This article first appeared in Forum, The Edge Malaysia Weekly on July 29, 2024 - August 4, 2024
Calls from civil society for greater government accountability have increased in tandem with the strengthening of democratic ideals wosrldwide over the past century. Members of the public — no longer content with the paternalistic treatment afforded to them by their leaders in the past — now desire answers for conduct and decisions they deem unacceptable. Possibly in response to this trend, the spread of public sector ombudsman institutions has also undergone a drastic increase globally — beginning in its modern form in Sweden in 1809, this concept has now taken root in more than 100 countries, with varying names and forms.
The fundamental purpose of an ombudsman office is to supervise the actions and decisions of the executive branch of government, primarily by investigating complaints against public administration and service delivery. In particular, it is the civil service — as executors of government policy — which is the primary focus of the ombudsman, as there are often limited independent channels for recourse against these officials and offices when a member of the public feels unjustly treated. Yet the role of the ombudsman goes far beyond resolving complaints on a case-by-case basis. The ombudsman ideally fosters improved governance on a structural level by making recommendations for general changes in policies or procedures, beyond the individual complaint.
Presently in Malaysia, there is no independent mechanism of oversight on public administration and service delivery. Complaints are managed and resolved internally within the system, with limited recourse to bodies such as the Public Complaints Bureau or the Permanent Committee on Public Complaints. Thus, there seems to be a clear gap which could be filled with the introduction of a Malaysian ombudsman. A viable model would possess all legal investigative powers and authority necessary to compel the testimony of witnesses, the production of documents and the entry into premises, in order to facilitate the office’s inquiries.
Proponents of greater government accountability in Malaysia tend to view oversight as an adversarial tool, with the government framed as a recalcitrant offender which must be compelled to make changes when flaws or gaps are identified. In the absence of coercive or compulsory measures, the Malaysian government is hopelessly steadfast in its inadequacy — or so it is claimed. This mindset underlies much of the criticism levelled against existing oversight bodies such as the Human Rights Commission of Malaysia and the Enforcement Agency Integrity Commission: that these bodies are “toothless” and unable to accomplish their functions without the power to compel implementation of their recommendations.
These critiques are not meritless. However, it may also be useful for us to consider an alternative viewpoint here. Ombudsman institutions traditionally do not possess the power to enforce their recommendations either, acting instead in an advisory capacity. They seek to convince the government body of the benefits of implementing the suggested reforms to resolve the root cause of the complaint which necessitated the ombudsman’s investigation in the first place. As the ombudsman builds its own institutional expertise, it may also become an important stakeholder for the government to consult when developing administrative policies and practices, thereby prescriptively influencing these matters as well.
As former ombudsman of British Columbia Stephen Owen wrote, “While a coercive process may cause reluctant change in a single decision or action, by definition it creates a loser who will be unlikely to embrace the recommendations in future actions. By contrast, where change results from a reasoning process, it changes a way of thinking and the result endures to the benefit of potential complainants in the future.”
If the Malaysian ombudsman were allowed to directly enforce its own recommendations, it would merely function as another court or tribunal: systems which already exist and yet, still face challenges in effecting lasting and proactive change within the bureaucracy. Creating a new institution with a wholly unique approach to fostering good governance could be a useful addition to the larger oversight framework.
Nevertheless, there must be alternative courses of action where a government entity does choose to remain uncooperative or unresponsive. Legislation could impose reporting duties upon the government entity that is the subject of the ombudsman’s investigations to explain how it has implemented the recommendations, or why it has decided against implementing them. The ombudsman should also report back to parliament, where elected representatives could then question the cabinet on these failures.
It is important to remember that the ombudsman is not a panacea that will solve all the problems currently plaguing the Malaysian public service. In order for good governance to be upheld within the bureaucracy and for public service delivery to be provided in a just and equitable manner throughout the nation, comprehensive reviews and the overhaul of many institutions must be undertaken, and a shift in the culture of the public service must be promoted. It is merely one segment of a larger oversight network, but it will hopefully be the catalyst for these reforms to be identified and implemented moving forward.
Pushpan Murugiah is CEO of the Centre to Combat Corruption and Cronyism (C4)
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