Wafaqi Mohtasib (Ombadsman)

The Concept Mohtasib (Ombudsman) is an ancient Islamic concept and many Islamic States had established the office of Mohtasib to ensure that no wrong or injustice was done to the citizens. The Prophet of Islam (peace be upon him) introduced the system of `Hisab' or accountability. He as well as his companions presented their public and private life and conduct for accountability. Thus a great institution emerged and spread across the globe. In the 18th century when king Charles XII of Sweden was in exile in Turkey, it was there that the observed the working and efficacy of this institution in the Ottoman Caliphate. On regaining his throne, the King established a similar institution in Sweden. Later, in 1809 King Gustary set up this institution under its Swedish name i.e.

Ombudsman. Gradually, other developed western countries also adopted this institution. Establishment in Pakistan In Pakistan, the establishment of the institution of Ombudsman was advocated on several occasions. It was Article 276 of the Interim constitution of 1972, which provided for the appointment of a Federal Ombudsman as well as Provincial Ombudsmen for the first time. Subsequently, the Constitution of 1973 included the Federal Ombudsman at item 13 of the Federal Legislative List in the Fourth Schedule.

The Institution of Ombudsman was, however, actually brought into being through the Establishment of the Office of WAFAQI Mohtasib (Ombudsman) Order, 1983. Temure The WAFAQI Mohtasib, who is appointed by the President of Pakistan, holds office for a period of four years. He is not eligible for any extension of tenure, or for re-appointment under any circumstances. He is assured of security of tenure and cannot be removed from office except on ground of misconduct or of physical or mental incapacity. Even these facts, at his request, can be determined by the Supreme Judicial Council. Further, his office is non-partisan and non-political. Jurisdiction The chief purpose of the Wafaqi Mohtasib is to diagnose, investigate, redress and rectify any injustice done to a person through maladministration on the part of a Federal Agency or a Federal Government official. The primary objective of the office is to institutionalize a system for enforcing administrative accountability.

The term "maladministration" has been defined in the law governing the office of Mohtasib, to cover a very wide spectrum, encompassing every conceivable form of administrative practice. It includes a decision, process, recommendation, an act of omission or commission, which:

(a) is contrary to law, rules or regulations or is a departure from established practice or procedure;

(b) is perverse, arbitrary or unreasonable, unjust, biased, oppressive or discriminatory or is based on irrelevant grounds: or (c) involves the exercise of powers, or the failure, or refusal to do so, for corrupt or improper motives.

It also includes neglect, inattention, delay, incompetence, inefficiency, ineptitude in the administration, or in the discharge of duties and responsibilities. The term "Agency" has been defined as a Ministry, Division, Department, commission, or Office of the Federal Government, or a Statutory corporation, or any other institution established or controlled by the Federal Government. Not included in this term is the Supreme Court, the Supreme Judicial Council, the Federal Shariat Court or a High Court. Currently, the number of Agencies falling within the Ombudsman's functional ambit is 300. The Mohtasib's jurisdiction is excluded from matters which are subjudice in courts, relate to the foreign affairs of Pakistan, or connected with the Defense of Pakistan or with the laws governing the Army, Navy and Air Force, or are concerned with the personal grievance or service matters of a public servant or functionary. Anonymous or pseudonymous complaints also cannot be entertained by him under the law.

Powers - If the Mohtasib finds an element of maladministration in a matter, he can, after investigating the matter, ask the Agency concerned to consider the matter further, to modify or cancel its decision, to take disciplinary action against any public servant, to dispose of the cases within a specified time, or to improve the working of the Agency, or to take any other specified steps. Failure on the part of an Agency to comply with the Ombudsman's recommendation is treated as "Defiance of Recommendations" which may lead to reference of the matter to the President of Pakistan, who, in his discretion may direct the Agency to implement the recommendations. The Mohtasib is empowered to award compensation to an aggrieved person for any loss or damage suffered by that person on account of maladministration. But if the complaint is found to be false, or frivolous, he can also award compensation to the Agency or the functionary against whom the complaint was made. The Mohtasib has the same powers as a civil court under the Civil Procedure Code for summoning and enforcing the attendance of any person, compelling production of documents and receiving evidence on affidavits. He has also powers identical to that of the Supreme Court of Pakistan to punish any person for contempt.

The most significant feature of the Ombudsman's powers is that where the superior courts cannot take notice of orders of administrators which are in conformity with the law and rules-whosoever oppressive or unjust or arbitrary they may otherwise be-the Ombudsman can go into their equity aspect without any inhibition and recommend their withdrawal or modification if he so finds. Similarly, where the law or rules empower an authority to exercise his discretion in deciding matter, no court can question that discretion except the Ombudsman who, if he is satisfied that the discretion has not been exercised judiciously, may upset the decision or have it amended in the manner he sees fit. This gives him extensive leverage to do good and to undo injustice and arbitrariness arising out of orders lawfully made. Performance Since the inception of this office on 8th August, 1983 up to 31st December, 1993 the number of complaints dealt with were 4,01,897. Out of these 66 per cent were the matters relating to Federal Agencies and remaining 34 per cent were the provincial matters and they were not in purview of the Ombudsman.

From the complaints against Federal Agencies 50 per cent were admitted for thorough investigation and remaining were not entertained due to the reason that either they were subjudice/service matters/premature or no maladministration was found apparently. During this period 1, 19,684 complaints were thoroughly investigated and 71 per cent were found to be genuine. During the year 1993, the highest number of complaints, i.e. 20,934 out of 44,578 complaints, after scrutiny, were admitted for investigation and 79 per cent of them were disposed off resulting in relief to the aggrieved. In view of the fact that a very high percentage of complaints is lodged with the WAFAQI Mohtasib which are within the purview of the provincial agencies, there is an urgent need for establishing the office of Provincial Mohtasib in all the provinces without any further delay.

The Provincial Government of Sindh and the Government of Azad Jammu and Kashmir have already established the institution of Mohtasib within their jurisdiction. Achievements Apart from the pains taken to investigate and redress complaints, the Ombudsman's Secretariat makes it a point to acknowledge each and every complaint, and to inform those members of the public whose complaints cannot be legally entertained. In any case, each and every complaint has to be read and examined from all points of view even if it has to be rejected at the very outset for any of the prescribed reasons. Only the Mohtasib can dismiss or reject a complaint, even in limine, and only he can pass the final orders on it after investigation. Justice An important aspect of the Office of Mohtasib, in addition to dealing with individual complaints, is to initiate studies and research regarding maladministration in Agencies having extensive dealing with the public, so that systems and procedures can be improved for the benefit of the people dealing with these Agencies. So far, seven in-depth studies have been conducted in Departments/Corporations of vital concern to the general public, while in numerous cases procedures and processes have been got simplified to obviate complaints form the public.
Since its establishment, the most significant impact of this institution is that it has revived the concept of administrative accountability in Pakistan, which is both an Islamic tenet and a democratic obligation. The public servant has become more cautious while exercising his powers. He knows that there is an authority who can question him about his acts of omission and commission, while the citizen has the assurance that if an agency or an officer continues to be obdurate and inaccessible, he can go to the Mohtasib with his problem and get relief. The Mohtasib’s institution has emerged as a poor man’s court and an effective check on the excesses of the bureaucracy. It has made the bureaucracy responsive to popular aspirations, thereby helping to bridge the yawning gap which had earlier characterized the relationship between the administrator and the citizen. As a democratic instrument of Federal Government, it has helped improve administrative processes and procedures in line with modern day’s requirements, which have gone a long way in reducing red-tapism and misuse of discretionary powers by the bureaucracy. The all out support extended to the institution by the press and the general public and the decision in principle to extend the scope of accountability at the provincial level, testifies the success story of the institution and the increasing confidence reposed in it.