ROLE OF OMBUDSMAN

The institution of Provincial Ombudsman has its roots in ancient times. The complaint handling systems resembling the present Institution were functioning as far back as the early days of Islam, and are still functioning in many muslim countries.

2. Dr. Pickle, Director General of the Austrian Provincial Ombudsman’s Office in his paper “The Provincial Ombudsman and Administrative Reforms,” observes:

“Before the times of the Prophet Muhammad (PBUH ) there was no administration in the proper sense in many Bedouin tribes, and in the towns, too, there were only simple administration systems; there was nothing like the organizational structures of the Romans, Byzantines or Persians. It was the Prophet who first introduced administrative authorities. Caliph Omar created the Institution of Mohtasib. Its function was to be a guardian of public morals in many fields of life, especially in the towns and above all in the market place. He was the market supervisor, as well as the settler of disputes. He enjoyed complete independence and functioned within the framework of an institution called ‘hisbah’. The era of the Caliphs was followed by the reign of the Umaiyads and of the Abbasids. It was marked by foreign influences, especially from the Byzantines and the Sasanids. In North Africa, Roman influence was predominant. Nevertheless the institution of special office to examine grievances was preserved. With increasing frequency independent judges were entrusted with this function.

It was also in the era of the Abbasids (750-847) that the complaint handling agencies called ‘Diwan-al-Mazalim’ were established. ‘Diwan’ means an office, a secretariat or an official agency.
The function of the ‘Diwan-al-Mazalim’ was to examine complaints brought by the public against government officials. This institution was headed by a senior judge responsible for examining these grievances.
The practice of entrusting high judges with the function of handling complaints has been retained even upto present day.”

As far as the Institution of Quadi-al-Qudat of Turkey having influenced the establishment of the Provincial Ombudsman’s Institution in Sweden in 1809, Dr. Pickle quoting Ibrahim-al-Wahab observes:

“The idea of Provincial Ombudsman goes back to the time of King Charles XII of Sweden. As a result of his defeat by the Russians King Charles XII fled to Turkey where he stayed in self exile for several years. During that period, unrest and disorder was prevailing in Sweden. Such state of affairs had led the King, while he was still in Turkey, to issue an order for the creation of an office headed by the highest Provincial Ombudsman. The main function of the office was to ensure that laws and statutes were followed and that civil servants fulfilled their obligations.”

Of course one could not draw definite conclusion regarding the origin of any institution anywhere. But being aware of the history of complaint-handling in the Islamic law system and the fact that during the time of King Charles XII in Turkey this system was existing, the influence seems to be evident. In conclusion the author says:

“As shown above, the handling of complaints from the public was an essential part of the Islamic system of justice.
There are therefore good reasons for the assumption that the Islamic system has influenced the creating of the First Provincial Ombudsman in Sweden”.

3. It means that the concept of administrative accountability by an independent and high-powered body was not something unheard of before 1809 when Sweden first established the Institution of Provincial Ombudsman in its present form. It had been in operation in the Islamic world centuries earlier.

4. The Institution of Provincial Ombudsman established in 1809 in Sweden and later in Finland signified a person, whom people may approach for redressal of their grievances arising out of injustice done to them, through mal-administration of public functionaries. He acts as protector of citizen’s rights and is their sympathizer, consoler and mediator. He wields vast powers as he not only supervises the entire administration but also the administrative activities of the courts. The Ombudsmen of Sweden and Finland are usually known as classic Ombudsmen. In Denmark the institution of Provincial Ombudsman was established in 1953. There the Provincial Ombudsman concentrated only on public administration and left out the judiciary altogether. This model of Provincial Ombudsman has been widely accepted and followed in numerous countries of the world. It has proved more effective in countries believing in the constitutional democracies, the Rule of Law and respect for fundamental and human rights of the people.

5. The conceptual design and operating norms all over the world envisage convergence of all activities in the person of Provincial Ombudsman. He is responsible for securing redressal of grievances brought to his notice. He is practically involved in each complaint received in his office.

6. The institution of Provincial Ombudsman is aimed at protecting individual’s right without jeopardizing the efficacy of public policies faced by most of the societies in the Contemporary World but the functional competence and the organisational structure of this institution varies from country to country depending on peculiar circumstances of each case. Nevertheless there exist certain common characteristics which are more important than the variation. It is legally established, functionally autonomous, external to the administration, operationally independent of both legislature and executive, non political, sympathetic to citizens not averse to administration, freely accessible and practically having access to the documents relevant to the impugned decision.

7. Conflict, strife and exploitation exist across the continents and would probably continue to be so with varying degrees of severity from society to society proportionate to the level of material development and moral sublimity. There is, therefore, a constant need and scope for devising refined and responsive forums with a view to restraining the aggressive part of human nature, ensuring wider enforcement of justice and thereby achieving the desired social harmony.

8. The harmony in a society is endangered not only when private interests of citizens collide. It is more exposed to disruption when governmental authority infringes upon the rights of citizens. The non-availability of a redeeming mechanism carries grave implications. To start with, the society loses confidence of a citizen in her goals and objectives. Divested of hope, he ultimately withholds his contribution towards the betterment of the community. Needless to mention that an isolated mind is more dangerous than indolent. It is therefore most advisible that the governmental authority is subordinated to or at least coordinated with a system of checks and balances and is also so guided in the process of its day-to-day exercise that individual’s happiness is secured and the fabric of society is effectively protected.

9. The Institution of Provincial Ombudsman can successfully perform the above task in its true spirit and right direction. Some one may say that government has set up a number of other departments which, on the face of it, perform functions similar to those of the Provincial Ombudsman. The fact nevertheless remains that in terms of its composition and procedures, the Institution of Provincial Ombudsman excels all others operating in the field of investigation relating to mal-administration.

10. The Provincial Ombudsman has an added role and relevance in the developing and under-developed countries. The plight of common man in these countries needs no detailed account. He is marginally literate and living at or below subsistence level. His misery appears even more grim in the back-drop of the fact that he has little awakening about what is his due.

11. His grievances are numerous and sympathisers a few. The government machinery, mainly responsible for his plight is caught up in a web knitted of inertia, nepotism and discrimination, etc. In the midst of seemingly all encompassing spiritual decline, the concept of accountability has also receded into the background.

12. In the light of the above stated scenario, there is need to set-up a forum, which may act as a bridge between the common man and the government machinery and in the course of its performance may restore confidence of the people.

13. In Pakistan the Office of the Provincial Ombudsman was first established at the federal level in 1983. The Wafaqi Mohtasib had “done extremely useful work and succeeded in providing effective and meaningful, as well as prompt, relief to thousands of people mostly belonging to the poor and lower strata of society - against acts of mal-administration on the part of the functionaries of the Federal Government.”

14. The over-whelming problems of the people in our country pertain to provincial departments. The complaints relating to provincial administration were addressed to the Wafaqi Mohtasib in a large number. The same could not be redressed effectively for want of jurisdiction. The press and the people made persistent demand for setting up of the Institution at the Provincial level. In Sindh the institution of Provincial Ombudsman was established in 1991 whereas in the Province of Punjab, the Institution of Provincial Ombudsman was set up in 1996.

15. The Office of Provincial Ombudsman has been established for protection of the rights of the people, ensuring adherence to the rule of law, diagnosing, redressing and rectifying any injustice done to a person through mal-administration and suppressing corrupt practices.

16. In the light of the provisions of law regulating the functions of the Provincial Ombudsman, he is to rectify mal-administration occurring in any Agency. “Agency” means a Department, Commission or office of the Government or statutory corporation or other institution established or controlled by the Government but does not include the Superior Courts and courts working under their supervision and control.

17. The jurisdiction of the Provincial Ombudsman does not extend to matters which are subjudice before a Court of competent jurisdiction, on the date of the receipt of the complaint or relate to external affairs of Pakistan or connected with Defence of Pakistan, the Military, Naval, Air Force in Pakistan, or relate to personal grievance of public servants against the department where they are or had been serving. In cases where the complaints are not entertainable, the reasons are required to be given for rejection thereof.

18. The salient features of the institution of Provincial Ombudsman in Pakistan are independence from executive, simplicity of procedure, inexpensiveness, investigation through officers of vast experience in the administration of justice, combination of investigative and judicial functions and the obligation of the executive authorities to act in aid of the Provincial Ombudsman.

19. The Provincial Ombudsman has the same powers as are vested in a civil court under the Code of Civil Procedure in respect of summoning and enforcing the attendance of any person and examining him on oath; compelling the production of documents; receiving evidence on affidavits; and issuing commission for the examination of witnesses.
20. The Provincial Ombudsman has set up a Secretariat where Investigating Officers have been appointed to look into citizens’ complaints against government Agencies. These Investigating Officers are retired or serving judges or senior officers from executive having aptitude for judicial work. After conducting investigation, they submit their findings to the Provincial Ombudsman with whose approval the recommendations/findings are conveyed to the concerned Agency for implementation. The Agency has to inform, within such time as may be specified by the Provincial Ombudsman, about the action taken on his direction or the reasons for not complying with the same. If the Agency concerned does not comply with the recommendations of the Provincial Ombudsman or does not give reasons to the satisfaction of the Provincial Ombudsman for non-compliance, it is treated as “Defiance of Recommendations” and the Provincial Ombudsman may refer the matter to the government which may, in its discretion, direct the Agency to implement the recommendation and inform the Provincial Ombudsman accordingly. In each instance of “Defiance of Recommendations”, a report by the Provincial Ombudsman becomes a part of personal file or character roll of the public servant primarily responsible for the defiance provided that the public servant concerned has been granted an opportunity to be heard in the matter.

21. The Provincial Ombudsman has the powers to punish any person for contempt who abuses, interferes with or obstructs the process of the Provincial Ombudsman in any way. However, fair comments made in good faith and in public interest do not constitute contempt of the Provincial Ombudsman or his office.

22. It is a matter of experience that the Institution of Provincial Ombudsman with over-looking function, has invisible impact on the administrative agencies which significantly serves as a warning to abuse of administrative authority. The mere consciousness of accountability leads to fair exercise of discretionary powers, speedier disposal of cases and uplifting of the entire administrative environment.
23. The objective of the construction of balanced society can however be achieved only through the active cooperation of all the segments of society. The institution of Provincial Ombudsman is playing its due role in that direction what is essentially required is that philosophers, educationists and public spirited people may come forward to work in callaboration with the Provincial Ombudsman and devise out a system how to attain that objective.

24. In my estimation, justice can be dispensed at the door steps and grievances of the people can be redressed speedily, free of cost if the institution of Provincial Ombudsman is suitably augmented and strengthened by government at all levels in Pakistan.

(The speaker has been Provincial Ombudsman Punjab from January 26.1.1997 to 25.1.2000)