SARAWAK OMBUDSMAN ORDINANCE, 2023

This Ordinance shall come into force on such date as the

Minister may, by notification in the Gazette, appoint, and the Minister may appoint different dates for the coming into force of different parts or provisions of this Ordinance.

Interpretation

unreasonable conduct, including delay, discourtesy, and lack of consideration for a person affected by any action;

abuse of any power (including any discretionary power) or authority including any action or omission which—

is unreasonable, unjust, oppressive, wrong or improperly discriminatory or is in accordance with a practice which is or may be unreasonable, unjust, oppressive, or improperly discriminatory;

unreasonable, unjust, oppressive, wrong or improperly discriminatory procedures, by public service agency for purposes connected therewith;

“Member of the Administration” shall have the same meaning assigned to it in Article 160(2) of the Federal Constitution;

“Minister” means the Minister charged with the responsibility of Integrity and Ombudsman;

“Ombudsman” includes the Chief Ombudsman, Deputy

Chief Ombudsman and Ombudsman appointed under section 5;

“public servants” means any person holding any appointment or discharging the duties of any office the emoluments of which are wholly or in part derived from the revenues of the State and any employee or member of a public service agency whether temporary or permanent and whether paid or unpaid;

“public service agency” means any Government agencies, public authorities, statutory bodies, local authorities and any public service agency that carries public services functions under the

State or any office the emoluments of which are wholly or in part

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derived from the revenues of State including its officers, employees, servants, representatives and agents; and

“State” means the State of Sarawak.

Application

The Ombudsman shall hold office for a term of not exceeding three years but is eligible for reappointment.

Notwithstanding subsection (2), the appointment of

Ombudsman shall cease⎯

law;

professional accountancy;

public administration relating to the administration of public services; or

any other expertise or experience which is highly relevant to the effective performance of the functions of the Sarawak

Ombudsman.

A person shall not be appointed as an Ombudsman if he is, and shall cease to be an Ombudsman if he becomes—

The disqualification in paragraph (f) of subsection (2) shall not apply where such organisation or body carries out any welfare or voluntary work or objective beneficial to the community or any part thereof, or any other work or objective of a charitable or social nature, and the member does not receive any remuneration, reward, profit, or benefit from it.

Oath of office of Ombudsman 7.

It shall be the duty of each Ombudsman appointed under this

Ordinance to make and subscribe an oath before the Chief Judge of

Sabah and Sarawak or of a judge of the High Court of Sabah and

Sarawak in the form set out in the First Schedule.

Appointment of temporary Ombudsman 8.

Where, during any period, an Ombudsman has been granted leave of absence by the Yang di-Pertua Negeri or is unable, owing to his absence from the State, illness or any other cause, to discharge his functions as an Ombudsman, the Yang di-Pertua Negeri may appoint any person who would be qualified to be appointed as an Ombudsman to exercise his functions temporarily during that period and the appointment of such temporary Ombudsman shall be made in the same manner as any other Ombudsman.

Removal and Suspension of Ombudsman, etc.

The Yang di-Pertua Negeri shall appoint a tribunal and shall refer the representation to it and, if the tribunal so recommends, the

Yang di-Pertua Negeri shall remove that Ombudsman from office by writing under his hand.

The tribunal shall consist of not less than three persons who hold or have held office as Judge of the Federal Court, Court of Appeal or of any High Court in the Federation or, if it appears to the Yang di-

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Pertua Negeri expedient to make such appointment, persons who hold or have held equivalent office in any other part of the Commonwealth.

The tribunal may regulate its own procedure for that purpose.

Where a representation has been made to the Yang di-Pertua

Negeri under subsection (1), he may on the recommendation of the

Premier or the Chief Ombudsman, as the case maybe, suspend the

Ombudsman concerned from the exercise of his functions pending the recommendation of the tribunal on that representation.

Notwithstanding subsection (5), the Premier or the Chief

Ombudsman, as the case may be, may by notice in writing suspend any

Ombudsman who is under investigation or charged in any court for any offence under any written law.

Remuneration, allowances, etc.

The sums required for the payment under subsection (1) shall be charged on and paid out under the State Consolidated Fund.

Powers of Ombudsman 11.⎯(1) The Ombudsman shall have the power to do all things expedient or reasonably necessary for or incidental to the discharge of his functions and exercise of his powers under this Ordinance.

Without prejudice to the generality of subsection (1), the

Ombudsman may⎯

Notwithstanding any provision under this Ordinance, the Ombudsman may initiate any action, review and analyse any issues relating to maladministration in the public interest either on its own initiative or on the basis of public complaints.

Delegation of powers by the Chief Ombudsman 13.

The Chief Ombudsman may, by direction, delegate to any person appointed under section 5 any of his powers under this

Ordinance, or where it appears to the Chief Ombudsman that he has or may have an interest in any matter which is the subject of an investigation under Part III of this Ordinance, shall so delegate his powers and shall not undertake personally or continue that investigation or report thereon.

if it relates to any action of which the complainant has had actual knowledge of the cause, facts or circumstances upon which the complaint is founded for more than twelve months before the complaint is received by the Ombudsman or if the complaint had already been made to a public service agency twelve months after he had been notified of the action or decision of the public service agency thereon, whichever is the later;

if the complaint is made anonymously or the complainant cannot be identified or traced;

if the complaint is not made by the individual aggrieved himself or, where the individual by whom the complaint might have been made has died or is for any reason unable to act for himself, by his personal representative or by a member of his family or other individual suitable to represent him;

if the complaint, or a complaint of a substantially similar nature, has previously been the subject of an investigation as a result of which the Ombudsman was of the opinion that there had been no maladministration;

the subject matter of the complaint is trivial; or

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the complaint is frivolous or vexatious or is not made in good faith, unless the Ombudsman is satisfied that in the particular circumstances, it is proper to conduct an investigation into a complaint.

If the Ombudsman decides not to undertake or continue an investigation into a complaint he shall inform the complainant of that decision and of his reason.

Notwithstanding section 14, the Ombudsman shall not investigate any matters specified in the Second Schedule.

Procedure to lodge complaint

Where a complaint is made orally—

In assessing and evaluating the complaint, the Chief

Ombudsman may conduct preliminary inquiry, including seeking information, documentary evidence, relevant records or files, or clarification from the public service agency named in the complaint.

Any communication made during the preliminary inquiry shall be made in writing and may be copied and served to the complainant if the Chief Ombudsman thinks necessary.

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Determination of merits

investigate the complaint; or

dismiss such complaint on the ground that such complaint is baseless and frivolous.

Where the Chief Ombudsman decides to dismiss such complaint pursuant to subsection (1)(b), such decision shall be notified to the complainant and the public service agency.

Once the merits of such complaint have been determined and the decision pursuant to subsection (1) is made, the Chief Ombudsman may prepare a report or caused a report to be prepared and be kept in the office of the Ombudsman.

Power to form Investigation Committee

The Chief Ombudsman may appoint any relevant persons to be member of such Investigation Committee to assist in the investigation of such complaint.

Power to investigate complaint

The Ombudsman or any authorized officer may in writing require the attendance before himself of a person who appears to be acquainted with the facts and circumstances of that complaint or is suspected of being concerned with the complaint under investigation or to produce any document, record or file relevant for the investigation which is in his control or custody.

The Ombudsman or any authorized officer referred to in subsection (1) shall be issued with an authority card to be signed by the

Chief Ombudsman.

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Whenever such Ombudsman or any authorized officer exercises any of the power under this Ordinance, he shall, on demand, produce to the person against whom the power is being exercised the authority card issued to him under subsection (3).

Power to examine, etc.

Such person shall be legally bound to answer all questions put to him by the Ombudsman or any authorized officer, but the person may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or forfeiture.

A person making a statement under this section shall be legally bound to state the truth whether or not the statement is made wholly or partly in answer to any question.

The Ombudsman or any authorized officer shall first inform that person of subsections (2) and (3).

A statement made by a person under this section shall, whenever possible, be reduced to writing and signed by the person making it or affixed with his thumb print, as the case may be, after it has been read to him in the language in which he made it and after he has been given an opportunity to make any correction he may wish.

Procedure after investigation 22.―(1) Where, upon completion of any investigation under section 20, the Ombudsman is of the opinion that there is maladministration, he shall—

The Ombudsman shall report his opinion, and his reasons therefor, to the appropriate public service agency and may make such recommendations as he thinks fit and in any such case he may request the public service agency to notify him, within a specified time, of the steps that it proposes to take to give effect to his recommendations.

If within a reasonable time after the report is made, no action is taken which seems to an Ombudsman to be adequate and appropriate, the Ombudsman, may, after considering the comments made by or on behalf of any public service agency affected, make a report as provided for under section 44.

In the event that the Ombudsman, after completing his investigation, is of the opinion that there is no maladministration, the

Ombudsman shall notify the complainant through a written report on his decision and a copy of the report shall be given to the public service agency affected.

Mediation 23.―(1) The Chief Ombudsman may decide to deal with a complaint by mediation after having taken into consideration all the circumstances of the complaint.

The Chief Ombudsman may authorise any person to act as a mediator in any mediation.

The complainant and the public service agency affected shall participate in the mediation on their own without undue pressure or influence from any other parties, and either or both the complainant and the public service agency may withdraw at any time.

The mediator may, as circumstances warrant, decide to terminate the mediation at any time.

In the event the mediation is unsuccessful:

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Matters discussed and documents prepared for the purpose of such mediation, except for any document which has been in possession of the parties before the mediation, shall not:

This section shall apply to any person who is an officer, employee, or member of any public service agency, and whether or not such documents, papers, or things are in the custody or under the control of any public service agency.

The Ombudsman may administer an oath or affirmation to a person appearing as a witness before him and may examine the witness on oath or affirmation.

Every person shall have the same privileges in relation to the giving of information, the answering of questions, and the production of documents and papers and things as witnesses have in any court.

Action taken by other relevant authorities 26.

Nothing in this Ordinance shall be construed to restrict other relevant authorities from taking any action under any written law.

where he is not an Ombudsman represent that he is an

Ombudsman;

where he is not a person to whom a delegation has been made pursuant to section 13 represent that he is such a person;

where he is not an authorized officer of the

Ombudsman represent that he is an authorized officer of the

Ombudsman; or

where he is not engaged in the administration or execution of this Ordinance represent that he is so engaged.

Any person who contravenes subsection (1) shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or imprisonment not exceeding two years, or to both.

For the purpose of this section, a person represents that a state of affairs exists if the person does or says anything, or causes, permits, or suffers anything to be done or said, whereby it is represented, or whereby a belief may be induced, that the state of affairs exists.

General penalty

Any investigating officer may in writing require the attendance before himself of a person who appears to be acquainted with the facts and circumstances of the case or is suspected of being concerned with the offence under investigation.

If the person who is so required to attend fails to comply therewith, the investigating officer may report such failure to a

Magistrate who will issue a warrant to secure the attendance of that person.

The Ombudsman or any Investigating Officer referred to in subsection (1) shall be issued with an authority card to be signed by the

Chief Ombudsman.

Whenever such investigating officer exercises any of the powers under this Ordinance, he shall, on demand, produce to the person against whom the power is being exercised the authority card issued to him under subsection (4).

Examination of persons acquainted with case

Such person shall be legally bound to answer all questions put to him by the investigating officer, but the person may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture.

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A person making a statement under this section shall be legally bound to state the truth whether or not the statement is made wholly or partly in answer to any question.

The investigating officer shall first inform that person of the requirements of subsections (2) and (3).

A statement made by a person under this section shall, whenever possible, be reduced to writing and signed by the person making it or affixed with his thumb print, as the case may be, after it has been read to him in the language in which he made it and after he has been given an opportunity to make any correction he may wish.

Power of Arrest

The Ombudsman or any authorized officer or any police officer not below the rank of Inspector or any police officer in charge of a police station may, without warrant, arrest any person reasonably suspected of having been concerned in any such seizable offence or if the person refuses to give his name and residence, or gives a name and residence which such officer has reason to believe is false, or that he will abscond.

The Ombudsman or any authorized officer, or any police officer not below the rank of Inspector or any police officer in charge of a police station making an arrest under this section shall, without unnecessary delay, take or send the person arrested to the officer in charge of the nearest police station.

Where the person arrested under this section is required, for the purposes of investigation, to be detained for more than twenty-four hours, section 38 shall apply.

Power to release on personal bond

The amount of every personal bond executed shall be fixed with due regard to the circumstances of the case as being sufficient to secure the attendance of the person arrested when so required.

Search and Seizure

Where a person is brought before a Court under subsection

, the investigating officer shall comply with section 117(1) of the

Criminal Procedure Code [Act 593] and the Court shall have the powers over that person as are provided in section 117(2) of that Code.

Diary of proceedings in investigations

the time at which the instruction, if any, for investigation reached him;

the time at which he began and closed the investigation;

the place or places visited by him; and

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a statement of the circumstances ascertained through his investigation.

Notwithstanding anything contained in the Evidence Act 1950 [Act 56], an accused person shall not be entitled, either before or in the course of any inquiry or trial, to call for or inspect any such diary:

Provided that if the investigating officer who has made the investigation refers to the diary for the purposes of section 159 or 160 of the Evidence

Act 1950 [Act 56], such entries only as the officer has referred to shall be shown to the accused, and the Court shall at the request of the officer cause any other entries to be concealed from view or obliterated.

Power to Compound

All sums of money received under this section shall be credited to the State Consolidated Fund.

Any power vested in an authorized officer may, at any time, be withdrawn by the Chief Ombudsman, by notification in the Gazette.

Power to Conduct Prosecution

The Minister shall cause a copy of every such report to be laid before the Dewan Undangan Negeri.

A Special Select Committee may be appointed upon a motion made under Standing Order of the Dewan Undangan Negeri to consider any matter relating to the report raised in the Dewan Undangan Negeri.

Publication of report

make public by way of a written report the results of any enquiry carried out by him, including any finding, recommendation and opinion; and

furnish the complainant with a copy of his report.

The Ombudsman may decide to keep a report, or part of it, confidential to the person in charge of the public service agency the subject of the enquiry, on the grounds of public security or public interest.

If the Ombudsman decides to keep a report, or part of it, confidential, he shall inform the complainant, if any, in writing of his findings without in any way prejudicing the grounds on which the

Ombudsman decided to keep the report or the part thereof, confidential.

Other reports

A report may include all or any of the following:

be the chief administrative officer of the Sarawak

Ombudsman; and

be responsible for the administration and management of the affairs of the Sarawak Ombudsman and to carry out such other duties and responsibilities as the Chief Ombudsman may, from time to time, assign to him.

the State Attorney-General or any State Legal Officer or public officers authorized by him; or

an advocate appointed by the Chief Ombudsman in consultation with the State Attorney-General;

may appear and represent the Ombudsman in such proceedings before any court.

For the purpose of this section, legal proceedings include an arbitration conducted under the Arbitration Act 2005 [Act 646] and any proceedings where the court exercises its additional powers under section 25(2) of the Courts of Judicature Act 1964 [Act 91].

Public Authorities Protection Act 1948

Any person contravening the provision of subsection (1) shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or imprisonment for a term not exceeding three years or, to both.

Power to make rules

Without prejudice to the generality of subsection (1), rules may be made for all or any of the following matters—