Our quest for good governance is still a dream. There is a lot of political
rhetoric in favor of good governance and the rule of law since day one of
the creation of Pakistan. The Quaid valued Human Rights, Dignity of
men, freedom of beliefs, and practice of cultures as an essential part of the
state.
According to the Quaid, the civil servants were the servants of the state
and not their masters. They had to implement the policy framed by the
representative of the people. Ironically the greatest numbers of complaints
arise from mal administration attributed to bureaucracy. Bureaucracy has
always been strong because of its network and the general incompetency
of the political leadership who are supposed to govern them. Corruption
is another aspect in which we find connivance of the leadership and the
bureaucracy and this makes the bureaucracy uncontrollable and systems
corrupt.
The prime minister of Pakistan also has a grievance against the prevailing
mal administration but it seems that he has no clue to amelioration the
malady.
The complaint receiving process arising out of common grievances of the
people caught the attention of the military ruler who taking inspiration
from the Swedish ombudsman introduced PO one of 1983. The objective
and attributes of the ombudsman were formulated as follows.
-To right individual wrongs
- To make bureaucracy more humane
- To lessen popular alienation from government
- To prevent abuses by acting as a ‘bureaucratic watch-dog’ - To vindicate
civil servants when unjustly accused.
In its report of 1985, the objective for the establishment of the ombudsman
were stated as follows.
“The raison d’etre for setting up the institution of the wafaqi mohtasib was
to institutionalize a new mechanism for readdressing injustice done to
citizens by public functionaries at the federal level. It was sought to set up
a system which combines judicial impartiality, adequate investigate
capability, pragmatic flexibility in its procedures and professional insight
into the labyrinth of the modern administrative structure.”
The main attribute envisaged is that the institution will be external to
administration
The ombudsman was given extensive powers and it was said:
“For carrying out the objective of this order and, in particular for
ascertaining the root causes of corrupt practices and injustice, the
Mohtasib may arrange for studies to be made or research to be conducted
and may recommend appropriate steps for the eradication”
Mal administration and bad governance is the order of the day. We are
still looking for forensic reports on the eradication of mal practices and
corruption. Besides the federal ombudsman there are ombudsmen in the
provinces, The institutions are ubiquitous, and yet as is said “water water
everywhere but not a drop to drink”.
The first wrong which was done by the military dictator was removing
was to delist the ministry of defense and the cantonment boards rampant
with maladministration and corruption from the preview of the federal
ombudsman. As it noticed the main engagement of the ombudsman is in
day to day complaints whereas the need is to change the system.
I had the opportunity of being an observer in the office of the ombudsman
of Sweden as well as the ombudsman of Ontario. It is amazing to see how
these institutions have been catalys in making their system humane. A
two-line letter from the ombudsman of Sweden to anyone including the
army creates a chill, this does happen here.
In the United States, there is a lot of respect for the rule of law. They have
addition to other forums the administrative law judges (ALJ) system
created by Mr Roosveld. I have studied this system while at Columbia
University, New York, and find it a very useful model for Pakistan as it
involves an adjudicatory rather than recommendatory process as in the
case of the Pakistani ombudsman. After initial hearings, the grievance
passes on from the ALJ to the federal district judge. And so the judicial
power comes into the action in resolving the issue effectively. In our case
references against the decision of the ombudsman are again reviewed at
the office of the president and this causes delay and administrative
interference in a judicial order. Having worked as a consultant to the
president on administrative law, I had seen the process defeating the
purpose.
The other institution for the protection and promotion of human rights
came into being in 2015. It remained functional for four years. Myself
being the first chairman the commission published 34 investigative
reports, over 4000 complaints, and many legislative drafts introduced
Pakistan as a civilized society internationally, helped the government in
achieving the benefits of GSP+. It helped the vulnerable segments of the
society, the transgender, the minorities; those subjected to violence, and
enforced disappearances. It advocated respect for human rights and rule
of law. This institution was made dysfunctional and according to the
report of Daily Dawn dated (29th October, 2020 “The Govt deliberately
keeping HR bodies dysfunctional: Senate Body”) The National
Commission for human rights Act 2012 protects the fundamental rights of
the people and all rights granted by civil and political rights of the
convention of the united nations 1966 and civil and economic rights of the
people 1966. Besides, the fundamental rights guaranteed by the
constitution. So this law gave assurance for the rule of law and justice to
the common man which is now being denied as such and this is
unfortunate.
The NCHR was created but purposely no rules were framed and budgetary
problems were created so that the institution failed. Anyway because of
the urge and passion of the civil society it succeeded which the institution
faced but yet it succeeded.
As the NCHR also performed judicial functions therefore the law enjoins
that the chairman should be a person who is being a judge. Unfortunately,
this requirement is being sabotage.
Even for the ombudsman to be independent of administration the
requirement is of a judge trained judicially and not somebody chosen from
bureaucracy whose complaints he has to hear. So we made a mess of the
concept of governance and administration. Someone has to take corrective
measures.
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