CHALLENGES OMBUDSMANSHIP Lo! Allah loves those who maintain justice (Surat l-hujurat) Foreword

he Forum of Pakistan Ombudsman was created on 15th April 2011 to give various the Ombudsman in Pakistan a common platform to share experiences and chart the road ahead. This Workshop, Tdesigned to examine the Challenges that the Ombudsman office faces today, is one of the most important initiatives of the Forum. All twelve Ombudsman offices in Pakistan (and AJ&K) were represented and the Resource Persons made presentations and answered questions from an audience that included personnel from all Ombudsman offices as well as from the media. The Chairpersons, Dr. Mira Phailbus, Justice (Retd.) Yasmin Abbasey ,Mr. Attaullah Khan Toru, Mr. Asaf Ghafoor and Justice (Retd.) Muhammad Nadir Khan who conducted the Workshop proceedings are all highly experienced professionals and performed their roles with enthusiasm and consummate skill. A consensus seems to have emerged that Ombudsman offices face a number of challenges in the first quarter of the 21st century. These include, maintaining efficiency at a time of fiscal constraints by using legislation to empower the Ombudsman and technology to better deal with an increasing workload. Catering to the needs of vulnerable members of society, like women and children was another challenge. It was also recognized that while efficiency is necessary to offset the effects of fiscal constraints, the critical minimum finances needed to set up office and start work have to be made available and ways and means must be found to meet these vital requirements. Political interference in the working of Ombudsman offices was another area of serious concern that was highlighted. It was also a challenge to better project the Ombudsman institution and improve the peoples’ understanding of this important office and to overcome a deep seated conservative mindset that makes it difficult for many people, especially women and children, to come forth with their problems and grievances. It was observed by the Forum that a record of the Workshop proceedings should be presented to the International Ombudsman Institute and other stakeholders including all participating Ombudsmen offices, the World Bank, Islamabad in a Report that would be issued within a month of the Workshop. It gives me great satisfaction to be able to meet this commitment. I hope this Report will facilitate your understanding of the evolution of the Ombudsman offices in Pakistan. I finally especially like to appreciate the hard work done by Mr. Ahmed Owais Pirzada, Advisor (Projects) and his team, Mr. Muhammad Munir Qureshi, Advisor (Income Tax) Lahore Office for completion of this report in a short period and generous assistance from International Ombudsman Institute for organizing this workshop .

Abdur Rauf Chaudhay President, Forum of Pakistan Ombudsman

I Injustice anywhere is a threat to justice everywhere. Martin Luther King Jr.

II Contents

Workshop Programme 1

Chapter I 3 Inaugural Address Keynote Address 7

Chapter II 9 Presentations by Resource Persons

Chapter III 31 Analysis

Chapter IV 46 Recommendations Annexures (Case Law) 49 59 Ombudsman Offices in Pakistan

III Pictorial Glimpses of A Two-day workshop on “Challenges of Ombudsmanship”

IV Programme First Day, 25th September, 2013

Time S.No Activities From To

1 Registration of participants 09:00am 09:30am

First Session chaired by Hon’ble Mr. Abdur Rauf Chaudhry President, Forum of Pakistan Ombudsman

2 Talawat-e-Kalam-e-Pak 09:30am 09:35am

3 President FPO's Inaugural Address 09:35am 09:45am

4 Keynote Address by Mr. Ejaz Ahmad Qureshi, 09:45am 10:15am Federal Secretary ®

5 Tea/Coffee 10:15am 10:30am

Second Session chaired by Hon’ble Dr. Mira Phalibus, Ombudsman for Protection against Harassment of Women at Workplace, Punjab

6 Resource Persons' Presentations 1. Mr. Yasin Tahir, Senior Advisor FTO Secretariat 10:30am 11:00am 2. Mr. Saqib Aleem, Additional Secretary, 11:00am 11:30am Federal Ombudsman Secretariat 3. Question/Answer Session 11:30am 12:00am 4. Concluding Remarks by the Chairperson 12:00noon 12:30pm 7 Lunch Break 12:30pm 01:15pm

Third Session chaired by Mr. Asaf Ghafoor, Secretary, Federal Tax Ombudsman Secretariat

8 Resource Persons' Presentations 1. Mr. Farhat Saeed, Senior Advisor, Banking Ombudsman 01:15pm 01:45pm 2. Mr. Mubashir Naeem, Director, Insurance Ombudsman 01:45pm 02:15pm 3. Question/Answer Session 02:15pm 02:45pm 4. Concluding Remarks by the Chairperson 02:45pm 03:00pm

9 Tea/Coffee 03:00pm 03:15pm

1 Fourth Session chaired by Mr. Justice (Retd) Muhammad Nadir Khan, Advisor, Federal Tax Ombudsman Secretariat, Regional Office, Quetta

10 Resource Persons' Presentations 1. Mr. Riaz Ahmed, Secretary, Provincial 03:15pm 03:45pm Ombudsman, Balochistan 2. Mr.Atta-ur-Rehman, Advisor-II, Provincial 03:45pm 04:15pm Ombudsman Khyber Pakhtunkhwa 3. Question/Answer Session 04:15pm 04:45pm 4. Concluding Remarks by the Chairperson 04:45pm 05:00pm

Second Day 26th September, 2013

Fifth Session chaired by Hon’ble Justice (Retd) Yasmin Abbasey, Federal Ombudsman for Protection against Harassment of Women at Workplace

11 Resource Persons' Presentations 1. Dr. Mira Phalibus, Ombudsman, Protection against 09:30am 10:00am Harassment of Women at Workplace, Punjab 2. Mr. Aziz Iqbal, Registrar, Federal Ombudsman Secretariat for 10:00am 10:30am Protection against Harassment of Women at Workplace 3. Question/Answer Session 10:30am 11:00am 4. Concluding Remarks by the Chairperson 11:00am 11:15am 12 Tea/Coffee 11:15am 11:30am Sixth Session chaired by Mr. Attaullah Khan Toru, Secretary, Federal Ombudsman Secretariat, Islamabad 13 Resource Persons' Presentations 1. Mr. Najam Saeed, Advisor/Member Incharge, Provincial 11:30am 12:00noon Ombudsman , Punjab 2. Syed Muhammad Shujaat Ali, Consultant, Provincial 12:00noon 12:30pm Ombudsman, Sindh 3. Mr. Absar Hussain, Director, Ombudsman AJ&K 12:30am 01:00pm 4. Mr Sada Hussain Larik, Consultant, Provincial Ombudsman for the 01:00pm 01:30pm Protection against Harassment of Women at Workplace, Sindh 5. Question/Answer Session 01:30pm 01:45pm 6. Concluding remarks by the chairperson 01:45pm 02:00pm 7. Distribution of Certificates on behalf of President, Forum of Pakistan Ombudsman

14 Lunch on behalf of Hon’ble Mr. Abdur Rauf Chaudhry, President, FPO 02:00pm

2 Chapter I

Inaugural & Keynote Address

3 Inaugural Address of Hon’ble Mr. Abdur Rauf Chaudhry President, Forum of Pakistan Ombudsman

ustice (Retd) Yasmin Abbasey, Dr. Mira workplace, especially as regards women who are Phailbus, Mr. Ejaz Ahmad Qureshi, fast becoming important members of the Jdistinguished guests, ladies and gentlemen, I workforce. welcome you all on the inaugural ceremony of a The Ombudsman we see today is Two-Day Workshop on "Challenges of qualitatively different from the classical Ombudsmanship" organized by the Forum of Ombudsman that emerged from Sweden in the Pakistan Ombudsman in collaboration with the early 19th century. For one thing, the Ombudsman International Ombudsman Institute. may not be a man at all and Ombudspersons who The Forum of Pakistan Ombudsman was are really Ombudswomen are making their established on the 15th of April 2011 'to take up presence felt in many jurisdictions. While the title, several new initiatives to make the Ombudsman 'Ombudsman' has endured, it has become gender services more transparent and effective, and to neutral. transform the Forum into a vibrant and credible The 21st century Ombudsman has evolved justice sector public service organization.' The from his rather staid and conservative need to set up this common platform for action is predecessor and has morphed into a far more guided by the conviction that in order to remain versatile, proactive aggressive and daring entity relevant, the Ombudsman must deliver. Not long and one increasingly confronted with matters after the Forum was set up, on the 13th Nov 2012, a other than purely governance issues involving the broadly similar perception emerged in the historic State Functionaries. Adaptation or hybridization 'Wellington Declaration' of the International is, therefore, the next step in the evolution of the Ombudsman Institute conference at Wellington, Ombudsman office. There is a shift of emphasis New Zealand. from a primary concern for the quality of public Today, there appears to be consensus that administration to the provision of redress in the Ombudsman must be shown to be an effective individual cases of injustice in different areas such entity, able to provide meaningful relief as workplace injustice for the worker especially expeditiously to a harassed citizenry, not only from the female worker, injustice for the consumer by the maladministration of the State Functionaries Banking and Insurance Companies and other but also from an increasingly assertive private financial institutions etc. sector that is making aggressive inroads into many The test facing the Ombudsman today is areas previously seen as an exclusive domain of the how well the office is able to overcome a plethora State. And Human Rights issues are now seen as a of problems and challenges being faced by it. significant area of concern for the Ombudsman Doubtlessly, these challenges emanate largely including the violation of Human Rights at from the increasing complexity of the world we

4 live in and the proliferation of new entities that In the context of Human Rights issues, the have emerged as a consequence and whose promulgation, of the Protection against interaction with the public at large has thrown up Harassment of Women at the Workplace Act Of new problems that the Ombudsman is being called 2010, on 11th March 2010, followed by upon to address. His difficulties are compounded appointment of a Federal Ombudsman to by the fact that worldwide fiscal constraints mean implement the statute on 13th January 2011 was a that he is being called upon to achieve more, much crucial first step in ensuring that workplace more, without being able to mobilize matching injustice faced by women in Pakistan is addressed resources. A major challenge, therefore, involves effectively. increasing efficiency without increasing An extremely important piece of legislation expenditure. in the empowerment of all Federal Ombudsman Slow handling of complaints is one of the offices in Pakistan has been the promulgation by greatest dangers to the credibility of Ombudsmen the President, on the 12th February 2013, of the all over the world. The aim should be to undo Federal Ombudsmen Institutional Reforms possible instance of maladministration to the Ordinance 2013 followed by its enactment as an benefit of citizens as soon as possible. The Act on the 14th of March this year. As a result, all Ombudsman must redress grievances by taking Federal Ombudsmen in Pakistan now have a fixed action as soon as possible after complaints are four year term of office, can take action for received and ways and means will have to be found Contempt of the office, exercise powers of a Civil to ensure that there is no unwarranted delay in Court in matters pertaining to grant of temporary their disposal, including selection of competent i n j u n c t i o n s a n d i m p l e m e n t a t i o n o f and motivated staff and imaginative use of modern recommendations, have full financial and Information and Communication Technology administrative autonomy in all matters relating to (ICT). The complaints workload is also expected to the office including the creation of new increase partly due to increased awareness by the offices/posts provided the expenditure is met public of the performance of public functionaries from the allocated budget, have the power to at all levels, thanks to laws like the Freedom of review their own recommendations, ‘suo motu’ or Information Ordinance 2002 (FIO) that is only on application filed before them within 30 days of now being invoked to seek out pertinent release of order and have complete independence information. in deciding complaints that cannot be taken up by any other Authority, Tribunal or Court so long as In order to remain effective in a fast the Ombudsman is seized with an investigation. changing world the Ombudsman cannot afford to Besides, this Act has overriding effect. be merely reactive and to wait for a complaint to be Furthermore, representations before the received before he launches an investigation. Many President of Pakistan against the Ombudsman's Ombudsman offices are empowered to take own recommendations will now have to be decided motion initiatives and start an investigation within 60 days whereas earlier no time limit was probatively especially with regard to systemic specified and delay was the norm. It is hoped that issues and thus, preempt possible injustice.

5 all this would greatly strengthen all Ombudsman International Ombudsman Institute to organize offices in Pakistan and enhance their effectiveness this event. I am also grateful to the World Bank for manifold in redressing grievances. providing us support especially in the area of A two-day Workshop was designed to capacity building. The Asian Development Bank is exchange views on a range of subjects relevant to also funding a project titled "Up-gradation and Computerization of Federal Tax Ombudsman the development of the Ombudsman office in (FTO) Office" for which I am grateful to them. The Pakistan with special reference to the challenges UNDP has provided office equipment to various that the office faces and steps to deal with them offices of the Ombudsman working in Pakistan effectively. It is hoped that the participants would have a fruitful experience in what is an exciting through this forum. I am also grateful to them for field of human endeavor designed specifically to their support. I hope that all such institutions will redress or at least mitigate hardship due to remain with us to accomplish the mission of maladministration of public functionaries, the redressing grievances of the people of Pakistan highhandedness of private entities, corporate or within the shortest possible time. otherwise and the violation of human rights in the In the end, I am pleased to inaugurate the workplace especially regarding the women Two-Day Workshop on "Challenges of members of the workforce. Ombudsmanship." Availing this opportunity, I express my Once again thank you very much, ladies and gratitude for the support provided by gentlemen, to be with us on this occasion!

6 Keynote Address of Mr. Ejaz Ahmad Qureshi, Federal Secretary (Retd)

n the KEYNOTE ADDRESS, Mr. Ejaz Ahmad depth, the problems being faced by children in Qureshi, a seasoned bureaucrat and Pakistan and make specific recommendations to ICommissioner for Children in the Federal deal with them effectively. The study was Ombudsman Secretariat (Wafaqi Mohtasib), subsequently put to scrutiny and endorsed by dilated eloquently and knowledgeably on the role Norway's Ombudsman for Child Rights who had of the Ombudsman's office in catering to the rich experience in this area. However, after the special needs of a vulnerable segment of our passage of the 18th Amendment to the population, children. He pointed out that in 1983 Constitution of Pakistan, the Right's of Children Pakistan was the first country in Asia to appoint a devolved to provinces and the creation of one Federal Ombudsman on the Swedish model that Federal Ombudsman for Children became became a precursor to several other Ombudsman somewhat problematic. Nevertheless, a Children's offices at the Federal and provincial level including Complaints Office (CCO) had already been set up in specialized Ombudsmen in different areas, like the the Federal Ombudsman's office and a child Federal Tax Ombudsman, the Banking and Ombudsman 'system' in all four provinces came to Insurance Ombudsman, thereby greatly be seen as an important requirement in the future facilitating the evolution of the office in Pakistan. to mitigate the trauma faced by children when He pointed out that it was in 2009 that Pakistan their rights were violated. inked an Memorandum of Understanding (MOU) Coming to the theme of the Workshop, with the UNICEF that laid the groundwork for the “Challenges of Ombudsmanship”, Mr. Ejaz Ahmad development of an office designed especially to Qureshi said that when a new institutional deal with protecting the rights of Pakistan's arrangement, such as that of the Ombudsman, or burgeoning child population and whose aim was more particularly, the Children's Ombudsman, was to eventually lead to the development of a full- sought to be developed from scratch, there was no fledged Ombudsman for Children at the national ready-made blueprint that could be picked out level. He said that while it was difficult for children from a book, as it were, and transplanted straight to come forth with complaints in the same manner away. Rather, for optimum effect, such an office had as adults, perhaps it was more important to to evolve, over time, and adapt itself to the specific enquire into the underlying, systemic issues that requirements of its environment. Giving an resulted in the infringement of their rights and overview of Pakistan's historical legacy in the area impacted adversely on their welfare. The United of governance he pointed out that successful Nations had highlighted many of these problems in empires of the past in the subcontinent were based a 1990's Convention on Child Rights. It was in this to a large extent on their bureaucratic expertise context that a major study by independent and efficiency. This was as true in the era of consultants was commissioned to evaluate in-

7 Chandragupta Maurya as in the Empire of the great the Ombudsman may be more or less activist in his Mughals' and later, when India became part of the outlook and approach but his activism, when it is vast British Empire. Going back in history, he said present, must not be based on a desire to offset that the ancient Chinese Emperors also relied on institutional shortcomings in other areas as each efficient bureaucrats to enforce the writ of the organ of the State has to play its designated role State and implement policy. However, the decline effectively for optimum results. He lamented the of each empire was related to an erosion of its fact that although the Federal Ombudsman of bureaucratic prowess and, therefore, its ability to Pakistan deals with more than 40,000 complaints exercise control effectively. per annum, few people are aware of the office and he saw this as a failure in projecting the office and Today, the task of the bureaucrat in the work that it does, effectively. He said that when developing countries like Pakistan, has been systems become dysfunctional informal greatly complicated by the daunting specter of approaches to the resolution of problems assume extreme poverty, mass illiteracy and the advent of significance and the Ombudsman was seen as a powerful, privileged elite who have come to play last resort by many frustrated at getting redress an inordinate role in the decision making process from the regular judicial and court system that is and constantly strive to further augment their clogged with pending cases that may take years to authority. The difficult situation has been further clear. However, notwithstanding this positive exacerbated by an activist judiciary that adds to perception about the office in the minds of those the burdens of the bureaucracy. Placed in this who have actually benefited from its work, the challenging situation the office of the Ombudsman Ombudsman must remain within the bounds of his offers good governance solutions that are simple, assigned jurisdiction and ought not to encroach on direct and inexpensive. Given deficient the jurisdiction of others. At the same time, he accountability systems, the Ombudsman can act as must not hesitate in boldly giving relief where an effective Alternative Dispute Resolution (ADR) relief is due. forum. However, all this is predicated on the presumption that the Ombudsman is an The speaker concluded his address with this exceptional person of integrity, ability, couplet: compassion, drive and initiative and is also “Don't cry against the darkness, apolitical and non- partisan. Light a Candle.” Mr. Ejaz Ahmad Qureshi went on to say that

8 Chapter II

Presentations by Resource Persons

9 (i) Mr. Yasin Tahir response is usually a flat denial of the allegations Senior Advisor leveled by the Complainant. This denial has little, if Federal Tax Ombudsman anything at all, to with the strict merits of the case and is almost always made mechanically, an he Office of the Federal Tax Ombudsman automatic reflex action to the receipt of a (FTO) was established in September 2000 complaint. It is an extremely rare event indeed Twith the 'objective to diagnose, when FBR accepts the veracity of the contents of a investigate, redress and rectify' maladministration complaint. The end result is that the FTO faces in the Federal Board of Revenue (FBR) and its field difficulties in carrying out a meaningful formations (the Agency). Since its inception to investigation right from the beginning. The other date, the FTO has disposed of more than 18,000 part of the challenge is when the FTO has disposed complaints. of the complaint and recommendations are sent to FBR for implementation. Here again, FBR Mr. Yasin Tahir, Senior Advisor in the functionaries are loathe to implement the Federal Tax Ombudsman Secretariat at Islamabad recommendations within the given timeline and it (FTO) since 2009, identified dogged resistance by is only after repeated reminders have been sent the functionaries of the Agency to efforts made by that an acceptable level of implementation is the FTO to both investigate a complaint as well as achieved. implement the recommendations made after the complaint was disposed of, as a major challenge That FBR's reluctance to implement the that the Ombudsman faces in carrying out his recommendations is not based on the strict merits mandate. He explained that when a complaint is of the case is evident from the fact that review taken up for investigation it is first sent to the FBR applications before the FTO and representations for comments on its contents. He said that in a very before the President against the FTO's large number of cases the resistance is evident in recommendations are filed in only a handful of the initial reply filed by FBR. Till quite recently, the cases. Importantly, the decisions in these cases as FBR's first response invariably has been that the well mostly go against FBR which clearly suggests FTO has no jurisdiction to take up the complaint that they lack merit. It appears that in most cases for investigation. This objection is usually made the review applications and representations are mechanically, in stereotypical manner, invoking filed by FBR only to delay their implementation. provisions in the statute governing the working of The law as it stood prior to enactment of the the FTO (the FTO Ordinance 2000) that lay down a Federal Ombudsmen Institutional Reforms Act in bar on the FTO investigating cases involving March 2013 (FOIRA) allowed the President assessment of income and determination of tax indefinite time to dispose of a representation filed liability and also taking up matters that are by the FBR. This lacuna in the statute has been fully ‘subjudice’ before the regular appellate fora exploited by FBR and in the cases that it was provided for under the statutes governing the particularly averse to implementing the FTO's working of FBR functionaries. In the FBR's reply recommendations it would invariably opt to file a on the merits of the complaint, here too the representation before the President where it

10 routinely remained pending for a long time, 458 of these pertain to 2012, 65 to 2011, 27 and 22 sometimes for years on end. Review applications to 2010 and 2009 respectively and the balance 11 before the FTO against his recommendations were recommendations pending implementation also usually filed in a whimsical manner, often pertain to the period 2002 to 2008. belatedly, and calculated mostly to defeat A reluctance to utilize the full potential of implementation of recommendations. Again this Information and Communications technology was possible because the statute did not prescribe (ICT) in the working of the FTO offices is another a specific time period for filing review important challenge identified by the Advisor. ICT applications. is today universally recognized as a 'force The above cited deficiencies have since multiplier' when it comes to data storage, retrieval been addressed in the recently enacted FOIRA and collation and greatly facilitates timely and (Federal Ombudsmen Institutional Reforms Act correct decision making. Although an Online 2013) and review applications before the FTO are computerized complaint management system now required to be filed within 30 days of release (FCCMS) has been put in place in the FTO offices in of his recommendations. Similarly, the President 2012, complete digitization of records and real must decide a representation within 45 days. time processing of complaints still leaves much to While it is now mandatory to file a review be desired and much of the internal record keeping application within the given time or risk its within the FTO offices continues to be based on summary dismissal the fate of a representation not voluminous 'paper records' that are problematic decided by the President within 45 days of its when it comes to their safe storage and are also receipt is less clear as in legal circles the time limit highly susceptible to tampering which is a matter of 45 days is seen as 'directory' in nature and hence of considerable concern given the sensitive, not strictly binding. Nevertheless, undue delay in revenue significant nature of work done in the FBR deciding representations would now certainly offices that is put to scrutiny by the FTO. attract unwelcome attention which the President Mr Yasin Tahir also referred to other would try to avoid as he is, after all, a political underlying systemic issues that needed to be creature. This is already evident from the sharp overcome if the FTO office was to become an reduction in turnaround time taken by the effective complaint redressal mechanism for the President to decide representations filed by FBR. common man including the problem of corruption. Thus, although enactment of FOIRA has helped The FTO office is expected to address this matters considerably it is still too early to say that challenge and through its recommendations, the challenge posed by FBR's negative mindset vis ensure that corrupt elements within the ranks of a vis the FTO office has been entirely overcome and FBR functionaries are identified and furthermore efforts will have to continue in the future before we systems are put in place to ensure that there is no have a satisfactorily result. It may especially be recurrence of their actions. noted that as on 1st January 2013 as many as 583 recommendations made by the FTO from 2002 till Mr Yasin Tahir is also of the opinion that 31st Dec 2012 are yet pending implementation. investigative ability in the investigation staff of the FTO office needed to be substantially upgraded as

11 many complaints involved complex issues of 1983, under the Federal Ombudsmen Institutional maladministration closely intertwined with highly Reforms Act 2013 (FOIRA) and special powers technical issues often concerned with intricate under the Civil Procedure Code (CPC) to grant FBR work processes like automated refund t e m p o r a r y i n j u n c t i o n s a n d e n f o r c e processing systems (STARR and CREST) and audit i m p l e m e n t a t i o n o f O m b u d s m a n ' s selection issues. recommendations, in his view, pose a major challenge for the Ombudsman. This is because he is now required to ensure that notwithstanding (ii) Mr. Saqib Aleem such vast statutory authority at his disposal, he Additional Secretary must act responsibly and in a balanced manner Federal Ombudsman and that there is no misuse of this capability. He (Wafaqi Mohtasib) said that this was not easy as in many situations there was serious provocation from the other side he Wafaqi Mohtasib has the distinction of especially when it came to implementation of the being the first Ombudsman's office in Ombudsman's recommendations and in such TPakistan established in 1983 to redress difficult situations the temptation to bring the full public grievances against maladministration in the weight of his authority to bear was immense. But it offices of the Federal Government. went to the credit of the Ombudsman that in all In his presentation, Mr. Saqib Aleem, Addl these 30 odd years of its existence he had never Secretary, Federal Ombudsman office went used the harsher aspects of his vast authority such straight to the point and identified four major as the power to actually invoke statutory powers to areas that posed challenges for the Federal formally take cognizance of Defiance and Ombudsman: Contempt shown by different reporting agencies. True, at times show cause notices for defiance are (i) Legal Challenges issued but that is usually enough to evoke a (ii) Challenges in complaint handling. positive response and no further action is (iii) Challenges in relations with sister necessary. institutions of accountability. Mr. Saqib Aleem further stated that there (iv) Challenges in improvement of public image were a number of jurisdictional challenges that the of the Ombudsman and the Federal Ombudsman often faces. Thus matters pertaining Government. to the armed forces of Pakistan and the Ministry of Defense cannot be taken up by the Federal The Addl Secretary explained that as far as Ombudsman. Matters that are sub-judice before legal empowerment is concerned, the Federal any court of competent jurisdiction and matters Ombudsman of Pakistan is often referred to as the involving service matters of government officials second most powerful Ombudsman in the world. also did not fall within the Ombudsman's However the vast powers available to the jurisdiction. Moreover, in certain cases it may not Ombudsman under President's Order No.1 of be absolutely clear as to which Ombudsman is 1983 (Wafaqi Mohtasib (Ombudsman) Order

12 properly empowered to take cognizance of the However, after the so called 'joint complaint' is maladministration reported by a Complainant. All actually taken up for investigation, it often this is usually because the dividing line between transpires that the joint complaint application is a what did and did not fall within the Federal façade and actually only one person is behind the Ombudsman's jurisdiction is sometimes blurred complaint. All this is especially significant given and taking the correct decision is a challenge that the heavy workload of complaints filed in the needed sound knowledge and understanding of Federal Ombudsman's office. Mr Saqib informed not only the Federal Ombudsman's statute but also that 40,000 odd complaints are received annually that of the other Ombudsmen. Mr Saqib further on average and in 2013 the Ombudsman disposed noted that the public at large also is not always of some 58,000 complaints out of the 78,000 that fully informed about the nuances of the Federal had piled up over the two odd years that the office Ombudsman's authority so that Complainant's had no Ombudsman. As all executive authority is sometimes file complaints that suffer from various concentrated exclusively in the person of the deficiencies and cannot theerefore be taken up for Federal Ombudsman his absence created a investigation. vacuum and no order could be released over a two year period. The enactment of FOIRA has removed Although the Federal Ombudsman's office this obstacle as in future the Federal Tax has a fairly comprehensive complaint Ombudsman will automatically hold additional management system, its optimum use by the charge of the office should it fall vacant, for any Ombudsman's office and the public at large left reason. much to be desired and this is seen as a challenge that needed to be addressed. Online complaint Given the very large number of complaints filing is yet in its infancy and complainants often received in the Ombudsman's office, a small army made mistakes in submitting the required of investigating officers (IO's), 74 plus in strength, documentation correctly. A concerted media have had to be employed to deal with them in a campaign to educate the public at large is, reasonable timeframe. However, this involves therefore, required to address the issue. selection of IO's with variegated backgrounds, diverse styles of conducting investigations and When complaints are received it is varying levels of professional competence so that important that they be properly evaluated so that there is often very little uniformity in the reports only those complaints are taken up for filed by them as a group. As similar problems need investigation that qualified under the law and to be dealt with similarly, the compulsions of applicable rules. However, this is easier said than employing such a diverse workforce goes against done and it is a challenge that will have to be the requirement of having to deal with the overcome if the Ombudsman is to be able to complaints in an orderly manner and poses a perform his duties effectively. Sometimes challenge that needs to be resolved. If a reporting complaints are shown to have been filed jointly agency redresses the grievance during the and such community based complaint's attracted a investigation phase of a complaint then the higher priority for their early disposal given the proceedings may be dropped abruptly in order to fact that a number of Complainant's are involved.

13 ensure closure. However, a similar issue in another challenges for the Ombudsman. Thus, although the complaint may not meet with a similar response Federally Administered Tribal Areas (FATA) fall from the concerned agency in that case and will within the jurisdiction of the Federal Ombudsman, necessitate that proceedings be taken to their it may be extremely difficult for him to actually logical conclusion but without the benefit of a enforce his writ in these areas. As non- payment of relevant precedent that might have made it electricity bills was endemic in FATA, WAPDA had simpler and far faster to bring closure in that case. at times adopted the expedient of imposing collective liability against the residents of a Mr. Saqib Aleem opined that one reason particular locality where non compliance was why investigation officers do not liquidate all pendency is because they fear that with no particularly problematic. However, if a complaint complaints left to investigate they might become was received from a resident who did pay his bill redundant and lose their jobs! He is of the view and was not to blame for the willful default of that this is a challenge that may never be overcome others, the Ombudsman had little option but to because of the all pervasive fear of joblessness in a rule against WAPDA notwithstanding the fact that difficult economic environment. His reasoning, by his action WAPDA would have to face further however, provoked an interesting response when a difficulties. workshop participant pointed out that he once According to Mr. Saqib Aleem the Federal enquired from the Ombudsman from Canada as to Ombudsman is also facing challenges from a what was his workload and was told that currently hyperactive judiciary and an aggressively assertive it was zero. He then asked that if that be the case media. He said that the judiciary is inclined to why wasn't the Ombudsman's office wound up. encroach on the Ombudsman's jurisdiction and Prompt came the reply: “To make sure that it stays t a k e u p c a s e s t h a t c l e a r l y i n v o l v e d at zero!” maladministration as a dominant feature. The Additional Secretary was also of the Although FOIRA had helped the Ombudsman a lot in maintaining the integrity of his jurisdiction, the view that although the ombudsman was perceived problem of unbridled judicial activism persists. He as a relief giving entity, too much financial relief is of the view that so many ‘suo motu’ cases have accorded in multiple cases may prove to be been taken up by the superior judiciary that their counterproductive, were it to aggregate to an disposal has become problematic and he amount that becomes a burden on the public suggested that the extra workload in the judiciary exchequer because that may in turn provoke a can be passed on to the Ombudsman! Similarly, in round of additional taxation adding to the woes of the case of the media, a great deal of baseless hype an already harassed citizenry. Thus, the type and often created on issues about which there is amount of financial relief accorded by the insufficient comprehension and as a result Ombudsman may become a challenge as he may be unrealistic expectations are attached to the office required to fix ceilings to the relief accorded by of the Ombudsman followed by unfair criticism way of financial handouts. when they are not achieved. Factors related to geographical, cultural, Although the Federal Ombudsman deals ethnic and linguistic diversity can also create

14 with complaints against Federal Government received formally have to adhere to prescribed department and its functionaries and often rules guidelines and 9842 such complaints have been against them, it is a challenge for him to actually received since inception upto 31.08.2013 yielding defend them when his investigations reveal that an average of 1230 complaints per annum. they are innocent of any wrongdoing. Complaints received informally through e-mail, by telephone or by walk-in complainants aggregate to 16,446 in the same period with an annual average (iii) Mr. Farhat Saeed o f a b o u t 2 0 5 5 . A n I n f o r m a t i o n a n d Senior Advisor Communications Technology (ICT) based Banking Mohtasib complaint management system is in place and tracks the progress in processing and disposal of a he Banking Mohtasib (Ombudsman) complaint in real time. Complaints by aggrieved became functional on May 2, 2005 when persons are taken up for investigation when they Tan amendment made in the Banking are found to be consistent with the prescribed Companies Ordinance 1962 created the office of terms of reference and a mutually agreed the Banking Mohtasib, Pakistan. Its creation resolution of the dispute is not feasible. An followed a surge in consumer products offered by investigation then follows leading to an mushroom growth of Banks in the private sector. assessment. Remedial action by the Mohtasib In the wake of it, their came the expected (Ombudsman) is limited to a recommendation for complaints from irate customers who had payment of compensation equal to the actual loss hurriedly latched on to the new range of products suffered. If the assessment was disputed by either offered without realizing the risks involved. The party, a time bound review before the Mohtasib resulting scenario carried out for a viable, (Ombudsman) or a representation before the inexpensive and quick, dispute resolution President of Pakistan is possible. mechanism outside the regular courts system and Bank customers seek the Mohtasib the Banking Mohtasib (Ombudsman) was the (Ombudsman)'s intervention usually when they answer. Generally, his task is to mediate between have suffered a financial loss as a result of Bank individuals and Banks but mediation between staff inefficiency with regard to the services Banks is also possible. Like all Ombudsmen he provided or consumer products used by the Bank looks for maladministration by a Bank that has customers. Mr. Farhat explained that a major cause resulted in an aggrieved customer. Good of complaints is that related to the rise of, so called, governance is the ultimate objective. The parallel Banking operations in Pakistan whereby headquarters are located at Karachi and there are Bank officials, principally the Bank Manager and five regional offices at Quetta, Lahore, Peshawar, some select staff, take it upon themselves to deal Multan and Rawalpindi. directly with Bank customers, accepting deposits, Mr. Farhat Saeed, Senior Advisor, Banking making payments and even at times retaining Mohtasib, explained the process flow for handling custody of the customers' cheque book to write out complaints at the Banking Mohtasib. Complaints and even sign cheques and draw payment from the

15 customers' account at the customers behest. The As explained by Mr. Farhat Saeed such like frauds officer explained that in the interior Punjab and perpetrated by corrupt Bank officials pose a Sindh the problem was especially serious because serious challenge to the Mohtasib (Ombudsman) many customers, especially those who perceived as it is not a simple matter to prove that the alleged themselves to be placed in a privileged position, events ever took place. These are deep seated abhorred going to the regular Bank counters, systemic issues that plague our Banking system standing in queue and 'waiting for their turn' to be and given the rapacity and greed of these Bank serviced. The Bank Manager is familiar with their officials it is unlikely that they will give up their psychology and exploits his position to trap corrupt ways easily. Such individuals need to be vulnerable customers into establishing a special identified and it must be ensured that their relationship with him. Officially of course no Bank services are terminated by the concerned Bank approves such a policy. However, it is and thereafter their names placed on a data base of inconceivable that they not be aware of its blacklisted persons whose access may be available existence as it is going on right under their nose, as to all Banks. Mr. Farhat Saeed further said that it were. Sooner or later, someone falls' victim and Bank officials may even be involved in ATM fraud gets cheated and when the Bank ignores his and in defrauding, so called, 'photo account' protests he goes to the Banking Mohtasib holders in various ways. These 'photo account' (Ombudsman). As this is tantamount to fraud by holders are illiterate persons who have been Bank officials it falls within the jurisdiction of the allowed to open Bank accounts and their Banking Mohtasib. photograph affixed to their account opening form is supposed to give them access to Bank services. Other undesirable activities in which Bank However they too become susceptible to officials get involved, is the unauthorized sale of exploitation by unscrupulous Bank functionaries. insurance policies. Under the law Banks are only authorized to deal with such insurance policy Mr. Farhat Saeed said that in order to enable matters as relate strictly to the business that their the Banking Mohtasib (Ombudsman) to be better customers transact through the Bank. They are not prepared to successfully meet the challenges authorized to negotiate sale of Life Insurance posed by Bank fraudsters it was important that he Policies but that, according to Mr. Farhat Saeed is be further empowered by enhancing the skill level what they have been found engaged in. Here too, of those charged with investigation work and for unwary customers are duped into buying Life this a closer liaison with learning institutions of policies without properly taking them into repute like IBA, LUMS and Institute of Bankers, confidence regarding the implications of their Pakistan, be established. purchase. The objective is usually to manipulate The Advisor said that encroachment on its payment of heavy premium on the policy by the jurisdiction by the Wafaqi Mohtasib's office insofar unsuspecting customer for which the Bank official as complaints pertaining to functionaries of the receives a hefty cut. If the customer then tries to National Bank of Pakistan are taken up for liquidate the policy prematurely, the premium investigation by the Federal Ombudsman, was payments are deducted before payment is made. another challenge that needed to be addressed to

16 enable the Banking Mohtasib (Ombudsman) to do Insurance Co Ltd (SLIC); the National Insurance Co his work properly. He said that as per the Banking Ltd (NICL); Postal Life Insurance Co Ltd (PLICL) Mohtasib's charter he has jurisdiction over and the Pakistan Re-Insurance Co Ltd (PRICL) are officials of all Banks except employees of the State the major players selling Life Insurance and Bank of Pakistan and there is no justification for catering to the needs of Policy holders and this unwarranted encroachment on its jurisdiction command approximately 60% of total market by the Wafaqi Mohtasib (Federal Ombudsman). share of the Life Insurance business. Although the Insurance Ordinance 2000 mandates that all Mr. Farhat further pointed out that there maladministration complaints pertaining to was a wide variation in the funding and service rules of different Ombudsmen and this was a Insurance companies may be resolved by the challenge because it directly impacted on the Federal Insurance Ombudsman, complaints morale, well-being and career prospects of pertaining to the above four major Insurance supporting staff employed to facilitate the Companies continue to be processed and dealt Mohtasib in the discharge of his duties. He said with by the Wafaqi Mohtasib (Federal that there should be a convergence in the service Ombudsman) even after the office of the FIO was conditions and salary structure of different created in 2006. Presently, some 2,500 to 3,000 Ombudsmen. complaints pertaining to Life Insurance business are stately pending with the Federal Ombudsman and continue to be dealt with by him when as per (iv) Mr. Mubashir Naeem the relevant legislation they should be dealt with Director by the FIO. While the Federal Ombudsman's Insurance Ombudsman jurisdiction extends to all Federal Government functionaries, those functionaries who work for ursuant to enactment of the Insurance specialized organizations in the public sector fall Ordinance of 2000, the first Federal within the jurisdiction of the respective Federal PInsurance Ombudsman (FIO) was Ombudsman appointed to deal with complaints appointed in 2006. Its stated objective is to resolve pertaining to them. To illustrate, the Federal Tax disputes between the Insured Policy holder and Ombudsman deals with complaints pertaining to the Insurance Company that provides the functionaries of the Federal Board of Revenue insurance cover. These disputes can arise as a (FBR). On the same analogy, complaints pertaining result of maladministration by the insurance to all insurance companies ought to be dealt with company employees and it is over these cases that by the Federal Insurance Ombudsman (FIO) and the FIO exercises jurisdiction. As explained by Mr. not by the Wafaqi Mohtasib (Federal Ombudsman) Mubashir Naeem, Director, Insurance as his jurisdiction stood ousted in 2006 when the Ombudsman Secretariat, the insurance business is office of the FIO came into existence. The divided into two broad categories, Life Insurance continued investigation of public sector insurance and General Insurance. Life Insurance business company cases complaints by the Federal has approximately 70 - 75% market share of the Ombudsman is an anomaly that needs to be over-all insurance business. The State Life resolved on an emergent basis and it poses a major

17 challenge to the orderly functioning of the Federal A question was put to the speaker regarding the Insurance Ombudsman. 'small print syndrome' as it relates to insurance policy documentation and he was asked to amplify Mr. Mubashir said that another challenge his reference to the deliberate use of small print to being faced by the FIO pertains to funding print policy documents and requests from the constraints that limit the sphere of action of the insurance agent to the prospective buyer to sign on FIO and place restrictions on the appointment of the dotted line 'without delay.' Mr. Mubashir suitably qualified staff and purchase of necessary Naeem Siddique explained that the use of small equipment for the office. Although the situation print was partly to reduce the paper load as the use has improved after the enactment of the Federal of larger, more readable fonts would result in a Ombudsmen Institutional Reforms Act 2013 policy document running into 20-25 printed (FOIRA) and the budget allocation for the FIO is pages, may even more in certain cases. However, now a charge on the Central Consolidated Fund, he agreed with the participants suggestion that budget sanction under various Heads instead of a another reason for the use of small print was to one line budget as in the case of the Federal force the prospective buyer to avoid reading the Ombudsman and the Federal Tax Ombudsman entire document and quickly sign on the dotted continues to hamper the working of the FIO. line and thereby not be properly informed of the The ingenuity displayed by insurance elaborate terms and conditions laid down by the companies in creating hurdles in the expeditious insurance company. His alacrity could indeed cost payment of insurance money on death of the him dear because he can, then, find out that the insured or maturity of the policy, whichever is insurance company was not liable to pay him earlier, needs to be countered effectively by the FIO anything in certain situations that he was not for which he needs to remain one step ahead of aware of when he signed the document. In fact, those who seek to confuse and confound the policy there have been cases when the person buying a holder. policy was not even literate and could just sign his The Director explained that Insurance name. And the insurance agent made no attempt to Policy documentation that the policy holder 'read out' the policy terms and conditions to him! receives is traditionally printed using small fonts The deliberate use of small print may, therefore, be and is barely readable. In fact most people cannot seen as attempted 'entrapment' of the unwary go through the documentation without consumer. considerable eye strain and mental tension. The The nexus between Insurance Companies result is that most policy holders just rush through and Banking companies in which Bankers become the thousands of words in each policy document sales persons on the look-out for quick earnings, and simply ask the insurance agent to indicate when contrived to sell insurance, especially life where to sign the document. That is precisely what insurance, perforce to an unsuspecting customer the Insurance Company wants. And the haste that does not bode well for the orderly and healthy the policy holder shows can cost him dear as he development of the insurance industry. The may learn later when he is placed in a situation that insurance companies may turn a blind eye to this makes it necessary for him to put the policy to use.

18 malpractice involving employees of insurance Quetta, the provincial capital, and there are seven companies and Banks because it appears to be regional offices. helping their business. However, this practice once The Secretary explained that most of the established inevitably leads to corrupt practices in complaints pertained to maladministration issues which rapacious bankers strive to shortchange the relating to the Education and Prison departments insurance policy buyer in the expectation of in the province. He said that conditions in both reaping easy pecuniary benefits by way of a hefty these government departments are dismal and share in the first premium payment and by other nepotism, corruption, arbitrary appointments and dubious techniques. In other areas as well high handedness of the officials is rampant leading including health and travel insurance, scams to widespread disaffection with the governmental abound and FIO must be aware of the modalities machinery. He said that their employees had filed a involved. It is, therefore, a challenge for him to be very large number of complaints that presently aware of the corruption that fuels such enterprise could not be taken up because of the bar on the and all complaints filed leveling allegations of Ombudsman from taking up complaints for malpractices by Insurance Company employees investigation pertaining to service matters. He need to be investigated aggressively and with argued that this bar be removed and the sound understanding of the methods used to Ombudsman be given jurisdiction to investigate deprive policy holders of the rightful cover that the such cases as the affected persons were not able to policy entitles them to. meet expenses involved in filing complaints before the regular appellate fora provided for appeals related to service matters such as the Services (v) Mr. Riaz Ahmad Secretary Tribunal. The Secretary was also critical of the Provincial Ombudsman alleged encroachment on the Ombudsman's Balochistan jurisdiction by the judiciary. He said that notwithstanding the fact that maladministration n Ordinance - VI of 2001 dated 19.03.2001 issues fell exclusively within the Ombudsman's created the office of the Ombudsman for jurisdiction as per express statutory stipulation, Athe province of Balochistan, Pakistan's the judiciary still took up cases for adjudication largest Province. In his presentation, Mr Riaz involving maladministration issues which is not Ahmad, Secretary, Ombudsman Balochistan, fair to the aggrieved persons and is an affront to explained the salient features of the office and the the Ombudsman and this practice should be work done by the Ombudsman since inception of stopped. the office. Like other Ombudsmen, the According to the Secretary, a major Ombudsman Balochistan deals with maladmini- challenge being faced by the Ombudsman was an stration issues as they relate to the provincial acute paucity of financial resources. The financial government functionaries. Since 2001 a total of constraints had statedly rendered the office 11,000 complaints were disposed of out of the ineffective since the required funds to fill in all staff 12,000 received. The Ombudsman is based in vacancies and conduct in-depth investigations on

19 proper lines are not made available. Even government's harsh and uncaring stance in the necessary capital expenditure such as that matter and argued strongly that the Ombudsman involved in purchase of office equipment could not Balochistan may be given financial autonomy on be incurred. Budgetary allocations are deficient the same lines as the Federal Ombudsmen and a and are made under different Heads so that the one line budget should be allowed enabling the Ombudsman has practically no room left to Ombudsman to allocate the budgetary allocation maneuver in case he wants to change the as he deemed fit. The Secretary also argued that allocation depending on the actual needs of the the Ombudsman be allowed to investigate office. The Secretary further said that it had not complaints pertaining to Service matters of been possible for the staff employed in the FTO government employees as a very large number of Secretariat and the regional offices to benefit from such complaints are lying unattended. Finally, the any training courses to upgrade their skill level Secretary pleaded that the court's having accepted and although the Ombudsman Balochistan is a that the Ombudsman's is a ‘quasi’ judicial office member of the AOA and the IOI, participation in grant of judicial allowance to the Ombudsman and their conferences and training workshops is his staff may be approved. problematic as the government is not willing to release any funds. He further pointed out that in spite of the fact that the Ombudsman office has (vi) Mr. Atta ur Rahman been operational since 2001 the public at large is Advisor to the KPK Ombudsman generally unaware of its existence and those who wo years old, the Ombudsman's office for were aware have a very limited understanding of Khyber Pakhtunkhwa is among the the work done by the Ombudsman. The Secretary youngest in the country. In his said that this lack of knowledge of the T presentation, Mr. Atta ur Rehman, Advisor to the Ombudsman's office and the actual work done in KPK Ombudsman explained the working of the the office was mainly due to the absence of any office and its role in resolving complaints related projection of the office through the media, again to maladministration by the Provincial due to resource constraints. A “Complaint Cell” set Government employees. At the outset, the Advisor up to deal with complaints pertaining to children regretted that the jurisdiction of the Ombudsman has been lying dormant since long as the provincial had been arbitrarily curtailed in so far as the government took no interest in providing needed Provincially Administered Tribal Areas (PATA) financial and manpower resources. He said that were excluded from his remit and this was children were among the most vulnerable significant as PATA constituted almost 25% of the members of society and their filing a complaint in total land area of Khyber Pakhtunkhwa. He said person before any authority alleging that there was no justification for this curtailment maltreatment by government functionaries was as PATA was integral to Khyber Pakhtunkhwa and hugely problematic. The unique opportunity provincial employees working there in any accorded in this regard by the office of the capacity ought to fall within the KPK Ombudsman must not be denied to them. The Ombudsman's jurisdiction. Secretary was extremely critical of the provincial

20 Besides the jurisdictional anomaly referred was mainly due to inadequate projection of the to above, the Advisor also complained of alleged, Ombudsman in the print and electronic media. serious political interference in the working of the The Advisor argued strongly that adequate office. He said that staff was assigned to the funds be placed at the disposal of the Ombudsman Ombudsman's office by the provincial government to enable him to do his work effectively and he arbitrarily without consultation. Staff was also pleaded that a single line budget allocation may be withdrawn in a whimsical manner that was made so that the Ombudsman may be able to detrimental to orderly discharge of duties by the assign resources himself to any area where they Ombudsman. Furthermore, he said that the may be required at any given time. The Advisor “Woman and Child Section” set up in the pointed out that single line budget allocations had Ombudsman's Secretariat had been abruptly already been approved for Federal Ombudsmen closed down and as a result these vulnerable and the same should be done in the case of members of society were left with no recourse Provincial Ombudsmen as well. He said that this with regard to redressal of their grievances. He was the only way that financial and functional also alleged that the tenure of the Ombudsman had autonomy could be assured for the Ombudsman's been arbitrarily reduced from four years to three office. years for no apparent reason. The Advisor was highly critical of Other challenges to the effective appointment of the retired government functioning of the Ombudsman's office were those functionaries to the Ombudsman's office and said related to financial constraints. He said that the that this practice should be stopped and serving budget allocation for the office was wholly officials only may be assigned. inadequate. As a result, it had not been possible to fill in all available staff positions, purchase urgently required equipment including office (vii) Ms. Mira Phailbus equipment and motor vehicles, hire appropriate Punjab Ombudsman For Protection premises in a good location that was convenient Against Harassment of Women at for complainants, impart training to staff and Workplace. properly project the Ombudsman's office through an effective media campaign. He explained that the he office of the Ombudsman for Protection office location had been shifted four times in the against Harassment Of Women at last two years and it had still not been possible to Tworkplace was created on 5th January hire an office in a central location, making it very 2013 following enactment of the Punjab difficult for complainants to reach the Protection against Harassment of Women at Ombudsman. Also, during a recent visit to Dera workplace (Amendment) Act 2012 (Act III of Ismail Khan, where the literacy rate was relatively 2013) and Ms. Mira Phailbus was appointed as better, he found out that even after two years of its Ombudsman on 2nd March 2013. Her jurisdiction existence no one had any knowledge of the and authority is on the same lines as in the case of Ombudsman's office in D. I. Khan. He said that this other Ombudsmen dealing with the issue of

21 protection against harassment of the women at and there are some tentative indications that these workplace. The major challenge, as in the case of efforts have begun to bear fruit. 10 cases involving other such offices, is the lack of financial support harassment of women at workplace have been provided by the provincial Government. The office filed in the Ombudsman's Secretariat, 2 cases are has to cater to the needs of the entire Punjab before the Enquiry Committee for hearing, 3 cases Province comprising 36 districts and having a have been forwarded to the concerned population of 101 million in which women departments for hearing and 5 cases are under comprise 52 million. The Ombudsman has been process. provided with only one small room for the main As evident from the discussion above, the building of the Ombudsman Punjab and is utilizing office needs urgent budgetary support in order to the services of mostly volunteer officials from the be able to do its work in right earnest. Without Punjab Ombudsman's Secretariat. The appropriate accommodation and adequate staff Ombudsman has no meaningful logistical support the Ombudsman can have no meaningful impact and very limited access to the print and electronic on the target audience. At the present time it is a media. The Ombudsman explained in her dire challenge for the Ombudsman just to keep the presentation at the workshop that her problems institution alive. were compounded by the fact that the public seems to be totally unaware of the Protection against Harassment Of Women at Workplace (viii) Mr. Aziz Iqbal (Amendment Act, 2010). It is thus, necessary to Registrar first take the public into confidence about the The Federal Ombudsman ra t i o n a l e f o r s e t t i n g u p t h i s o f f i c e . For Protection Against Harassment Notwithstanding the fact that the Provincial Of Women at the Workplace Government did not provide any funds to this office a media campaign was started to project the r. Aziz Iqbal, Registrar, Office of the office almost as a personal initiative by the Federal Ombudsman for Protection Ombudsman herself. Both electronic and print Magainst Harassment of Women at the media were mobilized to inform the people about Workplace made a presentation to explain the the working of the Ombudsman's office. evolution of the office, its working and the Educational Institutions, including Medical challenges that it faced. He said that the Protection Colleges and Teaching Hospitals were also visited against Harassment of Women at Workplace Act by the Ombudsman. The noted Oscar Academy 2010 was promulgated on 11th of March 2010 and Award Winner, Miss. Sharmeen Obaid Chinoy, had the first Ombudsman, Musarrat Hillali was been engaged to prepare a documentary on the appointed on the 13th January 2011. However, the subject of harassment of women at workplace. office became fully functional from 1st July 2011 with assignment of staff and allocation of budget In spite of the fact that the office has only and Justice (Retd) Yasmin Abbasey was appointed skeleton staff and extremely limited budget, Federal Ombudsman on 15th March 2013. Mr. Aziz efforts have been made to implement the statute Iqbal explained that the statute was wide ranging

22 in scope and encompassed most public and private display(s) that demeans, belittles, or sector entities including bodies corporate and they causes personal humiliation, and any act are all required by law to take strict cognizance of of intimidation or threat.” any act that may be seen as harassment. The term Thus, it stands explained that 'harassment' harassment was taken to mean: does not have a purely sexual connotation and “Any unwelcome sexual advance, request 'improper behavior' of any kind by an employer for sexual favour or other verbal or written against an employee and even something as communication or physical conduct of a abstract as a 'hostile work environment' comes sexual nature or sexually demanding within the purview of the Ombudsman. attitudes Complaints deemed fit for investigation are c a u s i n g i n te r fe re n c e w i t h wo rk taken up by a formally constituted three member performance or creating an intimidating, enquiry committee including one from senior hostile or offensive work environment management, a senior representative of The attempt to punish the complainant for employees (if there is no CBA) and at least one refusal to comply to such a request or is woman member. A chairman is designated from made a condition for employment” amongst the three members and the committee is required to submit its report to the competent Mr. Aziz Iqbal clarified that although the authority within 30 days. If the complainee is held title in the statutory enactment referred to guilty then major or minor penalty may be levied 'women' it was not correct to assume that the in accordance with law. Representation to the Ombudsman could only take up complaints of President of Pakistan may be filed against the harassment at workplace filed by a women only. He penalty order passed by the competent authority said that the statute was gender neutral and both within 30 days and decision by the President is men and women victims of harassment at the required to be made within 90 days. No court or workplace could file complaints before the other authority may intervene once the Ombudsman. As regards the definition of Ombudsman has invoked his jurisdiction. harassment, he said that although it was broad in scope and explained what harassment entailed yet The advisor informed that since inception, a total of 157 applications of harassment at it was felt that it needed to be further improved in workplace had been filed and out of these, 72 were order to better clarify its import. The amended found to fall within the jurisdiction of the definition of harassment has been proposed as Ombudsman and were taken up for investigation. under: 66 complaints so received had been decided and 6 “(a) an improper conduct by an employer, that were under process. The maximum complaints is directed at and offensive to employee relate to the Federal Government (40) followed by or to feel that she or he is working in a Punjab(18), Sind(6), KPK (4), FATA(1) and hostile environment; or Baluchistan (3). 51 of these complaints pertain to (b) any objectionable act(s), comment(s), or women and 21 to men. 63 complaints relate to public sector entities in which the Education

23 Department was on top with 19 complaints. Only 9 Furthermore, judicial allowance be approved for complaints pertain to the private sector. the Ombudsman and his employees as it was now recognized that the work done by the Mr. Aziz Iqbal stated that the office faces Ombudsman was quasi-judicial in nature many problems but its foremost challenge was wholly inadequate financial funding. He said that paucity of funds made it impossible for the (ix) Mr. Najam Saeed Ombudsman to engage the required skilled staff, Member Incharge hire a proper building in a suitable location, Regional Office of the purchase essential durables including office Ombudsman Punjab equipment, motor vehicles etc and project the Ombudsman's office in the print and electronic he Punjab Ombudsman was established in media. He said that much more needed to be done 1997 following enactment of the Punjab and for which additional financial resources were TOffice of the Ombudsman Act 1997 (Pb Act urgently required. He went on to say that not many X of 1997 dated 30.06.1997) that repealed earlier people are yet fully aware of the aims and objects promulgation of the Punjab Office of the for which the office was set up and because of lack Ombudsman Ordinance 1997 ( XIV of 1997) by the of information about the jurisdiction and authority Governor Punjab on 23.04.1997. Mr. Najam Saeed of the Ombudsman the response of aggrieved Member Incharge Regional Office of the Punjab persons to date had been rather limited and the Ombudsman, Rawalpindi made a presentation in actual number of harassment cases were much the “Challenges Ombudsmanship” Workshop held higher than what the figures suggest. It is, under the auspices of the Forum of Pakistan therefore, imperative that the full import of the Ombudsman on 25-26 September at Islamabad. office be brought home aggressively and social Mr. Najam Saeed, Advisor / Member In taboos against filing a complaint against the charge, provincial Ombudsman Punjab, said that employer be effectively countered. Propagation of the foremost task of the Ombudsman was to the Ombudsman's message is not an easy task in combat maladministration in all its forms and view of the conservative nature of our society, deep manifestations and to diagnose, investigate, seated fear of losing a job, the widespread illiteracy redress and rectify wrongs committed in this and the general lack of knowledge about the office context. He said that in order to achieve optimum of the Ombudsman and its effectiveness in results the emphasis must be on identifying and providing relief to aggrieved persons. remedying systemic problems in the agency Mr. Aziz Iqbal said that in order to ensure responsible for maladministration as in the long meaningful financial and functional autonomy for run this is the only way maladministration can be the Ombudsman, it was necessary to allocate rooted out permanently. He lamented that adequate financial resources to the office and to unfortunately a purely bureaucratic approach was grant the Ombudsman the authority to utilize the u s u a l l y f o l l o w e d i n d e a l i n g w i t h funds in his best discretion. For this it was maladministration and was critical of the, in his necessary that a one line budget be approved. opinion, undue emphasis on redressing the

24 symptoms of maladministration put forth in by the very excellence of his approach that was individual complaints rather than addressing the able to convince and transform by power of systemic causes of those acts. He likened this argument and logic rather than the threat of action approach to spraying pesticide on the leaves of an for Contempt. afflicted tree when the sickness was actually in its roots. Mr. Najam argued that the Ombudsman should strictly desist from encroaching on the (x) Syed Muhammad Shujaat Ali domain and jurisdiction of the executive and must Consultant Provincial Ombudsman, Sindh concentrate instead on making recommendations to root out maladministration that are so he office of the Ombudsman, Sindh, was persuasive and have been so well-formulated that established on 23rd January 1992 by 'The the executive has no hesitation or reluctance in Establishment of the Office of the implementing the same expeditiously in true letter T Ombudsman Sindh, Act 1991 (Sindh Act No.1 of and spirit. The clear implication was that 1992). The office was reported to have received a implementation problems arise when the total of 148,796 complaints since its inception and Ombudsman deviates from the role that he ought out of these 45,680 were admitted for to play as arbiter, mediator and problem solver and investigation. 33,997 complaints were disposed of wittingly or unwittingly starts interfering in the by the Ombudsman since 1992 with relief given to executives' jurisdiction and thereby evokes a complainant's in 23,915 cases. Most of the negative response. complaints received were directed against officials Coming to the Federal Ombudsmen of the Police Department followed by Education, Institutional Reforms Act 2013 (FOIRA) that was Revenue, Local Government and Agriculture, widely seen as landmark legislation in the Irrigation and Power, Zakat and Usher, KMC and empowerment of Federal Ombudsmen, he was the KDA. The Ombudsman also received 242 only participant in the Workshop to actually complaints pertaining to children and 103 were criticize the amendments introduced through this decided. 130 Complaints were filed under the enactment. He was of the opinion that the Freedom of Information Act of 2006 and 85 attempted empowerment of Federal Ombudsmen decided. Representations filed against the through such legislation was misguided as it had Ombudsman's recommendations before the only succeeded in transforming the Ombudsman's Governor, Sindh are 404 with 372 decided office into just another bureaucratic set-up like including 314 in which the Ombudsman's any anti-corruption office manned by police recommendations were upheld. personnel. He said that instead of concentrating on Among the challenges identified by Syed enforcing compliance with recommendations by Muhammad Shujaat Ali, Consultant, Provincial invoking statutory authority conferred by alleged Ombudsman, Sindh, said that the Ombudsman harsh laws like FOIRA the Ombudsman must aim encountered considerable resistance from at convincing complainees to follow the right path

25 government departments and autonomous bodies The Consultant, Provincial Ombudsman in expeditious implementation of the was of the opinion that the Ombudsman was Ombudsman's recommendations and deliberate hampered in implementing his recommendations adoption of tactics to delay their implementation effectively as he lacked statutory authority to grant thereby hindering redressal of complainant's temporary injunctions and initiate Contempt grievances. Budgetary constraints are also action for defiance of his recommendations. identified as a major challenge that prevented the Ombudsman from properly implementing his mandate. It was pointed out that lack of finances (xi) Mr. Absar Alam prevented the Ombudsman from setting up Director Ombudsman AJ & K regional offices to facilitate outreach making it very difficult for aggrieved persons to have easy he Office of the Ombudsman AJ&K was access to the Ombudsman. After great difficulty 15 established in 1991 through a Presidential regional offices were set up in different districts of Ordinance that was subsequently adopted the province but 8 districts are still not covered. T as an Act (XIV of 1992) by the Legislative Assembly The lack of finances also prevented the of Azad Jammu and Kashmir which came into force Ombudsman from launching a promotional on 24th June 1992. Since its inception it has campaign for the office in the print and electronic disposed of a total of 586 recommendations made media. This is crucial to create awareness about by the Ombudsman while another 314 were yet the Ombudsman Office amongst the people as even pending implementation. Lack of adequate after lapse of many years since its inception the finances was identified as a major challenge for the people were not well-informed about the office preventing the setting up of the required Ombudsman. Setting up of a Children Complaints number of regional offices that would have greatly Office in the Ombudsman Secretariat in facilitated the Ombudsman's outreach. Mr. Absar collaboration with the UNICEF was cited as an Alam , Director, Ombudsman AJ&K said that achievement but it has added to the workload and Sections 16 and 36 of the Ombudsman Statute (Act has increased pressure on finances. The Children XIV of 1992) were repealed in June 1996 which Complaint Office is designed to deal with child adversely impacted on the authority of the abuse such as exploitation of child labor, physical Ombudsman, especially in his ability to implement abuse at workplace and mistreatment of juvenile recommendations effectively. He said that these prisoners. This was a new area for the powers were available to other Ombudsmen and Ombudsman and was seen a big challenge for him. there was no justification to deprive the AJ&K Mr. Shujat Ali said that despite increasing Ombudsman of the same. He further pointed out workload, modern techniques of data storage, that significant jurisdictional issues beset the collation and retrieval had not been put into place office and prevented the Ombudsman from which was necessary to maintain efficiency at dealing with maladministration in AJ&K acceptable levels. Progress in this area was also Government Department's effectively. In this held up due to lack of finances. context he said that the Departments of Excise and

26 Taxation, Accountant General's Office, and had wide-ranging scope and included all Kashmir Council Secretariat served the public but government departments, corporations, did not fall in the Ombudsman's jurisdiction. autonomous and semi autonomous bodies and Maladministration by its employees could public sector organizations within its ambit. As per therefore not be contested before the AJ&K section 3 of the Statute every organization is O m b u d s m a n . S i m i l a r l y, t h e S p e c i a l bound to constitute an enquiry committee under Communication Organization (SCO) was also this Act within 30 days of its enactment consisting serving the people of AJ & K but did not fall in the of at least 3 members including a senior member of preview of the Ombudsman. management, a senior representative of employees and at least one woman member. Mr. Absar Alam maintained that empowerment of the Ombudsman was a major Mr. Larik went on to say that the issue and needed to be resolved urgently as Ombudsman's office faces a major challenge without the required authority under the statute it related to non-availability of funds for its day to was not possible for the Ombudsman to remain day operations and the seriousness of the problem effective. It was urged that the powers conferred was highlighted by pointing out that although the on Federal Ombudsman through the Federal Secretariat was established on 22nd October Ombudsmen Institutional Reforms Act, 2013 be 2012, appointment of officers and staff took place adopted for the AJ & K Ombudsman as well. in May 2013 but there had been only limited disbursement of salaries to date. Additionally, (xii) Mr. Sada Hussain Larik Assistant Registrar great difficulty has been experienced in securing Sindh Ombudsman For Protection proper accommodation. Only two rooms have Against been assigned to the office in the Sindh Secretariat, Harassment of Women at the Karachi. In order to reach out to the public at large Workplace. the Ombudsman directed the establishment of District Complaint Centers and 27 Deputy r. Sada Hussain Larik, Assistant Commissioners were formally approached in this Registrar, Sindh Ombudsman for regard. However, the response has been extremely MProtection against Harassment of poor and only 7 Deputy Commissioners agreed to Women at Workplace made a presentation on the provide the required accommodation. evolution of this office and the work done since its Lack of the awareness about the work done inception on 5th July 2012 following enactment of by the Ombudsman is a major impediment in the the Protection against Harassment of Women at proper activation of this office. Many women are Workplace Act 2010 (Act No. IV of 2010 dated 11th either not fully aware of its existence or are March 2010) and former judge of Sind High Court confused about the jurisdiction and extent of Syed Pir Ali Shah was appointed as first authority of the Ombudsman. Because of Ombudsman of the newly- created office. widespread illiteracy and the conservative Mr. Sada Hussain Larik explained that the complexion of society, women are generally legislation through which the office was created, hesitant to come forth and file complaints against

27 their employers. When they are willing to do so, he deemed fit as in the case of the Federal they would rather allege financial corruption than Ombudsman. Such financial autonomy was a workplace harassment. There is also a deep condition precedent to full-functional autonomy seated, underlying fear of losing a job and being without which the Ombudsman would not be able deprived of a source of livelihood in case to properly implement the mandate in the manner complaints are filed against employers. envisaged by those who passed the legislation Mr. Larik said that in order to ensure that setting up the office. Although a few complaints of the Ombudsman's office is projected effectively, a harassment of women in the workplace have been concerted campaign needed to be launched received in the Ombudsman Secretariat no through the print and electronic media. However, significant progress had been made so far in the acute shortage of financial resources had dealing with these cases. Finally, Mr. Sada Hussain prevented any initiative in this regard. Larik argued strongly that Judicial Allowance be allowed to the Ombudsman as well as all support Although on paper, staff and officers had staff as it had been acknowledged by the Courts been assigned to the Ombudsman's office by the that the Ombudsman's office was a quasi judicial Provincial Government, yet in fact in most cases, forum. the officials deputed to work in the Ombudsman's (xiii) Justice (Retd) Yasmin Abbasey Secretariat had not been able to obtain release Ombudsman for Protection against orders from their parent departments and assume Harassment of Women at charge in the Ombudsman's office. Resultantly, Workplace. most of the posts were still lying vacant. As already pointed out above, it had not been possible to make ustice (Retd) Yasmin Abbasey sought to allay fresh recruitments as the required funds had not the fears of those who apprehended that the been allocated. The skeleton staff that was Jrights of working men who are harassed at the available in the Ombudsman's Secretariat was workplace might be compromised as the largely untrained and was not in a position to Ombudsman would be concerned with providing conduct meaningful investigations. protection against workplace harassment to Mr. Larik further emphasized that although women exclusively. The ombudsperson explained the office of the Ombudsman for Protection against that it was not correct to infer from the title of the Harassment of Women at Workplace had been office that it was mean't to cater to complaints of created in the Province of Sindh, very little had harassment from women alone. She clarified that been done by way of providing the required both men and women were included in the support facilities and infra-structure that would Ombudsman's jurisdiction and the title alone did enable the office to actually start doing the work not convey the full scope of the protection for which it was set up. It was imperative that the envisaged under the law to working 'persons' and required financial allocation be made without any the word 'person' was gender neutral and further loss of time and when the funds are made encompassed both working men as well as available the Ombudsman should have the women. discretion to allocate the funds in the manner that

28 Justice (Retd) Abbasey went on to say that needed to be put into effect and it was also in order to make the law pertaining to prevention necessary to extend the Ombudsman's outreach by of workplace harassment more effective, a number making her presence known far and wide. of amendments had been proposed. The first The Ombudsman drew attention to the fact relates to substituting the word "persons" for the that after enactment of the landmark, 'Federal existing, "women," in the title of the office. The Ombudsmen Institutional Reforms Ordinance second amendment relates to enlarging the 2013,' (section-18 thereof) any matter pertaining definition of "Harassment" to include all sorts of to workplace harassment could not be taken up by harassment and not merely "Sexual Harassment." any authority or court other than the duly The Ombudsman was of the view that it was appointed Ombudsman. She regretted that the full possible to harass a working person by a number import of the legislation did not appear to be of different methods and making overt sexual evident to those charged with adjudicating advances was only one of those methods. She said workplace harassment cases and she proposed that it would be simplistic, even naive to link that in order to explain the correct statutory workplace harassment exclusively to sexual position it was necessary that a panel of qualified harassment and it was for this reason that the counsel appear before the court or authority that word "Harassment" alone was deemed sufficient takes up such cases for disposal and explains the as it would include all sorts of harassment within law to them properly and effectively so as to bring its purview. to an end any casual encroachment of the The Federal Ombudsman for Protection Ombudsman's jurisdiction. against Harassment of Women at Workplace said Justice (Retd) Abbasey emphasized that a that Pakistan could be justly proud for enacting a condition precedent to making the office of the special law to take cognizance of workplace Ombudsman for Protection against Harassment of harassment especially of women and she informed Women at Workplace truly effective as a relief that Pakistan was the only country in Asia to giving office it was essential that reasonable funds formally pass such legislation. be made available to enable the office to carry on Justice (Retd) Abbasey lamented the fact the work it was set up for. She said that the existing that although the Ombudsman office was created financial allocation was wholly inadequate and in Pakistan way back in 1983 not many people required to be increased substantially so as to were aware of its existence or its import. She said ensure the financial and functional autonomy of that even as regards the Ombudsman for the institution. Protection against Harassment of Women at Finally, the Ombudsman made an Workplace the general awareness of the public at impassioned plea exhorting all those (women as large about the office was extremely limited. She well as men) who had suffered workplace attributed such indifference to lack of any harassment in any form to have the courage to sustained campaign to publicize the Ombudsman come forward and file a complaint calling for strict institution through the print and electronic media. action against the perpetrators of such wrong In her view a sustained awareness program doing. She said that this was the only way that the

29 evil of workplace harassment could be countered common man and should therefore be substituted effectively. by another, more comprehensible, term. In her The Ombudsman had earlier participated response she opined that unfortunately not much in a lively Question and Answer session after the attention was paid to the text of statutory presentation made by Ms. Mira Phailbus, Punjab enactments. She pointed out that "harassment" Ombudsman for Protection against Harassment of was a derivative of "Harassa" which was easily Women at Workplace. She fielded a question from understood in its vernacular form. It was also one of the participants in the Workshop that the pointed out that the word "harassment" was word "Harassment" was not understood by the adopted in consultation with eminent Urdu and English language specialists and it was their

30 Chapter III

Analysis

31 i) Background Establishment of the office of the Mohtasib (Ombudsman) in Azad Jammu & Kashmir Act 1992 he Ombudsman's office, in the first quarter The Punjab Ombudsman - 1997 of the 21st century, exists in 144 sovereign The Punjab Office of the Ombudsman Act,1997 States out of the 196 placed on the world T (Act X of 1997) map. The great majority have multiple Ombudsman offices both at the national as well as The Federal Tax Ombudsman - 2000; regional levels. In a number of jurisdictions, the Establishment of the Office of the Federal Tax Ombudsman has migrated, as it were, from the Ombudsman Ordinance 2000; ORDINANCE NO. public sector to the private sector as well. The XXXV OF 2000 enacted 11th August 2000. Ombudsman is therefore no longer a monolithic The Balochistan Ombudsman - 2001 entity presiding exclusively over a vast State bureaucracy. Rather, while the traditional National Ordinance VI of 2001 Ombudsman may still be a dominant office, there The Insurance Ombudsman - 2006 are also other Ombudsman offices that cater to specific segments of the public and private sectors The Insurance Ordinance of 2000 (Ordinance each with their own special sphere of activity. No.XXXIX of 2000), the first Federal Insurance Collectively therefore, an Ombudsman family is a Ombudsman (FIO) was appointed in 2006. common feature in almost every modern State. The Sindh Ombudsman for the Protection of Pakistan embraced the Ombudsman's Women against Harassment at Workplace - office, re-born in the early 19th Century in Sweden, 2010 in 1983 when the office of the Wafaqi Mohtasib The Khyber Pakhtunkhwa Ombudsman -2010 (Federal Ombudsman) was created. Since then, Act XIV of 2010 eleven other Ombudsman offices have been established. We thus, have five Ombudsmen The Federal Ombudsman for the Protection of catering to the diverse needs of the Federation and Women from Harassment at Workplace - 2011 seven to those of the provincial governments and Protection against Harassment of Women at Azad Jammu & Kashmir (AJ&K). The position is Workplace Act 2010 was promulgated on 11th of summarized below: March 2010 and Ms. Mussarrat Hilalli was The Wafaqi Mohtasib (Federal Ombudsman - appointed Federal Ombudsman 1983); The Punjab Ombudsman for the Protection President's Order No.1 of 1983 (Wafaqi Mohtasib against Harassment of Women at Workplace (Ombudsman) Order 1983 (Amendment) Act 2012 The Sindh Ombudsman - 1992 Act III of 2013 Sindh Act No.1 of 1992 The Banking Mohtasib (Ombudsman) - 2013 The AJ&K Ombudsman - 1992 BANKING COMPANIES ORDINANCE 1962 ; PART IVA: BANKING MOHTASIB 82A. Appointment of

32 Mohtasib President, Secretary, and Treasurer respectively. All of the above Ombudsmen, whatever The FPO also resolved to take up several their mandate, are united in one common objective new initiatives to make the Ombudsman services - combating maladministration and aiming for more transparent and effective, and to transform good governance. the Forum into a vibrant and credible Justice sector public service organization. ii) The Forum of Pakistan Ombudsman T h e t w o d a y ' C h a l l e n g e s o f Ombudsmanship' Workshop-25th and 26th September 2013- was organized by the Pakistan n 15th April 2011, Dr. Shoaib Suddle, Forum of Ombudsman as part of its capacity Federal Tax Ombudsman; Mr. Azhar building effort for the members of the forum and to OFarooqi, Insurance Ombudsman; Mr. increase public awareness about the Ombudsman Mansur-ur-Rehman Khan, Banking Ombudsman; Institution in Pakistan. Mr. Khalid Mahmood, Punjab Ombudsman, Mr. Asad Ashraf Malik, Sindh Ombudsman; Mr. Badshah Gul Wazir, Khyber Pakhtoonkhwa iii) Fiscal Imperatives Ombudsman; Mr. Ali Akbar Baloch, Balochistan Ombudsman; and Mr. Muhammad Rashid Khan, AJ t a time when the 'fiscal crunch' is a & K Ombudsman) got together in Islamabad and, ubiquitous, indeed, a global phenomena, after discussing at length the pressing need to set with alternate fora aggressively up a common platform of Pakistan Ombudsmen, A competing for financial resources, the formed the Forum of Pakistan Ombudsman which Ombudsmen, notwithstanding their somewhat is affiliated to the Asian Ombudsman Association privileged position, cannot expect to be immune to (AOA) and the International Ombudsman Institute such pressures. As observed by Beverly A. Wakem (IOI). The Forum of Pakistan Ombudsman (FPO) CBE, Chief Ombudsman, New Zealand and then was set up with the objective of improving President of the IOI in a presentation to the 12th coordination among the members and Conference of the AOA, Japan, Nov 2011 : standardizing their practices, as also for raising their capacity and enhancing the quality of their "The biggest challenge for all of us is to service-delivery. It was strongly felt that ensuring remain relevant and responsive and to effective accountability of country's public manage our constrained resources to best functionaries against maladministration through effect.” Ombudsmanship was a sine qua non for promoting However, while it is essential that good governance in Pakistan. Ombudsmen learn to live within their means, at The FPO unanimously elected Dr. Shoaib the same time it is imperative that they be Suddle as its President, while Mr. Khalid provided with resources sufficient for them to Mahmood, Mr. Badshah Gul Wazir and Mr. carry out their statutory mandate. In this Mansur-ur-Rehman Khan were elected as Vice Workshop the presentation made by the

33 Balochistan and KPK Ombudsmen and the Sindh iv) Human Rights and Punjab Ombudsmen for the Protection of Women from Harassment at the Workplace made uman rights issues have come to the fore it all too evident that they were placed in an in recent years and have also impacted on extremely difficult situation in which even bare the Ombudsman's office. Needless to say minimum needs were not being met and the very H this is not a traditional area of concern for the viability of the offices had been put into question. Ombudsman. However, the number of human The situation was especially bad for Workplace rights institutions has surged dramatically over Harassment Ombudsmen and it was obvious that the past three decades and a variety of forces have they had been forced to fend for themselves and got the Ombudsman involved in dealing with such survive on ad-hoc handouts from the provincial issues. Worldwide, the growth in the number of government . They had no permanent Ombudsmen dealing with human rights issues has accommodation and were being asked to make do been nothing short of explosive as is evident from with sub-standard work places grudgingly made the fact that today at least half of the Ombudsman available in the provincial government secretariat institutions in the world deal with human rights or the provincial Ombudsman secretariat. issues, many pertaining to women and children. Setting up Ombudsman offices entails The evolution of law relating to workplace expenditure and while there is no doubt that the harassment and the creation of Ombudsman expenditure is justified as maladministration offices to deal with the issue is summarized below: makes the workforce and organizations much less efficient than their potential capacity, the fact is  January 21, 2010 Senate Passes Bill Against that the Ombudsman has to compete with other Harassment Of Women At Workplace entities for resources. One of the obvious ways to The Senate of Pakistan passed a bill to further save on expenditure is for the Ombudsman to do amend the Pakistan Penal Code 1860 and the multiple tasks. Thus, instead of having a separate Code of Criminal Procedure 1898 against Ombudsman to handle complaints pertaining to sexual harassment at the workplace, amid children the Wafaqi Mohtasib - Federal strong criticism from religious parties. Ombudsman - and the Sindh Ombudsman both  January 22, 2010 Pakistan Clears Landmark have set up Child Complaint Offices (CCO) that Bill Against Workplace Harassment receive, investigate and dispose of complaints' involving child rights abuse. This, of course, is a Overcoming conservative opposition for years, drain on their existing financial resources but is the National Assembly unanimously passed a deemed to be justified considering the sensitivity landmark bill to punish harassment of women of the issue and the priority attached to redressing at workplaces, though last-minute child grievance. amendments extended the protection also to men as an apparent compromise. Similarly, complaints filed under the Freedom of Information Ordinance, 2002 are also  January 30, 2010 Bill Signed Into Law For Women being received in the Ombudsmen offices. Protection Against Harassment In Pakistan

34 Pakistan made women protection bill into law most common types of harassment is when President signed the 'Protection against sexual harassment which is defined as an Harassment of Women at Workplace Bill 2009′ unethical code of conduct which a woman which the parliament adopted on January 21. f i n d s t h r e a t e n i n g o r o f f e n s i v e (Goonesekere, 2004). This unwanted sex-  March 9, 2010 President Signs Bill: related behavior (Fitzgerald, Swan, & Harassment Of Women Is Now A Crime Magley, 1997) and concealing the  13th January 2011 - Ms Musarrat Hillali was phenomena is a part and parcel of all appointed the first Federal Ombudsman for occupations and industries (Hunt, Protection against Harassment of Women at Davidson, Fielden & Hoel, 2007). It could Workplace. be in the form of gender harassment (e.g.,  5th July 2012 - Syed Pir Ali Shah former Judge verbal/nonverbal behavior abuse); or of High Court of Sindh, Karachi, was appointed unethical act for gaining attention (e.g., Sindh Ombudsman for Protection of Women at touching, calling); or sexual coercion (e.g., Workplace. sexual bribes or threats) (Fitzgerald, Gelfand, & Drasgow, 1995)......  5th January 2013 - enactment of the Punjab According to Parveen (2010), a total 24119 Protection against Harassment of Women at of violence against women cases were the Work Place (Amendment) Act 2012 (Act III reported in Pakistan during 2008-10 of 2013) and Prof. Dr. Mira Phailbus was among which only 520 workplace appointed as Punjab Ombudsman on 2nd harassment cases were filed.” March 2013.  [Sexual Harassment at Workplace in Pakistan- Issues and 15th March 2013 - Justice (Retd) Yasmin Remedies about the Global Issue at Managerial Sector Abbasey was appointed Federal Ombudsman Munir Moosa Sadruddin- Journal of Managerial Sciences Volume VII Number 1] for Protection of Women against Workplace Harassment. The deliberate creation of psychologically stressful situations at workplace employing a The harassment of working women at variety of techniques all contrived to coerce the workplace is one of the most unpleasant realities female worker into submission is probably of of our times. During the workshop deliberations it greater significance as a long term issue. The was agreed that overt sexual harassment is not the Federal Workplace Harassment Ombudsman only form of harassment suffered by the working opined during the deliberations that the statute women, though it well be the most talked about, envisages cognizance of harassment complaints but also there are other forms of harassment. from both genders, men and women and it was However, wrong to assume that the Ombudsman catered to " The United Nations defines harassment women's workplace harassment issues only. No as a kind of behaviour (verbal or physical) such views were expressed by Sindh and the that hinders work or promotes an offensive Punjab Workplace Harassment Ombudsman for work environment (UN, n.d.). One of the Protection against Harassment of Women at

35 Workplace, however. Nor did they indicate that for Child Rights and a Commissioner for children's they had any plans to entertain complaints of rights has also been appointed. The well-being of workplace harassment from men. While there is children is a matter for concern at all levels, no doubt that workplace harassment is an issue for P rov i n c i a l a n d Fe d e ra l wh a teve r t h e both male and female workers however, the Constitutional imperatives. Child harassment manner in which the legislation has been enacted takes many different forms and can take place at in Pakistan, especially, the title of the statute, it home, at a workplace or at a school. appears to suggest that the female worker was the One of the Pakistan's leading child dominant concern of the legislature at the time of advocacy groups, Society for the Protection of the the enactment. Rights of the Child (SPARC), in its report “The State There can be little doubt that women and of Pakistan's Children, 2012” painted a bleak children both constitute vulnerable members of picture and revealed that around 25 million our male dominated society. Both are prone to children were out of school and almost 12 million maltreatment. In the case of the working woman it children were victim of child-labor in 2012. It also is usually the male employer but not necessarily so highlighted the apathy of the go and child rights as male coworkers can also conspire to target their concrete measures had been taken to enact fellow female workers in an environment where comprehensive child labor legislation in the they work side by side. And while the statute does aftermath of the 18th amendment to the refer specifically to "Protection of Women from constitution. The report said that Pakistan ranked Harassment at Workplace" the fact is that in the second in the world for most out of school children real world male workers also face harassment at and was placed at 113th position out of the 120 Workplace. However, if it is the objective to take countries on the Education Development Index as cognizance of workplace harassment of both male it had reduced spending on education from 2.6% and female workers it would be better if the title of to 2.3% of GNP over the last ten years. More than the legislation is suitably amended. 5,659 cases of violence against children were There was a suggestion during the recorded in 2012 that include 943 murders, 260 workshop deliberations that children's rights missing children, 164 Karo Kari incidents, 410 issues can be dealt with by the Ombudsman for forced marriages 204 cases of child trafficking, Protection against Harassment at Workplace 1170 injuries, 302 cases of sodomy etc. The drone rather than a separate Ombudsman for children's attacked children also numbered around 197. rights as after the passage of the 18th Amendment Given the daunting scenario described to the Constitution children's rights in Pakistan are above it would seem to make eminent sense to a provincial issue and it may not be feasible, devise a mechanism that would allow for the therefore, to have a Federal Ombudsman for appointment of a National Ombudsman for Children. Be that as it may, it is a fact that the Children's Rights in Pakistan. Federal Ombudsman has set up a separate section

36 statutory empowerment of the Ombudsman v) Empowering the Ombudsman unnecessary and even uncalled for. His view is that to be effective the Ombudsman must not use coercive powers of any kind in order to ensure compliance of his m p o we r m e n t o f t h e P rov i n c i a l recommendations because if he were to do so he Ombudsman and the Ombudsman for the would be encroaching on the domain of the EProtection against Harassment of Women executive. While not denying the significance of at Workplace by investing them with the same i m p l e m e n t a t i o n o f t h e O m b u d s m a n' s statutory authority as conferred on Federal recommendations the Punjab Ombudsman was of Ombudsmen through the Federal Ombudsmen the view that their implementation would be Institutional Reforms Act, 2013 (FOIRA) was seen assured if they were properly formulated and were by all participants, barring the representative of seen to be logically convincing and there would be the Punjab Ombudsman, Mr. Najam Saeed, no need then to threaten or intimidate the Member, Punjab Ombudsman, Regional Office, Complainee by invoking statutory power to hold a Rawalpindi, as essential to enable the Ombudsman person in Contempt. The moral authority of the to be an effective entity especially with regard to Ombudsman was thus seen as the real source of his implementation of his recommendations. strength. Implementation problems plague all Ombudsmen, In the Western jurisdictions it is a fact that undermine their authority and create resentment the Ombudsman is not invested with statutory among complainants when the recommendations authority of the kind laid down in FOIRA and his are not implemented in time. The enactment of moral authority alone is normally sufficient to FOIRA in March 2013 has made it possible for all ensure that his writ prevails. However, these are Federal Ombudsmen to take action for Contempt advanced democratic countries with very well against a person who defies or obstructs the developed institutions, high literacy, a powerful process of the Ombudsman in the same manner as media, low corruption, high per capita income and a judge of the Supreme Court. FOIRA also invests a social services protective framework available to the Ombudsman with authority to grant an most citizens. None of this holds true in developing injunction, order a stay of proceedings and to countries like Pakistan and the exact opposite is enforce compliance of recommendations by usually the norm in each of the categories referred invoking powers as available to a Civil Judge under to above. In such an environment 'moral suasion' the Civil Procedure Code. However, it would be up alone is ineffective and the ombudsman cannot to the respective Provincial Governments to adopt realistically rely on his moral authority to enforce the FOIRA amendments if they deem the same compliance of his recommendations. It is through feasible and necessary in the context of these recommendations that the Ombudsman empowerment of the Ombudsman and gives relief to those who are aggrieved by the incorporate the same in their respective statutes. maladministration of public functionaries and As pointed out above, the Punjab Ombudsman was employers excesses against their workers. It is the sole voice of dissent and considered the therefore imperative that the recommendations

37 be implemented promptly and the grievance struck down the President's decisions in redressed in true letter and spirit as in most cases representations filed against the Ombudsman's that is the only way justice can be done since the orders when the President is seen to have ruled complainant's usually lack the resources to against the Ombudsman's orders in a summary undertake extended, costly litigation before manner through a non-speaking order (2011- formal judicial fora. The developing country CLD-1743-KHC-Sindh); (2011-CLC-2002-KHC- Ombudsman is not at par with his counterpart in Sindh);(2009-PLD-1978-LHC-Lahore);(2009- the advanced western jurisdiction and is in need of PLD-955-LHC-Lahore).[see attached Annexures ] statutory support from legislation such as FOIRA in order to effectively implement his recommendations. vi) Information & Communication Technology as 'Force Multiplier.’ In Pakistan the superior judiciary has in general supported the Ombudsman office. There is no direct recourse to the judiciary against the uring the Workshop deliberations all Ombudsman's recommendations as these are Ombudsmen acknowledged a need to contested either before the Ombudsman himself Denhance their efficiency by making use of through a review application or before the Information and Communication Technology President or the provincial Governor when (ICT) in the storage, collation and retrieval of data representations are filed against the and in exchanging information with stakeholders. recommendations made by the Federal and Almost all offices have access to some ICT Provincial Ombudsmen, respectively. The decision resources except for the Ombudsmen dealing with by the President or Governor, as the case may be, is Protection against Harassment of Women at thus final and brings closure to the proceedings. Workplace, the Provincial Ombudsmen for Occasionally however, matters arising from the Balochistan and KPK and the AJ&K Ombudsman. Ombudsman's recommendations do go before the Information and communications superior judiciary, the High Courts and the technology is generally considered to be a 'force Supreme Court. Usually, the issues relate to the multiplier' in raising efficiency levels. However, Ombudsman's jurisdiction and the Courts have most offices continue to be bogged down in held that the Ombudsman exercises quasi-judicial paperwork with bulging files seen as the hallmark authority and has several attributes of a Court in of a busy office. The use of ICT is confined to PC's several aspects of its powers,(1989-PLD-485- used to "type out" decisions and obtain a print-out SC.Pak) and exercises 'concurrent jurisdiction' on the attached dot matrix or laser printer. (that is, along with other appellate authorities) Internet access is restricted to receive and send "without restraint" in all matters involving emails. Internal Net Working within the office is 'maladministration' (WP No.11545 of 2012 LHC). the exception rather than the rule. Local Area However, the sine quo non for the Ombudsman's Networking (LAN) and Wide Area Net Working intervention is the presence of 'maladministrat- (WAN) is unknown. Some Ombudsmen offices like ion' as defined in the statute. The Court's have also the Federal Tax Ombudsman Office, the Banking

38 Mohtasib and the Wafaqi Mohtasib (Federal digitized record keeping must be the norm in all Ombudsman) have developed basic systems to offices. From the time a complaint is registered till process data pertaining to the management of its disposal every document relevant to the complaints and to enable complainant's to file complaint under process must be scanned and complaints Online. However, none of the offices stored in a central data base system for easy have been able to convert to full electronic/ retrieval whenever it was required. Computerized digitized record keeping. Real time processing of complaint management systems should be used to data is unknown as is the use of Optical Character track progress in complaint processing and Recognition (OCR) and Speech to Text conversion determine status with online access available for a in office work. Data Base Management is complainant to ascertain status. The practice of rudimentary. Access to specialized reference ro u t i n e ly d i c t a t i n g d ra f t o rd e r s a n d software pertaining to decisions of the President correspondence to a stenographer must be and other relevant appellate fora is restricted to dispensed with. Skilled stenographers able to take only one regional office of the Federal Tax dictation proficiently are difficult to hire and the Ombudsman at Lahore. Video Conferencing is typists that are generally in use waste a lot of time unknown. The use of SKYPE as an inexpensive and as they require written assignments in long hand. simple audio-video communication medium is Besides, confidentiality may be compromised once practically non- existent. dictation is given. Officials hired to deal with complaints must be computer proficient, not just Both officers and staff of all Ombudsmen literate, and be able to use a laptop/tablet offices generally lack proficiency in handling ICT independently and must understand the systems. The end result is that the advantages that complaint management and data base systems in follow the systematic use of ICT in an integrated use in the office. Software to convert speech to text manner are sorely lacking. On the positive side efficiently is also available commercially and is however, at least Ombudsman officials are talking affordable and its use should be encouraged. about the great potential of ICT as a force Similarly, optical character recognition software to multiplier and in some of the offices one see's ICT convert scanned images of printed material to being put to use albeit in less than an ideal editable text is also available and may be used arrangement. Amongst all the Ombudsman offices the Wafaqi Mohtasib, Federal Tax Ombudsman and where necessary. Fresh purchase of deskbound the Banking Ombudsman are best placed in terms PC's should be stopped. Internal networking of ICT use. All three offices use computerized should be adopted in all offices. A bulletin board complaint management systems including web may be used to post notices for fixation of cases for hearing and simultaneously intimation sent based facility for online filing of complaints and through electronic messaging and fax as well. are able to track the status of a complaint once it is Where possible inexpensive SKYPE video links can registered. Correspondence between the various be used to interact with complainant's and offices and the Head Office through email is also in vogue. However there is room for considerable respondents and they may not be summoned improvement at very little extra cost. Fully routinely for face to face meetings with Ombudsman officials. Not much extra hardware /

39 software ( basically, scanners, servers, laptops and that destination might prove to be. speech to text and OCR software) would be This demand for technological innovation required to bring about these fundamental is, I would suggest, one aspect of a broader demand changes in office and complaint management and for demonstrable professionalism, for objective the dividends that would follow in terms of vastly assurances that Ombudsmen and their staff have improved efficiency once the systems are up and the credentials not just to do the job properly but running will more than compensate for the to be at the cutting edge of developments in the additional cost involved. It would no longer be field, to maintain credibility and command necessary to send bulky paper files through respect. courier from regional office to Head Office routinely whenever a draft order is put up by the What is clear is that Ombudsmen cannot concerned adviser. Electronic transmission of afford to give up on the challenge of staying draft order alone through email should be enough ahead of the game, even when it is not in most cases as the supporting documentation always entirely clear what game it is that we would be accessed from the central data base at are going to have to play next." ["FUTURE the Head Office. A true 'paper less' office would be CHALLENGES FOR THE OMBUDSMAN" - a realistic possibility. More than anything else, ANN ABRAHAM, UK PARLIAMENTARY executive will is required to bring about these OMBUDSMAN]. changes. Although we are in the 21st century and digital communications and the electronic vii) Training of Ombudsman Staff highway (Internet) are in everyday use by an ever increasing segment of the population many and Advisors. officials, especially in the public sector are still loathe to put technology to use in their day to day n order to ensure optimum results it is work. More than anything else this is a mindset essential that personnel employed in the issue as the skills required to put this technology to IOmbudsman office be properly trained to use are basic and well within reach of a university manage the office, handle office equipment graduate which would be the minimum including ICT equipment and paraphernalia and qualification of someone working in the conduct investigations efficiently. Ombudsman's office. As succinctly put by one The first step ought to be the conduct of a knowledgeable commentator: Training Needs Assessment. Based on the results "The challenge is not just technocratic, a of the assessment, professionally designed matter simply of having the right 'kit.' It is also Training Modules may be got prepared and the about the having the flexibility to do things services of a Trainer hired. A crash training differently, of keeping in mind the fundamental program should then be implemented at the end of purpose of the Ombudsman function, and of which each participant must be graded and those having the courage to go where technological unable to benefit from the training regime, weeded change takes us, however unknowable in advance out.

40 In the case of Advisors / Consultants who speak of their utility to the public at large. It is conduct all investigations and prepare draft unfortunate that even after decades of redressing recommendations / orders / reports for the public grievances the public should be so ignorant Ombudsman the emphasis ought to be on an of the Ombudsman. However, that is a hard reality effective writing style, superior ICT skills and today and one that should be recognized and sound investigative techniques. In their case as countered energetically and expeditiously. well, a Training Needs Assessment has to be the Fortunately, the Press, comprising both Print and starting point. Based on that, Advisors and Electronic media can, if mobilized effectively, go a Consultants may be nominated by the long way in addressing this problem. Ombudsman for participation in training courses The Ombudsman cannot be effective if he is at home and abroad. Their participation in training not shown to be producing results. It is therefore courses, such as the very highly regarded Training imperative that a phased, well planned campaign Workshop in advanced investigative techniques be launched by all Ombudsmen for which the known as "Sharpening Your Teeth," - a brainchild required funds must be made available on an of Andre Marin, Ombudsman, Ontario, Canada- emergent basis by the Federal Government as well should be considered. as the respective provincial governments. Training in effective report writing, ITC and research methods is also required for investigation officers. ix) Political Interference by Government. At the present time twelve independent Federal and Provincial Ombudsman offices are operational in Pakistan. It may be feasible to set up ne of the unhappy things that came to a central training institute for all Ombudsman light during the Workshop deliberations offices in which staff and officers receive Owas that both the Federal Government as specialized training in the areas of particular well as provincial governments do not hesitate to interest to them. curb the jurisdiction of the Ombudsman if they perceive the Ombudsman to be hostile to their interests or if they simply would like to have an viii) Projection of the Ombudsman Ombudsman more to their liking. The KPK, through the Print and Balochistan and AJ&K Ombudsmen voiced their Electronic Media. serious concerns in this regard during the presentations made by them and they minced no words in articulating their thoughts. The Forum of t is unfortunate that although the office of the Pakistan Ombudsman can take suitable initiatives Federal Ombudsman - Wafaqi Mohtasib - (the in this regard, firstly, by encouraging all Swedish variant), was introduced in Pakistan I Ombudsmen to join the Forum and then by in 1983 followed by two more in 1992, yet very few building consensus for adoption of the Federal people are even aware of their existence what to

41 Ombudsmen Institutional Reforms Act 2013 by all being taken to empower women and created a Provincial Ombudsmen. Finally, the FPO may seek furor of sorts in the print and electronic media and recourse to the Judiciary to mount a legal challenge importantly, also filed petitions before the to encroachment of the Ombudsman's jurisdiction. superior courts to declare the proposed legislation All this, of course, will not be easy especially, as the as unconstitutional as Pakistan was an ideological KPK, Balochistan and AJ&K governments having Islamic State where the Quran and Sharia were divested their Ombudsmen of the statutory supreme and no legislation could be made that was authority to enforce their writ, will be loathe to seen as contrary to these sources of Islamic acquiesce to the Forum's bidding. jurisprudence. While the courts did not endorse the views espoused by such pressure groups, many detected an undercurrent of sympathy for their so x) Judicial Activism and workplace called, Islamic stance in the matter. There is a harassment of women. perception that because of such sympathy, the final legislation that was approved for creation of a he road to women-empowerment in separate Ombudsman for Protection against Pakistan has been paved with difficulties. Harassment of Women at Workplace made it clear TThe high level of illiteracy coupled with that the office would cater to workplace poverty and most importantly, a highly harassment faced by women as well as men. While conservative mindset deeply rooted in culture and there is no denying that both men and women tradition has made it difficult for women's rights indeed face harassment at the workplace from groups to lobby for change and empower the overbearing employers as well as their fellow woman in Pakistan through effective legislation. workers, there seems to be little point to include This harsh reality struck home when an men in the jurisdiction of an 'Ombudsperson' Ombudsman office was sought to be created to office being set up to cater specifically to counter the scourge of harassment of women at protecting the rights of women as a vulnerable workplace. Many in Pakistan saw this as an affront member of our society. There is no denying that to traditional Islamic values regarding the role of this "concession" was made to pander to the women in society. In the opinion of these reactionary views regarding the role to be played conservative groups Islam did not approve of by women in a modern State held by a significant women's unfettered participation in the general segment of our society. workforce on the same plane as men and the very It was suggested in the Workshop that one idea of securing their 'rights' in this context reason why the pressure groups succeed in having through legislation and further by creating an their way is the lack of an effective advocacy for Ombudsman's office to counter workplace women rights before judicial fora and it was harassment that they said they faced was suggested that a panel of high profile lawyers may anathema. Many of these anti’ women rights be set up to plead their cases effectively. Another pressure groups wanted to undo the measures suggestion was that as appointing a panel of high

42 profile lawyers for launching and fighting narrow tax base and an abysmal 'tax to GDP ratio.' litigation involving women rights cases might be The few that do pay tax, pay only a fraction of what seen as adopting a 'confrontationist posture,' it tax is actually due from them, and it is here that would probably be more feasible and effective in were bribery becomes a reality. Bribes are also the long run to lobby for women rights on a more paid when taxpayers ask for payment of refunds of subtle plane, including through interaction of a tax due to them. Incidentally, complaints of non- panel of Ombudsmen, including even the payment of refunds are the largest single category President, Forum of Pakistan Ombudsman, with of complaints' filed in the FTO office. Complaint's members of the judiciary. pertaining to refunds amount to 70-75% of the total complaints received in the FTO office yearly and in the great majority ( 95% +) the complaint is xi) The scourge of corruption. found to be correct and a finding of 'maladministration' is recorded against the dept'l here is no denying that one of the major officials held responsible for deliberately delaying issues before the Federal Tax Ombudsman issuance of the claimed refund. T(FTO) is how to tackle the problem of It is very significant that the above 'pattern' financial corruption (bribery) amongst Federal of complaints received has remained almost Board of Revenue (FBR) functionaries. However, it constant since the last thirteen odd years that the is also extraordinary that, Since 2000 when the office of the Ombudsman has been in existence. office of the FTO was created, very few complaints The FTO has provided many 'leads' to the FBR to involving outright allegations of bribery have been investigate cases involving possible corruption filed and in only one such complaint has the FTO and it is in FBR's interest to take up investigation of found the complainee, an FBR field officer, to be these cases aggressively. However, the response guilty of soliciting bribes and has recommended from FBR has been much less than enthusiastic. action against him. He has also referred his case to Corruption is an extremely complex the National Accountability Bureau for its criminal problem and it is imperative that it be tackled on a prosecution. high priority basis. The FTO has only touched the The main reason why corruption is so hard 'tip of an iceberg' but he has shown his willingness to identify is that in the great majority of cases in to tackle the issue head-on and has provided food which bribes are demanded by corrupt officials, for much thought to the FBR in serval findings of they are willingly paid by taxpayers eager to avoid 'maladministration' recorded in cases involving "due taxation" of their income. It is no secret that in refunds in which bribes are suspected to be at the Pakistan very few people are actually borne on the root of the problem. tax rolls. This is evident from the extremely

43 Pictorial Glimpses of A Two-day workshop on “Challenges of Ombudsmanship”

44 Chapter IV

45 Recommendations. 9. The FPO may hold such workshops every quarter for the first year beginning with this 1. Information and Communication Technology workshop and biannually thereafter. (ICT) to be used in a planned manner as a “force 10. One-Line budget to be adopted for all Ombuds- multiplier” to enhance performance and man offices productivity of all Ombudsman offices. 11. Budgetary constraints with special reference 2. A survey of the ICT capabilities of every to the needs of the Provincial Ombudsmen of Ombudsman office be conducted by professio- Balochistan, Khyber Pakhtunkhawa and those nals, and Needs Assessments of each office be of Federal and Provincial (Punjab) Ombuds- done on scientific lines. man for Protection against Harassment of 3. A true, paperless office be established by every Women at the Workplace and also, AJ&K Ombudsman based on digitized, electronic, Ombudsman, to be addressed. record-keeping and electronic storage, access 12. Special needs of vulnerable members of and collation of data. society such as children be addressed by the 4. Training Needs Assessments of each Fe d e ra l a n d re s p e c t ive P rov i n c i a l Ombudsman office be done and steps be taken Ombudsman. to impart training to the supporting staff and to 13. Human Rights issues especially as regards ensure that all staff members are ICT Harassment of Women at Workplace be proficient. tackled effectively in all provinces. Budget, 5. A codified / digitized database of maladminis- Staff and office requirements to be met on tration cases to be maintained by all Ombuds- priority basis. men and password protected public access be 14. Workplace harassment be appreciated in its allowed, after registration. true, gender neutral spirit and all workers be 6. Jurisdiction issues pertinent to individual encouraged to come forth with their Ombudsman be addressed viz Wafaqi grievances. Mohtasib's jurisdiction issue over military 15. The Federal Ombudsmen Institutional cantonments. Reforms Act, 2013 to be suitably adapted and 7. Jurisdictional anomalies between Ombud- adopted by the Provincial Ombudsmen set-up smen to be resolved through bilateral and the Provincial Legislatures be approached negotiation viz Wafaqi Mohtasib vis a vis in this regard for enacting appropriate Insurance and Banking Ombudsmen. If legislation. negotiation fails, matter may be referred to the 16. A concerted effort to be made to project the FPO for resolution. Ombudsman through the print and electronic 8. The FPO may hold workshops and conferences media to increase public awareness. in the provincial headquarters on a regular 17. In order to facilitate outreach, Ombudsmen to basis. have a presence in every district. If a regional

46 office cannot be established due to the lack of Service Rules (iv) Uniform Salary Structure adequate resources, a smaller sub-office be set and (v) explore possibility of locating all up. Ombudsman offices in one building at Regional 18. A Common Public Service Message for Prime Offices to undertake One Building Operation of Time telecasting to be designed by the FPO for Ombudsman for redressal of citizens grievances. all Ombudsmen, to be made compulsory for all TV and Radio channels, including the print 22. Ombudsman offices to enhance focus on media. diagnosing and redressing systemic issues to preempt repetition of similar grievances. 19. Special attention to be paid to significantly reduce the time taken to dispose of complaints 23. Implementation to be brought under increased and to stay well within the statutory time focus in terms of the President's directive, the frame. Prime Minister's orders and a judgment of the Supreme Court of Pakistan in this regard. 20. Departments / Organizations under the jurisdiction of the Ombudsman to be required 24. Judicial Allowance to be allowed to the to display flexi-banners on their websites and Ombudsman and the supporting staff. also in their offices explaining how the public 25. A “self accountability mechanism” to be can obtain redressal of their grievances from adopted by all Ombudsmen. the Ombudsman. 26. Government to desist from divesting the 21. The FPO to design (i) a common Organogram Ombudsman of statutory authority granted to for Ombudsman offices; (ii) a common lean them by their Charter. and flat administrative set up (iii) Uniform

The woods are lovely, dark and deep, But I have promises to keep, And miles to go before I sleep, And miles to go before I sleep.

47 Pictorial Glimpses of A Two-day workshop on “Challenges of Ombudsmanship”

48 Annexures

Case Law

49 SUPREME COURT OF PAKISTAN INCOME TAX OFFICER Hafiz Muhammad Arif Dar v. ITO Present : MUHAMMAD AFZAL ZULLAH and JAVAID IQBAL, JJ. NO: CP 788YEAR: 1984 DECIDED ON 07/11/1988 Civil Petition No. 788 of 1984, decided on 7-11- 1988. CITATION: 60TAX52 ; 1989PTD485 ; 1990PTCL755 (On appeal from the judgment and order of the Lahore High Court, Lahore passed in Writ Constitution of Pakistan, 1973 -- Section 65 -- Petition No. 2382 of 1984, dated 30-5-1984). Article 199 -- Syed Fayyaz Hussain Qadri, Advocate (absent) Writ jurisdiction -- Alternate remedy -- Relief -- and S. Abid Nawaz, Advocate-on-Record, for the Assessee filed appeal before A.A.C. against the Petitioner. order of additional assessment made by the Income Tax Officer -- During appeal assessee filed Nemo for Respondent. writ petition which was dismissed as the Date of hearing : 7-11-1988. petitioner had already availed alternate adequate remedy -- Relief refused by the High Court -- ORDER Whether according to technicalities of procedural {Order of the Court was passed by MUHAMMAD nature -- Held yes -- AFZAL ZULLAH, J.}. Constitutional jurisdiction of High Court -- Grant of ---Writ Petition against an Income-tax Assessment relief -- Alternate adequate remedy -- Where a by Income Tax Officer was dismissed by the High remedy by way of appeal was available, no relief Court by the following short order: could be granted to the petitioner under article ``The petitioner is aggrieved with the order of 199 -- If petitioner was not allowed any relief by additional assessment made in pursuance of the the departmental authorities (despite the provisions of Section 65 of the Income Tax observations by the Supreme Court), it would not Ordinance by an Income Tax Officer. He has already mean that the petitioner would have no filed an appeal before the Appellate Assistant immediate remedy at all against the Commissioner. As he had already availed of the highhandedness of the department -- Petitioner alternate remedy this writ petition is dismissed in could, among other reliefs, file a complaint and limine.'' grievance application before the Federal Ombudsman, who could also provide effective Leave to appeal having been sought, this Court redress, and provide the alternate effective and passed interim orders on 23rd July, 1984, 29th July, adequate remedy to the petitioner in such cases – 1984, 9th August, 1984, 12th August , 1984, 16th August, 1984, 21st August, 1984, 28th August, {IN THE SUPREME COURT OF PAKISTAN} 1984 and 29th August, 1984. HAFIZ MUHAMMAD ARIF DAR They are very instructive in so far as the attitude of v. respondent department is concerned.

50 They are, therefore, reproduced below :-- relevant Inspector who had submitted the report on which action was taken against the petitioner. ``23-7-1984 : Notice to the A.G. for the 29th of this month 29-7-1984: Adjourned to the 5th of August, No action shall be taken against the petitioner in 1984, to enable the petitioner to produce the the meanwhile. Mr. M.Z. Khalil, Advocate is person from whom he had purchased the shop directed to advise the respondent of the which has been made the basis of enhancement of proceedings before this Court. the assessment. 9-8-1984 : Hafiz Muhammad Arif 12-8-1984 : No one has turned for the respondent. Dar petitioner has been assessed to Rs. 1,93,000 as Adjourned to the 16th of this month. his income on the ground that he had enough money to purchase a shop on the Sarwar Road in 16-8-1984 : The matter was adjourned to be taken Lahore Cantt. and on investigation the relevant up at 1-30 p.m. Learned counsel for the petitioner Income-tax Inspector found that the vendors were is present alongwith the petitioner. Learned fictitious persons and that this had been done to counsel for the respondent is, however, absent. avoid levy of income-tax. I required the petitioner The case is, therefore, adjourned to 21-8-1984. to produce the vendors namely Muhammad 21-8-1984 : An official of the Cantonment Board be Ashfaq son of Haji Sardar Muhammad and ordered to bring the latest PTI Form pertaining to Muhammad Mushtaq son of Ibrahim, so as to property No.326-Sarwar Road Sadar, Lahore, on ascertain whether the finding of the Income-tax the next date of hearing, in order to enable this Inspector that the vendors werefictitious, was Court to ascertain the annual rent at which the said correct. property is assessed. The petitioner has produced both the above-noted To come up on 28-8-1984. vendors whose identity has been verified through 28-8-1984 : Adjourned to tomorrow (29-8-1984) their Identity Cards which bear their photographs. to enable the Inspector of the Cantonment Board Prima facie, it appears that the report of the to explain how the value of the place in question Income-tax Inspector, is wholly incorrect. was calculated to be Rs. 1,50,000 when the Mr. M.Z. Khalil, Advocate, appeared on behalf of Mr. monthly rent of the house was Rs. 100 per month. Muhammad Ilyas, Standing Counsel for the 29-8-1984: On instructions from the I.T.O. the Income-tax Department to submit that he (Mr. learned counsel for the respondent submitted that Ilyas) has left for U.S.A. and the case may therefore the tax had been levied according to the value of be adjourned to a date after the vacations. the property as calculated by the Cantonment Petitioners counsel, however, submits that in view Board. However, I find that the property in of the fact that the allegation against the petitioner question is assessed by The Cantonment Board at has been prima facie proved to be incorrect, the Rs. 100 per month and as such the value of Rs. case may not be adjourned. 1,50,000 as determined appears to be excessive Let notice be issued to respondent for the 12th of and arbitrary. It would have been appropriate if, this month, who may appear through a counsel for fixing the vaue of the property, the Cantonment engaged by the Department alongwith the Board had followed the formula of ``10 years rent'',

51 as done by the Wealth Tax Dept. a case like the present one. That forum has several attributes of a Court in many aspects of its powers. In this view of the matter the recovery of the tax It an also move in a matter promptly whenever so amount is stayed till the decision of the main needed. At the same time it does not suffer from petition.'' some of the handicaps, due to the technicalities of It is possible that in view of the aforequoted procedural nature, which operate as impediments observations redress might have already been or thwart such like action by the Courts. For provided to the petitioner. example the limitation of non-availability of an One of the conditions for grant of relief in writ alternate remedy in this case for the High Court jurisdiction of the High Court is that the petitioner under Art, 199 of the Constitution, is not before it should not have any alternative adequate applicable to the said forum. Besides, the same remedy. In this case, a remedy by way of appeal, as being quasi-judicial it is also headed by a Judge of mentioned in the impugned order, was such the Supreme Court; with similar powers to punish remedy. Therefore, it is correct that no relief could for contempt. In this context therefore, it can be be granted to the petitioner under Article 199 of safely concluded, that it can provide the alternate the Constitution. effective and adequate remedy to the petitioner also. But that does not mean that, in case the petitioner has not been allowed any relief by the With the foregoing observations and remarks, departmental authorities (despite the leave to appeal is refused in the circumstances of observations by the Supreme Court) the petitioner this case, due to the technical hurdle faced by the would have no immediate remedy at all against the petitioner in the High Court. He may file a highhandedness of the department. complaint before the Ombudsman. Amongst others he can file a complaint and Leave refused. grievance application before the Federal Ombudsman, who can provide effective redress, in

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