Empowering the ombudsman to salvage PTI's reform agenda

Capitalising on its reforms in Khyber Pakhtunkhwa, the PTI came into government promising major reforms to improve the quality of governance, including civil service, justice, police, local government. But after three years, at the helm of the federal, Punjab, Khyber Pakhtunkhwa and Balochistan governments, reforms have stalled. It is unclear whether this is due to lack of will, not knowing what or not knowing how to do it. Regardless, the fact is that the PTI’s much-touted reform agenda is in trouble.

The PTI may still, however, have an option to salvage its reform agenda by focusing on public-sector reforms, an area that has been long overlooked by most governments. Led by the Mohtasib, it is a relatively less contested and less controversial reform path but one that can have significant impact on service delivery, directly benefiting citizens. Some relief in these difficult times.

The Wafaqi Mohtasib office, also known as the federal ombudsman, was created in 1983. It sits at a critical juncture between the state and the citizen, ensuring that the state responds to citizens with fairness by specifically curbing ‘mal-administration’ in the federal public sector. By reducing abuse of power, delays, inefficiencies, bias, discrimination, illegalities and perverse decision-making and the like, the Mohtasib can save citizens and businesses time and inconvenience, ensuring that they timely receive what they are entitled to by law. As part of the administrative justice system, the Mohtasib is responsible for providing “inexpensive and expeditious justice” (Article 37(d)) to citizens who may be aggrieved by state entities.

By curbing mal-administration, an effective ombudsman would drive a continuous reform process to ensure that the public sector is evolving to be increasingly efficient, responsive to citizens’ needs and the law, timely, quality focused and effective. Unfortunately, that has not happened, and we continue to be saddled with a cumbersome, outdated and inefficient public sector that is no longer fit for purpose.

Instead of facilitating and enabling state functions, it has become an extractive burden suffered by governments, citizens and businesses alike. There can be no ease of doing business while we have to endure a public sector whose only competence is to strait-jacket citizens and businesses in an absurd labyrinth of rules and regulations. It is a costly drain on our national dynamism, energy, creativity and resources.

A review of the Mohtasib’s annual reports reveal that, in the main, the Mohtasib has focused on the public grievance redress function – a process that has gradually been streamlined to be a low-cost, accessible and quick mechanism for addressing citizens’ complaints against federal agencies. In 2020, the Mohtasib dealt with 139,030 complaints, an increase of 82.7 percent over 2019. The highest number of complaints were against the utilities – electricity and gas companies, with 35,956 and 15,110 complaints respectively.

Commendable as these efforts are, the increasing number of complaints against federal agencies arguably reveals an overall systemic deterioration in the quality of governance, public administration and service delivery that the Mohtasib has failed to arrest.

In 2015, the Supreme Court of Pakistan, whilst considering the criminal justice system, noted the increasing deterioration in the public sector and also examined the Mohtasib’s mandate and performance. Former CJ Justice Jawwad S Khawaja, in a detailed judgment, observed that there is “evidence of significant maladministration and systemic dysfunction… which needs to be rigorously diagnosed to be effectively rectified, implemented and monitored for quality and impact. The failure to adopt and implement a sufficient due diligence to life approach as required by the law constitutes a breach of statutory duty”. The court also dealt with the question of transparency and the need to observe certain standards of openness to satisfy transparency requirements.

Addressing the 14th Conference of the Ombudsmen from the Asian Continent, on November 25, 2015, former CJ Justice Anwar Zaheer Jamali further clarified the Mohtasib’s mandate in his address titled, ‘Strengthening Rule of Law through Executive Oversight’. Keeping in view the constitutional framework for fundamental rights, he maintained that executive and administrative reasoning and decision-makings must incorporate fundamental rights. He essentially outlined a legality test that decisions in breach of fundamental rights are illegal and that the ombudsman must ensure that such decisions are treated as mal-administration.

Arising from these observations, a number of actions were ordered: first, that the Mohtasib should carefully study, diagnose and recommend solutions for “systemic failures” informed by the first-hand evidence garnered from public complaints. Second, the quality of decision-making would improve by the requirement of providing reasons for administrative decisions that are based on and justified by fundamental rights and transparency requirements.

Third, based on rigorous studies, the ombudsman was empowered to issue “good administration standards that, if breached, would be deemed to be mal-administration”. Such standards would provide informed and clear guidance for the public sector to follow to avoid being punished for mal-administration. Fourth, that the Mohtasib must formulate a National Strategy for Curbing Mal-Administration. Despite being ordered by the Supreme Court of Pakistan, to date these actions still need to be implemented.

This begs the questions: Why, for over 38 years, has the Mohtasib failed to provide a strategic vision or plan to strengthen the ombudsman to deliver its mandate and the public sector? Why, for over 38 years, has the federal ombudsman failed to formulate a national strategy for curbing mal-administration in Pakistan? How has it all gone so badly wrong? And what can be done?

Since its creation in 1983, a veritable galaxy of senior civil servants and judges have been appointed as Wafaqi Mohtasib but they have largely failed to deliver on the mandate. They have reduced the office of the ombudsman to a public grievances redress mechanism by simply ignoring the more challenging aspects of their mandate, failing to deal with systemic issues that would reform the public sector.

First, this is in no small measure due to governments failing to appreciate the critical role and potential of the ombudsman offices in the public sector. Second, rather than finding the right fit for the role – a person who has the right aptitude for reform, is not vested in the institutional status quo and does not suffer conflict of interest issues – the Mohtasib has been used to reward favorite or friendly civil servants or judicial officers who are least interested in or suited to reform. The cost to citizens, public-sector capacity and performance has been exorbitant.

To ensure fairness between state and citizens and maintain innovation and reform momentum in the public sector, the Wafaqi Mohtasib needs to be restored to the critical role envisaged by parliament by providing it the priority it deserves. The office must be led by a team able and committed to critically driving reforms to improve the quality of governance and public administration. It is an opportunity for the government to advance its promised reform agenda to deliver “inexpensive and expeditious justice” to the people of Pakistan and to demonstrate some progress on reforms.

The writer is a former secretary, Law & Justice Commission of Pakistan.

Originally published in The News