ROLE OF OMBUDSMAN IN SAFEGUARDING CIVIL RIGHTS*

ROLE OF OMBUDSMAN IN SAFEGUARDING CIVIL RIGHTS* <!--[if gte mso 10]> ROLE OF OMBUDSMAN IN SAFEGUARDING CIVIL RIGHTS* By Mr. Justice Saleem Akhtar, Federal Tax Ombudsman Pakistan The Institution of Ombudsman in the later half of 20th Century has established itself as an independent oversight organization efficaciously providing relief to common man mostly the deprived lot of the society. Its acceptability and popularity can be judged from the fact that today this system finds place in more than hundred countries. The concept of ombudsman originated froth a desire and now a demand to control the Administrators and to provide relief to public against injustices. The main object of the institution is to protect the people against violation of rights, administrative excess, a use of power, illegal acts, denial of justice, discrimination, unfairness at maladministration. It is intended to introduce accountability and transparency in the administration thereby creating trust, confidence and certainty. Civilian oversight concept has developed world over. This trend is fast developing inasmuch as besides Ombudsman appointed by the Government private ombudsmen are being inducted to oversee the implementation of agreements amongst private parties. Even international agreements and covenants have introduced ombudsman to oversee its proper and smooth implementation. He is playing the role of administrative adjudicator. There are national, regional and local ombudsmen. They all have in common. They are democratic institutions based on the recognition of fundamental rights of the individuals and the principles of rule of law. With the efficacious and effective, remedy provided by Ombudsmen, this institution is now well recognized as a part of Administrative law and is providing remedy side by side and complementing the dispensation of justice by the Courts. The concept and vision of Ombudsmanship is increasing to cover all spheres of life and the latest being Ombudsman for humanitarian aid with international jurisdiction. *Address at the Eighth Asian Ombudsman Association Conference, Seoul (South Korea). 2. It is well‑settled that the Jurisdiction of the Ombudsman extends to maladministration which includes bias, neglect, inattention, delay. incompetence, inaptitude, perversity, turpitude arbitrariness, action contrary to law, mala fide, rudeness, refusal to answer reasonable questions, knowingly giving misleading or inadequate advice, corruption, discrimination, neglecting established rules, procedure and practice and failure to mitigate the effects of rigid adherence to the letters of law where it produces manifestly inequitable treatment. Maladministration always results in injustices which should be redressed by the Ombudsman. 3. Having examined the concept and jurisdiction of the Ombudsman it is necessary to elucidate on the term Civil Rights which is the key to the subject at hand. A right is an interest recognized and protected by law. [1] Civil rights are those inherent basic inalienable rights which every person must possess. They are basic rights enforceable by law without which a person cannot claim of enjoy equality of status and citizenship. Before the middle of 20th Century the political thinkers and intellectuals limited civil rights to the right to own property, enter into and enforce contracts, freedom of worship and to be treated according to law. This treatment of the subject had created discrimination and civil rights were distinguished from political and economic rights. In the wake of democratic principles and the emergence of concept of welfare State in the later half of 20th Century the barrier was broken and civil rights embraced political rights and socio‑economic rights as well. It included life, liberty, dignity and equality in all spheres and demands of citizen and people to be protected by the legal system impartially, without any discrimination and according to law. It has thus culminated in equal citizenship. The Human Right Movement got impetus from the shock humanity suffered due to ravages of world War‑II. The evolution of Human Rights Movement and international law progressed remarkably and Universal Declaration of Human Rights 1948 was made by the United Nations which laid down a universal standard of human rights to be adopted, followed and implemented by all nations, communities, countries and Governments. It eulogized and elaborated with particularity the principles of life, liberty, equality and dignity.[2] 4. At the international level this was the beginning, as soon thereafter International Covenant on Civil and Political Rights 1966 was made. It declared that `All people have the right of self determination by virtue of that right they freely determine their political status and freely pursue their social and cultural development'. [3] International Covenant on Economic and Cultural Rights 1966 was adopted by United Nations General Assembly on 16th December, 1966. It recognized the right to work, wages, to form trade union, to strike, social security, protection and assistance to family, protection from, economic and social exploitation fundamental right to be free from hunger, right to education, to enjoy benefits of scientific progress and its application. [4] 5. It can thus be observed that by the end of 20th Century a revolution and .sea of change appeared at international level. The Civil Rights expended with international standard and universal uniformity with obligation on States and Governments to adopt and implement them. These Civil Rights came to be known Human Rights and were incorporated in the constitutions and statutes which are justiceable. The rights guaranteed by the Constitution are called Fundamental Rights and any law inconsistent with them is declared void. 6. From the international scene I now come to national scene and Pakistan experience in this field. The Constitution of Islamic Republic of Pakistan resolves the will of the people to guarantee fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, freedom of thought, expression, belief, faith, worship and association subject to law and public morality and secure independence of judiciary. [5] 7. The Constitution affirmed the inalienable right of individuals to enjoy the protection of law and to be treated in accordance with law. In particular it emphasizes positively that no person shall be prevented from or hindered in doing that which is not prohibited by law and no person shall be compelled to do that which the law does not require him to do. [6]. It enumerates and guarantees Fundamental Rights with a. rider that any law custom or usage having the force of law, insofar as it is inconsistent with such right shall be void to the extent of such inconsistency To illustrate the point out of 20 fundamental rights conferred I will mention only few of them which include security of person, that no person shall be, deprived of life or liberty save in accordance with law, [7] safeguard against arrest and detention, [8] protection against forced labour, [9] retrospective punishment[10] and double punishment.[11] The Dignity of man and the privacy of home is inviolable.[12] Freedom of movement,[13] assembly,[14] association, [15] trade business or profession,[16] freedom of speech,[17] protection of property right,[18] equality [19] and protection against discrimination. [20] This is followed by principles of Policy[21] which though not justiciable complement and support the implementation of fundamental rights. 8. It can thus be observed that the fundamental rights guaranteed by the Constitution of Pakistan and other countries take care of the UN Declarations and Covenants referred above. Now all these rights have been recognized and guaranteed by Constitution and the law. There remains no distinction in earlier civil rights concept and political, social and economic rights of the people which are more in focus than before. The logical corollary is that ways and means are being sought to protect them, enforce them and provide relief against undue and unjust treatment in violation for these civil rights. The Superior Courts in Pakistan, India and South East Asia Region have played important role‑in developing the concept of public interest litigation and provided relief to the aggrieved particularly the common people in the field of Human Rights, public health, environment, political rights, social justice and forced labour, etc.[21(a)] No doubt there are Courts and Tribunals to enforce these rights and protect them. But the procedural technicalities, backlogs, over crowding, expenses and proverbial delays in Courts have created a negative impact on the people approaching for relief. The Ombudsman system is supplementing the Courts and Tribunals in dispensation of justice. It can be termed as an alternate dispute resolution system. One of the main object of Ombudsman system is to bring transparency, accountability and justice in the administrative machinery, to bring balance in thought and action and bridge the gap between the people and the administration. The Ombudsmen are competent to entertain and investigate into the people's complaint of maladministration against the Administrators. In such cases investigation itself creates a positive effect on administrators to respect the law and rights of the people. Furthermore when recommendations are made besides granting relief, in appropriate cases systemic reform is suggested which if adopted can improve the system. 9. The list of civil rights is so vast and varied that citizens have always interaction with the executive and administrators. They form the first authority to determine the claim for any civil right. It is their action or order by which a person is aggrieved. The remedy from judicial forum comes last. It is thus essential that the approach behaviour, treatment and handling of the case by the administrators should be proper, legal, honest, respectful, without corruption and discrimination adopting the well‑recognized principles of good governance. One of the objects of Ombudsman is to encourage the development of good governance practices and create confidence in the administration and satisfaction in the governed. 10. Sir Brian Elwood, former President of International Ombudsman Institute remarked: [22]. "In short, I put it to you that both the Government and the individual person are the beneficiaries when a credible Ombudsman institution is in operation. The Government knows that its bureaucracy can be subject to the independent scrutiny of the Ombudsman at short notice, in relation to any conduct considered to be wrong. The individual person knows that when aggrieved by the administrative conduct of the Government's bureaucracy, there is an avenue of last resort to have that conduct independently reviewed and if justified to have recommended a course of action to reasonably remedy the grievance. " 11. The Ombudsman is a symbol of justice, good governance and rule of law. Gavin Drewery points out that "an ombudsman's office is not merely an instrument of redress, it also serves an important function of quality control."[23] For bureaucracies; it (ombudsman's office) is, an additional fail‑safe check on their operations to ensure that any mistakes that have not been spotted are eventually caught and rectified, and it also serves to identify‑ unintentional impacts of otherwise well intentioned procedure." [24] 12. Now a new trend has developed to appoint Ombudsman for departments or services being Specialized Ombudsmen distinguished from Classical Ombudsmen. Such appointments have been made for Revenue, banking, insurance, police, health services, education, army, judiciary and many more. In Pakistan Federal Tax Ombudsman was appointed in the year 2000 to diagnose, investigate, redress and rectify any injustice done to a person through maladministration by functionaries administering tax laws. [25] It is well‑known that administration favours status quo and is averse to reforms. The tax administrators are known to be stubborn in accepting reforms. As Federal Tax Ombudsman during these three years I have come across about 5000 complaints. In a large number of the cases maladministration has been established and besides granting relief disciplinary action and systemic reforms have been recommended and unhealthy practices which were contrary to law have been pinpointed.[26] Majority of the recommendations under strict control have been implemented. But, the facts remain that the main hurdle is the mindset of the Tax employees which requires to be reformed, reoriented and refreshed. I have constituted an Advisory Committee to consider and submit report on amendments in tax 'laws to make it tax payer friendly, to increase the tax net, prepare a tax payers bill of rights as has been adopted in many countries including USA, Code of Conduct of Tax administrators and reform in tax administration to make it transparent, accountable and corruption free. Such reforms will increase credibility, acceptability and cordiality which will help' in generating more revenue. 13. Identification of maladministration without providing relief and implementing the recommendation does not serve the purpose of Ombudsman. In many countries the Ombudsman system has been criticized as a toothless and ineffective organization as it has no power of implementation of recommendation. But in certain countries the Ombudsman or Tax Ombudsman has the power to implement the recommendation. In USA Tax Payer Advocate Service helps taxpayers resolves problems with the internal Revenue Service and recommends changes that will prevent the problems. [26(a)] In Taiwan, Republic of China, the Control Yuan `receive and handle people's complaints, investigate the malfeasance and dereliction of Government agencies, propose corrective measures and impeach public servants who break the law, for the purpose of protecting the rights and interests of the people, making social justice prevail and promoting a clean and competent Government'. [27] In Newzealand the Ombudsman is expressly empowered to report on any decision which is unreasonable, unjust, based on mistake, or merely wrong.[27(a)] In Pakistan the statute provides that it shall be the duty of the Revenue Division to implement the finding made by the Federal Tax Ombudsman. [28] 14. In order to make the institution of Ombudsman effective it requires to be strengthened particularly in our region where the developing countries are afflicted with poverty, corruption and maladministration in all sectors of life. It is need of the time that this Association may form a Committee to study the lacunas and restrictions imposed on the jurisdiction and power of the Ombudsman creating hurdle in providing relief to people and recommend to the national Governments to take appropriate measures to amend or remove them. I would again request as I did in the Conference at Beijing in 2002 to draft a model uniform Ombudsman law to be implemented by all Asian Nations. 15. I thank the Government of South Korea for its hospitality and excellent arrangements made for the Conference. REFERENCES: 1. Salmond. 2. Universal Declaration of Human Rights, 1948. 3. International Covenant on Civil and Political Rights, 1966. 4. International Covenant on Economic and Cultural Rights, 1966. 5. Preamble, Constitution of Islamic Republic of Pakistan. 6. Art. 4 ibid. 7. Art. 9 " 8. Art. 10 " 9. Art. 11 " 10. Art. 12 " 11. Art. 13 " 12. Art. 14 " 13. Art. 15 " 14. Art. 16 " 15. Art. 17 " 16. Art. 18 " 17. Art. 19 " 18. Art. 24 " 19. Art. 25 " 20. Art. 26 & 27 ibid 21. Art. 29 to 40 " 21(a) Benazir Bhutto ‑ PLD 1988 Supreme Court (SC) 416 Darshan Masih. ‑ PLD 1990 SC 513 (Forced Labour) Shahla Zia ‑ PLD 1994 SC 693 (Environmental Rights Muhammad Nawaz Sharif ‑ PLD 1993 SC 473 (Political right) 22. Key note address at the Seventh Asian Ombudsman Association Conference at Beijing, China on 22‑5‑2002. 23. Administrative Law facing the Future old Constraints and new Horizons, Edited by PETER Ley Land & Terry Wood P.88. 24. Caiden G.E. &‑Co‑author (ed) International Handbook of the Ombudsman, 1983. 25. Establishment of the office of Federal Tax Ombudsman Ordinance, 2000 (Ord. XXXV of 2000). 26. Federal Tax Ombudsman Annual Report 2002. 26(a). The National Tax Payer Advocates Fiscal Year 2002. 27. The brief report on the work of the Control Yuan, January to December, 2002 27(a) Administrative Law. HW. R. Wode and C.F. Forsyth 8th Ed. Oxford University Press. 28. See. 12(2) Ord. XXXV of 2000. SUMMARY OF THE ADDRESS BY MR. JUSTICE SALEEM AKHTAR FEDERAL TAX OMBUDSMAN PAKISTAN The institution of Ombudsman has gained popularity in the later half of 20th Century currently existing in more than 100 countries as an independent civilian oversight organization. They are democratic institutions based on the recognition of fundamental rights of the individuals and rule of law. It deals with grievances of public against injustice caused by maladministration of Government functionaries. 2 Civil rights are those inherent basic inalienable rights which every person can possess, assert and enforce by law. Before the middle of 20th Century the thinkers had limited civil right to enter and enforce contract, own property, freedom of worship and to be treated according to law. However, after World War II Human Rights concept was developed at international level particularly the principles of life, liberty, equality and dignity. It further developed to include political, social and economic rights. All of them were incorporated in U.N. Charter and Covenants to be adopted, respected and enforced by national Governments. 3. The Constitution of Pakistan guarantees fundamental rights inter alia right to life, freedom, equality and independence of judiciary, safeguard against arrest, detention, privacy of home, freedom of movement speech, association trade, business, profession, worship and protection against discrimination. 4. The civil rights including all fundamental rights can be enforced through Court but procedural and technical delays and cost create a negative impact. The Ombudsman system is supplementing the Court. It is bringing transparency, accountability and justice in the administrative machinery. It is not only an instrument of redress but has been termed to serve `function of quality control" and "additional fail safe check". 5. A new trend has been developed to appoint specialized Ombudsman. In Pakistan Federal Tax Ombudsman has been appointed to diagnose, investigate, redress and rectify any injustice done to a person through functionaries administering tax laws. During the period of three years a large number of complaints have been disposed of recommending systemic reform, relief in individual cases and disciplinary action as well. The institution of Ombudsman needs to be strengthened with power to implement the recommendation not implemented without any reasonable cause.