An Overview of Office of Ombudsman

AN OVERVIEW OF OFFICE OF OMBUDSMAN

By Jawwad Riaz and Samee Uzair Khan

Ombudsman, if not marginalized is a very useful institution. It is in fact taste of the people whether they are complacent with social injustice or cannot countenance it. Man by nature is driven by self interest so connives at wrongful gains and complains of social injustice only when he is personally hurt. By and large every civilized society abhors social injustice and has been finding ways and means to become egalitarian in nature. With the advancement of society, there has been phenomenal increase in administration. Generally speaking, Public Administration as field of study is an invention of the Twentieth Century: As a practice, however, public administration is as old as man himself. Upto this time, there was no distinction between the two administrations public and private. The distinction came later when various forms of settled life began to appear in villages and towns. Probably one of the first public administrations, besides the heads of States, was the tax collector. As social life became more and more complicated, the king was so overburdened with various tasks and duties that he delegated authority to his Wuzra (Ministers). They in turn delegated authorities to their aides.^1^

* Advocate High Court and Adjunct Faculty Member, Punjab University Law College, Lahore.

** Assistant Professor of Law, Incharge University Law College, Punjab

University Lahore

  1. Muhammad A. Al-Buraey, Administrative Development: An Islamic Perspective (Kegan Paul International Ltd. 1986) P.228-229.

  2. With the avowed march of every State to become a welfare State, the government set-up has gone stupendous. The government departments have ramified so much that it is difficult to count the administrative division and the semi-government bodies attached to them. The numerical strength of the government servants makes a moiety of population itself. It is difficult to find out as to where the government inheres i.e. from peon to chief secretary rather up to the President. Field Marshal Muhammad Ayub Khan, the President of Pakistan in the preface of his book thanked the Government of Pakistan which made the archives of government record accessible to him.^2^

  3. Since every government servant acts in the name of government so his/her powers are enormous and despite volumes of rules and regulations made in this behalf the element of discretion cannot be ruled out. Discretion may be used judiciously or may be misused arbitrarily. This exercise basically marks the distinction between administration and maladministration. Man is prone to encroach upon the rights of the fellow beings as also of the government. The government is not immune from ignoring its obligations. The ruler and the ruled may not be altogether fair unto each other. Mechanism for redressal was needed. As such the Parliaments, the Courts, the Tribunals, Bureaus and Commissions were devised but certain typical kind of maladministration might not come within the jurisdictional pale of any of them. Necessity is the mother of invention. At long last humanity created an institution called Ombudsman. The origin of the institution like that of any other may be obscure. "There are good reasons for the assumption that the Islamic system has influenced the creating of the first Ombudsman in Sweden.^3^

  4. Without entering into polemics about the genesis of institution it is almost universally acknowledged that Sweden is the pioneer in the field. Dictionary-wise "Ombudsman means an official appointed to investigate individuals appointed to investigate individuals' complaints against an organization, especially a public authority. Origin 1950s from Swedish, 'Legal representative'.^4^

  5. Field Marshal Muhammad Ayub Khan, Friends not Masters-A Political Autobiography (Oxford University Press, 1967) p.3.

  6. Wafaqi Mohtasib (Ombudsman's) Annual Report 1990. (Ombudsman Secretariat Islamabad) P-I1.

  7. Concise Oxford Dictionary, http://oxforddictionaries.com/ definition/ombudsman (last assented on 31-5-2011)

  8. The Constitution of the Islamic Republic of Pakistan, 1973 ensures the promotion of social justice and eradication of social evils and, among others it is enshrined that "the State shall ensure inexpensive and expeditious justice"^5^ . The commitment made in the chapter 2-Principles of Policy laid down in the Constitution could hardly be fulfilled unless the office of Ombudsman was established. The office of Federal Ombudsman falls in the Federal Legislative list.^6^ The first legislation was made in this respect in the year 1983.^7^

  9. The Constitution of the Islamic Republic of Pakistan Article 37, (Printing Corporation of Pakistan Press-Islamabad 2010) p.18.

  10. 4th Schedule, Federal Legislative Lists Part I, Item 13 The Constitution of the Islamic Republic of Pakistan (Printing Corporation of Pakistan Press-Islamabad 2010) p.208-215.

  11. Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (Presidents' Order No.1 of 1983).

  12. Under Article 2(1) of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (President's Order No.1 of 1983), "Agency" means a Ministry, Division, Department, Commission or Office of the Federal Government or a Statutory Body, Corporation or other Institution established or controlled by the Federal Government but does not include the Supreme Court, the Supreme Judicial Council, the Federal Shariat Court or a High Court. Under Article 2(2) of the same Order maladministration includes:

(i) a decision, process, recommendations, act of omission or commission which;

(a)? 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

(b)? is perverse, arbitrary or unreasonable, unjust, biased, oppressive or discriminatory; or

(c)? is based on irrelevant grounds; or

(d)? 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

(e)? neglect, inattention, delay, incompetence, inefficiency and ineptitude, in the administration or discharge of duties and responsibilities.

  1. The definition, if carefully read, is so wide that hardly any malfeasance, misfeasance or non-feasance was left uncovered. Still the definition opened with the word "includes", which made the definition all the more wide. Then why after all the culture of rectitude could not be evolved. The reasons are not far to be sorted out. Under Article 9 of the aforesaid President's Order No.1 of 1983 only a matter sub judice, matter relating to foreign affairs and a matter relating to defence is excluded from the jurisdiction. Article 29 of the Order needs to be reproduced:

"29. ++Bar of jurisdiction++.--No court or other authority shall have jurisdiction:--

(1) to question the validity of any action taken, or intended to be taken, or order made, or anything done or purporting to have been taken, made or under this Order; or

(2) to grant an injunction or stay or to make any interim order in relation to any proceedings before, or anything done or intended to be done or purporting to have been done by, or under the orders or at the instance of the Mohtasib".

  1. The Wafaqi Mohtasib makes recommendations for implementation under Article 11 of the Order. There is no provision for review. However, under Article 11(2A) of the Order if after considering the reasons of Agency the Mohtasib is satisfied regarding unjustness of the order he may recall his order. It is a flawed legislation. It takes years to hear the parties and decide and still the Agency after a considerable time comes forward with the pleas of impractability and unjustifiableness of the order and the case is re-opened. Under Article 32 of the Order any aggrieved party may make a representation to the President of Pakistan. It takes months and months that the representation is decided. Although jurisdiction of courts is clearly barred but the unsuccessful parties unfailingly resort to writ. Sometimes the order of the President is set aside in writ jurisdiction of High Court and sometimes the representation is declared as pending obviously to be processed by the legal cells afresh. It was ruled by the Hon'ble Supreme Court of Pakistan in Muhammad Tariq Pirzada's case as below:---

"There is nothing in Article 32 of the Order to support the pleas raised by the Learned Deputy Attorney-General that while disposing of a representation the President can pass any order without assigning reasons. The Order is a self-contained code and provides methodology and manner of enforcement of the findings recorded and the recommendations made by the Mohtasib on complaints lodged by any person against maladministration and injustice suffered by him. The institution of Wafaqi Mohtasib was established for redressal of the people against maladministration of the Agencies. Thus visualized the recommendations made by the Mohtasib cannot be lightly interfered by the President in exercise of power vested in him under Article 32 of the Order except for valid reasons to be assigned in writing. Suffice it to say that even if the President, while seized of a petition under Article 32 of the Order is considered as an administrative authority, whether acting independently or on the advice of the Prime Minister, is under legal obligation to deal with the representation before him fairly and justly and a complainant in whose favour finding has been recorded and recommendations made by the Wafaqi Mohtasib, has a legal right to demand that the President should decide the representation affecting his valuable right by assigning valid reasons, if the findings/recommendations by the Mohtasib are sought to be set aside, reviewed or modified".^8^

  1. No doubt it could be said as a "complete justice" within the meanings of the Constitution(2)^9^ but the complaint of 1983 was finally decided in 1999. To reduce the time span Article 11(2A) of the Order should be omitted in as much as there was no room for it after a long drawn and full fledged hearing and in the presence of Article 32 as well.

  2. Despite all this the usefulness of the institution cannot be denied. In another case the Hon'ble Apex Court of Pakistan was pleased to remark.

"Needless to say that neither this court nor the High Court in the ordinary course of things, undertakes to supervise or control an essentially administrative matter. The correcting machinery in that behalf lies else where and case of those levels and substantially high one is that of the Ombudsman."^10^

  1. 1999 SCMR 2744.

  2. The Constitution of the Islamic Republic of Pakistan Article 186 (Printing Corporation of Pakistan Press-Islamabad 2010), p.98.

  3. Constitutional Petitions Nos. 489-K/1999; 611-K/1999; 612-Karachi; 613/1999.

  4. The Institution of Ombudsman has gained currency word-wide. In a tripartite compilation, Gerald E. Caiden-Nail Macdermot and Ake Sandler have candidly observed as below:

"A new and to many people, a foreign word is being heard more frequently, it is "Ombudsman". A term that refers to special office or officer to whom people can go with their grievances about the way their business with large anonymous bureaucracies has been handled. The Ombudsman records public complaints, investigates them, and reports the findings to the complainant and the organizations investigated. Should any wrong be discovered, it is expected that it will be put right, if not to the complete satisfaction of the aggrieved party, then at least better than it would have been without the Ombudsman's intervention. For the public the Ombudsman is a welcome device for assuring that justice is done and that bureaucracies treat their clients fairly, promptly and respectfully. For bureaucracies it is an additional fail-safe check on their operations. Thus it provides additional protection for public and bureaucracies, something that seems required as the transactions between them multiply.^11^"

  1. By now the institution of Ombudsman in one form or the other has been set up in Australia, Canada, Denmark, Finland, France, Ireland, Norway, Sweden etc.^12^ In India**^13^** and in USA Ombudsman existed in some of their States.^14^ However the office of the Ombudsman could not be set up in German**^15^** in Japan**^16^** in Newzeland**^17^** and in England.^18^

  2. The beneficial office of Ombudsman has been introduced in Pakistan in many facets. In the Protection Against Harassment of Women At The Work Place Act No.IV of 2010 the Office of Ombudsman has been introduced in sections 7 to 9 thereof. Federal Tax Ombudsman has been provided by virtue of Ordinance No.XXXV of 2000. Banking Mohtasib had been created under section 82-A of the Banking Companies Ordinance No.LVII of 1962. Against the order of Banking Mohtasib an appeal lies to the State Bank of Pakistan. Norway was the first country where Ombudsman for children was appointed.^19^ In Pakistan it is awaited.

  3. Gerald E. Gaiden (ed), International Handbook of the Ombudsman: Evolution and Present Function (Greenwood Press London 1983) p.3.

  4. Gerald E. Caiden (ed), International Handbook of Ombudsman: Country Surveys (Greenwood Press London) p.187

  5. Gerald E. Caiden (ed), International Handbook of Ombudsman: Country Surveys (Greenwood Press London) p.317.

  6. Gerald E. Caiden (ed), International Handbook of the Ombudsman: Evolution and Present Function (Greenwood Press London 1983), P.137

  7. Gerald E. Caiden (ed), International Handbook of Ombudsman: Country Surveys (Greenwood Press London) p.81.

  8. Gerald E. Caiden (ed), International Handbook of Ombudsman: Country Surveys (Greenwood Press London) p.131.

  9. Gerald E. Caiden (ed), International Handbook of Ombudsman: Country Surveys (Greenwood Press London) p.135.

  10. Gerald E. Caiden (ed), International Handbook of Ombudsman: Country Surveys (Greenwood Press London) p.187.

  11. D.R. Saxena, Ombudsman (Lokpal): redress of citizens' grievances in India (Deep and Deep Publications, New Delhi 1987), p.107.

  12. By now the Office of Ombudsman has been set up almost in almost all the provinces in respect of their respective Provincial jurisdiction which had increased much with the abolition of concurrent legislative list under the 18th Constitutional Amendment.^20^ The powers of Provincial Ombudsman are pari materia with Order No.1 of 1983.^21^

  13. The institution of Ombudsman is akin to the concept of Ihtisab in Islam. The term Ihtisab in Islam has much wider connotation and scope. Ihtisab means to order good and check the vice. It is the job of every Muslim to command good and restrain vice. By lapse of time the Mohtasib was posted. He had multifarious duties touching upon all aspects of life. He checked the encroachments, took notice of cruelty to animals, adulteration and open Profaneness, supervised weights and measures and oversaw the irregularities, omission and commissions of officials and had surveillance over bungling in markets etc.^22^

  14. Mohtasib in Islam dealt both the private and public sectors whereas Ombudsman only dealt with the public servants. The Supreme Court of Pakistan has copiously dealt with the Islamic institution of Hisba while disposing of President's Constitutional Reference No.2 of 2005.^23^

  15. The Punjab Office of the Ombudsman Act No.X of 2010

  16. The Punjab Office of the Ombudsman Act No.X of 1997

  17. Abu'l-Hasan al-Mawardi, Al-Ahkam as-Sultaniyyah: The Laws of Islamic Governance (Ta-Ha Publishers Ltd. UK) Ch.20.

  18. PLD 2005 SC 897

  19. In nutshell the institution of Ombudsman should be encouraged and galvanized to make the State administration responsible and responsive. The day to day omission and commission of public officials and public bodies cannot be weeded and unless the functioning of Ombudsman is streamlined. The Office should be promoted by way of State policy and the bottlenecks should be removed through conscious appropriate legislation particularly aiming at reduction of fora.

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