only the legislation of Balochistan and Sindh provide citizens with the possibility of bringing claims alleging violations of the right to information (Sec 18 BFoIA; Sec 19 SFoIA; the right to information is enshrined in Art 19A of the Constitution). VI. Special Features, Practice and Information Regarding the Individual Institutions VI.1. Mohtasib-e-Aala Sindh – Provincial Ombudsman of Sindh The Provincial Ombudsman of Sindh took up office in 1992. The institution became a member of the AOA in 1996 and is also a member of the IOI and the OICOA. As of 2015, the institution has 401 employees, 18 of whom are female. Beside its headquarters, the institution has three regional offices in Karachi, and further 13 regional offices throughout the province, in Badin, Hyderabad, Jacobabad, Larkana, Mirpur Khas, Mithi, 236 11. Pakistan (Philipp Janig) Naushehro Feorz, Sukkur, Thatta, Ghotki, Dadu, Khairpur, Shaheed Benazir Abad (Nawabshah). Further four regional offices are currently in planning (in Tando Allahyar, Sanghar, Jamshoro and Shikarpur). In 2009, the Ombudsman of Sindh established a Children Complaints Office (CCO) in collaboration with UNICEF, in order to better address child-related grievances. The CCO is integrated into the structure of the institution and uses the same mechanisms under the OSA. In 2014, the Ombudsman received 6,009 individual complaints. Of these, 3,161 complaints were admitted for investigation (including 62 cases under the SFoIA and 67 pertaining to child-related issues). In addition, an informal resolution was attempted in six cases and the Ombudsman initiated one suo motu action. Of those 3,168 cases, 818 (25.8 %) pertained to the Karachi Water & Sewage Board, 545 (17.2 %) to the Police Depart- ment and 488 (15.4 %) to the Education & Literacy Department. Of the 62 cases admitted under the Freedom of Information Act, 30 (48.4 %) concerned the Health Department, eleven (17.7 %) the Police Department and four (6.5 %) the Karachi Water & Sewage Board. In 2014, 46 representations were brought before the Governor. In 44 instances, the decision of the Ombudsman was upheld, while the remaining two cases are still pending with the Governor Secretariat. In 2013, the Ombudsman received 6,021 individual complaints under the OSA. Of these, 2,852 were admitted for investigation, with an informal resolution of the dispute being attempted in seven further cases (see Sec 30 OSA), and three suo motu actions being brought. Of the 2,862 cases, 498 (17.4 %) concerned the Police Department, 495 (17.3 %) the Education & Literacy and 369 (12.9 %) Revenue Departments. Of the 119 cases investigated under the Sindh Freedom of Information Act, 75 (63 %) pertained to the Karachi Water & Sewage Board, 23 (19.3 %) to the Karachi Municipal Corporation and seven (5.9 %) to the Sindh Building Supervision Authority. In 2013, 63 representations were brought before the Governor. In 49 cases the decision of the Ombudsman was upheld, with representation being accepted in none. The remaining representations are still pending with the Governor Secretariat. Laws and Regulations: Establishment of the Office of Ombudsman for the Province of Sindh Act, 1991 (Sindh Act No. 1 of 1992) http://www.theioi.org/downloads-ioi/9r7cd/Legal Foundations Pakistan.pdf 237 Part Two: Different Jurisdictions Annual Reports 2006–2014: http://www.mohtasibsindh.gov.pk/index.php?page=knowledge-products Homepage: http://www.mohtasibsindh.gov.pk/ VI.2. Punjab The Provincial Ombudsman Punjab took up office in 1996 and is a member of the AOA, the IOI and the OICOA. Apart from its headquarters in Lahore, the institution has 35 regional offices in Sheikhupura, Kasur, Nankana Sahib, Gujranwala, Sialkot, Gujrat, Mandi Bahauddin, Hafizabad, Narowal, Rawalpindi, Jhelum, Chakwal, Attock, Faisalabad, Jhang, Toba Tek Singh, Chiniot, Sargodha, Khushab, Mianwali, Bhakkar, Sahiwal, Pakpattan, Okara, Multan, Khanewal, Vehari, Lodhran, Dera Ghazi Khan, Muzaffargarh, Rajanpur, Layyah, Bahawalpur, Bahwalnagar and Rahim Yar Khan. In 2014, 21,328 individual complaints were brought before the Ombudsman and 571 suo motu investigations were initiated, resulting in a total of 21,899 cases. Of those, 3,741 (17.1 %) were brought against the Police Department, 2,797 (12.8 %) against the Education Department and 2,625 (12 %) against the Local Government. In the same year, the Governor decided on 2,456 representations. Most of them were either rejected (1016; 41.4 %) or decided in the Ombudsman’s favour (1030, 41.9 %; of those, in 781 (75.8 %) cases the Ombudsman’s orders were upheld, 249 (24.2 %) requested the orders’ implementation). However, 275 (11.2 %) representations were partly or totally decided in favour of the appellant (of those, in 264 (96 %) instances the orders of the Ombudsman were set aside and in eleven (4 %) cases such orders were remanded). The remaining 235 representations (9.6 %) were not dealt with (126 (53.6 %) were incomplete and 109 (46.4 %) time barred). In 2013, the Ombudsman received 19,663 individual complaints and initiated 7,995 suo motu investigations, thus dealing with 27,658 cases in total. Of such complaints, 2,874 (14.6 %) concerned the Police Department, 2,274 (11.6 %) the Education Department and 1,689 (8.6 %) the Board of Revenue. The suo motu investigations pertained to the Police Department (2,085; 26.1 %), Local Government & Community Development (1,269; 15.9 %) and the Health Department (863; 10.8 %). The total number of cases mostly pertained to the Police Department (4,959; 17.9 %), the Education Department (2,929; 10.6 %) and Local Government & Community Development (2,625; 9.5 %). During the same year, the Governor decided on 986 representations. 238 11. Pakistan (Philipp Janig) In the vast majority of cases, namely in 640 (64.9 %), representation was rejected, however 150 (15.2 %) cases were partly or totally decided in favour of the appellant (of those, 72 (48 %) cases were modified, 55 (36.7 %) accepted, 16 (10.7 %) remanded, six (4 %) amended and one (0.7 %) substituted). The remaining representations, 196 (19.9 %), were not dealt with for various reasons (97 (49.5 %) cases were filed, 79 (40.3 %) representations were time-barred and 20 (10.2 %) withdrawn). Laws and Regulations: Punjab Office of the Ombudsman Act, 1997 (Act X of 1997) http://ombudsmanpunjab.gov.pk/wp-content/uploads/2013/02/ The-Punjab-Office-of-the-Ombudsman-Act-Act-X-of-1997.pdf Annual Reports 2002–2014: http://ombudsmanpunjab.gov.pk/reports/annualreports/ Homepage: http://ombudsmanpunjab.gov.pk/ VI.3. Balochistan The Provincial Ombudsman of Balochistan took up office in 2001. The institution is a member of the AOA, the IOI and OICOA. The headquarters of the institution are in Quetta, with seven regional offices in Naseerabad, Kech at Turbat, Loralai, Hub, Sibi, Khuzdar and Zhob. In 2014, 1,252 complaints were brought to the institution. Of those, 401 (32 %) were made against the Education Department, 81 (6.5 %) against the Health Department and 74 (5.9 %) against the Police Department. In addition, the Ombudsman instituted 29 suo motu actions. During the same year, the Governor decided on 33 representations, in 24 (72.2 %) of which the orders of the Ombudsman were upheld and in nine (27.3 %) orders were set side. In 2013, 1,286 cases were instituted before the institution, of which 547 (42.5 %) related to the Education Department, 108 (8.4 %) to the Local Government and 81 (6.3 %) to the Police Department. In addition, the Ombudsman instituted 44 suo motu actions. There is no exact data with regard to representations before the Governor. Laws: www.ombudsmanbalochistan.gov.pk/index.php/ downloads?download=1:legal-framework-ordinance-no-vi-of-2001 239 Part Two: Different Jurisdictions Annual Reports 2009–2014: http://www.ombudsmanbalochistan.gov.pk/index.php/downloads/ category/2-annual-reports Homepage: http://www.ombudsmanbalochistan.gov.pk/ VI.4. Khyber Pakhtunkhwa The provincial Ombudsman of Khyber Pakhtunkhwa is a member of the OICOA, but not the AOA, nor the IOI. The institution is located in Peshawar. While regional offices have not been established yet, there are plans to open such in Dera Ismail Khan and Abbottabad (see Annual Report 2013). As of 2015, the institution has 46 employees, two of whom are female. In 2013, 764 cases were instituted with the Ombudsman. Of those, 128 (16.8 %) concerned the Elementary & Secondary Education Depart- ment, 43 (5.6 %) the Police Department and 43 (5.6 %) the Provincial Disaster Management Authority. This shows a slight decrease compared to 2012, in which 834 cases were brought. Of those, 144 (17.3 %) pertained to the Communication and Works Department, 128 (15.3 %) to the Elementary & Secondary Education Department and 67 (8 %) to the Health Department. There is no data available on the numbers or outcome of representations brought before the Governor. Laws: http://ombudsmankp.gov.pk/act.php Annual Reports 2011-2013: http://ombudsmankp.gov.pk/reports.php Homepage: http://ombudsmankp.gov.pk/ 240 12. ‘Azad Jammu and Kashmir’ (Pakistan-administered Kashmir) Philipp Janig A. Constitutional Background While Azad Jammu and Kashmir refers to itself as a ‘state’, its inter- national status is still unsettled. Together with Gilgit-Baltistan, which it is bordered by to the North, it forms Pakistan-administered Kashmir. Within the constitutional framework of Pakistan, Azad Jammu and Kashmir is a partially autonomous territory that is in large parts self- governed. It has an own constitution, the Interim Constitution Act of 1974, which has been amended several times. Within that constitutional set-up, the Azad Jammu and Kashmir Council has an overarching position and enjoys legislative and executive powers with regard to certain matters listed in the Constitution (Art 31). The Council consists of fourteen members and with the Prime Minister of Pakistan acting as Chairman and the President of Azad Jammu and Kashmir being the Vice-Chairman. Additionally, a seat is allotted to the Prime Minister of Azad Jammu and Kashmir (or a person nominated by the Prime Minister). Of the remaining members, five are nominated by the Prime Minister of Pakistan (from amongst Federal Ministers and members of the Pakistani parliament) and six are elected by the Legislative Assembly of Azad Jammu and Kashmir through a system of proportional representation. The Federal Minister of State for Kashmir Affairs and Northern Affairs is an ex-officio member of the Council, but does not enjoy voting rights (Art 21). However, neither the Council, nor the Legislative Assembly have the power to pass laws concerning certain matters, including the responsibilities of the Government of Pakistan under the UNCIP (United Nations Commission for India and Pakistan) Resolutions, the defence and security of Azad Jammu and Kashmir, the current coin or issue of 241 Part Two: Different Jurisdictions any bills, notes or other paper currency, or the external affairs of Azad Jammu and Kashmir including foreign trade and foreign aid (Art 31 (3)). The legislative powers for all remaining matters are vested in the Legislative Assembly of Azad Jammu and Kashmir, which has 49 seats. The majority of its members (41) are directly elected by universal suffrage. The remaining seats (eight) are reserved for certain groups (five women, one Islamic scholar, national residing abroad and technocrat each) and are elected by the directly elected members (Art 22). Executive powers are exercised in the name of the President by the government, which consists of the Prime Minister and other Ministers (Art 12). The Prime Minister is elected by the Legislative Assembly and has the power to appoint Ministers from among the members of the Assembly or the elected members of the Azad Jammu and Kashmir Council (Art 13). The President is elected by a joint sitting of the Assembly, the Federal Minister in charge of the Council Secretariat and the elected members of the Azad Jammu and Kashmir Council (Art 5). Fundamental rights are enshrined in Article 4 of the Interim Con- stitution, including the prohibition of arbitrary detention (Art 4 (4)1.–2.). B. Mohtasib of Azad Jammu and Kashmir +*KUVQT[CPF.GICN$CUKU The legal basis of the Mohtasib (Ombudsman) is the Establishment of the Office of the Mohtasib (Ombudsman) in Azad Jammu and Kashmir Act, 1992 (Act No. XIV of 1992), as amended by Act No. XV of 1997 (hereinafter: OMA). Under the OMA, the Mohtasib is given the mandate to investigate maladministration by public administration and private legal entities (partly) under the supervision of Azad Jammu and Kashmir. The office commenced its work as early as 1991, when it was set up under a Presidential Ordinance. The institution is one of the founding members of the AOA and also became a member of the OICOA. II. Organization The Mohtasib is the chief executive of the office and the Principal Accounts Officer in respect of expenditures incurred against budget grants or grants controlled by the Mohtasib and exercises all financial and administrative powers delegated to a department for this purpose (Sec 24 OMA). The members of the staff of the office are appointed by the President in consultation with the Mohtasib and entitled to such salary and allowances 242 12. ‘Azad Jammu and Kashmir’ (Pakistan-administered Kashmir) (Philipp Janig) as prescribed, having regard to the provisions applicable to government employees under the Basic Pay Scales (Sec 8 OMA). The Mohtasib also has the power to appoint aides (such as interns, advisers and experts) and may set their remuneration (Secs 20, 26 (1) OMA). III. Legal Status The Mohtasib is appointed by the President of Azad Jammu and Kashmir (Sec 3 OMA). The term of office is not laid down in the OMA, but is determined by the President of Azad Jammu and Kashmir and may not exceed three years. The Mohtasib is not eligible for extension or reappointment (Sec 4 OMA). The OMA does not provide any qualification requirements. The office is incompatible with any other office of profit in the service of Azad Jammu and Kashmir or any other position in which services are remunerated. In addition, the Mohtasib may not hold any office of profit in the service of Azad Jammu and Kashmir for two years after the end of tenure, and is not eligible for election as a member of the Legislative Assembly or any local body and may not take part in any political activity (Sec 5 OMA). The Mohtasib and all other persons are immune against criminal, civil and all other legal proceedings for anything done or intended to be done in good faith under the OMA (Sec 30 OMA). The salary of the Mohtasib, allowances and privileges are determined by the President of Azad Jammu and Kashmir and are not subject to change while in office. In addition, the Mohtasib is entitled to certain allowances as set out in the OMA (Sec 6 (1), (1-A) OMA). The functions of the Mohtasib are performed independently of the executive branch (Sec 3 (1), (3) OMA). In particular, no authority has the jurisdiction to question the validity of any action taken or intended to be taken under the OMA or to grant any interim measures relating to any proceedings before or anything done by the Mohtasib (Sec 29 OMA). The Mohtasib may be removed by the President of Azad Jammu and Kashmir, if incapable of properly performing official duties due to physical or mental incapacity or on grounds of misconduct. In such case, the Mohtasib may request an open public evidentiary hearing before the Supreme Judicial Council. The removal is void should such hearing not be held within thirty days or not concluded within ninety days (Sec 6 (2) OMA). 243 Part Two: Different Jurisdictions IV. Scope of Supervision The bodies under supervision of the Mohtasib are those parts of the public administration and private legal entities that fall under the definition of an ‘Agency’. Pursuant to Sec 2 (1) OMA, an ‘Agency’ includes ‘a Secretariat Department, Attached Department Commission or office of the Government or a statutory corporation or other institution established or controlled by the Government’ of Azad Jammu and Kashmir (see Sec 2 (2) OMA). However, all courts and judicial tribunals are explicitly exempted from the term ‘Agency’ (Sec 2 (1) OMA). Moreover, the Mohtasib has no jurisdiction regarding matters that are currently sub-judice before a competent court or tribunal or board of Azad Jammu and Kashmir or that relate to the external affairs or defence of Pakistan or Azad Jammu and Kashmir, the military, naval and air forces or matters covered by laws relating to those forces or that relate to time barred matters under the provisions of the Limitations Act. If the subject matter of a case directly affects the finances of government, the Mohtasib must examine the complaint, establish a prima facie case and procure information from the relevant Agency regarding financial implications, before issuing an order. Cases which have been decided by the courts or any other forum and matters relating ‘to the contract’342 shall not be re-opened by the Mohtasib (Sec 9 (1) OMA). Also, the Mohtasib shall not accept complaints regarding service matters, thus complaints by public servants or functionaries in matters concerning their service at an Agency (Sec 9 (2) OMA). In addition, Section 31 (3) OMA empowers the President to exclude specified matters, public functionaries or Agencies from the scope of the OMA and thus the jurisdiction of the Mohtasib. The supervision criterion for investigations of the Mohtasib is ‘mal- administration’, which includes the violation of legal rules and various forms of poor administration. The precise definition enshrined in Section 2 (3) OMA is identical to that applicable to the work of the Federal Ombudsman of Pakistan (see above, in Pakistan Part C.IV). Investigations may be initiated upon individual complaint, reference by the President, the Azad Jammu and Kashmir Council or Assembly, motion of the Supreme Court or the High Court during proceedings, or upon an own motion of the Mohtasib (Sec 9 (1) OMA). Individual complaints must be brought in writing, accompanied by a solemn affirmation or oath. Anonymous or pseudonymous complaints are not examined. Complaints must be lodged no later than three months 342 It is unclear to which ‘contracts’ this provision refers. 244 12. ‘Azad Jammu and Kashmir’ (Pakistan-administered Kashmir) (Philipp Janig) from notice of the alleged violation, although the Mohtasib may still investigate delayed complaints if special circumstances render it feasible (Sec 10 OMA). Individual complaints are free of charge. All investigations shall be conducted in private (Sec 10 (5) OMA). The Mohtasib may decide not to conduct an investigation, but must then submit a statement detailing reasons therefor to the pertinent claimant (Sec 10 (10) OMA). Regarding references by the President, the Mohtasib is under the obligation to promptly conduct investigations and submit pertinent findings or an opinion within reasonable time (Sec 31 (2) OMA). V. Powers V.1. Powers in Relation to Administrative Organs and Private Actors The Mohtasib is appointed by the President, but performs official functions independently of the executive branch (Sec 3 (1), (3) OMA). In particular, no authority has jurisdiction to question the validity of any action taken or intended to be taken under the OMA or to grant interim measures relating to proceedings before or anything done by the Mohtasib (Sec 29 OMA). Section 3 (3) of the OMA stipulates that all executive authorities throughout Azad Jammu and Kashmir must aid the Mohtasib. Throughout investigations, the Mohtasib may compel any office or member of an Agency subject to a complaint to provide information or documents. Agencies are not under an obligation to maintain secrecy, unless the President permits claim of privilege regarding certain information or documents as state secrets (Sec 10 (9) OMA). The Mohtasib may also compel any agency, public servant or functionary under the administrative supervision of the government to take certain evidence (Sec 21 OMA). Additionally, the Mohtasib may compel the assistance of any person or authority as far as it is within their power or capacity for the purpose of performing official functions under the OMA (Sec 23 OMA). In the context of inspections or investigations, the Mohtasib has the authority to enter any premises if there is reason to believe that an article, book of accounts or any other document may be found that relates to the subject matter of inspection or investigation. During such search, the Mohtasib may inspect, copy, impound or seal such articles, books of accounts or other documents and make an inventory of them. Such searches must be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898 (Sec 15 OMA). 245 Part Two: Different Jurisdictions The Mohtasib has the same powers as a civil court under the Code of Civil Procedure, 1908 (Act V of 1908) concerning the taking of certain evidence. This includes powers regarding witness statements (summoning and enforcing attendance of persons and their examination under oath), compelling the production of documents, receiving evidence on affidavits, issuing commission and temporary injunctions (pursuant to the provisions of Order XXXIX) (Sec 14 OMA). The Mohtasib may require any claimant or party connected or concerned with a complaint, inquiry or reference to submit an affidavit within a specified period of time (Sec 25 OMA). No statement given by a person or authority as evidence before the Mohtasib may be used against them in, or subject them to civil or criminal proceedings, except for the purpose of prosecuting the provision of false evidence (Sec 23 (3) OMA). Should the Mohtasib find an individual complaint to be false, frivolous or vexatious, reasonable compensation may be awarded to the Agency, public servant or functionary subject to such complaint and recovered from the claimant as arrears of land revenue. The award of such compensation does not debar the aggrieved party from seeking civil and criminal remedies (Sec 14 (4) OMA). If the Mohtasib discovers instances of maladministration, recom- mendation is made to the Agency concerned, which must then inform the Mohtasib of actions taken or reasons for failing to do so, within a period of time specified by the Mohtasib. If that Agency does not comply with such recommendations and fails to provide sufficient reasons therefor, such conduct is treated as ‘Defiance of Recommendations’, resulting in a relevant report of the Mohtasib becoming part of the personal file or character roll of the public servant primarily responsible for such ‘Defiance of Recommendations’, but only after such public servant has been granted the opportunity to be heard in the matter. In addition, the Mohtasib may refer the matter to the President, who may direct the Agency to implement such recommendation and inform the Mohtasib thereof (Secs 11, 12 OMA). The Mohtasib may also refer cases to an appropriate authority for corrective or disciplinary action where an official is found guilty of maladministration. Within thirty days, that authority must then inform the Mohtasib of action taken, otherwise resulting in the Mohtasib potentially bringing the matter to the attention of the President for such action as deemed fit (Sec 13 OMA). Similarly, if, over the course of investigations, any Agency, public servant or functionary fails to comply with a direction of the Mohtasib, the matter may be referred to the appropriate authority for disciplinary 246 12. ‘Azad Jammu and Kashmir’ (Pakistan-administered Kashmir) (Philipp Janig) action. Additionally, if the Mohtasib has reason to believe that a public servant or functionary has acted in a manner warranting criminal or disciplinary proceedings, such matter may be referred to the appropriate authority for necessary action to be taken within a period of time specified by the Mohtasib (Sec 14 (5), (6) OMA). If, subsequent to the conclusion of investigations, it appears to the Mohtasib that injustice has been caused to the claimant in consequence of maladministration, which has not been or will not be remedied, a special report may be submitted to the President (Sec 11 (4) OMA). Additionally, the Mohtasib may, if the claimant has suffered loss or damage due to maladministration by a public servant, other functionary or Agency, and after hearing the wrongdoer, award reasonable costs or compensation to the claimant, recoverable as arrears of land revenue from the public servant, functionary or Agency (Sec 22 (1) OMA). Any person aggrieved by a decision or order of the Mohtasib may, within thirty days of the decision or order, request representation with the President, who may then pass such order deemed fit (Sec 32 OMA). Under Section 28 (1) OMA, the Mohtasib must submit an annual report to the President within three months of conclusion of a given calendar year. Also, the Mohtasib may perform studies or research, which the office may make available to the public, similar to conclusions, recommendations, ideas or suggestions in matters being dealt with by the office (Sec 28 (4) OMA). V.2. Powers in Relation to Courts The Supreme Court, Supreme Judicial Council, Shariat Court, High Court, Service Tribunal and any other court or judicial tribunal are not considered Agencies and thus outside the jurisdiction of the Mohtasib (Sec 2 (1) OMA). Moreover, matters that are sub-judice or that have been decided by the courts or any other forum are excluded from the jurisdiction of the Mohtasib (Sec 9 (1) (a), (e) OMA). Vice versa, no court has jurisdiction to question the validity of an act taken or intended to be taken under the OMA or to grant interim measures in relation to any proceedings before to Mohtasib (Sec 29 OMA). Moreover, all persons are immune from criminal, civil and all other legal proceedings for anything done or intended to be done in good faith under the OMA (Sec 30 OMA). In particular, no statement given by a person or authority as evidence before the Mohtasib may be used against them in, or subject them to civil or criminal proceedings, except for the purpose of prosecuting the provision of false evidence (Sec 23 (3) OMA). 247 Part Two: Different Jurisdictions Conversely, the Supreme Court or a High Court may bring a case before the Mohtasib over the course of any proceedings before them (Sec 9 (1) OMA). If the Mohtasib has reason to believe that a public servant or functionary has acted in a manner warranting criminal proceedings, the matter may be referred to the appropriate authority for necessary action to be taken within such time as specified by the Mohtasib (Sec 14 (5)(6) OMA). V.3. Powers in Relation to Legislative Organs The Mohtasib does not have any powers regarding the legislative organs of Azad Jammu and Kashmir. Although the annual report and any additional reports or documents published by the Mohtasib, are to be submitted to the Legislative Assembly, no consequences are provided for non-submission (Sec 28 (5) OMA). V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The Mohtasib does not enjoy any particular functions or powers for the purpose of protecting human rights. VI. Practice Annual Reports are not available on the website of the institution. The most recent information available is from 2008, during which 328 cases were instituted. Of those, 103 (31.4 %) pertained to the Board of Revenue, 51 (15.5 %) to the Education Department and 49 (14.9 %) to electrical issues. VII. Reform There is no information available regarding intended reforms. VIII. Information Constitution: http://www.ajkassembly.gok.pk/AJK_Interim_Constitution_Act_1974. pdf The Establishment of the Office of the Mohtasib (Ombudsman) in Azad Jammu and Kashmir Act, 1992 (Act No. XIV of 1992) is not available 248 12. ‘Azad Jammu and Kashmir’ (Pakistan-administered Kashmir) (Philipp Janig) online. The OMA can be found annexed to the Annual Report 2008 (see link below). Annual Reports (2007-2008): http://www.asianombudsman.com/index.php?option=com_ content&view=article&id=193:aoa-members-reports&catid=49:reports& Itemid=197 Homepage: http://snga.ajk.gov.pk/index.php?option=com_ content&view=article&id=64&Itemid=104 249 13. Philippines Thomas Stephan Eder A. Constitutional Background After colonization by Spain and the United States, and a brief occupation by Japan during the Second World War, the Philippines gained independence in 1945. The current constitution went into effect in 1987. According to Art II Section 1 of the Constitution, the Philippines are a democratic and republican State. The legal system is influenced by civil law, common law, Islamic law and customary law. Legislative powers are vested in the bicameral legislature, the Congress, which consists of the Senate and the House of Representatives (Art VI Sec 1). The 24 members of the former are elected for six-year and the no more than 250 members of the latter for three-year terms (Art VI Secs 2, 4, 5 and 7). Elements of direct democracy exist in the form of possible initiatives and referenda (Art VI Secs 1 and 32). The executive powers are held by the President (Art VII Secs 1 and 17), who acts as Head of State and head of government, and appoints a Cabinet with the consent of the Commission of Appointments (Art VII Sec 16). The President and a Vice-President, who replaces the President in the event of death, incapacitation, resignation or removal, are elected for a single six-year term on separate tickets (Art VII Secs 4 and 8). For administrative purposes, the Philippines are divided into 80 provinces and 39 chartered cities. The judiciary of the Philippines consists of the Supreme Court, as the highest judicial authority, and lower courts (Art VIII Sec 1). The latter are comprised of municipal, metropolitan and regional trial courts, courts of appeals and courts of tax appeals, as well as sharia courts and Sandiganbayan (special courts for cases of corruption involving government officials). The Supreme Court consists of a Chief Justice and 14 Associate Justices (Art VIII Sec 4). Justices are appointed by the President upon recommendation of the Judicial and Bar Council (Art VIII 250 13. Philippines (Thomas Stephan Eder) Sec 9). The latter is a six-member body created by the Constitution (Art VIII Sec 8). The Philippines do not have a constitutional court. The Supreme Court oversees the constitutionality of laws and regulations (Art VIII Secs 4–5). Art III of the Constitution is titled ‘Bill of Rights’ (Secs 1–22). It lists various fundamental rights, such as equality before the law (Sec 1), the prohibition of arbitrary detention (Secs 1, 15), and the right of petition (Sec 4). B. Overview of Existing Ombudsman Institutions The Philippines have established the Tanodbayan – Office of the Ombudsman – an administrative Ombudsman institution on the national level with a general mandate. There are branches in Luzon, Visayas and Mindanao, as well as a Deputy Ombudsman for the MOLEO (Military and Other Law Enforcement Offices). The formerly separate Office of the Special Prosecutor, dealing with cases of corruption, is now part of the Office of the Ombudsman and, as its prosecutorial arm, under the supervision and control of the Ombudsman (Art XI Sec 7 of the Constitution). In terms of further specialized grievance redress institutions, the Philippines possess a Civil Service Commission, an independent Com- mission on Audit (COA), an Anti-Money Laundering Council (AMLC), and a Presidential Anti-Graft Commission (PAGC). %1HƂEGQHVJG1ODWFUOCP +*KUVQT[CPF.GICN$CUKU The institution derives its mandate from Art IX of the Constitution (1987), opened office in 1988, but was only fully established by the Act Providing for the Functional and Structural Organization of the Office of the Ombudsman and for Other Purposes (Republic Act. 6770, approved November 17, 1989) (hereinafter: OA 1989). The Office of the Ombudsman was a founding member of the AOA in 1996. It is not a member of the IOI. The Office of the Ombudsman has concluded Memoranda of Understanding with counterpart institutions in Korea, Thailand, and Vietnam, and was a focal agency in the United Nations Convention Against Corruption (UNCAC) implementation review of 2013. 251 Part Two: Different Jurisdictions II. Organization The Office of the Ombudsman is headed by the Ombudsman, and also comprised of six Deputy Ombudsmen (currently five, as the Overall Deputy Ombudsman is also Acting Special Prosecutor), namely the Office of the Overall Deputy, the Office of the Deputy for Luzon, the Office of the Deputy for the Visayas, the Office of the Deputy for Mindanao, the Office of the Deputy for the Armed Forces, and the Office of the Special Prosecutor. The President may appoint additional Deputy Ombudsmen upon recommendation of the Ombudsman (Sec 3 OA 1989). The Overall Deputy Ombudsman performs the duties of the Ombudsman in case of temporary absence or disability (Sec 8 (4) OA 1989) and serves as Acting Ombudsman should the Ombudsman die, resign, be removed or suffer permanent disability. Where the Overall Deputy Ombudsman cannot serve in such capacity, any of the other Deputy Ombudsmen may be appointed as Acting Ombudsman by the President (Sec 8 (3) OA 1989). All other employees of the Office of the Ombudsman – other than the Deputies – are appointed by the Ombudsman, who supervises and structures the Office (Art XI Sec 6 of the Constitution, OA 1989). Overall, the Office of the Ombudsman has 1,048 employees (586 (55.9 %) of whom are women). Among the employees of the pertinent central office, one has a Doctorate Degree (M.D.), 29 have a Bachelor of Laws (LL.B. or J.D.) as well as a Master’s Degree, 176 have a Bachelor of Laws (LL.B. or J.D.) only, 64 have a Master’s Degree but no Bachelor of Laws, 219 have a non- law Bachelor’s Degree, and 57 have a High School or other diploma. The Office of the Ombudsman enjoys fiscal autonomy; annual appropriations may not be lower than those of a previous year and are to be automatically and regularly released (Art XI Sec 14 of the Constitution, Secs 38, 39 OA 1989). III. Legal Status The Ombudsman and the Deputy Ombudsmen (including the Special Prosecutor) are appointed by the President from a list of at least 21 nominees prepared by the Judicial and Bar Council, as well as a list of three nominees for every vacancy thereafter (Art XI Sec 9 of the Constitution, Sec 4 OA 1989). They serve for one seven-year term and cannot be reappointed (Art XI Sec 11 of the Constitution, Sec 7 OA 1989). All candidates must be natural-born citizens, at least 40 years of age, ‘of recognized probity and independence’, members of the Philippine Bar (i.e. they must have a law degree), possess ten years of experience as a lawyer or judge in the Philippines, and not have been ‘candidates for any 252 13. Philippines (Thomas Stephan Eder) elective office in the immediately preceding election’ (Art XI Sec 8 of the Constitution, Sec 5 OA 1989). Furthermore, an Ombudsman may not be a spouse or relative within the fourth civil degree to the sitting President of the Republic (Art VII Sec 13 of the Constitution, Sec 9 OA 1989). According to Section 9 OA 1989 and Art IX-A Section 2 and Art XI Section 11 of the Constitution, the Ombudsman and Deputies (including the Special Prosecutor) may also not hold any other office or employment and cannot participate in any business or be in any other contract with the government including government-owned or controlled corporations or their subsidiaries. Moreover, they may not ‘run for any office in the election immediately following their cessation from office’ and cannot have held elected office in the two years prior to taking up their position at the Office of the Ombudsman. According to Section 10 OA 1989, they must also disclose connections to any persons subsumed under the norms in the above paragraphs. In order to avoid compromising their independence, – and such of other State institutions – they may also not receive loans, guaranties, or similar services for business purposes from government-controlled financial institutions (Art XI Sec 16 of the Constitution). As an impeachable officer, criminal and administrative cases cannot be filed against the Ombudsman during tenure. The Ombudsman and Deputies (including the Special Prosecutor) may be removed by impeachment by the House of Representatives and the Senate, if convicted of a ‘violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust’ (Art XI Secs 2 and 3 of the Constitution, Sec 8 (1) and (2) OA 1989). According to Section 6 and 11 (4) OA 1989, their ranks and salaries are equivalent to those of the Chairman and members of a Constitutional Commission, while salaries may not be reduced during tenure. IV. Scope of Supervision The Office of the Ombudsman may investigate complaints against ‘officers or employees of the Government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations’ regarding administrative, civil and criminal liability (Sec 13 OA 1989). Acts and omissions subject to complaint are to be investigated regarding illegality, for being of an unreasonable, unfair, oppressive or discriminatory nature, inconsistency with the basic functions of an agency, misinterpretation of law or facts, and an improper discretionary use of power (Sec 19 OA 1989). The Ombudsman is authorized to administratively discipline all elected and appointed officials. 253 Part Two: Different Jurisdictions Impeachable officers (see Art XI Sec 2 of the Constitution) and members of Congress and the judiciary, however, are outside the administrative disciplinary jurisdiction of the Ombudsman (Sec 21 OA 1989). Private persons may be investigated insofar as they conspire with public officers in committing a criminal offence (Sec 22 OA 1989). Investigations may be initiated by individual complaints or proprio motu (Sec 15 (1) OA 1989). Any individual, partnership, corporation or entity may submit an individual complaint. Complaints may concern illegal (criminal, civil or administrative liability), mistaken, inconsistent, unjust, unreasonable, discriminatory, immoral, improper or inefficient actions or omissions on account of any public employee (Secs 13, 15 (1), 19 and 26 OA 1989). Complaints, for which there are no fees, may be filed in Tagalog or English, may take any form (Sec 13 OA 1989) and can be submitted orally or in writing, by mail, fax, text message, E-mail, in person or via telephone (there are multiple hotlines). In the event of a particular claimant withholding their identity, the threshold for the Office to initiate investigations will be higher, i.e. the Ombudsman will only investigate if the complaint contains enough information to merit further investigation. Through its investigative branch, the Ombudsman may build a case and file administrative, criminal or forfeiture complaints proprio motu. According to Art XI Section 12 of the Constitution, the Ombudsman is obliged to ‘act promptly’ upon receiving complaints, but not to carry out investigations in all cases. According to Section 20 OA 1989, investigations may be rejected if other adequate judicial or quasi-judicial remedies exist, the pertinent matter is outside the jurisdiction of the Ombudsman, the complaint is ‘trivial, frivolous, vexatious or made in bad faith’, the claimant is deemed to not have sufficient personal interest in the subject matter, or the complaint was filed more than one year after the occurrence of the pertinent act or omission. The Office of the Ombudsman may recommend amending, revising or repealing laws, and the adoption of regulations regarding a better implementation of existing laws (Art XI Sec 13 (7) of the Constitution, Sec 15 (2) OA 1989). V. Powers V.1. Powers in Relation to Administrative Organs The Ombudsmen are appointed by the executive, but may only be removed through impeachment by the legislature (Art XI Secs 2, 3 and 9 of the Constitution, Secs 4 and 8 (1) and (2) OA 1989). The Office of the Ombudsman enjoys fiscal autonomy (Art XI Sec 14 of the Constitution, 254 13. Philippines (Thomas Stephan Eder) Secs 38 and 39 OA 1989), and is explicitly created as an ‘independent’ entity (Art XI Sec 5 of the Constitution). The Ombudsman may request officials to provide information and documents, as well as generally cooperate with investigations (Art XI Sec 13 of the Constitution); records may be inspected, evidence taken and witnesses subpoenaed and held in contempt (Sec 17 OA 1989), as well as bank accounts examined. Witnesses may also be required to produce evidence and not excused from compliance on account of possibly incriminating themselves. They may, however, not be criminally prosecuted for any testimony or evidence they are compelled to produce. The Ombudsman may even grant immunity from criminal prosecution in exchange for important evidence under certain conditions, and enter into plea bargaining agreements (Sec 17 OA 1989). The Constitution and OA 1989 do not regulate on-site visits. The Ombudsman may direct officials to perform or not perform certain acts and correct any abuse (Art XI Sec 13 (8) of the Constitution), as well as recommend ‘removal, suspension, demotion, fine, censure, or prosecution’ regarding any official concerned (Art XI Sec 13 (3) of the Constitution). Officials under investigation may also be preventively suspended as an interim measure for up to six months without pay. Relevant irregularities are reported to the Commission on Audit (Art XI Sec 13 (4) of the Constitution). Persons obstructing the work of the Ombudsman may be punished with fines of no more than 5,000 pesos (Secs 17 and 36 OA 1989). Although impeachable officials may not be fined, serious misconduct on their behalf may still be investigated for the purpose of filing a complaint for impeachment if warranted (Sec 22 OA 1989). V.2. Powers in Relation to Courts The judiciary is outside the scope of supervision of the Ombudsman, as judicial decisions may not be influenced or information regarding pending court cases be requested. Complaints raising disciplinary charges against judges are referred to the judiciary for appropriate action (Sec 21 OA 1989). The Office of the Ombudsman is generally not authorized to file actions in court or bring judicial charges. The Office of the Ombudsman does, however, enjoy preventive, investigative and prosecutorial powers in cases of graft and corruption; criminal complaints may be submitted to its offices and it will carry out preliminary investigations including such instances regarding cases falling under the jurisdiction of the courts. It has a mandate to enforce administrative, civil or criminal liability, where warranted for the promotion of efficient government service (Sec 13 OA 1989). 255 Part Two: Different Jurisdictions V.3. Powers in Relation to Legislative Organs Although the legislature is not involved in the appointment of Ombudsmen, it is responsible for impeachment proceedings (Art XI Secs 2 and 3 of the Constitution, Sec 8 (1) and (2) OA 1989). If the Office of the Ombudsman considers a law or regulation unfair or unjust, it may issue a recommendation to change or repeal such law or regulation to both Congress and the President (Sec 29 OA 1989, Art XI Sec 13 (7) of the Constitution). For this purpose, a separate Research and Special Studies Department evaluates current laws and provides recommendations regarding more effective and efficient public service delivery. Building on its work, the Ombudsman may also recommend the adoption of regulations regarding the better implementation of existing laws. Such proposals are subject to regular procedures of Congress. A participation of Ombudsmen in parliamentary debates is not regulated. The Office of the Ombudsman submits annual reports to both Congress and the President, which are not required to react (Sec 34 OA 1989). V.4. Special Functions and Powers in the Field of *WOCP4KIJVU The Office of the Ombudsman does not enjoy particular functions or powers for the purpose of protecting human rights. Although the Philippines have signed the OPCAT, they have not designated a NPM with the Subcommittee on Prevention of Torture. VI. Practice In 2013, the Office of the Ombudsman dealt with 5,258 complaints (no data on the gender of claimants is collected), mainly pertaining to violations of the Anti-Graft and Corrupt Practices Act (Republic Act No. 3019), misappropriation of public funds and falsification of public documents and abuse of office. The Office of the Deputy Ombudsman for Luzon predominantly registered violations of the Anti-Graft and Corrupt Practices Act (Republic Act No. 3019) (273), cases of grave misconduct (260) and ‘conduct prejudicial to the best interest of the service’ (118). The Office of the Deputy Ombudsman for Mindanao registers all cases either as administrative or criminal complaints. Among the former, the predominant issues in both 2012 and 2013 concerned misconduct in office, conduct prejudicial to the best interest of the service and dishonesty. Among criminal complaints, the predominant issues in both 256 13. Philippines (Thomas Stephan Eder) 2012 and 2013 were violations of the Anti-Graft and Corrupt Practices Act, malversation of public funds and falsification. Compared to 2012, the overall number of cases dealt with by the Ombudsman has increased from 4,893 complaints. In 2012, the Ombudsman’s Area Office in Luzon predominantly registered cases of grave misconduct (249), violations of the Anti-Graft and Corrupt Practices Act (Republic Act No. 3019) (225), and violations of the Code of Conduct and Ethical Standards for Public Officials & Employees (158). VII. Reform There are currently no plans to reform the Office of the Ombudsman. VIII. Information Constitution: http://www.gov.ph/constitutions/the-1987-constitution-of-the-republic- of-the-philippines/ Law: http://www.ombudsman.gov.ph/docs/republicacts/Republic_Act_ No_6770.pdf Homepage: http://www.ombudsman.gov.ph/ 257 14. Republic of Korea (South Korea) Thomas Stephan Eder A. Constitutional Background Korea, an independent kingdom for most of its history, was occupied by Japan in 1910 and regained its independence in 1945. Since the 1953 armistice that ended the three-year Korean War, the peninsula has been split into the Republic of Korea (ROK) in the South and the Democratic People’s Republic of Korea (DPRK) in the North. The constitution of the ROK was promulgated in 1948 and underwent its last major revision in 1987. The legal system follows the German civil law model, with influences from both common law and Chinese classical legal thought. According to Art 1 of its constitution, the ROK is a democratic republic. Legislative powers rest with the unicameral National Assembly, which is elected through universal suffrage every four years (Arts 40–42). The President, acting as Head of State, is elected by a popular vote for a single five-year term and heads the executive branch (Arts 66, 67, 70). The President appoints a Prime Minister (with the consent of the National Assembly) and the Heads of Executive Ministries (upon recommendation of the Prime Minister) (Arts 86, 94). Together, President, Prime Minister and other Ministers form the State Council (Art 88). The President promulgates laws after their passage by the National Assembly (Art 53). The ROK is administratively divided into eight provinces, the Jeju special self-governing province, Seoul and six other metropolitan cities, as well as the Sejong metropolitan autonomous city. The judicial branch consists of district courts and high courts (intermediate appellate courts), with the Supreme Court as a final court of appeal (Art 101). The Chief Justice of the Supreme Court is appointed by the President with the approval of the National Assembly, the other 13 (at the most) justices, are appointed by the President upon recommendation of the Chief Justice with the approval of the National Assembly (Arts 258 14. Republic of Korea (South Korea) (Thomas Stephan Eder) 102, 104). The ROK has a Constitutional Court, which determines the constitutionality of laws and deals with constitutional complaints by individuals, disputes between government entities, impeachments and the dissolution of political parties (Art 111). The nine justices of the Constitutional Court are appointed by the President, three of the President’s volition, three from persons selected by the National Assembly and three from persons nominated by the Chief Justice of the Supreme Court. One of the justices is appointed as President of the Constitutional Court by the President of the Republic with the consent of the National Assembly (Art 111). Chapter 2 of the Constitution is titled ‘Rights and Duties of Citizens’ (Arts 10–39) and lists various fundamental rights, such as human dignity (Art 10), equality before the law (Art 11), the prohibition of arbitrary detention (Art 12), the right of petition (Art 26) and social and economic rights. B. Overview of Existing Ombudsman Institutions Korea has established the 국민권익위원회 – Anti-Corruption & Civil Rights Commission (ACRC) – a federal-level administrative Ombuds- man institution with a general mandate (Arts 11–12 ACRC Act). There are sixteen local Ombudsman institutions (e.g. in Gangwon Province, Gyeonggi Province and Bucheon City), thirteen collegial and three monocratic. Their legal basis is found in Arts 32–38 ACRC Act in combination with either a separate ordinance or instruction, and stipulates a mandate of dealing with complaints against local governments. Both these institutions and the ACRC perform their duties independently, but ‘shall comply with requests for mutual consultation or assistance’ (Art 54 (1) ACRC Act), as the ACRC shall actively support pertinent activities (e.g. by educating staff) (Art 54 (2) ACRC Act). There are a number of further grievance redress institutions with special mandates. These are the National Human Rights Commission of Korea (NHRCK), the Korea Consumer Agency (KCA), the Defense Acquisition Program Administration (DAPA) Ombudsman, the Daegu Welfare Ombudsman, and the Small and Medium Business Ombudsman (SMBO), which is mandated with reforming existing regulations that have an impact on small and medium businesses and addressing their concerns. 259 Part Two: Different Jurisdictions C. Anti-Corruption and Civil Rights Commission (ACRC) +*KUVQT[CPF.GICN$CUKU The ACRC was established in 2008 through the Act on Anti-Corruption and the Establishment and Operation of the Anti-Corruption & Civil Rights Commission 2008 (hereinafter: ACRC Act). It subsumed the mandates of the Ombudsman of Korea, the Korea Independent Commission Against Corruption (KICAC), and the Administrative Appeals Commission. The Ombudsman of Korea was established through the Framework Act on Administrative Regulations and Civil Petitions 1993, joined the IOI in 1996 and co-founded the AOA in 1997. The ACRC has signed Memoranda of Understanding (MOU) with the International Anti-Corruption Academy (IACA), as well as the Ombudsman institutions of Thailand, Vietnam, the Philippines, Indonesia and Uzbekistan and provides training and development assistance to international anti-corruption practitioners. II. Organization The ACRC consists of 15 Commissioners. One of them is appointed as Chairperson, three are Vice-Chairpersons, three are Standing Commissioners, and eight are Non-Standing Commissioners. The Vice- Chairpersons assist the Chairperson, and are in charge of complaints and grievances, anti-corruption, and the Prime Minister Administrative Appeals Commission respectively (Art 13 (1) ACRC Act). The ACRC is represented by the Chairperson (Art 14 (1) ACRC Act), who designates a Vice-Chairperson to perform duties when the former is unable to do so (Art 14 (2) ACRC Act). The ACRC is assisted by a Secretariat which is tasked with administrative affairs. The Secretariat is headed by a Secretary General, who is appointed by the Chairperson and concurrently serves as a Vice- Chairperson (Art 23 ACRC Act). All members (i.e. Commissioners) form the ACRC’s Board (Art 19 ACRC Act). The ACRC may also establish Sub- or Small Committees (Arts 20–21 ACRC Act) as well as advisory organs (Art 24 ACRC Act), commission outside experts (Art 22 ACRC Act) or request the secondment of officials from other agencies (Art 25 ACRC Act). The ACRC has 500 employees, 15 Commissioners and 485 supporting staff (three (20 %) of the Commissioners and 127 (26.2 %) of the supporting staff are women; all work full time). Of all employees, 28 have a PhD, 116 have a Master’s degree, 331 have a Bachelor’s degree and 26 have a 260 14. Republic of Korea (South Korea) (Thomas Stephan Eder) high school diploma. Among the employees, 23 have a license to practice as attorneys. The recruitment process is such that the Chairperson first informs the responsible division at the Ministry of Personnel Management of the number of employees needed. The Ministry then administers open and competitive recruitment examinations, including the Korean Public Service Aptitude Test (PSAT), essay submissions, written exams and interviews, and refer successful candidates to the ACRC. The ACRC Chairperson then allocates personnel to various divisions according to their academic background, capacity, work experience and other factors. Concerning certain positions that require special expertise, licenses or a specific career background, the Chairman may also hire qualified applicants themselves after consulting with the Ministry of Personnel Management. III. Legal Status The Chairperson and Vice-Chairpersons are appointed by the President upon the recommendation of the Prime Minister. The Standing Com- missioners are appointed by the President upon recommendation of the Chairperson. The Non-Standing Commissioners are appointed or commissioned by the President, whereas three are recommended by the National Assembly and the Chief Justice of the Supreme Court respectively (Art 13 (3) ACRC Act). Commissioners serve for a term of three years and can be reappointed once (Art 16 (2) ACRC Act). All Commissioners must dispose of several years of experience either as an associate professor or higher ranked academic (eight years), a judge, prosecutor or attorney (ten years), an architect, tax or public accountant, engineer or patent attorney (ten years), member of a local Ombudsman institution (four years), be a high-ranking public official or recommended by NGOs and possess knowledge and experience in administration as well as a high social reputation (Art 13 (2) ACRC Act). Candidates must also be citizens of the Republic of Korea and neither be members of a political party, nor registered as candidates in an election or fall under Art 33 State Public Officials Act (Art 15 (1) ACRC Act). Moreover, Commissioners may not concurrently serve as members of the National Assembly or any local council, or work for any corporation or organization having a special interest as provided by Presidential Decree (Art 17 ACRC Act). According to Art 16 (1) ACRC Act, the ACRC ‘shall independently perform the work of [sic] which it is authorized.’ ACRC Commissioners do not enjoy immunity, but may only be dismissed against their will, should it be determined that they fall under any of the reasons for disqualification listed in Art 15 (1) ACRC Act (see above), should they 261 Part Two: Different Jurisdictions become mentally or physically unfit to fulfil their duties, or should they violate the rule prohibiting holding more than one office (Art 16 (3) ACRC Act). Commissioners who become mentally or physically unfit to fulfil their duties shall be dismissed by the President or Prime Minister upon recommendation by the Chairperson after a corresponding resolution has been passed by two thirds of Commissioners (Art 16 (4) ACRC Act). The positions of Chairperson and Vice-Chairperson are categorized as political service, while the positions of Standing Commissioners constitute special service among high-ranking public officials. The salary of the Chairperson is equal to that of a government Minister. Regarding the other Commissioners, as with public service employees in general, State and local governments shall strive to guarantee their livelihoods ‘so that they can devote themselves to their duties, and shall take necessary steps to improve remuneration and treatment for them’ (Art 9 ACRC Act). The Ombudsman determines the budget after obtaining parliamentary approval and decides upon its usage. IV. Scope of Supervision The jurisdiction of the ACRC comprises central and local administrative agencies, corporations or organizations that have the authority of an administrative agency or to which such authority is delegated or entrusted under Article 4 Act on the Operation of Public Institutions, as well as members of such corporations or organizations, and the military (Art 2 (5) ACRC Act). Complaints must be rejected if their content is found to be false or ill founded, or does not fall within the competence of the organization (Art 41 (1) ACRC Act). Complaints may be rejected or transferred to the appropriate entities if they relate to the legislative and judicial branches, election commissions or the Board of Audit and Inspection. Moreover, complaints may be rejected if 1) they relate to State secrets, 2) they relate to a criminal investigation or execution of a sentence, 3) an relevant administrative appeal, administrative litigation, trial at the Constitutional Court, or review by the Board of Audit and Inspection is in progress, 4) settlement, mediation, conciliation or arbitration procedures is in progress, 5) they pertain to relations between private individuals, or 6) they pertain to the personnel administration of any administrative agency (Art 43 (1) ACRC Act). The ACRC acts on illegal or unjustifiable acts or omissions, as well as unreasonable administrative systems, which violate the rights of citizens, burden them or cause them inconvenience, including complaints and grievances of soldiers on service and persons performing their mandatory military service (Art 2 (5) ACRC Act). 262 14. Republic of Korea (South Korea) (Thomas Stephan Eder) Investigations may be initiated through individual complaints to the Commission or any local Ombudsman orally or in writing (Art 39 ACRC Act) (reports of corruption must be submitted in writing (Art 58 ACRC Act)), but not upon the own initiative of the ACRC. Complaints should include the name of the claimant (the relevant corporation and its representative) and their domicile (corporate headquarters), the points at issue and supporting facts, as well as other matters provided for by Presidential Decree (including the name of the administrative agency concerned) (Art 39 (2) ACRC Act). All individuals residing in the Republic of Korea, including aliens, as well as legal entities, may file complaints. Currently, the ACRC may be approached in thirteen languages (Korean, English, Chinese, Japanese, Vietnamese, Mongolian, Indonesian, Thai, Uzbek, Bengali, Cambodian, Sinhala and Nepali). No fees are required. V. Powers V.1. Powers in Relation to Administrative Organs The ACRC is established under the Prime Minister’s office (Art 11 ACRC Act). Commissioners are appointed by the President, upon re- commendation of the Prime Minister (Chairperson and Vice-Chair- persons), the ACRC Chairperson (Standing Commissioners), the National Assembly or the Chief Justice of the Supreme Court (Non- Standing Commissioners) (Art 13 (3) ACRC Act). The ACRC shall independently perform the work to which it is authorized (Arts 16 (1) and 54 ACRC Act). Moreover, required qualifications and incompatibilities with other positions (see above), as well as the requirement of withdrawal from cases with an element of personal connection, imply impartiality and independence (Arts 13, 17, 18 ACRC Act). Commissioners may be removed by the President or the Prime Minister, but only under strict conditions (Art 16 (3) and (4) ACRC Act). According to Arts 29 (1) and 42 (1) ACRC Act, the ACRC may, as far as is necessary for the performance of duties (Art 29 (3) ACRC Act), require public organizations to provide explanations or submit materials such as documents, and require interested persons, reference persons, or employees of public organizations involved to state their opinions. The ACRC may also inspect relevant places or facilities (Art 42 (1) ACRC Act). The respective member of the Commission must carry identification (Art 42 (2) ACRC Act). The head of an administrative agency visited is under an obligation to cooperate (Art 42 (3) ACRC Act) and, together with the relevant complainant, notified in advance of the purpose, details, date and place of an investigation or visit. Moreover, 263 Part Two: Different Jurisdictions the ACRC may request the Board of Audit and Inspection and local governments to perform audits (Art 51 ACRC Act), should it, while handling any complaint, be found ‘that any employee of the administrative agency concerned deals with relevant affairs illegally and unjustifiably by intention or in gross negligence’. Finally, the Commission may file accusations with the prosecution against certain senior public officials suspected of corruption. Whoever obstructs or intentionally delays the investigatory work of the Commission without justifiable reason may be punished with fines of up to five million Korean Won (Art 91 (2) ACRC Act). The ACRC also recommends non-binding corrective measures to administrative agencies (and monitors their implementation) (Arts 27– 28 and 46–47 ACRC Act). Corrective measures regarding corruption prevention must be taken into account (i.e. there must be a reaction), the ACRC must be informed of pertinent measures, and may examine their implementation. It may be requested to perform a mandatory review of recommendations by the respective administrative agency if deemed inappropriate, as well as publish its recommendations or opinions together with stated reasons for non-implementation submitted by administrative agencies, ‘provided that publication is not restricted under any other Act or will not violate an individual’s privacy’ (Art 53 ACRC Act). The ACRC may also review Presidential Decrees, Prime Ministerial Decrees and Ordinances of Ministries, regulations, announcements, notices, ordinances and rules, and may recommend removing corruption- causing factors (Arts 28 and 47 ACRC Act). If any unreasonable system is discovered in the course of such reviews or handling a complaint, pertinent opinions may be submitted to the President or the National Assembly (Art 77 (1) ACRC Act). Where the protection of fundamental and human rights is at issue, the ACRC may also request the assistance of the National Human Rights Commission (NHRC) and other organizations, if ‘deemed necessary to perform duties’ (Art 10 ACRC Act). V.2. Powers in Relation to Courts All judicial actions are outside the jurisdiction of the ACRC. It may not investigate or influence such or request information on pending court cases. The Commission may, however, investigate judges and officers of court regarding the crime of corruption. It may also take disciplinary action against judges who violate the Code of Conduct for Public Organization Employees (Arts 2 (1) (c) and 8 (3) ACRC Act). The competent courts then determine which disciplinary action is taken and how it is implemented (Art 8 (4) ACRC Act). Additionally, the ACRC 264 14. Republic of Korea (South Korea) (Thomas Stephan Eder) may recommend to ‘a relevant disciplinary officer to take action against a person who has’ disadvantaged a whistle-blower (Art 62 (1) and (9) ACRC Act). The ACRC may also file accusations with the prosecution against senior officials suspected of committing certain qualified acts of corruption. If the public prosecutor rejects such accusations, the ACRC may file an application for adjudication ‘with the High Court corresponding to the High Public Prosecutor’s Office to which the public prosecutor belongs’ (Art 61 (1) ACRC Act). V.3. Powers in Relation to Legislative Organs The legislature is only involved in appointment procedures insofar as it recommends three non-standing Commissioners (Art 13 (3) ACRC Act). The Chairperson and Commissioners of the ACRC are not prohibited from participating in parliamentary debates but also not explicitly entitled thereto. As a result, they do so only when requested. Although the budget of the ACRC must be approved by the National Assembly, the Commission itself proposes it and decides its usage with parliamentary approval. The ACRC submits its annual reports to both the President and the National Assembly (Art 26 (1) ACRC Act). It may submit additional special reports if deemed necessary, but is not legally required to do so (Art 26 (2) ACRC Act). While the ACRC Act does not oblige any institution to react to annual reports, the National Assembly does make use of them when inspecting government offices. The Ombudsmen may review statutes and acts enacted by the National Assembly (Art 28 ACRC Act). During such process or while handling a complaint, the ACRC may come across procedures or norms, which it determines to be obviously unreasonable or at least in need of improvement. In such cases, it may submit non-binding opinions or recommendations suggesting improvements of procedures to the President of the National Assembly (Art 77 (1) ACRC Act) as well as the amendment or repeal of norms to the National Assembly or relevant local council (Art 77 (2) ACRC Act). The National Assembly then reflects on such opinions or recommendations within the legislative process. V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The ACRC does not enjoy particular functions or powers for the purpose of protecting human rights. It may, however, request the assistance of 265 Part Two: Different Jurisdictions the National Human Rights Commission of Korea (NHRCK) if deemed necessary (Art 10 ACRC Act). The NHRCK monitors the implementation of international human rights conventions. Korea has not signed the OPCAT. VI. Practice In 2013, the Ombudsman Bureau dealt with 32,737 complaints. These pertained to the urban sector (2,061 (6.3 %)), health and welfare (1,812 (5.5 %)) and civil judicial affairs (1,699 (5.2 %)). Another significant issue were road and infrastructure problems. Approximately a third of submissions were simple queries as opposed to complaints; of the latter, roughly 400 were collective complaints. The most frequent recipients of corrective recommendations included the National Tax Service, the Ministry of Defense, the Local Government of Gyeonggi-do, the National Police Agency, the Seoul Metropolitan Government, and the Korea Land & Housing Corporation. Compared to 2012, this constitutes a decrease from the previous 33,242 complaints. These predominantly pertained to the urban sector (1,833 (5.5 %)), health and welfare (1,787 (5.4 %)) and police affairs (1,529 (4.6 %)). VII. Reform The legislature is currently processing a ‘Law on the Arbitration of Collective Petitions’, which would grant the ACRC authority to handle collective petitions with more than 100 petitioners. Moreover, the ACRC is lobbying for reforms aiming to strengthen its investigative capabilities (e.g. within field investigations) and expanding its position in the field of mediation, as well as enhancing complaint prevention and corporate grievance resolution. VIII. Information Constitution: http://www.ccourt.go.kr/home/att_file/download/Constitution_of_the_ Republic_of_Korea.pdf http://korea.assembly.go.kr/res/low_01_read.jsp?boardid=1000000035 Law: http://www.acrc.go.kr/eng/board. do?command=searchDetail&method=searchDetailViewInc&menuId= 266 14. Republic of Korea (South Korea) (Thomas Stephan Eder) 020504&confId=64&conConfId=64&conTabId=0&currPageNo= 1&boardNum=46606 Homepage: http://www.acrc.go.kr/eng/index.do 267 15. Sri Lanka Philipp Janig A. Constitutional Background Ceylon gained independence from the United Kingdom in 1948. The State, which was renamed to Sri Lanka in 1972, has enacted three constitutions since. Its current constitution was adopted in 1978 and has experienced several amendments, the latest in 2015. Article 1 of the Constitution declares Sri Lanka a free, sovereign, independent and democratic socialist Republic. Pursuant to Article 2, Sri Lanka is a unitary State. For administrative purposes, Sri Lanka is divided into nine provinces (Eighth Schedule), which are comprised of 25 administrative districts (Art 5). It has a mixed legal system incorporating elements of Roman-Dutch civil law, English common law and Jaffna Tamil customary law. Legislative powers are vested in the unicameral parliament (Art 4 (a)) and its 225 members who serve for five-year terms (Art 62). The members are elected by popular vote via universal suffrage on the basis of an open- list, proportional representation system by electoral district. Executive powers lie with the President (Art 4 (b)), who serves as Head of State and head of the executive and government and is elected for a five- year term (Art 30) by popular vote (Art 94). The President is responsible to parliament (Art 33A). The Cabinet of Ministers is headed by the President, who appoints the Prime Minister (Art 42) and, in consultation with the Prime Minister, the other Ministers from Members of Parliament (Art 43). The Cabinet is collectively responsible to the parliament (Art 42 (2)). The Supreme Court of the Republic is the final court of appeal for both civil and criminal matters and also exercises jurisdiction over the protection of fundamental rights (Art 118) and in respect of constitutional issues (Arts 120–125). Following applications, it has the power to issue writs for the protection of fundamental rights (Art 126). The Court of Appeal hears appeals against decisions of the High Court and all courts of first instance (Arts 138–139). In addition, it enjoys original jurisdiction to 268 15. Sri Lanka (Philipp Janig) issue writs (Arts 140–141). The High Courts (Art 111) have primary and appellate jurisdiction over civil and criminal matters. The Primary Courts function as first instance for minor civil and criminal matters. Primary jurisdiction is also enjoyed by the Magistrate’s Courts in criminal cases and the District Courts in civil cases. Additionally, the Quazi Courts and Board of Quazis deal with matrimonial matters relating to Muslims. Numerous administrative tribunals have been established as well, such as the Labour Tribunals. Judges are supervised by the Judicial Service Commission, which consists of the Chief Justice of the Supreme Court and the two most senior judges of the Supreme Court, as appointed by the President and approved by the Constitutional Council (Arts 111D–111M). Fundamental Rights are listed in Chapter III of the Constitution (Arts 10–17) and include the equality of all persons before the law (Art 12) and the prohibition of arbitrary arrest, detention or punishment (Art 13). B. Overview of Existing Ombudsman Institutions Sri Lanka has a national Ombudsman institution with a general mandate, the Parliamentary Commissioner for Administration. There are no comparable regional or local Ombudsman institutions. While a Financial Ombudsman of Sri Lanka does exist and is also a member of the AOA, the institution is not included in this study, as it operates without a legal basis and is voluntarily set up by the private sector. C. Parliamentary Commissioner for Administration +*KUVQT[CPF.GICN$CUKU Chapter XIX (Art 156) of the Constitution stipulates that the parliament shall establish a Parliamentary Commissioner for Administration. This was done through the Parliamentary Commissioner for Administration Act, No. 17 of 1981 (amended once through Act No. 26 of 1994; hereinafter: PCAA). The PCAA provides the Ombudsman with a mandate to investigate violations of fundamental rights and maladministration by public administration and certain private legal entities (partly) under State supervision. The first Parliamentary Commissioner for Administration (hereinafter: Ombudsman) was appointed in 1982 and the institution later became a member of both the AOA and the IOI. 269 Part Two: Different Jurisdictions II. Organization The institution is headed by the Ombudsman, who may employ one or more Deputy Ombudsmen (Sec 8 (1) PCAA). A number of officers and servants necessary to aid the Ombudsman in the performance of functions may be appointed (Sec 9 PCAA). The budget of the institution is part of the national budget as a ‘special spending unit’ and as such approved by Parliament following a proposal by the Cabinet of Ministers. The PCAA does not contain any special provisions regarding the allocation and usage of budgets. The accounts of the institution are audited by the Auditor General (Art 154 of the Constitution). III. Legal Status The Ombudsman is appointed by the President (Art 156 (2) of the Constitution, Sec 3 (1) PCAA), however the appointment may only be performed upon recommendation by the Constitutional Council and requires its approval (Art 41C of the Constitution). The Constitutional Council consists of the Prime Minister, the Speaker of Parliament (as Chairman), the Leader of the Opposition and seven further members, mostly Members of Parliament (Art 41A of the Constitution). No specific qualification criteria are stipulated for the position of the Ombudsman. The Ombudsman and their deputies do not enjoy fixed tenure, but instead hold office until the relevant age limit is reached or they are removed by the President (see below). The salary of the Ombudsman is determined by parliament and may not be diminished while in office (Article 156 (3) of the Constitution, Sec 3 (4) PCAA). The office of the Ombudsman is incompatible with being a member or officer of parliament or of any public corporation, local authority, or other similar institution (Sec 3 (2) PCAA). Moreover, the Ombudsman may not hold any other office whether paid or not, or accept any position of profit or emolument or engage in any occupation for reward outside the duties of office, except with the written consent of the President (Sec 3 (3) PCAA). Similarly, upon relinquishing office, the Ombudsman may not act as a public officer at any time without the consent of the President (Sec 7 PCAA). The Ombudsman and all officers of their staff are immune against suit or prosecution for anything done or purported to be done in good faith under the PCAA. In particular, the Ombudsman is immune against any action, prosecution or other proceeding, civil or criminal, in any court or tribunal in respect of any reports made under the PCAA. The same privilege is also enjoyed by any other person in respect of the publication of a substantially true account of a report by the Ombudsman. Furthermore, 270 15. Sri Lanka (Philipp Janig) the Ombudsman and any officer of their staff may not be called to give evidence in any court or in any proceeding of a judicial nature, in respect of any report made by the Ombudsman under the PCAA, or against any other person in respect of the publication of a substantially true account of a pertinent report (Sec 21 PCAA). There is no provision in the PCAA that explicitly declares the Ombudsman independent. Thus, a certain degree of independence from the executive may only be inferred from the respective removal procedure, in particular the involvement of the parliament, as well as applicable provisions regarding term of office. The Ombudsman holds office ‘during good behaviour’ (Article 156 (2) of the Constitution, Sec 3 (1) PCAA). Generally, the office becomes vacant, if the Ombudsman reaches the statutory age limit of 68 years. In addition, the Ombudsman may be removed by the President due to ill health or physical or mental infirmity, or, alternatively, pursuant to an appropriate order subsequent to a vote in parliament (Article 156 (4) of the Constitution, Sec 3 (5) PCAA). The procedure for the presentation and passing of such vote in parliament is the same as for the removal of a judge of the Supreme Court or the Court of Appeal (Sec 3 (7) PCAA). Any resolution for the presentation of such vote requires the signature of at least a third of all Members of Parliament, while the vote itself requires the support of a majority of all members (Art 107 of the Constitution). Deputy Ombudsmen are appointed by the President in consultation with the Ombudsman (Sec 8 (1) PCAA). The abovementioned provisions relating to incompatibilities, salary and removal (namely Secs 3-7 PCAA) apply mutatis mutandis to the Deputy Ombudsmen, with the exception of an age limit of 65 rather than 68 years (Sec 8 (6) PCAA). IV. Scope of Supervision The bodies under the supervision of the Ombudsman are such within public administration and certain private legal entities (partly) under State supervision. The Ombudsman investigates and reports on the conduct of any public officer (thus, a person who holds any paid office of the Republic, see Sec 25 (1) (e) PCAA) or officer of a public corporation, local authority or other similar institution (Sec 10 (1), (2) PCAA). However, certain officials are not considered ‘public officers’ and thus lie outside the jurisdiction of the Ombudsman. These are judicial officers, the President and staff, Ministers or Deputy Ministers, the Speaker of Parliament, Members of Parliament, the Secretary-General of Parliament and staff, as well as members of the Judicial Service Commission and the Public Service Commission (Sec 25 (1) PCAA). 271 Part Two: Different Jurisdictions Moreover, the Ombudsman may not investigate or report on any incidents which occurred prior to the enactment of the Constitution. In addition, investigations and reports on allegations are prohibited regarding a broad range of matters, provided that the relevant conduct does not amount to infringements of fundamental rights. These are allegations relating to the exercise, performance or discharge of any power, duty or function under the Public Security Ordinance, any person who is or was a member of any forces charged with the maintenance of public order, in particular the Armed Forces and Police Force, but only so far as the matter relates to the terms and conditions of their service, or any order, command, decision, penalty or punishment given to such member in their capacity as such member. Moreover, this includes allegations relating to the appointment, transfer, dismissal or disciplinary supervision of public officers, any decision, recommendation, act or omission of the Auditor General, the Commissioner of Elections, the Ombudsman or Deputy Ombudsman, any attorney-at-law acting as legal advisor to, or appearing in any proceedings for, the State or any institution under the jurisdiction of the Ombudsman, including the Attorney General, or any legal officer of their department or any attorney-at-law acting under their special authority and the Solicitor General. It also includes allegations relating to the initiation, performance and recommendation of civil or criminal proceedings (Sec 11 PCAA). The supervision criteria under the PCAA include infringements of fundamental rights and any other ‘injustice’, insofar as it results from various forms of maladministration or the infringement of any right recognized by the Constitution (Sec 10 (6) PCAA). A relevant ‘injustice’ is given, if it is caused by a decision, recommendation, act or omission that was contrary to law, or based wholly or partly on a mistake of fact or of law, or if it was unreasonable, unjust, oppressive or improperly discriminatory or otherwise wrong, or was in accordance with a practice that can be considered as such, or if it was occasioned by unreasonable delay, apathy or indifference. In addition, if the relevant conduct was done in exercise of discretion which was exercised for an improper purpose, on irrelevant grounds, by reference to irrelevant considerations, by failing to take material considerations into account, or if the discretion was exercised without stating reasons therefore although such should have been given, in the opinion of the Ombudsman (Sec 17 PCAA). Investigations may be initiated following individual complaints or references by the Public Petitions Committee of Parliament (Sec 10 (1), (2) PCAA). Individual complaints must be brought in writing (Sec 10 (2) PCAA) and are not subject to fees. 272 15. Sri Lanka (Philipp Janig) The Ombudsman may discontinue investigations if of the view that the claimant or person aggrieved had an adequate remedy or right of appeal to which it would have been reasonable to resort to, or if the claimant lacks a sufficient interest in the subject matter of the investigation, or is guilty of unreasonable delay in submitting the complaint or allegation, or such investigation may be prejudicial to the security, defence or international relations of Sri Lanka including the relations of Sri Lanka with any international organization or agency, or prejudicial to the maintenance of discipline or order in any prison or place of detention (Sec 13 PCAA). Investigations must be conducted in private (Sec 15 (2) PCAA). The Ombudsman is required to maintain secrecy with respect to matters of which knowledge is acquired in exercise of official functions (Sec 6 PCAA). V. Powers V.1. Powers in Relation to Administrative Organs and Private Actors Under the Constitution, the office of the Ombudsman is not part of any branch of government. However, the PCAA does not explicitly provide for the office of the Ombudsman to be independent. A certain degree of independence from the executive may, however, be inferred with a view to the applicable removal procedure, particularly the involvement of parliament, as well as provisions regarding the pertinent term of office. Pursuant to the PCAA, for the purpose of conducting investigations, the Ombudsman may enter and inspect any premises or places (as well as anything therein), used or occupied by any government department or other institution under the jurisdiction of the Ombudsman. Before entering, the Ombudsman must notify the head of the institution concerned. The Ombudsman is not authorized to enter any premises or place, ship or aircraft, if prohibited under the Official Secrets Act (Sec 19 PCAA). For the purposes of investigations, the Ombudsman has the power to procure and receive all written and oral evidence and to examine all persons as witnesses, as deemed necessary or desirable. Evidence of any witness may be required to be given under such oath or affirmation, as when giving evidence in court. Persons may be summoned to give evidence by examining them as a witness, or requiring them to produce any document or other object in their possession or within their control. In particular, the Ombudsman may direct any person in charge of a place of detention, such as prisons or mental hospitals, to produce any person in 273 Part Two: Different Jurisdictions custody or charge before the Ombudsman for the purpose of taking such evidence. Generally, the Ombudsman may admit any evidence which might be of assistance to an investigation (Sec 16 (1) PCAA). The examination of witnesses by the Ombudsman under Section 16 (1) PCAA, is considered a judicial proceeding for the purposes of Chapter XI of the Penal Code, thus rendering the provision or fabrication of false evidence punishable (Sec 16 (2) PCAA). Moreover, Section 20 PCAA ensures compliance with orders of the Ombudsman for the purpose of taking evidence by listing certain offences which are, upon conviction by the High Court, punishable with imprisonment not exceeding one year and/or fines not exceeding 5,000 LKR. Such offences include refusing or failing, without reasonable cause, to appear as a witness, be sworn in or affirmed, answer a question or produce a document or object within one’s possession or control. Moreover, wilfully making false statements in the context of an investigation, obstructing the Ombudsman in the exercise of duties and functions without reasonable cause and disregarding the duty to maintain secrecy under the PCAA. In addition, it is an offence to intentionally insult or interrupt the Ombudsman during investigations, or to bring the Ombudsman into disrepute (Sec 20 PCAA). If the Ombudsman finds that there has been or is likely to be an infringement of a fundamental right or any other injustice, recom- mendations may be submitted to the head of the relevant institution, which will then be required to notify the Ombudsman within a specified period of time of appropriate action taken (Sec 17 (3) (a) PCAA). If no action is taken within such time, or if the Ombudsman is not satisfied with the action taken, a copy of such report may be forwarded to the President and parliament. The Ombudsman may also do so even if satisfied with the action taken (Sec 17 (3) (c)–(d) PCAA). Pursuant to Section 18 PCAA, the Ombudsman must submit a report on their work to the President and the parliament at least once a year. V.2. Powers in Relation to Courts The conduct of judicial officers343 is outside the jurisdiction of the Ombudsman (Article 25 (1) PCAA). Moreover, the Ombudsman may not investigate or report upon the initiation, performance or recommendation of civil or criminal proceedings (Sec 11 (b)(iv) PCAA). Conversely, the Supreme Court or Court of Appeal may interfere with the work of the Ombudsman in exercise of their writ jurisdiction. 343 For a legal definition of ‘judicial officer’, although formally applicable only to the Constitution, see Article 170 of the Constitution of Sri Lanka. 274 15. Sri Lanka (Philipp Janig) Persons alleging that an executive or administrative action has infringed or threatens imminent infringement of a fundamental right, may petition the Supreme Court. If the Supreme Court finds the infringement of a fundamental right to have occurred or be imminent, it may i.a. prohibit (writ of prohibition) or require (writ of mandamus) such conduct of the respective body as deemed just and equitable (see Art 126 of the Constitution). The Court of Appeal enjoys the same power with regard to infringements of legal rights that do not constitute fundamental rights (Art 140 of the Constitution). However, a decision by the Ombudsman not to investigate a complaint or further an investigation due to lack of jurisdiction, or, generally, to discontinue an investigation, may not be called into question by any court or tribunal or be reviewed or quashed in proceedings for writs (Sec 14 PCAA). Whether and how far such competence has influenced the institution in practice is unclear. No person may be subjected to legal proceedings for giving evidence, information or answers or producing documents and objects to or before the Ombudsman. Evidence of statements made or answers thus given are not admissible in any legal proceedings against that person or anybody else. The same applies to documents specifically prepared for the purpose of an investigation by the Ombudsman, unless in the context of legal proceedings for giving false evidence, under Section 20 PCAA, or for breaching secrecy under the PCAA (Sec 16 (6) PCAA). Furthermore, the Ombudsman and officers on their staff may not be called to provide evidence in judicial proceedings pursuant to the publication of substantially true accounts in a report (Sec 21 PCAA). The Ombudsman is authorized to request the opinion of the Supreme Court, if, during the course of an investigation, any question of law of exceptional public importance arises relating to the interpretation of the Constitution, or as to whether there has been or is likely to be an infringement of a fundamental right by a public officer, or officer of a public corporation, local authority, or other similar institution (Sec 12 PCAA). V.3. Powers in Relation to Legislative Organs The parliament is not involved in the appointment of the Ombudsman, but may be in the dismissal (see above in Part C.III.). Results of investigations performed by the Ombudsman must be reported to the Public Petitions Committee of Parliament. If a given complaint is considered justified and the head of the relevant institution does not take adequate action within the required time, a copy of such report is to be forwarded to the President and parliament. The Ombudsman is also authorized to take such steps, 275 Part Two: Different Jurisdictions even if adequate action is taken (Sec 17 (2), (3) (c) – (d) PCAA). Furthermore, the Ombudsman is obliged to submit an annual report to parliament (Sec 18 PCAA), although the PCAA does not provide consequences for failure to do so. V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The Ombudsman is inter alia tasked with investigating and reporting infringements of fundamental rights by public administration and certain private legal entities (partly) under State supervision. Particular matters and organs are only subject to the jurisdiction of the Ombudsman insofar as such cases are concerned (see above, Part C.IV.; Sec 17 (1) (a) PCAA). The PCAA does not provide for special legal consequences if breaches of fundamental rights are found to have occurred. VI. Practice There is no data available in this regard. VII. Reform There is no information available regarding any plans for reform. VIII. Information Constitution: http://www.priu.gov.lk/Cons/1978Constitution/CONTENTS.html Laws: http://www.commonlii.org/lk/legis/num_act/pcfaa17o1981535/ 276 16. Thailand Thomas Stephan Eder A. Constitutional Background Since the foundation of the independent Kingdom of Thailand in 1238, the country has never been colonized, nor was it occupied during the Second World War. The current Constitution of the Kingdom of Thailand (Interim) B.E. 2557 (2014) (Government Gazette No. 131, Chapter 55 A on 22 July 2014; hereinafter: Constitution 2014) was enacted by the military leadership currently ruling Thailand in the form of the ‘National Council for Peace and Order’ (established through the Announcement of the National Council for Peace and Order No. 6/2557 dated 22 May 2014). It replaced the former constitution, which was approved by referendum and promulgated in 2007 (Constitution of the Kingdom of Thailand 2007 B.E. 2550 (2007); hereinafter: Constitution 2007). Thailand has a civil law legal system with common law influences and is divided into 77 provinces. The former constitution was significantly more comprehensive. While it was revoked except for Chapter II (which relates to the King), Section 5 of the Constitution 2014 refers to customary law where no provision of its text is applicable. Thus, it remains unclear if certain provisions of the Constitution 2007 may still be relied upon. The Constitution 2014 e.g. references the Office of the Ombudsman of Thailand, but does not contain the relevant provisions, as opposed to the Constitution 2007, which deals with the composition, appointment and powers of the institution and its members. Section 45 of the Constitution 2014 merely clarifies that an Ombudsman may only submit a case to the Constitutional Court – a power granted under Section 245 of the Constitution 2007 – if a provision is deemed unconstitutional under the new Constitution 2014. Regarding other Ombudsman-related questions regulated by the Constitution 2007, it would have to be asked whether pertinent norms may still be relied upon or whether they have been revoked. Section 45 of the Constitution 277 Part Two: Different Jurisdictions 2014 does not clarify whether the Ombudsman institution continues to exist under the interim constitution. Notwithstanding certain doubt, it would appear to be indicated that the previous provisions in this regard still apply. Moreover, Section 24 of the Constitution 2014 states that the King appoints ‘holders of offices in the constitutional organs under the’ Constitution 2007, which would include the thus still existent Ombudsman as well. In terms of pertinent non-constitutional legislation, Section 47 of the Constitution 2014 clarifies that ‘announcements and orders effective on the day prior to the date of coming into force of this Constitution shall stay in force until amended or repealed by a law, regulation, ordinance, cabinet resolution or order, whichever applies’, which would also cover the Organic Act on Ombudsmen B.E. 2552 (2009) (hereinafter: OAO 2009). The King serves as the Head of State of Thailand (Secs 1–3 of the Constitution 2014). He appoints the members of the National Legislative Assembly, a unicameral legislature that acts as the House of Representatives, the Senate and the National Assembly in the Constitution 2007, upon recommendation by the National Council for Peace and Order (Sec 6 of the Constitution 2014), as well as the President of the National Legislative Assembly upon a corresponding resolution of the Assembly (Sec 10 of the Constitution 2014). The President of the National Council for Peace and Order counter-signs these appointments (Sec 10 of the Constitution 2014). The members of the Council, which shall not be more than 15, are appointed and removed by the President of the Council (Sec 42 of the Constitution 2014). The Prime Minister and no more than 35 further Ministers are also appointed by the King. They form the Council of Ministers and are installed upon a corresponding resolution of the National Legislative Assembly and the advice of the Prime Minister respectively (Sec 19 of the Constitution 2014). The President of the National Council for Peace and Order counter-signs the appointment of the Prime Minister and may instruct the Council of Ministers on any activity (Sec 42 of the Constitution 2014). Moreover, until the National Legislative Assembly is constituted and the new Council of Ministers takes office, all relevant authorities rest with the President of the National Council for Peace and Order (Sec 43 of the Constitution 2014). The Council and its President are granted further sweeping powers in Sections 44, 47 and 48 of the Constitution 2014. There are no provisions regarding the duration of their terms. As advised by the National Council for Peace and Order, the King establishes a National Reform Council to conduct studies and make 278 16. Thailand (Thomas Stephan Eder) proposals for the implementation of reforms (Secs 27–31 of the Consti- tution 2014). The President of the National Reform Council is tasked with appointing a Constituent Committee for the purpose of drafting a new constitution (Secs 32–37 of the Constitution 2014). The Thai court system, as regulated in Chapter X Parts 1, 3, 4 and 5 of the Constitution 2007, consists of the Courts of Justice of Thailand, the Administrative Court System, the Constitutional Court, and military courts. The Courts of Justice consist of Courts of First Instance, the Court of Appeals and the Supreme Court of Justice of Thailand – the final court of appeal – and deal with civil and criminal cases. The Administrative Court System consists of Administrative Courts of First Instance and the Supreme Administrative Court. There are also Family Courts, Tax Courts, Labour Courts and a Central Bankruptcy Court. The Constitutional Court is regulated in Chapter X Part 2 of the Constitution 2007, and Section 45 of the Constitution 2014, which does not alter the following provisions. Three of its nine justices are drawn from the Supreme Court, two from the Supreme Administrative Court, and the remaining four are selected by a Selective Committee for judges and confirmed by the National Legislative Assembly pursuant to Section 6 of the current interim constitution. The King appoints all justices for a single nine-year term. Section 4 of the Constitution 2014 refers to ‘customary practices’ and international obligations concerning the protection of ‘human dignity, rights, freedoms and equality of all Thais’. Presumably, the pertinent Chapter III of the Constitution 2007, titled ‘Rights and Liberties of Thai People’, still enjoys certain relevance (Secs 26–69). It lists various fundamental rights, such as equality before the law (Secs 30, 31), the prohibition of arbitrary detention (Sec 32), the right of petition (Sec 59) as well as social and economic rights. B. Overview of Existing Ombudsman Institutions Thailand has established the Office of the Ombudsman Thailand, an administrative Ombudsman institution on the national level with a general mandate. There are no comparable regional or local institutions. As for other grievance redress mechanisms, there is a National Human Rights Commission, which under the Constitution 2007 was charged with investigating human rights violations, proposing amendments to the legislature, filing lawsuits on behalf of claimants and submitting cases and opinions to the Constitutional Court and Administrative Court. 279 Part Two: Different Jurisdictions %1HƂEGQHVJG1ODWFUOCPQH6JCKNCPF +*KUVQT[CPF.GICN$CUKU The Thai monarchy disposed of a petition system since the 13th century, consisting of a specific bell at the palace gates, which could be rung by petitioners. As the system of government grew more intricate, this mechanism disappeared. In the 1970s, Thai law professors and the Constitutional Drafting Assembly suggested the introduction of a mechanism modelled after the Swedish Ombudsman. It was only in the Constitution of 1997, however, that a pertinent mandate was included and the enactment of a pertinent statute called for. The Office of the Ombudsman of Thailand was then set up through the Organic Act on Parliamentary Ombudsmen B.E. 2542 (1999) (Royal Gazette book No. 116, Chapter 81 on 14 September 1999), which was repealed and replaced by the Organic Act on Ombudsmen B.E. 2552 (2009) (Government Gazette No. 126, chapter 50 on 4 August 2009; hereinafter: OAO 2009). This followed the adoption of the Constitution 2007, which foresaw significant additional functions for the Ombudsman, mainly concerning the establishment of a Code of Ethics and pursuant oversight of the practice of politicians, as well as governmental and State officials. Further legal bases relevant to the work of the Ombudsman are the Act on Office of the Ombudsman B.E. 2552 (2009) (Royal Gazette book No. 126, Chapter 58 A on 13 December 2009), and point 5 of the Announcement of the National Peace and Order Maintaining Council No. 11/2557 dated 22 May 2014. The Office of the Ombudsman took up operations in 2000. It joined the AOA that same year, and the IOI in 2001. It continues to derive its mandate from the Constitution 2007, although that constitution was repealed by the (interim) Constitution 2014 (see above, Part A), which raises questions on its continued mandate. II. Organization The Office of the Ombudsman of Thailand comprises three Ombudsmen (one Chief Ombudsman and two further Ombudsmen) and a Secretariat headed by a Secretary General and three deputies. Each of the Ombuds- men performs their duties independently and is accountable for the re- sponsibilities entrusted to them based on a division of labour agreed upon in a joint meeting (Art 12 OAO 2009). The Chief Ombudsman is in charge of executing the OAO 2009 and, upon obtaining the collective 280 16. Thailand (Thomas Stephan Eder) approval of the other Ombudsmen, may issue regulations or notifications to this effect (Art 5 OAO 2009). The Office has 216 employees (129 (60 %) of whom are women). Among these, there are such with Bachelor’s or Master’s degrees in Law, Political Science or Business Administration. The Secretary-General of the Office of the Ombudsman, upon affirmation by the Chief Ombudsman, submits a budget proposal to the Bureau of Budget, which is then deliberated by the National Legislative Assembly and finally endorsed as a proposal in the Expense Budget Act of a given fiscal year. III. Legal Status The King of Thailand appoints the Ombudsmen (as ‘holders of offices in the constitutional organs under the’ Constitution 2007), with the appointment countersigned by a Minister and the National Legislative Assembly providing advice (Secs 24, 25 of the Constitution 2014). Pursuant to Section 242 of the Constitution 2007, the Ombudsmen then elect a Chief Ombudsman from among themselves. According to Section 243 of the Constitution 2007, appointments follow a selection procedure analogous to that of the justices of the Constitutional Court as laid out in Sections 206 and 207 of the Constitution 2007. The appropriate Selection Committee comprises the Presidents of the Supreme Court, the Supreme Administrative Court, the Constitutional Court and the National Legislative Assembly (previously the President of the House of Representatives and the Opposition Leader). Ombudsmen are appointed for a term of six years and cannot be reappointed (Sec 242 of the Consti- tution 2007). The King may remove an Ombudsman with a Minister counter- signing the pertinent dismissal (Secs 24, 25 of the Constitution 2014). Pursuant to Art 9 OAO 2009, which still refers to the Constitution 2007, Ombudsmen are obliged to step down in the following cases: First, when 70 years of age is reached. Second, if it is discovered that certain incompatible positions are or have been held. Third, if sentenced to a term of imprisonment. Fourth, if it is ordered that their assets shall be vested in the State due to an unusual increase of wealth. Fifth, if an Ombudsman is deemed to have breached any prohibitions under Section 207 (1), (2), (3) or (4) of the Constitution 2007, regulating incompatibilities for the President and judges of the Constitutional Court, which is to be analogously applied here. Should an Ombudsman fail to step down on their own initiative in one of these five situations, a petition may be filed with the Administrative Court, which then issues a final ruling and enforces the 281 Part Two: Different Jurisdictions OAO 2009. The sixth and final possibility for removing an Ombudsman is through the National Legislative Assembly (previously the Senate) by passing a corresponding resolution (Art 9 OAO 2009). An Ombudsman is required to be publicly respected and knowledgeable in ‘the administration of State affairs, enterprises or other activities of common interests of the public’ (Art 7 OAO 2009). Moreover, such office requires Thai nationality by birth, at least 45 years of age and having achieved a Bachelor’s or higher degree. Candidates may not be bankrupt or disfranchised, have been sentenced to a term of imprisonment (even if the sentence has not become final or was suspended), have been dismissed from a State agency or enterprise or local government organization on account of a ‘serious violation of discipline’, have been vacated from the office of member of the National Legislative Assembly (previously the House of Representatives or the Senate), have been removed from any public office for being a narcotics addict and may not have been subject to an order by a court determining ‘that his [or her] assets shall vest in the State on the ground of unusual wealth or an unusual increase of assets’ (Art 8 OAO 2009). Moreover, there are several positions that are, even if held in the past, incompatible with the position of Ombudsman. An Ombudsman cannot have held the position of Ombudsman or Parliamentary Ombudsman before, cannot be a member of the National Legislative Assembly (pre- viously the House of Representatives or the Senate), a political official, local administrator or a member of a local assembly, cannot have been a member of a political party within the three years prior to appointment, and cannot be a judge of the Constitutional Court or the Administrative Court, an Election Commissioner, a National Counter Corruption Com- missioner, a State Audit Commissioner or a National Human Rights Commissioner (Art 8 OAO 2009). According to Section 242 of the Constitution 2007, the Office of the Ombudsman is an independent organization with ‘autonomy in personnel management and budgeting and other matters as provided by law’. According to Art 22 OAO 2009, the salaries and benefits of the Ombudsmen ‘shall be in accordance with the law on such matter.’ The salary of the Chief Ombudsman is currently equivalent to that of the Deputy Prime Minister and the President of the National Legislative Assembly, while that of the other Ombudsmen corresponds to the remuneration received by Ministers of the government. Ombudsmen are not ‘liable to both civil and criminal liabilities if [they exercise] the powers and duties under this Organic Act in good faith’ (Art 18 OAO 2009). Similarly, persons who disclose information or submit evidence 282 16. Thailand (Thomas Stephan Eder) to the Ombudsmen under the OAO 2009 in good faith, enjoy the same privilege (Art 19 OAO 2009). Art 12 OAO 2009 stipulates that each Ombudsman must perform their duties independently and be accountable for entrusted responsibilities. IV. Scope of Supervision The Office of the Ombudsman may investigate is public administration, in the sense of all civil servants, members or employees of government bodies, State agencies, State enterprises or local governments (Art 13 OAO 2009). This includes the administration of justice, except for trial and adjudication by the courts (Art 13 (1) (c), 35 OAO 2009). Legislation may be reviewed while handling complaints and for corruption-causing factors in general. Private persons or entities may not be investigated. Under Art 23 OAO 2009, every person, group of persons or community may submit complaints to the Office of the Ombudsman. Procedures are initiated through such individual written or oral complaints, which should include the name and address of the claimant, the cause of the complaint and supporting facts, as well as the signature of the claimant, and should be written in polite language (Art 24 OAO 2009). Moreover, claimants may lodge their complaints through further channels, such as by approaching members of the National Legislative Assembly, branches of the Lawyers Council, the Office of the Attorney General, or the Department of Civil Rights Protection and Legal Aid, who may then refer the matter to the Office of the Ombudsman. Additionally, the Office of the Ombudsman organizes the Ombudsman Intake Clinic quarterly in four regions (Northern, Eastern, Western and Southern), and participates both in the organization of a monthly Royal Assistance Project and the Thai Public Broadcasting Service on Tour event six times a year. Finally, in addition to individual complaints, an Ombudsman may initiate investigations proprio motu should they be of the opinion that a particular act ‘causes injuries to the public or [that an investigation] is necessary to protect public interests [they] may consider and conduct [an] investigation irrespective of a complaint’ (Art 13 last paragraph OAO 2009). Complaints may concern a failure ‘to perform [duties] in compliance with the law or […] [performance] beyond powers and duties as prescribed by law’ (Art 13 (1) (a) OAO 2009), or, where an action while performing duties, ‘unjustly caus[ed] injuries to the complainant or the public whether such act is lawful or not’ (Art 13 (1) (b) OAO 2009), or cases where ‘[c]onstitutional organisation[s] or agenc[ies] in the administration of justice, except the trial and adjudication of the Court’ 283 Part Two: Different Jurisdictions failed to perform duties or did so unlawfully (Art 13 (1) (c) OAO 2009), as well as ‘other cases as prescribed by law’ (Art 13 (1) (d) OAO 2009). The Ombudsmen also monitors compliance with the Constitution (Art 13 (3) OAO 2009), whereas Section 45 of the Constitution 2014 clarifies that unconstitutionality is to be understood as referring to the Constitution 2014. In proceedings relating to the ethics of a person holding a political position (Arts 36–39 OAO 2009), the Ombudsmen shall use the Code of Ethics as a standard of supervision. The Office of the Ombudsman must refuse investigations (Art 28 OAO 2009) where 1) a policy of the Council of Ministers is the subject of complaint, 2) a matter has been filed with a court or a final court judgment already exists, 3) matters under Art 13 (1) and (2) OAO 2009 (see preceding paragraph) are not concerned, 4) a matter relates to personnel administration or disciplinary action of a government official or agency, State enterprise or agency, or local government organization, except under Art 13 (2) OAO 2009 (relating to ethics of persons holding a political position and State officials), and where 5) a claimant did not comply with formal requirements under Art 24 OAO 2009. The Office of the Ombudsman enjoys discretion in terms of refusing or ceasing investigations (Art 29 OAO 2009) related to 1) corruption in official service, 2) matters in which the claimant has no legitimate interest and where an investigation is not in the public interest, 3) matters the claimant did not report within two years after they knew or ought to have known about them and where an investigation is not in the public interest, 4) matters where an appropriate remedy or compensation has been provided and a further investigation is not in the public interest, 5) matters where the claimant fails to provide a statement or evidence or perform other acts as requested by the Ombudsman within a specific period without reasonable grounds, 6) matters where the claimant has deceased without heir to continue the complaint and a further investigation is not in the public interest, and 7) matters where the investigation has already been closed, except when new evidence may change the conclusions of the Ombudsman. The Office of the Ombudsman may submit complaints that fall under Arts 28 or 29 OAO 2009 to the relevant government agencies for appropriate proceedings (Art 30 OAO 2009). Should the competent Ombudsman not find a reason to refuse an investigation under Arts 28 and 29 OAO 2009 (requiring the claimant to be informed (Art 31 OAO 2009)), then consideration of a complaint must be carried out without delay and both parties be provided with the opportunity to state their case and present evidence (Art 31 OAO 2009). 284 16. Thailand (Thomas Stephan Eder) V. Powers V.1. Powers in Relation to Administrative Organs The King appoints and removes the Ombudsmen, with a Minister countersigning the relevant acts and the National Legislative Assembly (previously the Senate) providing advice (Secs 24, 25 of the Constitution 2014). The Constitution 2007 (Sec 242) and OAO 2009 (Art 12), however, refer to the independence of the institution in performing its duties, personnel management and budgeting. Moreover, in order to protect their independence, Ombudsmen are not ‘liable to both civil and criminal liabilities if [they exercise] the powers and duties under this Organic Act in good faith’ (Art 18 OAO 2009). According to Art 15 OAO 2009, the Office of the Ombudsman may request authorities (i.e. the agency or official under investigation, a superior, inquiry official, public prosecutor or court) to provide in- formation or opinions, hand over documents, objects or other evidence. Ombudsmen are entitled to perform on-site visits, but site proprietors must be informed in advance. According to Art 20 OAO 2009, the Ombudsman is considered a competent official under the Penal Code when performing the above listed duties under the OAO 2009. This means that offences against the Ombudsman are punishable as such against officials under Title II Chapter 1 of the Thai Penal Code. Non-compliance with certain requests or orders of an Ombudsman may result in criminal liability. Pursuant to Art 45 OAO 2009, failure to comply with an information or evidentiary request under Art 15 (2) OAO 2009 may result in imprisonment for a term not exceeding six months and/or a fine not exceeding 10,000 THB. According to Art 46 OAO 2009, whoever obstructs an on-site visit under Art 15 (4) OAO 2009, may be subject to imprisonment for a term not exceeding one year and/or a fine not exceeding 20,000 THB. Finally, under Art 47 OAO 2009, whoever discloses information obtained during an investigation under the OAO in violation of Art 21 OAO 2009 may be subject to imprisonment for a term not exceeding six months and/or a fine not exceeding 10,000 THB. Pursuant to Art 32 OAO 2009, the Office of the Ombudsman is obliged to prepare reports summarizing the facts of each case and recommending appropriate measures to the subject of the pertinent complaint. Should a certain injustice be the result of a law, by-law, rule, regulation or resolution, then revision must be recommended to the pertinent authorities and the Council of Ministers. If such recommendation is not heeded, the Ombudsmen are obliged to ‘inform the law reform organisation (sic) under the Constitution for further proceedings and shall urgently report 285 Part Two: Different Jurisdictions that matter to the Council of Ministers and the National Legislative Assembly [previously the House of Representatives and the Senate] for further information’ (Art 32 (3) OAO 2009). If the subject of a complaint fails to conform with a recommendation within a reasonable period of time, the Ombudsman informs the Prime Minister and/or controlling or supervising agencies of such subject (Art 33 (1) OAO 2009). If such measure fails to produce compliant action in absence of reasonable grounds and the matter is of public interest, then the Office of the Ombudsman is obliged to submit a report to the Council of Ministers and the National Legislative Assembly (previously the House of Representatives and the Senate), which may be disclosed to the public (Art 33 (2), (3) OAO 2009). Additionally, whenever corruption or other criminal actions or such requiring disciplinary measures are suspected, both the agency competent for investigations and the superior of the relevant official or agency must be informed. Both must then report on the matter to the Ombudsman every three months (Art 34 OAO 2009). According to Arts 40–42 OAO 2009, the Office of the Ombudsman may also monitor and evaluate the implementation of the Constitution by all State agencies, report on their performance, recommend changes to their supervising agencies, and compile annual reports for the Council of Ministers and the National Legislative Assembly (previously the House of Representatives and the Senate). Pursuant to Art 14 (2) OAO 2009, an Ombudsman may submit a given case to the Administrative Court, should the legality or constitutionality of regulations or individual decisions be in question. V.2. Powers in Relation to Courts The Office of the Ombudsman may investigate the administration of justice, except for trial and adjudication by courts (Art 13 (1) (c), 35 OAO 2009). Hence, it cannot influence judicial decisions. Under Art 28 (2) OAO 2009, complaints must be rejected or procedures ended, where a matter has been filed with a court or a court has reached a final judgment. An Ombudsman may, however, consider complaints against judges, and recommend disciplinary charges to the Office of the Judicial Commission (Art 13 (1) (c), 32 OAO 2009). The Ombudsman may inform the Ministry of Justice and the Prime Minister, should such recommendation not be heeded (Art 33 OAO 2009). Throughout investigations, an Ombudsman may request that courts hand over any object, document or other evidence for consideration, if deemed relevant (Arts 13 (1) (c), 15 (3), 35 OAO 2009). According to Art 18 OAO 2009, the Ombudsmen are not ‘liable to both 286 16. Thailand (Thomas Stephan Eder) civil and criminal liabilities if [they exercise] the powers and duties under this Organic Act in good faith’. Under Arts 36–39 OAO 2009, the Ombudsmen have certain powers in relation to compliance with the Code of Ethics by persons holding political positions as well as government or State officials. The Office of the Ombudsman may provide advice and recommendations regarding ethical standards, require the submission of ethics codes to an office and report on violations. An Ombudsman may also investigate corresponding complaints, determine non-compliance, which is considered a breach of discipline, and submit results to competent enforcement agencies, to the National Legislative Assembly (previously the National Assembly), the Council of Ministers or a related local assembly. Should an Ombuds- man consider a violation serious, such case may be referred to the National Anti-Corruption Commission for further proceedings, and be considered a cause for removal from office pursuant to Section 244 (2) coupled with Section 279 (3) and Section 280 of the Constitution 2007. If an Ombudsman considers an investigation by a responsible agency unfair, a further investi- gation may be conducted and pertinent results disclosed to the public. V.3. Powers in Relation to Legislative Organs Under Section 242 of the Constitution 2007, the National Legislative Assembly (previously the Senate) advises the King on the appointment of the Ombudsmen. The Office of the Ombudsman, according to Art 13 (4) and Art 43 OAO 2009, must submit annual reports to the National Legislative Assembly (previously the House of Representatives and the Senate) and the Council of Ministers. In addition to such written reports, one Ombudsman shall provide an oral report at the National Legislative Assembly (previously the House of Representatives and the Senate). In all other cases, Ombudsmen are excluded from debates in the National Legislative Assembly. Annual reports shall cover 1) the results of inquiries on all matters and include recommendations provided to the subjects of the complaints, 2) reports on the implementation of such recommendations 3) reports on noncompliance with requests regarding information, support, or on-site visits according to Art 15 OAO 2009, 4) reports on violations of the Code of Ethics, 5) reports on compliance with the Constitution, and 6) a report on the general ‘hurdles in the execution of duties of the Ombudsmen’, as well as 7) a fiscal and budgeting report (Art 13 (4) and Art 43 OAO 2009). Each annual report is published in the Government Gazette and disclosed to the public. The Office of the Ombudsman is not legally required to do so, but may submit any other special reports to the National Legislative Assembly 287 Part Two: Different Jurisdictions (previously the House of Representatives and the Senate) or the Council of Ministers, if deemed necessary (Art 43 OAO 2009). For example, the Ombudsman issued a special report on water resources and pollution in the Nakhon Pathom province in 2014. The Office of the Ombudsman may also issue special reports to the National Legislative Assembly if government agencies fail to comply with its recommendations regarding the revision of by-laws, rules, regulations or resolutions of the Cabinet that are considered to induce unfairness, inequality before the law or to constitute grounds of discrimination or be out of date (Art 32 (3) OAO 2009). Moreover, special reports may be submitted to the National Legislative Assembly, if government agencies do not comply with other recommendations and such matter is considered to be of public interest. Such reports may also be disclosed to the public (Art (3) OAO 2009). Reports are issued for the purposes of information and discussion. Members of the National Legislative Assembly (previously Representatives and Senators) may submit suggestions. OAO 2009 neither contains provisions as to whether or not, or how Parliament must act upon such submissions, nor on consequences of non-submission. Moreover, the Chief Ombudsman, with the collective approval of the other Ombudsmen, may submit recommendations on amendments to restore constitutionality, appeal laws before the Constitutional Court, and even recommend amending the Constitution under Art 13 (3), Art 14 (1) and Art 42 OAO 2009, as well as Section 244 (3) of the Constitution 2007. According to Section 244 (4) of the Constitution 2007, the opinions and recommendations of the Office of the Ombudsman may be published in the Government Gazette and open to the public in order to protect public interests. In practice and concerning urgent matters, the Chief Ombudsman may also send a letter including recommendations for constitutional amendments to the Speaker of the National Legislative Assembly. The National Legislative Assembly is not required to discuss the pertinent recommendations or draft and submit appropriate amendments. Finally, the National Legislative Assembly is required to deliberate and endorse the budget proposal of the Office of the Ombudsman in the context of the annual Expense Budget Act. V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU Neither the OAO 2009 nor the Act on Office of the Ombudsman stipulate any particular functions or powers for the purpose of protecting human rights. 288 16. Thailand (Thomas Stephan Eder) VI. Practice In 2013, the Office of the Ombudsman received 3,420 complaints (over the last fifteen years, approximately a third of complaints were submitted by women). These mainly pertained to administration management of other State agencies (behaviour of State officers, corruption) (660 (19.4 %)), police matters (delay of case handling, vexatious actions) (552 (16.2 %)) and political/local administration (negligence of duty, behaviour of State officers) (411 (12.0 %)). Compared to 2012, this constitutes a significant increase from the previous 2,283 complaints. These pertained to police matters (429 (18.8 %)), political/local administration (400 (17.5 %)) and administration management of other State agencies (287 (12.6 %)). VII. Reform A major reform process is currently ongoing within the framework of broader constitutional reform. The Constitutional Drafting Committee (CDC) has proposed to merge the Office of the Ombudsman and the National Human Rights Commission. The future name of the newly merged institution is still being debated, but might be ‘The Ombudsman and Civil Rights Protection’. It is, moreover, uncertain which form changes to the institutional composition, legal status, mandate, and powers of the Ombudsman institution will take. The institution itself does not expect major changes, except a return to its functions under a yet older Constitution, that of 1997, without the monitoring work regarding the Code of Ethics that was added with the Constitution of 2007. VIII. Information Constitution: http://en.wikisource.org/wiki/Constitution_of_the_Kingdom_of_ Thailand_(Interim),_Buddhist_Era_2557_(2014)#cite_note-1 (current interim text) http://www.asianlii.org/th/legis/const/2007/1.html (previous text) Law: http://www.ombudsman.go.th/10/eng/7_2.asp Homepage: http://www.ombudsman.go.th/10/eng/index1.asp 289 17. Timor-Leste Thomas Stephan Eder A. Constitutional Background The island of Timor in the Lesser Sunda Islands that form part of the Indonesian archipelago was colonized by Portugal in the 16th century. The Western half of the island was ceded to the Netherlands in 1859. The Eastern half declared its independence from Portugal in 1975, but was invaded by and incorporated into Indonesia. After a United Nations- supervised popular referendum in 1999 it regained its independence as the Democratic Republic of Timor-Leste (East Timor). The current constitution entered into force in 2002. The Head of State is the President, who is elected by popular vote for a five-year term and can be re-elected once (Secs 74–76 of the Constitution). The National Parliament is also elected by popular vote for a five-year term (Section 93). The President appoints the leader of the majority party or coalition as Prime Minister, who then leads the government and system of public administration (Secs 103–107). The court system of Timor-Leste consists of Magistrates’ Courts, District Courts, a Court of Appeal, and the Supreme Court, the High Administrative, Tax and Audit Court and other courts of administration of first instance, as well as military courts (Sec 123). The Supreme Court, which is also responsible for constitutional issues, is comprised of the President of the Supreme Court and 14 Associate Justices. The President appoints the Chief Justice, whereas among the Associate Justices one is appointed by the National Parliament and the rest by the Supreme Council for the Judiciary (Secs 123–126). Said council, in turn, is made up of various presidential and parliamentary appointees and presided over by the Chief Justice of the Supreme Court (Sec 128). Part II of the Constitution is titled ‘Fundamental Rights, Duties, Freedoms and Guarantees’ (Secs 16–61). It lists various fundamental rights, such as equality before the law (Sec 16), the prohibition of arbitrary 290 17. Timor-Leste (Thomas Stephan Eder) detention (Sec 33), the right of assembly (Sec 42), as well as economic, social and cultural rights and duties (Secs 50–61). B. Overview of Existing Ombudsman Institutions Timor-Leste has established the Provedor de Direitos Humanos e Justiça (PDHJ) – Provedor for Human Rights and Justice (PDHJ) – a parliamentary Ombudsman institution on the federal level with a general mandate. The PDHJ has four regional offices in Baucau, Maliana, Oecusse and Same. Current decentralization efforts are meant to allow all regional offices to provide the same services as the national office by 2018. Besides the PDHJ, there is also the National Commission for the Rights of the Child. %2TQXGFQTHQT*WOCP4KIJVUCPF,WUVKEG +*KUVQT[CPF.GICN$CUKU The PDHJ derives its mandate from Art 27 of the Constitution of Timor- Leste. It was established on the basis of Law No. 7/2004 ‘Approving the statute of the Office of the Ombudsman for Human Rights and Justice’ (amended by Law 8/2009 ‘Law on the Anti-Corruption Commission’), and took up operations in 2006. The PDHJ also operates on the basis of Law No. 25/2011 ‘Organic Structure of the Office of the Provedor for Human Rights and Justice’. The institution became a member of the AOA in 2015. It is not a member of the IOI. II. Organization The PDHJ comprises one Ombudsman, two Deputy Ombudsmen and four directorates respectively responsible for human rights, good governance, administration and finance, and public assistance. The PDHJ has 93 supporting staff (41 (44.1 %) of whom are women), whereas 20 of these are employed in regional offices. If the Ombudsman vacates their office for any reason, the National Parliament appoints a Deputy Ombudsman to take over as interim Ombudsman (Art 20 Law 7/2004). 291 Part Two: Different Jurisdictions III. Legal Status The National Parliament elects the Ombudsman, whereas an absolute majority must be reached (Sec 27 (3) of the Constitution, Art 12 (1) Law 7/2004). Within one month after the position becomes vacant, the National Parliament must call for candidacies, consider all candidates in a plenary session, and alternately vote on each of them (Art 12 (3), (4) Law 7/2004). The Ombudsman serves for a four-year term and may be re-elected once (Sec 27 (3) of the Constitution, Art 19 Law 7/2004). Candidates must possess ‘sufficient’ experience, qualifications and pertinent knowledge, as well as ‘proven integrity’ and be recognized for their standing in the community as well as their impartiality (Art 13 Law 7/2004). Once elected, the Ombudsman may not concurrently hold another elected office, be politically active, be remunerated for any other activity or position, manage a for-profit business, be employed with a trade union, association, foundation or religious organization, act as a judge, prosecutor-general, prosecutor or defence attorney, or exercise any function under the scope of supervision of the PDHJ (Art 17 Law 7/2004). The Ombudsman may be suspended from office by a two-thirds majority in the National Parliament, if indicted for an offence punishable by more than one-year imprisonment (Art 22 Law 7/2004) and may be removed by the same majority, if an incompatible function is performed pursuant to Art 17 Law 7/2004, the Ombudsman is permanently physically or mentally incapacitated, has been convicted for a crime carrying a prison sentence of more than one year, acted in contradiction to their oath or is deemed incompetent (Art 21 (1) Law 7/2004). A motion for removal must first be supported by one fifth of Members of Parliament, and is followed by an inquiry by an ad hoc committee, with the Ombudsman being afforded a right of appeal to the Plenary (Art 21 (2), (3), (4), (5) Law 7/2004). According to Art 18 Law 7/2004, the Ombudsman enjoys the same privileges and remuneration as the Prosecutor-General (the salary being similar to that of a Minister) and is not civilly or criminally liable for any actions taken in good faith while exercising official functions (whereas the National Parliament decides upon the lifting of the immunity of the Ombudsman). The premises of the PDHJ are, moreover, immune from search, seizure, confiscation or any other interference. According to Section 27 (1), (4), (5) of the Constitution, the Ombudsman is independent and all administrative organs and public servants have the duty to cooperate with the Ombudsman. In Art 5 (1), (4) Law 7/2004, it is explained that the PDHJ is not ‘subject to the direction, control or influence of any person or authority’, explicitly that of the government 292 17. Timor-Leste (Thomas Stephan Eder) (see also Art 2 Law 25/2011). In order to secure that independence, Art 11 Law 7/2004 provides for an annual budget that is to be not only ‘sufficient to ensure its operation, [but also] adequate to maintain its independence, impartiality and efficiency’. The budget may not be allocated from a source that could compromise the independence of the institution. By the same token, the statements of accounts of the PDHJ may be audited. The Ombudsman is subject to an oath before the Speaker of the National Parliament, swearing to perform official duties independently and impartially (Art 15 Law 7/2004). Moreover, Art 49 Law 7/2004 stipulates that obstructing the fulfilment of the duties of the Ombudsman is a crime punishable by a fine of up to 3,000 US dollars or a term of imprisonment of up to one year. IV. Scope of Supervision The PDHJ may investigate public agencies or entities, especially the government, the Prison Service, the National Police, and the Falintil- Defense Force of Timor-Leste (Art 3 (1) Law 7/2004). It may also monitor the actions of public or private entities fulfilling public functions or services or managing public funds or assets (Art 3 (2) Law 7/2004), but no other private persons or entities. Acts or omissions to be investigated are such that are illegal, unreasonable, unfair, oppressive, discriminatory, inconsistent with the functions of the pertinent entity or agency, based on a misinterpretation of facts or law, or otherwise without justification (Art 3 (3) Law 7/2004). Only the Commission Against Corruption (CAC) may investigate allegations of corruption (Law 8/2009). Within the mandate of the PDHJ, among its major functions, is the protection of fundamental rights of natural and legal persons (Law 7/2004). Furthermore, al- though the Ombudsman is not explicitly tasked with monitoring the implementation of international obligations, all international agreements ratified by Timor-Leste and all customary principles of international law automatically apply within the State pursuant to Section 9 of the Constitution and thus are subject to the jurisdiction of the Ombudsman. The activities of the National Parliament are excluded from the scope of supervision of the PDHJ as are those of courts insofar as they do not pertain to administrative activity or the supervision thereof (Art 4, 29 Law 7/2004). Investigations may be initiated both upon the own initiative of the PDHJ and through individual or collective complaints (Art 35 Law 7/2004, Art 37 (6) Law 7/2004). Any natural or legal person may submit complaints, directly or through a representative, orally or in writing, without a fee being required. Complaints are to include the identity and 293 Part Two: Different Jurisdictions contact address of the claimant (Art 36 Law 7/2004). The PDHJ must notify the claimant of having received a complaint and then carry out a preliminary assessment as to whether it will take action within thirty days of the complaint being filed (Art 37 (1), (2) Law 7/2004). Complaints may be dismissed if they are anonymous, made in bad faith or frivolously, there is an adequate remedy for the issue, the issue is not within the scope of supervision of the Ombudsman, the relevant act or omission occurred before the Law 7/2004 came into force, the complaint was lodged after the period provided in the Law 7/2004 or manifestly been delayed too long, the alleged damage has been redressed, the matter already been addressed, or any further investigation otherwise considered unnecessary (Art 37 (3) Law 7/2004). Within 45 days after a complaint was submitted, the PDHJ must inform the claimant as to whether further action will be taken or the complaint is being dismissed (and on which grounds) (Art 37 (4), (5) Law 7/2004). V. Powers V.1. Powers in Relation to Administrative Organs The Ombudsman is explicitly declared independent (Sec 27 (1) of the Constitution), whereas their independence is protected by the following safeguards. The Ombudsman is elected by an absolute majority in the National Parliament (Sec 27 (3) of the Constitution, Art 12 (1) Law 7/2004), may not concurrently hold offices that would compromise their independence (Art 17 Law 7/2004), swears an oath to act independently (Art 15 Law 7/2004), and can only be suspended or removed by a two- thirds majority in the National Parliament under certain clearly delimited circumstances (Arts 21, 22 Law 7/2004). According to Art 5 Law 7/2004 and Art 2 Law 25/2011, the Ombudsman is not bound by government instructions. Furthermore, they enjoy the same privileges and re- muneration as the Prosecutor General, and may not be charged for actions taken in good faith in the exercise of their functions, while the National Parliament must decide upon the lifting of their immunity, and the premises of the PDHJ are inviolable (Art 18 Law 7/2004). Finally, the duty to provide an adequate budget for the PDHJ is enshrined in Art 11 Law 7/2004. Conversely, all administrative organs and public servants must cooperate with the PDHJ (Sec 27 (5) of the Constitution, Art 44 Law 7/2004), whereas any unreasonable non-compliance is punishable by a fine of up to 500 US dollars (Art 48 (1), (2) Law 7/2004), and obstruction is punishable by a fine of up to 3,000 US dollars or a term of imprisonment 294 17. Timor-Leste (Thomas Stephan Eder) of up to one year (Art 49 Law 7/2004). The PDHJ may require authorities or officials to appear before it, provide information, produce documents, objects or data and allow for on-site inspections (Art 42 (3) Law 7/2004). The Ombudsman may also request that a Prosecutor obtain a search and seizure warrant (Art 42 (4) Law 7/2004). Under Art 28 (f) Law 7/2004, the Ombudsman may visit any place of detention, treatment or care for inspection and confidential interviews. The PDHJ recommends corrective or preventive measures to such organ possessing the power to redress a given situation, which then must report on implementation within sixty days (Art 47 (2), (3) Law 7/2004). If it fails to do so, the Ombudsman may report that failure to the National Parliament (Art 47 (4) Law 7/2004). Recommendations address ‘causes of human rights violations, abuse, mismanagement, fraud, corruption and influence peddling in a public entity’ (Art 47 (1) Law 7/2004). V.2. Powers in Relation to Courts The activities of courts are excluded from the scope of supervision of the PDHJ, except such pertaining to administrative activity or the supervision thereof. Court decisions are not challenged nor the exercise of judicial functions investigated in general (Arts 4, 29, 42 Law 7/2004). The Ombudsman may, however, request leave of a court to intervene in respective judicial proceedings where issues within their mandate are concerned. Such interventions would usually take the form of an expression of opinion (Art 25 (3) Law 7/2004). Where the PDHJ is convinced that there is an adequate judicial remedy to a complaint, the claimant is referred to the competent authority (Art 33 (3) Law 7/2004). Courts, in turn, have the duty not to interfere arbitrarily in investigations by the PDHJ (Art 43 Law 7/2004). The Ombudsman may also act as a mediator or conciliator between a claimant and subject of a complaint under Art 38 Law 7/2004. V.3. Powers in Relation to Legislative Organs The National Parliament elects, suspends and removes the Ombudsman (Sec 27 of the Constitution, Arts 12 (1), 21, 22 Law 7/2004). According to Art 18 Law 7/2004, the Ombudsman is answerable to the legislature for offences committed in the exercise of their functions, with parliament having to decide on lifting their immunity, and remitting all offences committed outside the exercise of the functions of the Ombudsman to the Prosecutor-General. The PDHJ must provide annual reports to the National Parliament, including information on activities as well as case statistics and reform recommendations (Arts 34, 46 Law 7/2004). Special 295 Part Two: Different Jurisdictions reports may also be filed, if deemed necessary (Art 46 Law 7/2004). The Ombudsman acts independently, as enshrined in Section 27 (1) of the Constitution, Art 5 Law 7/2004 and Art 2 Law 25/2011, and swears a corresponding oath (Art 15 Law 7/2004). Under Art 4 Law 7/2004, the activities of the National Parliament are outside the scope of supervision of the PDHJ, insofar as they are not such in administration or supervision thereof. The Ombudsman may submit reports on their findings, and recommendations on an advisory basis, though, with regard to the protection of human rights and good governance (Arts 24, 28 (m) Law 7/2004). Where public organs do not heed recommendations for whatever reason, the Ombudsman may report such failure to the National Parliament (Art 47 (4) Law 7/2004). Recommendations may also be submitted on the adoption of legislative measures to eliminate favouritism and unethical practices within public administration (Art 27 (c) Law 7/2004). According to Art 24 (c) Law 7/2004 and Secs 150, 151 of the Constitution, the Ombudsman may request that the Supreme Court review the constitutionality of legislative measures. V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The PDHJ is accredited as a NHRI with the International Coordination Committee according to the Paris Principles (Status A; reviews in 2008 and 2013). Timor-Leste has signed the OPCAT, but not yet ratified it nor designated a NPM. VI. Practice In 2013, the PDHJ handled 110 complaints (of which 60 (54.5 %) were submitted by women). Complaints largely pertained to education, health care and law enforcement. In 2012, the PDHJ also handled 110 complaints (of which 40 (36.4 %) were submitted by women), i.e. the number of complaints stayed the same. The main issues also remained the same. In addition to the issues most represented among complaints, the issues continuously monitored ex officio should also be mentioned. These are prisons and other detention facilities, as well as schools. VII. Reform There is a decentralization reform underway, intended to enable regional offices to provide the same services as the national office (see above). Other than that there are no plans to reform the PDHJ. 296 17. Timor-Leste (Thomas Stephan Eder) VIII. Information Constitution: http://timor-leste.gov.tl/wp-content/uploads/2010/03/Constitution_ RDTL_ENG.pdf Law: Organic Law of the PDHJ http://www.jornal.gov.tl/lawsTL/RDTL-Law/RDTL-Decree-Laws/ Decree%20Law-25-2011 %20 %20.pdf PDHJ Statutes: http://www.jornal.gov.tl/lawsTL/RDTL-Law/RDTL-Laws/ Law-2004-7.pdf Homepage: http://pdhj.tl 297 18. Vietnam Thomas Stephan Eder A. Constitutional Background After the Second World War, Vietnam fought and won a war of independence against France. The 1954 Geneva Accords that ended that war, however, split the country into northern and southern halves, which fought each other, with the US on the side of the South, in the 1960s and 1970s. After the US withdrew, the North successfully reunited the country in 1975. The current constitution went into effect in 1995 and was amended in 2001 and 2013. The Vietnamese legal system is influenced by continental European civil law traditions. Vietnam is a socialist republic (Art 1). Legislative powers are vested in the unicameral National Assembly, which is elected by popular vote for a five-year term (Arts 6, 7, 69–71). It adopts laws, which are then promulgated by the President (Art 88). The National Assembly elects the President as Head of State for a five-year term (Arts 86, 87). The President then appoints a Prime Minister, who heads the executive branch, from the members of the National Assembly, and a cabinet upon proposal by the Prime Minister (Arts 88 (2), 94–95). The National Assembly confirms these appointments (Art 70 (7)). Administratively, Vietnam is divided into 58 provinces and five municipalities (see Art 110). The Vietnamese judicial branch consists of civil, criminal, economic and labour courts, administrative courts, military courts, special courts (the National Assembly may establish special tribunals) courts of appeals, and the Supreme People’s Court as the final court of appeal (Arts 102, 104). The Supreme People’s Court also has jurisdiction in constitutional issues and consists of a Chief Justice and 13 other judges. The National Assembly elects the Chief Justice upon the recommendation of the President. The Chief Justice serves for a five-year term and can be re-elected once. The President appoints the other judges of the Supreme People’s Court, who also serve five-year terms (Art 105). 298 18. Vietnam (Thomas Stephan Eder) Chapter II of the Constitution is titled ‘Human Rights, Fundamental Rights and Obligations of Citizens’ (Arts 14–49) and lists various fundamental rights and duties, such as equality before the law (Art 16), the prohibition of arbitrary detention (Art 20 (2)), the right of petition (Art 30) and social and economic rights. B. Overview of Existing Ombudsman Institutions Vietnam has established the Thanh tra Chính phú – the Government Inspectorate of Vietnam (GIV) – an administrative Ombudsman insti- tution on the national level with a general mandate. The GIV heads a complex system of complaint and ‘denunciation’ settlement in- volving a multitude of institutions. There are other ministerial-level inspectorates, as well as provincial-level, district-level and commune- level inspectorates throughout the country (Arts 11, 14, 19, 26, 27 of the now replaced Law on Settling Citizens’ Complaints and Denunciations 1998 (LSCD 1998), which is the most recent legislation on this issue fully available in English). Additionally, there are inspectorates within provincial professional departments and other public institutions (Art 76 LSCD 1998). Moreover, under certain conditions, a first settlement may be followed by a second settlement and/or an administrative lawsuit in court (e.g. Art 20 (2) LSCD 1998). Further grievance redress institutions include the Board of People’s Petitions of the National Assembly and the National Steering Committee on Anti-corruption (headed by the Prime Minister). C. Government Inspectorate of Vietnam + *KUVQT[CPF.GICN$CUKU The GIV was set up under its former name as the ‘Special Inspection Board’ through Presidential Order No. 64/SL of 23 November 1945, and opened its offices in 1945. It is not a member of the IOI, but co- founded the AOA in 1996. The institution was transformed into the GIV through the LSCD 1998. The latter was later replaced by the Law on Complaints 2011 (LC 2011) and the Law on Denunciations 2011 (LD 2011). Moreover, the Government Decree No. 36/2012/ND-CP dated 18 April 2012 (Art 18) and the Government Decree No. 55 dated 25 April 2005 on Functions, Duties, Powers and Organizational Structure of Government Inspectorate, form the basis of the work of the GIV. The 299 Part Two: Different Jurisdictions Anti-Corruption Law 2005 (ACL 2005) regulates the coordination between inspectorates, State audit and investigating bodies, procuracies and courts in preventing and combatting corruption (Arts 80–84), as well as the coordination with the Ministry of Foreign Affairs, the Ministry of Public Security and concerned agencies (Art 90). II. Organization The GIV is headed by an Inspector General, and also comprises a Standing Deputy Inspector General and five Deputy Inspectors General, as well as three regional bureaus, four functional departments, four general departments and five other units. Among these bodies, Art 75 ACL 2005 mandates an anti-corruption unit. The Inspector General is assisted in collecting and analysing information collected by its departments and other inspectorates at Ministries and localities by the GIV General Office. Art 18 Decree 36/2012/ND-CP mandates that Ministries must have their own inspectorates aiding with the implementation of the Law on Inspection (inspecting agencies under the management of the relevant Ministry), complaint settlement and anti-corruption efforts. Such in- spectorates within the various Ministries have separate accounts. The GIV is a ministerial-level agency. According to Art 14 Decree 36/2012/ND-CP, Ministries prepare budget estimates and manage budget distribution and implementation. III. Legal Status There are no special regulations on the appointment and dismissal of the GIV Director General, incompatible positions, immunity, remuneration or term of office. The LSCD 1998 in its Art 74 merely requires that heads of relevant State bodies appoint further officials ‘with good qualifications, professional knowledge as well as knowledge about policies and laws, with high sense of responsibility to receive citizens’. As a ministerial- level agency, the GIV drafts annual budget estimates and manages budget distribution (Art 14 Decree 36/2012/ND-CP, which defines the functions, tasks and organizational structures of Ministries and ministerial-level agencies). IV. Scope of Supervision In general, the highly complex system of complaint and ‘denunciation’ settlement in Vietnam is responsible for the review of ‘public adminis- 300 18. Vietnam (Thomas Stephan Eder) tration’, in the sense of acts committed by cadres, civil servants or public employees when performing their public duties, or by agencies, organizations and individuals within State management. This definition includes judicial issues in general, but, according to Art 32 (6) LSCD 1998, not ‘complaints [that] have been accepted by courts for settlement or already settled by the court judgments and/or decisions’. The LSCD defines ‘complaints’ and ‘denunciations’ as follows (see Art 2 LSCD 1998). Complaints are proposals ‘to review administrative decisions, administrative acts or disciplinary decisions against public employees when having grounds to believe that such decisions or acts contravene laws and infringe upon […] legitimate rights and interests’ (Art 2 (1) LSCD 1998). ‘Denunciations’ are reports ‘on illegal acts of any agencies, organizations and/or individuals, which cause damage or threaten to cause damage to the interests of the State and/or the legitimate rights and interests of citizens, agencies and/or organizations’ (Art 2 (2) LSCD 1998). Within this system, there are a great number of different jurisdictions (Arts 19–29 LSCD 1998). Several principles can be outlined. First, authorities are generally responsible for complaints concerning their own decisions and the actions of their personnel. Second, a second stage of complaint settlement is possible, whereas the next higher level is competent. This means jurisdiction will move from commune to district to province, from ministerial department (and, under certain circumstances, from province) to Ministry and, under certain circumstances, to the Prime Minister. Third, the Prime Minister may reconsider final settlements and judge disputes over complaint settlement competence. In addition to their responsibility for complaints against their own decisions, the following authorities serve as second settlement institutions: The presidents of the People’s Committees on all levels, the heads of agencies under the provincial/municipal departments, the directors of the departments under the People’s Committees of the provinces and centrally-run cities, the heads of the sections under the Ministries, the ministerial-level agencies and agencies attached to the government, and the Ministers, the heads of the ministerial-level agencies and the heads of the agencies attached to the government (Arts 19–25 LSCD 1998). The jurisdiction of the State Inspector General (GIV) encompasses complaints seeking a second settlement, where the first settlement was performed by the head of an agency attached to the government, but not a Minister, verifying and proposing solutions for complaints under the jurisdiction of the Prime Minister and settling them when authorized by the Prime Minister, proposing the reconsideration of final settlements to the Prime Minister which are found to have breached laws, thus causing 301 Part Two: Different Jurisdictions damage to interests of the State as well as the legitimate rights and interests of citizens, agencies and organizations (Art 26 LSCD 1998). The system is thus structured in a way that leads to claimants having to first file complaints with the body that issued the decision or act complained against (see Art 30 LSCD 1998), i.e. the GIV or inspectorates on lower levels will, in most cases, not have jurisdiction for the first settlement of complaints. The system of ‘denunciations’ is similar. Authorities are generally responsible for ‘denunciations’ of their own personnel. If the head of an institution is concerned, the next higher level will be responsible (Arts 60, 61 LSCD 1998). The Prime Minister is additionally responsible for particularly complicated cases (Art 64 LSCD 1998). The Chief Inspectors at all levels monitor the handling of and propose solutions for the cases on their level, when so assigned. They issue conclusions on settlements by heads of the agencies immediately under the heads of the agencies of the same level that are deemed to commit breaches of the law and may petition the previous ‘denunciation settler’ (Arts 62, 93 LSCD 1998). The State Inspector General (GIV) verifies and proposes solutions for cases under the jurisdiction of the Prime Minister, when so assigned. In such context, they issue conclusions on settlements by Ministers, heads of ministerial- level agencies, heads of agencies attached to the government and presidents of the provincial-level People’s Committees that are deemed to violate law and they may also petition the previous ‘denunciation settler’ (Art 63 LSCD 1998). Individuals with or without citizenship, if not otherwise stipulated in treaties Vietnam acceded to, as well as agencies and organizations, i.e. legal entities, may lodge complaints (see inter alia Art 13 Decree 36/2012/ ND-CP; Arts 1 (1), 2 (3) 101 LSCD 1998). Only individuals may file ‘denunciations’ (Art 1 (2) LSCD 1998). Legal representatives may file complaints for minors or those incapable of perceiving or controlling their acts. Complainants that are ailing, old and weak or physically disabled may authorize their parents, spouses, siblings, adult children or other persons to submit complaints on their behalf (Art 17 LSCD 1998). Regarding corruption, the GIV must initiate investigations on its own initiative as well (Art 62 ACL 2005). The transparency of the system is increased and complaint and ‘denunciation’ submission facilitated through several measures, including monthly GIV press conferences, inspectorates within a significant number of institutions (see above, Part II) and ‘citizen-receiving places’. At the latter, heads of institutions must personally receive citizens; Presidents of the commune-level People’s Committees at least one day a week, presidents of district-level People’s Committees at least twice a month, presidents 302 18. Vietnam (Thomas Stephan Eder) of the provincial-level People’s Committees at least once a month, State inspectorates at all levels regularly according to the provisions of law and heads of other State bodies at least once a month (Arts 75, 76 LSCD 1998). Complaints or ‘denunciations’ may be submitted verbally or in writing (Art 19 LD 2011; Art 33, 57, 65 LSCD 1998). Complaints must contain information on the date of the complaint, the name, surname and address of the claimant, the agency, organization or individual subject to the complaint, the contents and reason for the complaint, the requests of the complainant and a signature (Art 33 LSCD 1998). ‘Denunciations’ must contain the ‘denunciator’s’ name, surname, address, and the ‘denunciation’ content, as well as a signature (Arts 57 and 65 LSCD 1998). Complaints seeking a second settlement must also include a copy of the previous settlement decision and relevant documents (Art 40 LSCD 1998). Complaints will not be accepted if the relevant administrative decisions or acts are not directly related to legitimate rights and interests of the claimant, if the claimant does not have full capacity for civil acts while having no lawful representative, representatives are unlawful, the statute of limitations for lodging complaints or the time limit for further lodging complaints has expired, second-time complaint settlement decisions have been issued for the relevant complaint, or they have been accepted by a court for settlement or already settled under court judgments or decisions (Arts 31 and 32 LSCD 1998). ‘Denunciations’ will not be accepted if they have already been settled by a competent person and the ‘denunciator’ fails to provide any new information or evidence, if contents are insufficient for the determination of violators and illegal acts and if the competent persons provide no conditions for examining and verifying illegal acts and violators (Art 20 LD 2011). Claimants are entitled to receive a written reply on the acceptance of their complaints for settlement, provided that none of the exemptions explained above apply (Arts 17, 41 LSCD 1998), while ‘denunciations’ must be viewed and corresponding measures proposed (Art 65 ACL 2005). Cases involving indications of criminal acts must be transferred to competent investigating bodies and procuracies. Complaint or ‘denunciation settlers’ who deliberately delay settlement or fail to act promptly are subject to disciplinary measures (Arts 96, 97 LSCD 1998). The GIV runs a research institute (GIRI) for the purpose of identifying causes of inadequate administrative practices and corruption. Such are published and lead to further action by the GIV. The GIV may submit strategies, programs, laws and regulations to the government and Prime Minister, as well as promulgate decisions, directives and circulars towards administrative agencies, which they may also direct and guide. The GIV may also recommend the suspension of implementation 303 Part Two: Different Jurisdictions or outright cancellation of regulations, if such are found to breach laws or regulations issued by the Inspector General. The GIV organizes, directs and guides inspections of the observance of legal provisions on corruption prevention and combat. Whenever it detects corrupt acts, it will request the competent agencies or organizations to handle them. The heads of agencies who receive recommendations by the GIV then enjoy decision-making authority, i.e. the recommendations are not binding (Art 76 ACL 2005). V. Powers V.1. Powers in Relation to Administrative Organs The GIV is a ministerial-level agency of the Vietnamese government and thus subordinate to the executive branch. Appointment and dismissal of the GIV Director General mirrors that of other members of the Cabinet (see above, Part A). Drafting the annual budget and the management of its distribution are subject to the discretion of the GIV (Art 14 Decree 36/2012/ND-CP). Moreover, Art 81 LSCD 1998 stipulates that all State inspectorates are responsible to the government. The GIV periodically reports to the government and proposes measures ‘to raise the efficiency of the complaint and denunciation settlement’ (Art 84 LSCD 1998). No exact time frame for the frequency of reports is provided. The GIV has a general right to inspection. It may request authorities to provide written explanations, information and documents and may summon officials, as well as conduct on-site verification. All involved individuals, agencies and organizations must strictly comply with such requests (see Arts 18 and 44 LSCD 1998 for complaints, and Arts 58 and Art 70 LSCD 1998 for ‘denunciations’). The obligation of authorities to cooperate with the GIV is also regulated in Art 7 ACL 2005, that of compliance with settlements in Arts 8 and 18 LSCD 1998. Those failing to implement settlements are to be ‘strictly dealt with’ (Art 8 LSCD 1998). Arts 96 to 98 LSCD 1998 provide administrative sanctions in the case of deliberate delays of settlements or implementation of settlements. According to Article 10 LSCD 1998, the government and People’s Committees at all levels shall, within their respective functions, organize and direct the settlement of complaints and ‘denunciations’. On the various levels of the system (aside from complaint settlement responsibilities of non-inspectorate authorities), Chief Inspectors of the provincial, district and commune levels are to always ‘assist the heads of agencies of the same levels to manage the complaint and denunciation settlement’ and responsible for verifying and proposing solutions for complaints under 304 18. Vietnam (Thomas Stephan Eder) the jurisdiction of the Presidents of the People’s Committees of the same level, as well as settling them when so authorized by the Presidents of the People’s Committees of the same level (Arts 14, 27 (1) and 82 LSCD 1998). Chief Inspectors of Ministries, ministerial-level agencies and agencies attached to the government and the Chief Inspectors of the provincial and municipal departments or equivalent levels fulfil that function for complaints under the jurisdiction of the heads of such agencies (Art 27 (2) LSCD 1998). V.2. Powers in Relation to Courts The GIV monitors public administration, i.e. acts committed by cadres, civil servants or public employees when performing their public duties or by agencies, organizations and individuals in the State management. This definition includes judicial issues in general, but, according to Art 32 (6) LSCD 1998, not ‘complaints [that] have been accepted by courts for settlement or already settled by the court judgements and/or decisions’. Next to its complaint and ‘denunciation’ settlement functions, the GIV also has a mandate for anti-corruption efforts (e.g. monitoring anti- corruption work and establishing an anti-corruption database). The GIV provides recommendations to the Prime Minister commensurate with its efforts in all mentioned fields, on how to handle officials who have violated laws within the scope of supervision of the GIV. The GIV also reports to the Prime Minister, where disputes arise between itself and a Minister or the Chairman of a provincial People’s Committee. The GIV furthermore assists the Prime Minister in supervising the work of Ministries regarding ‘denunciation’ settlement. According to Art 35 and Art 42 LSCD 1998, the body conducting a complaint settlement may issue a decision to temporarily suspend the execution of administrative decisions or acts that could cause irremediable consequences (see Art 66 for ‘denunciations’). In a separate part of the complaint and ‘denunciation’ settlement system, courts as high as the Supreme People’s Court, as well as procuracies as high as the Supreme People’s Procuracy, within their respective powers and functions, also manage complaint and ‘denunciation’ settlement (Art 83 LSCD 1998). People’s Procuracies, moreover, must supervise the observance of complaint and ‘denunciation’ legislation (Art 12 LSCD 1998). V.3. Powers in Relation to Legislative Organs Parliament is in no way involved in the appointment or removal of the Inspector General, with all State inspectorates being responsible and 305 Part Two: Different Jurisdictions reporting to the government (Art 81 LSCD 1998). According to the same Article, it is the government, as well as the Supreme People’s Court and the Supreme People’s Procuracy who then periodically report to the National Assembly, the National Assembly Standing Committee and the President. Art 85 LSCD 1998 specifies that the National Assembly must consider such reports annually, whereas its Standing Committee even must nominate teams for the purpose of supervising complaint and ‘denunciation’ settlement. The National Council and Commissions of the National Assembly carry out more day-to-day work on the issue and deal with complaints and ‘denunciations’ addressed to the National Assembly Standing Committee itself (Art 86 LSCD 1998). Deputies of these institutions also have a role to play (Art 87 LSCD 1998), as delegations of deputies must, inter alia, receive claimants and ‘denunciators’ themselves (Art 88 LSCD 1998). People’s Councils of all levels carry out similar work (Art 89 LSCD 1998). According to Article 9 LSCD 1998, all parts of the legislature thus supervise the enforcement of legislation on complaints and ‘denunciations’ within their respective functions. The GIV is entitled to submit projects of laws, ordinances and other draft legal documents, as well as strategies and programs, to the government and Prime Minister (see inter alia Arts 4 and 5 of Decree 36/2012/ND-CP). It may also inspect the implementation of policies and laws, and recommend the suspension of the implementation of regulations or the cancellation of regulations deemed contrary to laws on inspection to Ministries (and regulations issued by the GIV). Where Ministries do not comply, the GIV is obliged to report the matter to the Prime Minister and may recommend the abrogation of regulations. V.4. Special Functions and Powers in the Field QH*WOCP4KIJVU The Government Inspectorate does not enjoy any particular functions or powers for the purpose of protecting human rights. No Vietnamese institution is accredited as NHRI with the OHCHR. Vietnam has not signed the OPCAT. VI. Practice Unfortunately, no information could be obtained in this regard. 306 18. Vietnam (Thomas Stephan Eder) VII. Reform There are currently no apparent reform plans regarding the Government Inspectorate. VIII. Information Constitution: http://www.na.gov.vn/htx/English/C1479/#0alaXEITrwnZ Law: Government’s Decree No. 36/2012/ND-CP: http://english.mic.gov.vn/vbqppl/Lists/Vn%20bn%20QPPL/DispForm. aspx?ID=6352 Anti-Corruption Law 2005: http://www.oecd.org/site/adboecdanti-corruptioninitiative/46817414.pdf Homepage: http://www.thanhtra.gov.vn/en/Pages/Home.aspx 307 Part Three: Tables and Diagrams I. Preface I. Preface 1. Subject Matter – Geographical Survey Fig. 5: Geographical area covered by the study. Light grey: Countries outside Asia, as well as regions in Asia already included in other studies. Dark grey: Other countries in Asia not included in the study, mainly due to the lack of a pertinent institution. White: Countries included in the current study.344 2. Subject Matter – Tabular Survey a. Main Institutions – National Bahrain – Ombudsman of the Ministry of Interior344 2012 China – Ministry of Supervision 1949345 344 Despite its mandate being limited to the Ministry of Interior, this institution is considered a main institution for representative purposes. 311 Part Three: Tables and Diagrams China (Macao) – Commission Against Corruption 1992346 Indonesia – Ombudsman of the Republic of Indonesia 2000347 Iran – General Inspection Organization 1981 Japan – Administrative Evaluation Bureau 1966 Jordan – Jordanian Ombudsman Bureau 2009 Malaysia – Public Complaints Bureau 1971 Pakistan – Wafaqi Mohtasib (Federal Ombudsman) 1983 Philippines – Office of the Ombudsman 1988 South Korea (Republic of Korea) – Anti-Corruption and 1994348 Civil Rights Commission Sri Lanka – Parliamentary Commissioner for 1982 Administration Thailand – Office of the Ombudsman 2000 Timor-Leste – Provedor for Human Rights and Justice 2006 Vietnam – Government Inspectorate 1945349 Bangladesh – Ombudsman (not established) 345 346 347 348 349 345 As ‘People’s Supervisory Commission’, renamed to ‘Ministry of Supervision’ in 1954, but inoperative from 1959 to 1987. 346 As ‘High Commission Against Corruption and Administrative Illegality’ (ACCCIA) while Macao was still under Portuguese administration. Macao was handed over to China in 1997 and the institution was renamed and reorganized in 1999. 347 As ‘National Ombudsman Commission’, which became the ‘Ombudsman of the Republic of Indonesia’ in 2008. 348 As ‘Ombudsman of Korea’, which was merged with the ‘Korea Independent Commission Against Corruption’ (established in 2002) and the ‘Administrative Appeals Commission’ (established in 1985) in 2008 to form the ACRC. 349 As ‘Special Inspection Board’, renamed to ‘Government Inspectorate’ in 1998. 312 I. Preface b. Additional National Institutions With a General Mandate China – State Bureau for Letters and Calls 1951350 Japan – National Federation of Administrative Counselors’ 1980351 Associations 350 351 c. Institutions With a Special Mandate Bahrain – Inspector General Office – National Security 2012 Agency Pakistan – Banking Mohtasib 2005 Pakistan – Federal Tax Ombudsman 2001 Pakistan – Insurance Ombudsman 2006 Pakistan – Ombudsman for the Protection against 2010 Harassment of Women in the Workplace South Korea (Republic of Korea) – Small and Medium 2009 Business Ombudsman d. Regional Institutions Azad Jammu and Kashmir (Pakistan-administered 1991 Kashmir) – Institution of Mohtasib (Ombudsman) India – Institution of Lokayukta Delhi 1997 India – Institution of Lokayukta of Andhra Pradesh 1983 India – Lok Ayukta Institution Uttar Pradesh 1977 India – Lokayukt Institution Madhya Pradesh 1982 Pakistan – Office of the Ombudsman Punjab 1996 Pakistan – Provincial Ombudsman Balochistan 2001 Pakistan – Provincial Ombudsman Sindh 1992 Pakistan – Provincial Ombudsman Khyber Pakhtunkhwa 2011 350 As various precursor institutions, the institution has had its current name and form since 2000. 351 The institution was already established in 1969 as a private organization. 313 Part Three: Tables and Diagrams e. Countries in Asia Within the Ambit of Previous Studies352 Armenia Azerbaijan Cyprus Georgia Hong Kong (China) Israel Kazakhstan Kyrgyzstan Russian Federation Taiwan (China) Tajikistan Turkey Turkmenistan Uzbekistan f. Other Countries in Asia not Included due to the Lack of a Pertinent Institution Afghanistan Bhutan Brunei Cambodia Iraq Kuwait Laos Lebanon Maldives Mongolia Myanmar (Burma) Nepal North Korea (Democratic People’s Republic of Korea) Oman Qatar Saudi Arabia Singapore Syria Tajikistan Turkmenistan 352 Gabriele Kucsko-Stadlymayer (ed), European Ombudsman-Institutions: A Comparative Legal Analysis Regarding the Multifaceted Realisation of an Idea (Springer Wien New York, 2008); International Ombudsman Institute (ed), Australasia and Pacific Ombudsman Institutions: Mandates, Competences an Good Practice (Springer Berlin Heidelberg, 2013). 314 I. Preface United Arab Emirates Yemen353 3. Dates of Establishment354 9 8 7 6 5 6>95 6>:5 6>;5 6><5 6>=5 6>>5 7555 7565 353 The Central Organization for Control and Auditing (COCA), which is a member of the AOA, is not included in the study due to the lack of material. 354 In part, the dates of establishment refer to precursors of current institutions. 315 Part Three: Tables and Diagrams 4. Democracy Ranking (Economist Intelligence Unit – Democracy Index 2014) 7 6 5 4 6 6 3 5 2 3 3 1 & !#) ' !#) )# &%!# %# ! Full Democracy Japan (8.08) South Korea (8.06) Flawed Democracy India (7.92) Timor-Leste (7.24) Indonesia (6.95) Philippines (6.77) Malaysia (6.49) Hybrid Regime Bangladesh (5.78) Sri Lanka (5.69) Thailand (5.39) Pakistan (4.64) Authoritarian Regime Jordan (3.76) Vietnam (3.41) China (3.00) Bahrain (2.87) Iran (1.98) No Ranking Azad Jammu and Kashmir (Pakistan-administered Kashmir) China (Macao) 316 I. Preface 5. Constitutional Embodiment of the Institution ; : 9 8 7 : : 6 5 4 5 4 3 "$#&$ # ! # & $ +! $ "$#&$ Constitution Bangladesh (not established) China (Macao)355 Iran Philippines Sri Lanka Thailand Timor-Leste Simple Act of Parliament Bahrain China Indonesia Japan Jordan Pakistan356 South Korea Regulation/Decree Malaysia Vietnam No National Institution India 355 Basic Law of the Macao Special Administrative Region of the People’s Republic of China. 356 The institution was originally created by a Presidential Order, however has been accepted and amended since through Acts of Parliament. 317 Part Three: Tables and Diagrams 6. Which Branch of Government do the Institutions Associate Themselves With? : 9 8 7 6 9 5 8 4 3 3 3 3 2 (%#& ' !#& ' % ' !! # # ! Executive Power Bahrain China Japan Korea Malaysia Vietnam Legislative Power Timor-Leste Judicial Power Iran No Association China (Macao) Indonesia Jordan Pakistan Philippines Sri Lanka Thailand No Indications Bangladesh (not established) 318 I. Preface 7. Is There a Specialized Constitutional Court? ( &' Yes Bahrain Indonesia Jordan South Korea Thailand No Bangladesh China China (Macao) India Iran Japan Malaysia Pakistan Philippines Sri Lanka Timor-Leste Vietnam 319 Part Three: Tables and Diagrams II. Organization 8. Which Organ or Branch of Government is Assigned 9KVJVJG#RRQKPVOGPVQHVJG*GCFQHVJG+PUVKVWVKQP! >; =@ B =; @ <@ <; = ; < < 0 -+. -* &( *1 (# $ %* - #-* &( *1 &*''# # +&%# %)+-+&%) ' # 2 %)+*-+&%) &%# %)+-+&%) Executive Authority Bahrain (Ombudsman of the Ministry of Interior) Bangladesh (not established) China (Macao) China (Ministry of Supervision) China (State Bureau for Letters and Calls) Japan (Administrative Evaluation Bureau) Jordan Malaysia Pakistan (Federal Ombudsman) Philippines South Korea Sri Lanka Thailand Vietnam Bahrain (Inspector General Office – NSA) Pakistan (Banking Mohtasib) Pakistan (Harassment) Pakistan (Insurance Ombudsman) Pakistan (Tax Ombudsman) Azad Jammu and Kashmir (Pakistan-administered Kashmir) India (Andhra Pradesh) India (Delhi) India (Madhya Pradesh) India (Uttar Pradesh) Pakistan (Balochistan) 320 II. Organization Pakistan (Khyber Pakhtunkhwa) Pakistan (Punjab) Pakistan (Sindh) Parliament Indonesia Timor-Leste Judicial Authority Iran Not Applicable Japan (NFACA)357 357 The Volunteer Administrative Counselors elect prefectural representatives, which in turn form a Board of Directors that elects the President of NFACA. 321 Part Three: Tables and Diagrams 9. Which Organ or Branch of Government is Additionally Involved in the Appointment? =@ =; @ <@ ? <; <= @ < > ? > = ; < < + ) !$*7( !$ 9)+' :)$!% &+7 .!!$.+ ')!+2 1 .,/ .+ ')!+2 '& 7'+(($!$ '.&!$ !*$+.) ,'&$ &*,+.,'&* ( !$!3 &*,+.,'&* !'&$ &*,.,'&* Other Officials/Special Council Indonesia Sri Lanka Thailand Pakistan (Banking Mohtasib) (Part of) Parliament/Legislature Bangladesh (not established) China (Ministry of Supervision) India (Delhi) India (Madhya Pradesh) India (Uttar Pradesh) Judicial Authority Philippines India (Andhra Pradesh) India (Delhi) India (Madhya Pradesh) India (Uttar Pradesh) Executive Authority Indonesia None/Not Applicable Bahrain (Ombudsman of the Ministry of Interior) China (Macao) China (State Bureau for Letters and Calls) 322 II. Organization Iran Japan (Administrative Evaluation Bureau) Japan (National Federation of Administrative Counselors’ Associations) Jordan Malaysia Pakistan (Federal Ombudsman) South Korea Timor-Leste Vietnam Bahrain (Inspector General Office – NSA) Pakistan (Harassment) Pakistan (Insurance Ombudsman) Pakistan (Tax Ombudsman) Azad Jammu and Kashmir (Pakistan-administered Kashmir) Pakistan (Punjab) Pakistan (Sindh) Pakistan (Khyber Pakhtunkhwa) Pakistan (Balochistan) 323 Part Three: Tables and Diagrams 9JKEJ3WCNKƂECVKQPUFQ%CPFKFCVGU*CXG to Demonstrate? ?B ?@ @ ?> A A F @ D E ? B F E C C @ B ? > ? )*&%# 9&)" % :1') % % $.$7 1 $.$ % /)* +2 ) % 9.# +&: &(. )$%+* '.+,&%7 %+ ) +2 07.# . $ % *+),&% ,&%# %*,.,&%* ' # 3 %*,+.,&%* &%# %*,+.,&%* High Personal Reputation/Integrity Bahrain (Ombudsman of the Ministry of Interior) Bangladesh (not established) China (Macao) Indonesia Japan (National Federation of Administrative Counselors’ Associations) Jordan Philippines Timor-Leste Bahrain (Inspector General Office – NSA) Pakistan (Banking Mohtasib) Pakistan (Insurance Ombudsman) Pakistan (Khyber Pakhtunkhwa)358 Pakistan (Punjab)358 (Working) Experience Bangladesh (not established) China (Ministry of Supervision) Indonesia Jordan Philippines South Korea Timor-Leste Pakistan (Banking Mohtasib) Pakistan (Harassment)358 Pakistan (Insurance Ombudsman) 358 Either qualification necessary. 324 II. Organization Minimum/Maximum Age Indonesia Japan (National Federation of Administrative Counselors’ Associations) Philippines Sri Lanka Thailand University Degree in Law/Public Administration Indonesia Jordan Philippines Thailand (Qualified to) Be a Judge Iran Pakistan (Harassment)358 India (Andhra Pradesh) India (Delhi) India (Madhya Pradesh) India (Uttar Pradesh) Pakistan (Balochistan) Pakistan (Khyber Pakhtunkhwa)358 Pakistan (Punjab)358 No Requirements China (State Bureau for Letters and Calls) Japan (Administrative Evaluation Bureau) Malaysia Pakistan (Federal Ombudsman) Vietnam Pakistan (Tax Ombudsman) Azad Jammu and Kashmir (Pakistan-administered Kashmir) Pakistan (Sindh) 325 Part Three: Tables and Diagrams *QY/CP[+PEWODGPVUCTG#RRQKPVGFCUVJG *GCFQHVJG+PUVKVWVKQP! <= <9 ? ;= ;9 = := :9 :> = 9 #&'$# )$#! #')(+)$#' % ! 0 #')(+)$#' $#! #')+)$#' One Person Bahrain (Ombudsman of the Ministry of Interior) China (Macao) China (Ministry of Supervision) China (State Bureau for Letters and Calls) Indonesia Iran Japan (Administrative Evaluation Bureau) Japan (National Federation of Administrative Counselors’ Associations) Jordan Malaysia Pakistan (Federal Ombudsman) Philippines South Korea Sri Lanka Thailand Timor-Leste Vietnam Bahrain (Inspector General Office – NSA) Pakistan (Banking Mohtasib) Pakistan (Harassment) Pakistan (Insurance Ombudsman) Pakistan (Tax Ombudsman) Azad Jammu and Kashmir (Pakistan-administered Kashmir) India (Andhra Pradesh) India (Delhi) India (Madhya Pradesh) India (Uttar Pradesh) 326 II. Organization Pakistan (Balochistan Pakistan (Khyber Pakhtunkhwa) Pakistan (Punjab) Pakistan (Sindh) 327 Part Three: Tables and Diagrams *QY/CP[&GRWVKGUCTG %WTTGPVN[ #RRQKPVGF! := :; > :9 @ ? > = ; ; > ; < < ; ; ; : 9 #%+(/ -$%+)' &%+)' $+&%+)' $& # , $%+)' $ # )$#' %+)' )$#! #')(+)$#' % ! 0 #')(+)$#' $#! #')(+)$#' One Deputy Bahrain (Ombudsman of the Ministry of Interior) Japan (National Federation of Administrative Counselors’ Associations) India (Madhya Pradesh) India (Uttar Pradesh) Two Deputies China (Macao) Jordan Malaysia Thailand Timor-Leste Three Deputies South Korea Four Deputies China (Ministry of Supervision) China (State Bureau for Letters and Calls) More than Five Deputies Indonesia Philippines Vietnam No Deputies Bangladesh (not established) Pakistan (Federal Ombudsman) Sri Lanka 328 II. Organization Bahrain (Inspector General Office – NSA) Pakistan (Banking Mohtasib) Pakistan (Harassment) Pakistan (Insurance Ombudsman) Pakistan (Tax Ombudsman) Azad Jammu and Kashmir (Pakistan-administered Kashmir) Pakistan (Balochistan) Pakistan (Khyber Pakhtunkhwa) Pakistan (Punjab) Pakistan (Sindh) No Indications Iran Japan (Administrative Evaluation Bureau) India (Andhra Pradesh) India (Delhi) 329 Part Three: Tables and Diagrams *QY.QPIKUVJG6GTOQH1HƂEGQHVJG*GCF of the Institution? >? >= A E C ? A > A C ? A @ > ? > >> > > = @'( A'( B'( C'( D'( E'( )0 # )8CE % /,*- '(9 $ *%$6 ,) %' )0 % # )*%$ 8#/5@'(9 *%$" $(*),*%$( & " 1 $(*),*%$( %$" $(*),*%$( Three Years Bangladesh (not established) South Korea Four Years Jordan Pakistan (Federal Ombudsman) Timor-Leste Pakistan (Banking Mohtasib) Pakistan (Harassment) Pakistan (Insurance Ombudsman) Pakistan (Tax Ombudsman) Pakistan (Balochistan) Pakistan (Khyber Pakhtunkhwa) Pakistan (Punjab) Pakistan (Sindh) Five Years Bahrain (Ombudsman of the Ministry of Interior) China (Macao) China (Ministry of Supervision) Indonesia Bahrain (Inspector General Office – NSA) India (Andhra Pradesh) India (Delhi) 330 II. Organization Six Years Thailand India (Madhya Pradesh) Seven Years Philippines Eight Years India (Uttar Pradesh) Set by Executive Authority (max. three Years) Azad Jammu and Kashmir (Pakistan-administered Kashmir) Age Limit (68 Years) Sri Lanka No Indication / No Limitation China (State Bureau for Letters and Calls) Iran Japan (Administrative Evaluation Bureau) Japan (National Federation of Administrative Counselors’ Associations) Malaysia Vietnam 331 Part Three: Tables and Diagrams %CPVJG6GTOQH1HƂEGQHVJG*GCFQHVJG+PUVKVWVKQP be Renewed? <= C <; B @ ? ? @ < A = > > ; $%%$ #("#($'' ! $'' !(/$$#%%$ #("#( #! " ($'' ! (/$ $ # )$#'5$(%%! ! %%$ #("#( )$#! #')(+)$#' % ! 0 #')(+)$#' $#! #')(+)$#' No Reappointment Possible Pakistan (Federal Ombudsman) Philippines Thailand Pakistan (Banking Mohtasib) Pakistan (Harassment) Pakistan (Insurance Ombudsman) Pakistan (Tax Ombudsman) Azad Jammu and Kashmir (Pakistan-administered Kashmir) India (Andhra Pradesh) India (Delhi) India (Madhya Pradesh) India (Uttar Pradesh) Pakistan (Balochistan) Pakistan (Khyber Pakhtunkhwa) Pakistan (Punjab) Pakistan (Sindh) Possibility of one Reappointment Bangladesh (not established) China (Ministry of Supervision) Indonesia Jordan South Korea Timor-Leste Unlimited Possibility of Reappointment Bahrain (Ombudsman of the Ministry of Interior) 332 II. Organization China (Macao) Japan (National Federation of Administrative Counselors’ Associations)359 Bahrain (Inspector General Office – NSA) No Indications/Not Applicable China (State Bureau for Letters and Calls) Iran Japan (Administrative Evaluation Bureau) Japan (National Federation of Administrative Counselors’ Associations)360 Malaysia Sri Lanka Vietnam 359 The term of Administrative Counselors can be renewed until they reach 80 years of age. 360 President of the National Federation of Administrative Counselors’ Associations. 333 Part Three: Tables and Diagrams 9JKEJ#EVKXKVKGUKUVJG1HƂEGQHVJG*GCF of the Institution Incompatible With? >@ >< B B =@ ? =< ? = ? > @ B A B @ @ < -# 9#*: %1(& )) &%#+. *1 &%%+&% * * ( & %&$'+ # +) &# +#(*196 6 $() '%7&( -%+&%: +&%# %)+*-+&%) ' # 2 %)+*-+&%) &%# %)+*-+&%) Public (Elected) Office China (Macao) Indonesia Jordan Pakistan (Federal Ombudsman) Philippines South Korea Sri Lanka Thailand Timor-Leste Pakistan (Banking Mohtasib) Pakistan (Harassment) Pakistan (Insurance Ombudsman) Pakistan (Tax Ombudsman) Azad Jammu and Kashmir (Pakistan-administered Kashmir) India (Andhra Pradesh) India (Delhi) India (Madhya Pradesh) India (Uttar Pradesh) Pakistan (Balochistan) Pakistan (Khyber Pakhtunkhwa) Pakistan (Punjab) Pakistan (Sindh) Any Professional Activity China (Macao) 334 II. Organization Indonesia361 Jordan Pakistan (Federal Ombudsman) Philippines South Korea Sri Lanka Timor-Leste Pakistan (Banking Mohtasib) Pakistan (Harassment) Pakistan (Insurance Ombudsman) Pakistan (Tax Ombudsman) Azad Jammu and Kashmir (Pakistan-administered Kashmir) India (Andhra Pradesh) India (Delhi) India (Madhya Pradesh) India (Uttar Pradesh) Pakistan (Balochistan) Pakistan (Khyber Pakhtunkhwa) Pakistan (Punjab) Pakistan (Sindh) Connection With a Political Party (e.g. Membership and/or Function) China (Macao)362 Jordan South Korea Thailand Timor-Leste India (Andhra Pradesh) India (Delhi) India (Madhya Pradesh) India (Uttar Pradesh) Other Indonesia363 Philippines364 South Korea365 361 In case of a conflict of interest. 362 Unless an exception is granted by the Chief Executive. 363 Managers of State-owned enterprises. 364 Not in any other contract with the government including government-owned or controlled corporations or their subsidiaries. 365 May not concurrently serve as members of the National Assembly or any local council. 335 Part Three: Tables and Diagrams Thailand366 Timor-Leste Pakistan (Banking Mohtasib) Pakistan (Insurance Ombudsman) No Incompatibilities Bahrain (Ombudsman of the Ministry of Interior) Bangladesh (not established) China (Ministry of Supervision) China (State Bureau for Letters and Calls) Iran Japan (Administrative Evaluation Bureau) Japan (National Federation of Administrative Counselors’ Associations) Malaysia Vietnam Bahrain (Inspector General Office – NSA) 366 Not a member of the legislature or judge of the Constitutional Court or the Administrative Court, an Election Commissioner, a National Counter Cor- ruption Commissioner, a State Audit Commissioner or a National Human Rights Commissioner. 336 II. Organization 16. An Organ of Which Branch of Government may 4GOQXGVJG*GCFQHVJG+PUVKVWVKQP(TQO1HƂEG! @= ?B D ?= @ >B >= >B B A ? = > > 0 -+. -* &( *1 (# $ %* - #( % &*%)/ (# +&%# %)+*-+&%) ' # 2 %)+*-+&%) &%# %)+*-+&%) Executive Authority Bahrain (Ombudsman of the Ministry of Interior) Bangladesh (not established) China (Macao) China (Ministry of Supervision) China (State Bureau for Letters and Calls) Indonesia Japan (Administrative Evaluation Bureau) Japan (National Federation of Administrative Counselors’ Associations) Jordan Malaysia Pakistan (Federal Ombudsman) South Korea Sri Lanka Thailand Vietnam Bahrain (Inspector General Office – NSA) Pakistan (Insurance Ombudsman)367 Pakistan (Tax Ombudsman) Azad Jammu and Kashmir (Pakistan-administered Kashmir) India (Andhra Pradesh) India (Delhi) India (Madhya Pradesh) India (Uttar Pradesh) Pakistan (Balochistan) 367 If the appointment is revoked. 337 Part Three: Tables and Diagrams Pakistan (Khyber Pakhtunkhwa) Pakistan (Punjab) Pakistan (Sindh) Parliament Philippines Timor-Leste Judicial Organ Pakistan (Federal Ombudsman) Pakistan (Banking Mohtasib) Pakistan (Harassment) Pakistan (Insurance Ombudsman) Pakistan (Tax Ombudsman) Not Answerable Iran 338 II. Organization 17. Which Organ or Branch of Government is Additionally +PXQNXGFKPVJG4GOQXCNQHVJG*GCFQHVJG+PUVKVWVKQP! >A >< A =A @ =< @ =? A @ @ < = = )$!% &+8 !*$+.) + ) !$*8( !$'.&!$ '!,'&$ &/'$/ % &+ '+&*0 )$ ,'&$ &*,+.,'&* ( !$!3 &*,+.,'&* !'&$ &*,+.,'&* Parliament/Legislature Bangladesh (not established) China (Ministry of Supervision) Sri Lanka368 Vietnam India (Andhra Pradesh) India (Delhi) India (Madhya Pradesh) India (Uttar Pradesh Other Officials/Special Council Bahrain (Inspector General Office – NSA) India (Andhra Pradesh) India (Delhi) India (Madhya Pradesh) India (Uttar Pradesh) No Additional Involvement Bahrain (Ombudsman of the MoI) China (Macao) China (State Bureau for Letters and Calls) Indonesia Japan (Administrative Evaluation Bureau) Japan (National Federation of Administrative Counselors’ Associations) Jordan 368 The parliament is only involved if the head of the institution is removed for any other reason than physical or mental incapacity. 339 Part Three: Tables and Diagrams Malaysia Pakistan (Federal Ombudsman)369 Philippines South Korea Thailand Timor-Leste Pakistan (Banking Mohtasib) Pakistan (Harassment) Pakistan (Insurance Ombudsman)369 Pakistan (Tax Ombudsman)369 Azad Jammu and Kashmir (Pakistan-administered Kashmir)369 Pakistan (Balochistan)369 Pakistan (Khyber Pakhtunkhwa)369 Pakistan (Punjab)369 Pakistan (Sindh)369 Not Answerable Iran 369 If the removal is effected by an executive authority, the Ombudsman may request an evidentiary hearing before a judicial organ. 340 II. Organization (QT9JCV4GCUQP/KIJVVJG*GCFQHVJG+PUVKVWVKQP DG4GOQXGF(TQO1HƂEG! No Specific Reason – Loss of Confidence China (Ministry of Supervision) China (State Bureau for Letters and Calls) China (Macao) Japan (Administrative Evaluation Bureau) Malaysia Sri Lanka370 Thailand Vietnam (Physical and/or Mental) Incapacity Bangladesh (not established) Indonesia Japan (National Federation of Administrative Counselors’ Associations) Jordan Pakistan (Federal Ombudsman) South Korea Sri Lanka Timor-Leste Pakistan (Banking Mohtasib) Pakistan (Harassment) 370 In that case, the parliament must be involved in the removal procedure. 341 Part Three: Tables and Diagrams Pakistan (Insurance Ombudsman) Pakistan (Tax Ombudsman) Azad Jammu and Kashmir (Pakistan-administered Kashmir) India (Andhra Pradesh) India (Delhi) India (Madhya Pradesh) India (Uttar Pradesh) Pakistan (Balochistan) Pakistan (Khyber Pakhtunkhwa) Pakistan (Punjab) Pakistan (Sindh) Misconduct Bangladesh (not established) Indonesia Japan (National Federation of Administrative Counselors’ Associations) Pakistan (Federal Ombudsman) Philippines Bahrain (Inspector General Office – NSA) Pakistan (Banking Mohtasib) Pakistan (Harassment) Pakistan (Insurance Ombudsman) Pakistan (Tax Ombudsman) Azad Jammu and Kashmir (Pakistan-administered Kashmir) Pakistan (Balochistan) Pakistan (Khyber Pakhtunkhwa) Pakistan (Punjab) Pakistan (Sindh) Maximum Age Indonesia Japan (National Federation of Administrative Counselors’ Associations) Sri Lanka Thailand Criminal Conviction Indonesia Jordan Philippines Timor-Leste Pakistan (Insurance Ombudsman) 342 II. Organization Loss of Eligibility Indonesia Jordan South Korea Timor-Leste Misbehaviour/Failure to Carry out Functions Bahrain (Ombudsman of the Ministry of Interior) Japan (National Federation of Administrative Counselors’ Associations) Timor-Leste Pakistan (Insurance Ombudsman) India (Andhra Pradesh) India (Delhi) India (Madhya Pradesh) India (Uttar Pradesh) Loss of Citizenship Jordan South Korea Absence Indonesia Jordan Incompatibility Indonesia South Korea Insolvency Pakistan (Insurance Ombudsman) No Indication Iran 343 Part Three: Tables and Diagrams 9JCV&QGUVJG4GOWPGTCVKQPQHVJG*GCF of the Institution Relate to? H G @ F E D E B C F F B A A @ @ @ @ @ @ @ @ ? % )*() :-'($&-(*; *10-+. #) $()& *1(# $%* & % +&%8 - ) -* &( *1 (# $%* * ( +&%# %)+*-+&%) ' # 2 %)+*-+&%) &%# %)+*-+&%) Ministers China (Macao) China (Ministry of Supervision) China (State Bureau for Letters and Calls) Indonesia Jordan South Korea Timor-Leste (Supreme Court) Judges Bangladesh (not established) Pakistan (Banking Mohtasib) Pakistan (Insurance Ombudsman) India (Andhra Pradesh) India (Madhya Pradesh) India (Uttar Pradesh) Set by Executive Authority Pakistan (Federal Ombudsman) Pakistan (Tax Ombudsman) Azad Jammu and Kashmir (Pakistan-administered Kashmir) India (Delhi) Pakistan (Balochistan) Pakistan (Khyber Pakhtunkhwa) Pakistan (Punjab) Pakistan (Sindh) 344 II. Organization High Officials Philippines371 Bahrain (Inspector General Office – NSA) Members of Parliament Indonesia Set by Parliament Sri Lanka No Indication / Other Bahrain (Ombudsman of the Ministry of Interior) Iran Japan (Administrative Evaluation Bureau) Japan (National Federation of Administrative Counselors’ Associations)372 Malaysia Thailand Vietnam Pakistan (Harassment) 371 Chairman of the Constitutional Commission. 372 President: not mentioned; Administrative Counselors: volunteers. 345 Part Three: Tables and Diagrams *QY/CP[2GTUQPU&QGUVJG+PUVKVWVKQP'ORNQ[! National Institutions Bahrain (Ombudsman of the Ministry of Interior) 67 China (Macao) 53 China (Ministry of Supervision) ~800 Indonesia (Ombudsman of the Republic of Indonesia) 415 Japan Administrative Evaluation Bureau 1,649 National Federation of Administrative Counselors’ Associations 5,000 Jordan 53 Pakistan (Federal Ombudsman) 538 Philippines 1,045 South Korea 500 Timor-Leste 96 Not Known China (State Bureau for Letters and Calls) Iran Malaysia Sri Lanka Thailand Vietnam Specialized Institutions Bahrain (Inspector General Office – NSA) 7 Pakistan Banking Mohtasib 18 Tax Ombudsman 175 Not Known Pakistan (Harassment) Pakistan (Insurance Ombudsman) Regional Institutions India Madhya Pradesh >26 Uttar Pradesh 65 Pakistan Khyber Pakhtunkhwa 46 Sindh 401 Not Known Azad Jammu and Kashmir (Pakistan-administered Kashmir) India Andhra Pradesh Delhi Pakistan Balochistan Punjab 346 III. Access to the Institution III. Access to the Institution &QGUVJG%QORNCKPV*CXGVQDG5WDOKVVGF in Written Form? =C =B > =@ => =< D C =A B @ ? > ? < ( % *%$" $(*),*%$( & " 1 $(*),*%$( %$" $(*),*%$( Yes Jordan Pakistan (Federal Ombudsman) Sri Lanka Pakistan (Banking Mohtasib) Pakistan (Insurance Ombudsman) Pakistan (Tax Ombudsman) Azad Jammu and Kashmir (Pakistan-administered Kashmir) India (Andhra Pradesh) India (Delhi) India (Madhya Pradesh) India (Uttar Pradesh) Pakistan (Balochistan) Pakistan (Khyber Pakhtunkhwa) Pakistan (Punjab) Pakistan (Sindh) No Bahrain (Ombudsman of the Ministry of Interior) Bangladesh (not established) China (Macao) China (Ministry of Supervision) China (State Bureau for Letters and Calls) Indonesia Iran Japan (Administrative Evaluation Bureau) 347 Part Three: Tables and Diagrams Japan (National Federation of Administrative Counselors’ Associations) Malaysia Philippines South Korea Thailand Timor-Leste Vietnam Bahrain (Inspector General Office – NSA) Pakistan (Harassment) 348 III. Access to the Institution 22. Are There Deadlines for the Lodging of a Complaint Before the Institution? >D >B >A E >? > >= D > B >> A C ? @ = ) & )5 ( % +#(&-(* (%* %) *-+&% +&%# %)+*-+&%) ' # 2 %)+*-+&%) &%# %)+*-+&%) Yes Indonesia Jordan Pakistan (Federal Ombudsman) Philippines Thailand Timor-Leste Vietnam Pakistan (Tax Ombudsman) Azad Jammu and Kashmir (Pakistan-administered Kashmir) India (Andhra Pradesh) India (Delhi) India (Madhya Pradesh) India (Uttar Pradesh) Pakistan (Balochistan) Pakistan (Khyber Pakhtunkhwa) Pakistan (Punjab) Pakistan (Sindh) No Bahrain (Ombudsman of the Ministry of Interior) Bangladesh (not established) China (Macao) China (Ministry of Supervision) China (State Bureau for Letters and Calls) Iran Japan (Administrative Evaluation Bureau) Japan (National Federation of Administrative Counselors’ Associations) 349 Part Three: Tables and Diagrams Malaysia South Korea Sri Lanka Bahrain (Inspector General Office – NSA) Yes, After Initial Procedure at Different Institution Pakistan (Banking Mohtasib) Pakistan (Harassment) Pakistan (Insurance Ombudsman) 350 III. Access to the Institution %CPVJG+PUVKVWVKQPQTKVU*GCFCEV'Z1HƂEKQ! ;> ;9 ? :> : :9 < :< = > > 9 ' $ )$#! #')(+)$#' % ! 0 #')(+)$#' $#! #')(+)$#' Yes Bahrain (Ombudsman of the Ministry of Interior) Bangladesh (not established) China (Macao) China (Ministry of Supervision) Indonesia Iran Japan (Administrative Evaluation Bureau) Jordan Pakistan (Federal Ombudsman) Philippines Thailand Timor-Leste Vietnam373 Pakistan (Tax Ombudsman) Azad Jammu and Kashmir (Pakistan-administered Kashmir) India (Andhra Pradesh) Pakistan (Balochistan) Pakistan (Khyber Pakhtunkhwa) Pakistan (Punjab) Pakistan (Sindh) No China (State Bureau for Letters and Calls) Japan (National Federation of Administrative Counselors’ Associations) Malaysia South Korea Sri Lanka 373 Only regarding corruption. 351 Part Three: Tables and Diagrams Bahrain (Inspector General Office – NSA) Pakistan (Banking Mohtasib) Pakistan (Harassment) Pakistan (Insurance Ombudsman) India (Delhi) India (Madhya Pradesh) India (Uttar Pradesh) 352 IV. Subject of the Investigation IV. Subject of the Investigation 24. Can Non-Governmental Legal Entities be Supervised? =; *%$" $(*),*%$( & " 1 $(*),*%$( %$" $(*),*%$( Private Legal Entities (Partly) Under State Supervision Bangladesh (not established) China (Macao) Indonesia Iran Japan (Administrative Evaluation Bureau) Malaysia Pakistan (Federal Ombudsman) Philippines Sri Lanka Azad Jammu and Kashmir (Pakistan-administered Kashmir) India (Andhra Pradesh) India (Delhi) India (Madhya Pradesh) India (Uttar Pradesh) Pakistan (Balochistan) Pakistan (Khyber Pakhtunkhwa) Pakistan (Punjab) Pakistan (Sindh) Private Legal Entities Performing Public Duties China (Macao) China (Ministry of Supervision) China (State Bureau for Letters and Calls) Indonesia Malaysia South Korea Timor-Leste 353 Part Three: Tables and Diagrams Private Legal Entities with Respect to Certain Issues China (Macao)374 Pakistan (Banking Mohtasib)375 Pakistan (Harassment)376 Pakistan (Insurance Ombudsman)377 Other Iran378 India (Andhra Pradesh)379 India (Delhi)379 India (Madhya Pradesh)379 India (Uttar Pradesh)379 None Bahrain (Ombudsman of the Ministry of Interior) Japan (National Federation of Administrative Counselors’ Associations) Jordan Thailand Vietnam Bahrain (Inspector General Office – NSA) Pakistan (Tax Ombudsman) 374 Relationships between private individuals involving a special relation of dominance, within the scope of the protection of rights, freedoms and safe- guards. 375 All public and private banks. 376 With respect to harassment of women in the workplace. 377 All insurance companies. 378 All organizations which the government assists or supervises. 379 Registered co-operative societies. 354 IV. Subject of the Investigation 25. Are Certain Domains of Administration Outside the Jurisdiction of the Main Institution? : 9 8 7 6 9 5 4 5 5 3 4 2 "#!$ &"$ ## '! #, "#!" , #!( $ "$#&$ " Administration of Justice Bahrain (Ombudsman of the Ministry of Interior)380 Bangladesh (not established) China (Macao) Japan (Administrative Evaluation Bureau) Malaysia South Korea Sri Lanka Head of State Bahrain (Ombudsman of the Ministry of Interior)380 Sri Lanka Government/Ministers Bahrain (Ombudsman of the Ministry of Interior)380 Iran Sri Lanka Defence/Military Bahrain (Ombudsman of the Ministry of Interior)380 Iran Pakistan (Federal Ombudsman) 380 Due to its mandate being limited to Ministry of Interior personnel. 355 Part Three: Tables and Diagrams 26. Are Courts Subject to the Supervision of the Institution? >; =? A =; <; <= ? ? ; < (4 ) (&))%) # $ ()'*%$% (4 ) (&))%%'',&*%$ % ,(* *%$" $(*),*%$( & " 1 $(*),*%$( %$" $(*),*%$( Yes, With Respect to the Administration of Justice Indonesia Iran Thailand Timor-Leste Vietnam Yes, With Respect to Corruption South Korea No Bahrain (Ombudsman of the Ministry of Interior) Bangladesh (not established) China (Macao) China (Ministry of Supervision) China (State Bureau for Letters and Calls) Japan (Administrative Evaluation Bureau) Japan (National Federation of Administrative Counselors’ Associations) Jordan Malaysia Pakistan (Federal Ombudsman) Sri Lanka Philippines Bahrain (Inspector General Office – NSA) Pakistan (Banking Mohtasib) Pakistan (Harassment) Pakistan (Insurance Ombudsman) Pakistan (Tax Ombudsman) 356 IV. Subject of the Investigation Azad Jammu and Kashmir (Pakistan-administered Kashmir) India (Andhra Pradesh) India (Delhi) India (Madhya Pradesh) India (Uttar Pradesh) Pakistan (Balochistan) Pakistan (Khyber Pakhtunkhwa) Pakistan (Punjab) Pakistan (Sindh) 357 Part Three: Tables and Diagrams V. Standard of Investigation 27. What is the Standard of Investigation of the Ombudsman? ?A ?< >A C >< @ =A =< =B A = < = = %+( #1)* $5&&$ % )*(+&% %+( #1)* $ * ( +&%# %)+*-+&%) ' # 2 %)+*-+&%) &%# %)+*-+&%) Entire Legal System, Good Administration Bangladesh (not established) China (Macao) China (Ministry of Supervision) China (State Bureau for Letters and Calls) Indonesia Iran Japan (Administrative Evaluation Bureau) Japan (National Federation of Administrative Counselors’ Associations) Jordan Malaysia Pakistan (Federal Ombudsman) Philippines South Korea Sri Lanka Thailand Timor-Leste Vietnam Bahrain (Inspector General Office – NSA) Pakistan (Banking Mohtasib) Pakistan (Insurance Ombudsman) Pakistan (Tax Ombudsman) Azad Jammu and Kashmir (Pakistan-administered Kashmir) India (Andhra Pradesh) India (Delhi) India (Uttar Pradesh) 358 V. Standard of Investigation Pakistan (Balochistan) Pakistan (Khyber Pakhtunkhwa) Pakistan (Punjab) Pakistan (Sindh) Entire Legal System Bahrain (Ombudsman of the Ministry of Interior) Other Pakistan (Harassment)381 India (Madhya Pradesh)382 381 Sexual Harassment. 382 Corrupt Conduct. 359 Part Three: Tables and Diagrams #TG*WOCP4KIJVUCP'ZRNKEKV5VCPFCTFQH5WRGTXKUKQP of the Ombudsman? =: <> <: @ ;> = ;: < ;= > > : ( % *%$" $(*),*%$( & " 1 $(*),*%$( %$" $(*),*%$( Yes Bahrain (Ombudsman of the Ministry of Interior)383 China (Macao)384 Pakistan (Federal Ombudsman)385 Sri Lanka Timor-Leste Bahrain (Inspector General Office – NSA) Pakistan (Tax Ombudsman)385 No Bangladesh (not established) China (Ministry of Supervision) China (State Bureau for Letters and Calls) Indonesia Iran Japan (Administrative Evaluation Bureau) Japan (National Federation of Administrative Counselors’ Associations) Jordan Malaysia Philippines South Korea Thailand Vietnam 383 Only with regard to ascertaining that detainees are not subject to torture or cruel, inhuman or derogatory treatment. 384 Complaints about the violation of rights, freedoms, safeguards and legitimate interests of individuals. 385 Only with regard to freedom of information. 360 V. Standard of Investigation Pakistan (Banking Mohtasib) Pakistan (Harassment) Pakistan (Insurance Ombudsman) Azad Jammu and Kashmir (Pakistan-administered Kashmir) India (Andhra Pradesh) India (Delhi) India (Madhya Pradesh) India (Uttar Pradesh) Pakistan (Balochistan) Pakistan (Khyber Pakhtunkhwa) Pakistan (Punjab) Pakistan (Sindh) 361 Part Three: Tables and Diagrams VI. Powers 29. Are Administrative Organs Obliged to Assist the Ombudsman? @> ?E @ ?C @ ?B ?@ ?> D E ?B C A B @ B > * *61'+ &) % &)$,&%#))+&)&% %,# ,&%# %*,+.,&%* ' # 3 %*,+.,&%* &%# %*,+.,&%* Yes Bahrain (Ombudsman of the Ministry of Interior) China (Macao) China (Ministry of Supervision) China (State Bureau for Letters and Calls) Indonesia Japan (Administrative Evaluation Bureau) Japan (National Federation of Administrative Counselors’ Associations) Jordan Malaysia Philippines South Korea Sri Lanka Thailand Vietnam Bahrain (Inspector General Office – NSA) Pakistan (Harassment) India (Delhi) India (Madhya Pradesh) Yes, Except for Information Declared Secret or Confidential Bangladesh (not established) Iran386 386 Secret information must be disclosed as well if the pertinent request was approved by the Head of Judiciary. 362 VI. Powers Pakistan (Federal Ombudsman) Timor-Leste Pakistan (Banking Mohtasib) Pakistan (Insurance Ombudsman) Pakistan (Tax Ombudsman) Azad Jammu and Kashmir (Pakistan-administered Kashmir) India (Andhra Pradesh) India (Uttar Pradesh) Pakistan (Balochistan) Pakistan (Khyber Pakhtunkhwa) Pakistan (Punjab) Pakistan (Sindh) 363 Part Three: Tables and Diagrams 30. Can the Duty of Assistance be Enforced (Under Compulsion)? AH AF AD E AB I A@ A H F F B I C D G B B E C B B C @ * '# %)2 % ,&%& ;%#2< &$'.#*&)2 % ,&%& ) *&%'&)++&.') &) .*'%* &% &+&** # )&*.,&% %#,*9 %* %+))& ,&% %+%*%9&) .+ &) +2 %*;&%+$'+ & &.)+< ,&%# %*,+.,&%* ' # 3 %*,+.,&%* &%# %*,+.,&%* Disciplinary Prosecution China (Macao) China (Ministry of Supervision) China (State Bureau for Letters and Calls) Indonesia Iran Jordan Pakistan (Federal Ombudsman)387 Philippines387 Vietnam Pakistan (Tax Ombudsman)387 Azad Jammu and Kashmir (Pakistan-administered Kashmir)387 Pakistan (Balochistan)387 Pakistan (Khyber Pakhtunkhwa)387 Pakistan (Punjab)387 Pakistan (Sindh)387 Infliction of (Only) Penalties/Fines Bangladesh (not established) China (Macao) Indonesia Philippines387 South Korea Thailand Vietnam388 387 Recommendation. 388 Compensation. 364 VI. Powers Compulsory Interrogation Bangladesh (not established) Indonesia Malaysia389 Pakistan (Federal Ombudsman) Sri Lanka Pakistan (Harassment) Pakistan (Tax Ombudsman) Azad Jammu and Kashmir (Pakistan-administered Kashmir) India (Andhra Pradesh) India (Delhi) India (Madhya Pradesh) India (Uttar Pradesh) Pakistan (Balochistan) Pakistan (Khyber Pakhtunkhwa) Pakistan (Punjab) Pakistan (Sindh) Infliction of Prison Sentences and/or Fines (Contempt of Court) Pakistan (Federal Ombudsman) Sri Lanka Timor-Leste Pakistan (Harassment) Pakistan (Tax Ombudsman) India (Madhya Pradesh) India (Uttar Pradesh) Pakistan (Balochistan) Pakistan (Khyber Pakhtunkhwa) Pakistan (Punjab) Pakistan (Sindh) Report to Superior Authority Indonesia Thailand Suspension Iran387 Philippines390 389 When the Chief Secretary to the Government as Chairman of the Permanent Committee on Public Complaints (PCPC) requires it on behalf of the Public Complaints Bureau. 390 Preventive suspension as interim measure; recommendation of suspension, demotion, removal. 365 Part Three: Tables and Diagrams Not Possible Bahrain (Ombudsman of the Ministry of Interior)391 Japan (Administrative Evaluation Bureau)392 Japan (National Federation of Administrative Counselors’ Associations) Bahrain (Inspector General Office – NSA) Pakistan (Banking Mohtasib) Pakistan (Insurance Ombudsman) 391 Only ‘secondment’ of Public Security Forces. 392 Not mentioned, except ‘inspections’ to monitor and ‘enforce’ implementation. 366 VI. Powers %CPVJG *GCFQHVJG +PUVKVWVKQP+PKVKCVG Criminal Proceedings? <: ;A > ;@ ;> = ;< ;: ? A @ < ;< > < ? : ; # )(& " #!&$ # ' $""#& " #!&$ # ' $ 5.%! (!/&$, / -6 )$#! #')(+)$#' % ! #')(+)$#' $#! #')(+)$#' Initiate Criminal Proceedings Thailand Recommend Criminal Proceedings (Explicitly Provided by Law) Bahrain (Ombudsman of the Ministry of Interior) Iran Jordan Pakistan (Federal Ombudsman) Vietnam393 Bahrain (Inspector General Office – NSA) Pakistan (Tax Ombudsman) Azad Jammu and Kashmir (Pakistan-administered Kashmir) Pakistan (Balochistan) Pakistan (Khyber Pakhtunkhwa) Pakistan (Punjab) Pakistan (Sindh) No Bangladesh (not established) China (Macao) China (Ministry of Supervision) China (State Bureau for Letters and Calls) Indonesia Japan (Administrative Evaluation Bureau) Japan (National Federation of Administrative Counselors’ Associations) Malaysia 393 Non-complying persons shall be ‘examined for penal liabilities’. 367 Part Three: Tables and Diagrams Philippines South Korea Sri Lanka Timor-Leste Pakistan (Banking Mohtasib) Pakistan (Harassment) Pakistan (Insurance Ombudsman) India (Andhra Pradesh) India (Delhi) India (Madhya Pradesh) India (Uttar Pradesh) 368 VI. Powers %CPVJG *GCFQHVJG +PUVKVWVKQP+PKVKCVG Disciplinary Proceedings? :8 9> 9= 9< ? 9: 98 > ; = 9 9 < = = = : 8 "&('*' & $ "%.%# "& #!!" & $ "%.%# "& # 4-$ ' .%#+ . ,5 (#" "&('*(#"& $ / "&('*(#"& #" "&('*(#"& Institute Disciplinary Proceedings China (Ministry of Supervision) China (State Bureau for Letters and Calls) Indonesia Philippines South Korea Vietnam Pakistan (Harassment) Recommend Disciplinary Proceedings (Explicitly Provided by Law) Bahrain (Ombudsman of the Ministry of Interior) Bangladesh (not established) China (Macao) Iran Jordan Pakistan (Federal Ombudsman) Pakistan (Banking Mohtasib) Pakistan (Insurance Ombudsman) Pakistan (Tax Ombudsman) Azad Jammu and Kashmir (Pakistan-administered Kashmir) India (Andhra Pradesh) India (Delhi) India (Madhya Pradesh) India (Uttar Pradesh) Pakistan (Balochistan) Pakistan (Khyber Pakhtunkhwa) Pakistan (Punjab) Pakistan (Sindh) 369 Part Three: Tables and Diagrams No Japan (Administrative Evaluation Bureau)394 Japan (National Federation of Administrative Counselors’ Associations)394 Malaysia Sri Lanka394 Thailand Timor-Leste Bahrain (Inspector General Office – NSA)394 394 Not mentioned. 370 VI. Powers 33. Does the Ombudsman Submit an Annual Activity Report? =? =; <; > ? @ @ < > ; < (4)%$/,*-,) %' )0 (4)%'" #$) % ) ' *%$" $(*),*%$( & " 1 $(*),*%$( %$" $(*),*%$( Yes, to an Executive Authority Bahrain (Ombudsman of the Ministry of Interior) Bangladesh (not established)395 China (Ministry of Supervision) China (State Bureau for Letters and Calls) Jordan395 Pakistan (Federal Ombudsman)395 Sri Lanka Vietnam395 Pakistan (Banking Mohtasib) Pakistan (Insurance Ombudsman) Pakistan (Tax Ombudsman)395 Azad Jammu and Kashmir (Pakistan-administered Kashmir)395 India (Andhra Pradesh)395 India (Delhi)395 India (Madhya Pradesh)395 India (Uttar Pradesh)395 Pakistan (Balochistan)395 Pakistan (Khyber Pakhtunkhwa)395 Pakistan (Punjab)395 Pakistan (Sindh)395 Yes, to the Parliament China (Macao) Indonesia Japan (Administrative Evaluation Bureau) 395 The receiving authority must forward the annual report to the legislature. 371 Part Three: Tables and Diagrams Philippines South Korea Sri Lanka Thailand Timor-Leste No Iran Japan (National Federation of Administrative Counselors’ Associations)396 Malaysia Pakistan (Harassment) Other Bahrain (Inspector General Office – NSA)397 396 The Administrative Counselors are covered by the Administrative Evaluation Bureau report. 397 Biannual report to the Head of the NSA that is not made public. 372 VI. Powers 34. Can Special Reports be Submitted? )$#! #')(+)$#' % ! 0 #')(+)$#' $#! #')(+)$#' Yes Bahrain (Ombudsman of the Ministry of Interior)398 Bangladesh (not established) China (Macao) China (Ministry of Supervision)398 Indonesia Pakistan (Federal Ombudsman) South Korea Thailand Timor-Leste Pakistan (Tax Ombudsman) Azad Jammu and Kashmir (Pakistan-administered Kashmir) India (Delhi)398 India (Uttar Pradesh)398 Pakistan (Balochistan) Pakistan (Khyber Pakhtunkhwa) Pakistan (Sindh) No China (State Bureau for Letters and Calls) Iran Japan (Administrative Evaluation Bureau) Japan (National Federation of Administrative Counselors’ Associations) Jordan Malaysia Philippines Sri Lanka Vietnam 398 Only regarding single cases. 373 Part Three: Tables and Diagrams Bahrain (Inspector General Office – NSA) Pakistan (Banking Mohtasib) Pakistan (Harassment) Pakistan (Insurance Ombudsman) India (Andhra Pradesh) India (Madhya Pradesh) Pakistan (Punjab) 374 VI. Powers 35. Is the Ombudsman Empowered to Submit Legislative Proposals? =D =B =@ C => =< D A B == @ > > A > < .%! ($-&($$""#4+ '( &$%$'!'& '% ( $.%! ( $.%! ($-&'6$&$%$'!'& # ' # '!)$# $-& " )$#! #')(+)$#' % ! 0 #')(+)$#' $#! #')(+)$#' Explicit Power to Recommend/Suggest Changes in Legislation Bangladesh (not established) China (Macao) China (Ministry of Supervision)399 Indonesia Iran Japan (Administrative Evaluation Bureau) Philippines South Korea Thailand Timor-Leste Vietnam Proposals are Made Despite Lack of Explicit Power Bahrain (Ombudsman of the Ministry of Interior) Pakistan (Federal Ombudsman) India (Andhra Pradesh)400 India (Madhya Pradesh)400 No Explicit Powers – No Proposals are Made China (State Bureau for Letters and Calls) Japan (National Federation of Administrative Counselors’ Associations) Jordan Malaysia Sri Lanka 399 Via the State Council. 400 With regard to changes to the own legal basis of the institution. 375 Part Three: Tables and Diagrams Bahrain (Inspector General Office – NSA) Pakistan (Banking Mohtasib) Pakistan (Harassment) Pakistan (Insurance Ombudsman) Pakistan (Tax Ombudsman) Azad Jammu and Kashmir (Pakistan-administered Kashmir) India (Delhi) India (Uttar Pradesh) Pakistan (Balochistan) Pakistan (Khyber Pakhtunkhwa) Pakistan (Punjab) Pakistan (Sindh) 376 VI. Powers 36. Which Powers Exist With Respect to Legislation? 0 % % + % 1 % + #! ! #! # ! 4 ! ! Recommend new Laws/Changes to Laws Bangladesh (not established) China (Macao) Indonesia Iran Japan (Administrative Evaluation Bureau)401 Philippines South Korea Thailand Timor-Leste Challenge Laws/Regulations Before the Constitutional Court Thailand Timor-Leste Recommend Implementation of International Treaties Malaysia 401 Via the Ministry of Interior. 377 Part Three: Tables and Diagrams VII. Miscellaneous *CXGVJG+PUVKVWVKQPU2TQXKFGFCP Answered Questionnaire? <: ;B ;@ > ;> = ;< ? ;: B < @ ;; > A < : ( % *%$" $(*),*%$( & " 1 $(*),*%$( %$" $(*),*%$( Yes Bahrain (Ombudsman of the Ministry of Interior) China (Macao) Indonesia Japan (Administrative Evaluation Bureau) Japan (National Federation of Administrative Counselors’ Associations) Jordan Pakistan (Federal Ombudsman) Philippines South Korea Thailand Timor-Leste Bahrain (Inspector General Office – NSA) Pakistan (Banking Mohtasib) Pakistan (Tax Ombudsman) India (Madhya Pradesh) India (Uttar Pradesh) Pakistan (Khyber Pakhtunkhwa) Pakistan (Sindh) No Bangladesh (not established) China (Ministry of Supervision) China (State Bureau for Letters and Calls) Iran Malaysia 378 VII. Miscellaneous Sri Lanka Vietnam Pakistan (Harassment) Pakistan (Insurance Ombudsman) Azad Jammu and Kashmir (Pakistan-administered Kashmir) India (Andhra Pradesh) India (Delhi) Pakistan (Balochistan) Pakistan (Punjab) 379 Part Three: Tables and Diagrams *CXGVJG.GICN$CUGUQHVJG+PUVKVWVKQPU$GGP Accessible for the Purpose of the Study?