WAFAQI MOHTASIB (OMBUDSMAN) AND BUREAUCRACY IN PAKISTAN

WAFAQI MOHTASIB (OMBUDSMAN) AND BUREAUCRACY IN PAKISTAN <!--[if gte mso 10]> WAFAQI MOHTASIB (OMBUDSMAN) AND BUREAUCRACY IN PAKISTAN By Ross Masud While introducing the draft Order for the Establishment of the Office of Ombudsman (Wafaqi Mohtasib) in the Majlis-e-Shura the then Law Minister stated [1] that the institution of Ombudsman was given to the world by Islam and righteous Caliphs, especially Hazrat Umar and Hazrat All and their representatives used to act as Mohtasib. It must, however, be stated that the institution as established in Pakistan has been conceived largely on the pattern of the institution of Ombudsman as developed in Scandanavia and adopted in other countries especially the U.K. and other Commonwealth countries. The role of Mohtasib was quite different in the Islamic jurisprudence and it had within its sweep not only maladministration of Governmental Agencies but also the observance of Haqooq-ul-Allah of citizens, control of markets, public works, etc. The objectives of Wafaqi Mohtasib (Ombudsman) have, however, been spelt out in the Preamble to the President's Order No.1 of 1983, on the other hand as follows:‑ "Whereas it is expedient to provide for the appointment of Wafaqi Mohtasib (Ombudsman) to diagnose, investigate, redress and rectify any injustice done to a person through maladministration. 2. The institution of Wafaqi Mohtasib (Ombudsman) is, therefore, only concerned with the diagnosis, investigation, redress and rectification of any injustice done to a person through the maladministration of a Federal Government Agency. Now, the Pakistani Law of the Ombudsman's institution is largely based on the Parliamentary Commissioner for Administration Act, 1967 of the U.K. although there are some differences in details like the provision in the U.K. Law that complaints can only be entertained when received through a Member of the Parliament and complaints directly received from the public cannot be investigated by the Commissioner--besides, there is no definition of the term 'maladministration' in the English Law. In the President's Order No.1 of 1983 the term maladministration has, however, been defined as follows:‑ "Maladministration"' includes:‑ (i) a decision process, recommendation, 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, oppressives, or discriminatory; or (c) is based on irrelevant grounds; or (d) involves the exercise of power, or the failure or refusal to do so, for corrupt or improper motives, such as, bribery, jobbery, favouritism nepotism and administrative excess; and (ii) neglect, inattention, delay, incompetence, inefficiency and inaptitude, in the administration or discharge of duties and responsibilities" [2]. 3. Now, in order to fulfil his objectives the Wafaqi Mohtasib (Ombudsman) has to deal with the bureaucracy every day. It is, therefore, worthwhile to study the broad design, structure, objectives and orientation of bureaucracy in Pakistan. The administrative machinery that the new born state of Pakistan inherited from British India over 40 years back was designed and structured to meet the colonial objectives of draining the wealth of the country with as little effort as possible. The entire structure was thus geared to the smooth collection of revenues and maintenance of law and order. 4. On gaining independence, the major objectives of the Government were asserted to be development of the country and bringing about social justice in accordance with the teachings of Islam and aspirations of a free self-governing people. These new objectives of the Government called for a complete restructuring and reorientation of the administrative machinery. 5. During the period of over 40 years some feeable efforts were made to reform the administrative machinery to make it more responsive to the needs of an independent country where the objective of' the administrative machinery is to bring about welfare of the common man. These efforts, however, largely failed to make a dent in the overall structure and orientation of the administrative machinery. 6. The reasons for this failure can easily be discerned. The most important one is the lack of any political commitment. No political leadership has come to power in the country with a clear commitment to completely restructure and re-orientate the machinery to make it responsive to the needs of the people. The other most significant factor has been the fact that whatever efforts have been made to reform the administrative machinery were shaped and formulated by the people who had themselves been a part of the administrative machinery for long years and had imbibed the old philosophy of administration. 7. Even in respect of the inadequate proposals for reform that have emerged from this framework it may be observed that hurdles were placed in their way by the very administrative machinery which these proposals were meant to reform. The fate of the proposal for administrative reforms made by the last Commission set up for the purpose headed by Justice Anwar-ul-Haq clearly brings this point home. 8. It must, however, be conceded that leaving aside the basic structure and orientation of our administrative machinery that was geared to achieve the colonial objectives it had some commendable features also. The introduction of competitive examinations for recruitment to the higher rungs of the administrative machinery introduced merit system in place of traditional spoil system ensuring the quality and efficiency of the machinery. Besides, the concepts of Rule of Law and of Human Rights etc. that developed in the Western Jurisprudence had their impact on the administrative machinery inherited by us at the time of partition. Now, both in Islamic Jurisprudence and Western Jurisprudence 'public authority' is considered to be in the nature of a trust to be exercised in a judicious and fair manner. The concept of public authority developed under Monarchy and feudalism specially during the Sikh era in our country, however, was that it was something inherited or acquired as spoil to be used in an arbitrary and whimsical manner. After partition we seem to have drifted towards this perverted concept of public authority. This has been a major source of alienation of our bureaucracy from the common man. 9. It would also be useful now to briefly recapitulate the evolution and establishment of the institution of Ombudsman in the West and its implantation in Pakistan. The need for the institution arose with the phenomenal growth of powers of the bureaucracy as the state's activities permeated into almost every walk of life. In the West evolution of democracy had led to emergence of the principle of responsibility of Executive to the Parliament. Under the classical analysis of British Constitution, for instance, the doctrine of Ministerial Responsibility was considered to be the cornerstone of the British Constitution. The tremendous growth of state powers, however, resulted in the Executive gaining ascendancy and the party system ensured that in anything but the last resort the Executive controlled the Parliament [3]. It was, therefore, felt that the traditional mechanism of Questions and Debates in the Parliament was inadequate to check the abuse of Executive's powers. Only cases of considerable political importance attract the attention of the Parliament and it exercises no check on the day-to-day functioning of the Executive. As our legal system and administrative machinery are largely based on the pattern of the U.K., it may also be mentioned that the Courts in England checked abuse of administrative powers to some extent through the evolution of the doctrine of ultra vires etc. but the Courts proceedings being expensive and cumbersome judicial control of administration was not considered to be adequate to ensure administrative justice. It was in this background that the need for a machinery for investigation of complaints by citizens against Governmental actions of all kinds in day-to-day basis, in a non-political manner without being confined to the determination of their legality, was felt. The Ombudsman introduced a process of administrative accountability that was impartial, non-political, inexpensive and expeditious. 10. One distinguishing feature of the institution of Ombudsman (Wafaqi Mohtasib) in Pakistan has been the large number of complaints handled by it. Whereas most of such institutions in 60 or so countries of the world handle only a few hundred cases a year each, including the Parliamentary Commissioner of the U.K., the institution of Wafaqi Mohtasib in Pakistan has been, inundated with thousands of public complaints. In the first 5 months of its existence in 1983 the institution received 7,814 complaints about half of which pertained to provincial Agencies and did not fall within its jurisdiction [4]. In 1984 the number of complaints rose to 38,030, out of these 18,509 complaints pertained to provincial Agencies [5]. In the 3rd year of its existence i.e., 1985 the institution received 34,939 complaints out of which 15,391 pertained to provincial Agencies [6]. In the fourth year, i.e., 1986 the number of complaints received by the institution increased to 42,744, out of which 16,331 pertained to the provincial Agencies [7]. During the last year, i.e., 1987 the number of complaints further rose to 44,323 out of which only 36% pertained to provincial Agencies and out of the remaining 28,415 complaints relief was provided in 52% cases [8]. A large number of complaints which are handled by the Wafaqi Mohtasib in Pakistan are normally handled by the internal complaint handling machineries of the Government Agencies in the advanced countries. The glaring disparity between the number of cases handled by the institution of Wafaqi Mohtasib (Ombudsman) in Pakistan and similar institutions elsewhere in the world, however, put it in a different category altogether. The main reason why there is such a large number of complaints filed with the institution in Pakistan compared with similar institutions elsewhere is the insensitivity of our bureaucracy to the aspirations and needs of the common man. 11. During the investigation of this large number of complaints by the institution of Wafaqi Mohtasib there has been a constant exposure of our bureaucracy to the concept of accountability and the suffering of the common man as a result of bureaucratic and insensitive attitude of our administrative machinery. There are a large number of cases reported in the Annual Reports of the Wafaqi Mohtasib but I would only mention below a few cases investigated by me to illustrate the attitude of the bureaucracy which has given rise to grievances of the citizens against administrative machinery. 12. In one case a lady took a loan of Rs.3,000 from a Commercial Bank (the National Commercial Bank) against the title deed of her property situated in Lahore. The bank went into liquidation in 1968 and the Official Liquidator issued her a notice for re-payment of the loan. After re-payment of the loan to the Liaquidator she approached the State Bank of Pakistan, as advised, for the release of her title deed. She was informed that according to the agreement between the State Bank and the Liquidated bank, the amounts recovered from the borrowers were to be passed on to the State Bank. Since the amount paid by her to the Liaquidator had not been received by the State Bank, her title deed could not be returned. 13. The complainant contended that she was not bound by the agreement between her bank and the State Bank of Pakistan of which no notice had been given to hereby either. She approached various authorities for 12 years to get her grievance redressed but without any result. Then she decided to come to Wafaqi Mohtasib. 14. The State Bank when asked to comment, stated that the National Commercial Bank had obtained two loans of Rs. one million and Rs.1.4 million from the State Bank of Pakistan and had pledged securities belonging to its borrowers (including the title deed of the complainant) against these loans. While concluding the loan agreements, the bank undertook that as and when any of its borrowers repaid the loan, the amount would be passed on to the State Bank immediately. In the complainant's case, the Official Liquidator had not forwarded the amount to the State Bank and, therefore, the documents were not released to her. The Agency further reported that the complainant had made this issue the subject-matter of a suit before the Civil Judge, Lahore. The Court directed the State Bank to return the title deed but the State Bank filed an appeal before the Additional District Judge, which was accepted and the suit of the complainant was dismissed with costs. 15. On the face of it, it appeared that the complainant was entitled to redemption of her title deed on payment of the principal loan and the interest and that she could not be bound by any agreement between the mortgagee and the sub-mortgagee, particularly when she had no notice of the agreement. 16. The Agency was, therefore, asked for copies of the judgments of the Civil Court and the Additional District Judge which were furnished by the Agency. It was found that the Civil Court had upheld the stand of the complainant but his judgment was upset by the appellate Court largely on the ground that the lower Court did not have jurisdiction in this case and that the matter fell within the jurisdiction of the Sind High Court. It was pointed out to the State Bank that the Civil Court had upheld the stand of the complainant while the Additional District Judge had accepted the State Bank's appeal only on the ground of jurisdiction. The Agency was advised to consider the matter in this light. 17. The Agency then decided to release the title deed to the Official Liquidator in view of the fact that the loan stood fully repaid. However, they felt persuaded to do so only on compassionate grounds without prejudice to their stand that the amount refunded by the complainant ought to have been passed on to them first as per agreement between the State Bank and the bank under liquidation. Subsequently, the complainant confirmed the receipt of the title deed. 18. Thus, was redressed a grievance which was more than a decade old on Wafaqi Mohtasib's intervention and a little positive attitude adopted by the State Bank [9]. 19. Similarly, in a complaint investigated against Sui Northern Gas Pipelines Limited the Agency asserted that the street of the complainant was narrow and technically it was not feasible to lay gas main in the same. When the area was physically inspected, the street in Maskeenpura, Lahore, in question, really appeared to be narrow but it came to light during the spot inspection that the adjacent street of the locality which was equally narrow had already been provided gas. On being questioned the Agency's officers failed to give any cogent reasons why they had laid gas main in that street while ignoring the complainant's street. In the final order passed by Wafaqi Mohtasib the Agency was directed to lay gas main in the complainant's street as well and the Agency complied and the complainant expressed his gratitude. 20. In another case the complainant and his neighbour from Multan had applied for gas on the same date. The complainant's neighbour had been provided gas and he had been ignored. When the matter was taken up with the Agency, the Agency provided gas to the complainant as well but explained that his neighbour was provided gas on the recommendations of the Corps Commandar Multan. Although the grievance of the complainant was thus redressed the Wafaqi Mohtasib in his final order observed that the discrimination which the Agency admitted to have indulged in on the recommendation of a senior Officer was in violation of the Universal Declaration of Human Rights, our Constitution and the law of Qur'an and Sunnah. 21. In yet another case the complainant felt aggrieved by the attitude of the Station Master of his town's Railway Station and alleged that the officer literally misbehaved with traders who went to book their goods at the Railway Station. He further alleged that the Station Master demanded money over and above freight charges. On complaints made against him by the citizens an enquiry was conducted into the matter but the Station Master manoeuvred to go scot free. Matters had allegedly come to such a pass that the traders of the area had stopped booking their goods through the Railways since 17th May, 1984 resulting in substantial loss to the Agency. The matter was taken up with the Pakistan Railway. Pending receipt of their report, the complainant informed that he was abused and threatened by the Station Master for having submitted a complaint to Wafaqi Mohtasib and was being pressurised to withdraw the complaint. The Agency was asked to submit a report in respect of these allegations which would amount to contempt if proved true. The Agency explained that the complainant did not cooperate with the Enquiry Officer appointed in this case and had refused to come to the Railway Station for the purpose. Further, when the Railway Inspector visited his shop to record his statement, he refused to comply. In respect of the allegations regarding manipulation of the parcel bills, the Agency admitted that the Station Master had made some corrections in the weight and charges in account and record-foils of the parcels bills which were irregular, and was being proceeded against for this irregularity. The Agency, however, claimed that the earnings of the Railway Station on account of booking of parcel traffic had, in fact, increased in 1984 as compared to 1983, in contradiction to the allegations made in the complaint. As regards the charge that the Station Master had picked up a scuffle with the complainant on filing the present complaint, the Agency deputed a senior officer to hold an enquiry into the matter. The Enquiry Officer came to the conclusion that a scuffle did take place on 28th November, 1984 between a gateman of the Railway Station and some persons including a nephew of the complainant, but the Station Master was not involved in it. A case had also been registered with the Railway Police against the persons who had beaten up the gateman while he was performing official duty. 22. The complainant was asked to submit a rejoinder. He explained that he did not co-operate with the Railway Inspector, who was a friend of the Station Master, as he did not expect justice from him. He, however, fully cooperated with the enquiry officer who was appointed subsequently by the Railway authorities. The enquiry reports and other relevant record was, therefore, examined. In both the enquiries the Station Master had been found guilty of misconduct to the extent of overcharging, and alteration of record and of rudeness. He was accordingly charge-sheeted and punished with stoppage of increment for one year. The allegation that the Station Master had assaulted the complainant was not proved, nor was it correct that the traffic of goods by rail had decreased as a result of the boycott of the town's merchant community. Subsequently, the complainant sent a letter of thanks and informed that the Station Master had also been transferred from the town. So, by making a complaint to the Ombudsman he obtained relief which was denied to him and other traders by the Agency [10]. 23. During the investigation of such cases the administrative machinery of our country has largely responded positively to the institution of Wafaqi Mohtasib leading to redress of grievances in thousands of cases. Through the process of constant exposure to the concept of accountability and highlighting of the grievances of the citizens resulting from the insensitive and dehumanized approach that has developed as a tradition of our bureaucracy a significant change has taken place in the manner in which the common man is dealt with by these Agencies. The institution of Wafaqi Mohtasib, however, needs to be strengthened and further streamlined in order to make this change of lasting significance and of greater dimensions. The hardcore of bureaucracy has yet to be affected by the institution of Wafaqi Mohtasib and even in the public dealing Agencies where the interaction of the institution has been most frequent this healthy change is yet precarious and temporary in nature. Unless the system of administrative accountability is, therefore, extended to the Provincial Agencies and is further strengthened it would be premature to conclude that there has been a lasting change in the orientation of the bureaucracy in Pakistan let alone its structure which has remained more or less intact. [1] See record of Proceedings of the Majlis-e-Shura of 4th April, 1982, page 51. [2] For a detailed analysis of the term 'maladministration' please see "Wafaqi Mohtasib (Ombudsman)--A Panacea for Maladiministration" by the author (All Pakistan Legal Decisions, Journal, 1986, pp.6-19). [3] Administrative Law (Fifth Edition), by H.W.R. Wade, pp.29 & 30. [4] Wafaqi Mohtasib (Ombudsman's) Annual Report, 1983. [5] Wafaqi Mohtasib (Ombudsman's) Annual Report, 1984. [6] Wafaqi Mohtasib (Ombuddman's) Annual Report, 1985. [7] Wafaqi Mohtasib (Ombudsman's) Annual Report, 1986. [8] Wafaqi Mohtasib (Ombudsman's) Annual Report, 1987. [9] Wafaqi Mohtasib (Ombudsman's) Annual Report, 1985, p.340. [10] Ibid., p.475. ***