By Justice Ali Nawaz Chowhan
Our quest for good governance is still a dream. There has always been strong political rhetoric in favor of good governance and the rule of law since the inception of Pakistan.
Quaid valued Human Rights, the dignity of men, freedom of beliefs, and the practice of cultures as an essential part of the state. According to the Quaid, the bureaucracy was to act as the servants of the state, not masters. They were to implement the policy framed by the representatives of the people. Ironically, the greatest numbers of complaints arise against maladministration attributed to bureaucracy. Bureaucracy has always been strong because of its network and the general incompetency of the political leaders who are supposed to govern them.
Corruption is another aspect where 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 maladministration but it seems that he has no clue how to ameliorate this malady.
The complaint receiving process arising out of common grievances of the people caught the attention of a military ruler who took inspiration from the Swedish ombudsman who introduced Provisional Order 1, 1983. The objectives 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 objectives 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 exclusive to the 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 are the order of the day. We are still looking for forensic reports on the eradication of malpractices 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 to delist the ministry of defense and the cantonment boards, rampant with maladministration and corruption from the preview of the federal ombudsman. As it notices 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 catalyzed 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 there.
In the United States, there is a lot of respect for the rule of law. They have added to other forums the administrative law judges (ALJ) system created by Mr. Roosevelt. I have studied this system while at Columbia University, New York, and found it a very useful model for Pakistan as it involves an adjudicatory rather than a recommendatory process, unlike 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 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 have 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. I, being the first chairman of the commission, published 34 investigative reports, over 4000 complaints, and many legislative drafts introduced Pakistan as a civilized society internationally, which 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 victims of enforced disappearances. It advocated respect for human rights and rule of law. This institution was made dysfunctional. According to a media report, dated October 29, 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, this law gave assurance for the rule of law and justice to the common man, who 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.
However, because of the urge and passion of the civil society, it succeeded. As the NCHR also performed judicial functions, the law enjoined that the chairman should be a person who is a judge. Unfortunately, this requirement is being sabotaged. Even for the ombudsman to be independent of administration; the requirement is of a judge, trained judicially, and not somebody chose from bureaucracy, whose complaints the ombudsman has to hear. Thereby, we have made a mess of the concept of governance and administration. Someone has to take corrective measures. (Edited by Mamoona Shakoor)
(The writer is former international Judge of the UN, Chief Justice of the Gambia, and first chairman of NCHR)