In Pakistan, the institution of Federal Ombudsman was established in 1983. Presently there are 12 ombudsmen working in Pakistan. These were established under various enactments passed by the National and provincial parliaments.
These include: Wafaqi Mohtasib (Federal Ombudsman), Federal Tax Ombudsman, Banking Mohtasib, Federal Insurance Mohtasib, Federal Ombudsman for Protection Against Harassment of Women at Work Place, Provincial Ombudsman, Punjab, Provincial Ombudsman, Sindh, Provincial Ombudsman, Khyber Pakhtunkhwa, Provincial Ombudsman, Balochistan, Ombudsman of Azad Jammu & Kashmir, Provincial Ombudsman, Sindh, for Protection Against Harassment of Women at Work Place and Punjab Ombudsman, for Protection Against Harassment of Women at Work Place.
On 14th March 2013, the President of Pakistan gave accent to the Federal Ombudsmen Institutional Reforms Act, 2013, passed by National Assembly and the Senate unanimously – earlier it was promulgated as Ordinance on 12th February 2013. This act ensures expeditious disposal of complaints of the citizens, streamlining the procedure for representation against the decisions of various ombudsmen (mohtasibs) besides giving citizens the right to move a review petition against the findings of any ombudsman.
The main purpose behind the enactment of the Federal Ombudsmen Institutional Reforms Act, 2013 is to ensure not only timely disposal of complaints but also effective implementation of orders. It was felt that concerned authorities had been blocking the orders passed in favour of citizens under one pretext or the other. The new law that has overriding effect on the federal laws, if applied correctly, can strengthen the process of accountability and enhance effectiveness of the Federal Ombudsmen in providing speedy and expeditious relief to citizens by redressing their grievances to promote good governance. The provincial legislatures, when elected on 11th May 2013, shall be at liberty to amend their respective legal instruments as has been done by the National Parliament.
SALIENT FEATURES Time limitation: Aimed at accelerating the process of redressal of the public complaints, the Federal Ombudsmen Institutional Reforms Act, 2013 prescribes the period for processing of the case and decision thereon within 60 days – previously no timeframe was provided and the decision process could take years to be completed.
Stay and representation: The Ombudsman may grant stay operation of the impugned order for a period of 60 days. A review petition can also be filed against the stay orders. Moreover, the aggrieved party can also file a representation to the President against the decision of Ombudsman within 30 days which would be addressed to him directly and not to any ministry or division. It would be decided by a retired Federal Ombudsman or Tax Ombudsman or a retired judge of Supreme Court or a person qualifying to be judge of Supreme Court within 90 days.
Power of review: The Ombudsman shall have the power to review any findings, recommendations, orders or decisions on a review petition made by an aggrieved party within 30 days of the findings. Powers of a civil court: Under the Federal Ombudsmen Institutional Reforms Act, 2013, mechanism for implementation of Ombudsman findings has also been put in place. Now, in addition to powers exercised by Ombudsman under the relevant legislation, he/she shall also have powers of a civil court, in terms of granting temporary injunctions and implementation of the recommendations, orders or decisions.
Contempt of court: An Ombudsman shall have power to punish for contempt as provided in the Contempt of Court Ordinance, 2003 (V of 2003). Grievance commissioner: The new law also provides for the appointment/designation of an officer not below BPS-21 as Grievance Commissioner in an Agency against which a large number of complaints are received persistently. As a test case, a Grievance Commissioner for Capital Development Authority (CDA) has already been appointed as against this institution a large number of complaints are received regularly.
Tenure and removal: The Ombudsman shall have fixed tenure of four years, however, the incumbent Ombudsman shall continue to hold office after the expiry of his tenure till the new Ombudsman enters upon the office. This will avoid complaints from piling up during the period of interregnum between the expiry of tenure of an Ombudsman and appointment of a successor. The ombudsman after expiry of his four-year term will not be eligible for reappointment or any extension. The removal of ombudsman from his office would be through Supreme Judicial Council on grounds of being incapable of properly performing duties by reasons of physical or mental incapacity or if found to have been guilty of misconduct.
IMPORTANT OVERRIDING PROVISIONS Section 18: Bar of jurisdiction. – No court or authority shall have jurisdiction to entertain a matter which falls within the jurisdiction of an Ombudsman nor any court of authority shall assume jurisdiction in respect of any matter pending with or decided by an Ombudsmen.
Section 24: Overriding effect – (1) The provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force. (2) In case there is a conflict between the provisions of this Act and the relevant legislation, the provisions of this Act to the extent of inconsistency, shall prevail.
The above provisions very clearly provide that the Federal Ombudsmen Institutional Reforms Act, 2013, which was passed by the National Assembly and the Senate unanimously, has overriding effect and no court or authority can interfere in the matter where any Ombudsman has assumed jurisdiction. Section 18 and 24 being non-obstante provisions will prevail over all conflicting laws for the time being in force. For example, in case of litigation under the Income Tax Ordinance, 2001, Sales Tax Act, 1990, Customs Act, 1969 and Federal Excise Act, 2005, the authorities like Commissioner Inland Revenue Appeals, Collector of Appeals, Appellate Tribunal Inland Revenue and Customs Tribunal shall not assume jurisdiction in respect of any matter pending with or decided by Federal Tax Ombudsman (FTO). This can be elaborated further as under:
1. If a taxpayer files a complaint with FTO for non-payment of undisputed refund, the Commissioner of Inland Revenue will not be in a position to take any adverse proceedings, like amendment of assessment to eliminate the refund as it will be violative of section 18 of the Federal Ombudsmen Institutional Reforms Act, 2013.
2. If decision in respect of refund is delivered by the FTO, no court or authority shall assume jurisdiction in respect of the same matter. 3. The jurisdiction of the FTO will be exclusive in respect of any matter of ‘maladministration’ – the expression defined in section 2(3) of the Establishment of the Office of Federal Tax Ombudsman Ordinance, 2000. The issues related to jurisdiction of FTO and the scope of “maladministration” were subject matter of debate and controversy – plethora of case law exist, see the latest view from Sindh High Court in Syed Nusrat Nasir v Federation of Pakistan and other 2013 PTD 486 and some enlightening judgements delivered by former Justice Saleem Akhtar as FTO reported as 2002 PTD 2716, 2002 PTD 2793, 2002 PTD 2646, 2003 PTD 2260 and 2008 PTD 642.
4. In view of section 24(2) of the Federal Ombudsmen Institutional Reforms Act, 2013, in case there is a conflict between the provisions of this Act and the relevant legislation, the provisions of this Act to the extent of inconsistency, shall prevail. It means that section 32 of the establishment of the Office of Federal Tax Ombudsman Ordinance, 2000 will no longer prevail and matter will be dealt under section 14 of the Federal Ombudsmen Institutional Reforms Act, 2013 which says that matter shall be decided by a retired Federal Ombudsman or Tax Ombudsman or a retired judge of Supreme Court or a person qualifying to be judge of Supreme Court within 90 days.
The above analysis of some of the important provisions of the Federal Ombudsmen Institutional Reforms Act, 2013 shows that it is a progressive legislation aimed at improving good governance and safeguarding citizens from administrative highhandedness and the costly and long-drawn process of conventional litigation. Media should publicise this new law and educate the citizens about their rights. Hopefully, in the wake of this new law the institution of Ombudsman in Pakistan will be strengthened and administrative excesses and abuses would be effectively checked – it can be good omen for democratisation of society, improvement in system of governance and speedy redressal of grievances of the public, outside the orthodox court system.
(The writers, tax lawyers and authors of many books, are Adjunct Faculty at Lahore University of management Sciences)Huzaima Bukhari and Dr. Ikramul Haq, "Federal Ombudsmen Institutional Reforms Act, 2013: For speedy relief," Business recorder. 2013-05-03.
Keywords: Political issues , Political system , Institutional relations , Social issues , Social needs , Social rights , Tax Ombudsman.Tax policy , Taxation , Pakistan