Institutional Analysis of Ombudsman: (A Comparative Study of Pakistan, India, UK and USA)

Transcription

1 Abstract: Institutional Analysis of Ombudsman: (A Comparative Study of Pakistan, India, UK and USA) *Dr. Syed Mussawar Hussain Bukhari, **Muhammad Asif Ombudsman is a quasi-judicial authority in criminal justice system and performs the duty of inquiry and investigation like Mohtasibs in Pakistan, Lokpals and Lokayuktas in India, Parliamentary Commissioner in UK and USA Ombudsmen. This paper examines a comparative analysis of structures and performance of two developed country s ombudsmen like Parliamentary Ombudsman in England, Hawai`i State Ombudsman (USA), and two under developing countries like the Mohtasib-e-Punjab (Pakistan) and Haryana State Lokayukta (India). Data for this research is collected through secondary sources like journals, books, annual reports and legal documents etc. The paper also evaluates the autonomy and effectiveness of these four ombudsmen institutions, analyzes all complaint s history and reveals that the developing country s ombudsmen have more autonomy and less efficiency and effectiveness in complaint resolving then developed country ombudsmen. The paper suggests that the reasonable resources and proper awareness leads the Punjab and Haryana ombudsman to efficient and effective institute while Parliamentary Ombudsman and Hawai`i State have more powers and autonomy. There is a definite need to review the entire system and need for reforms for that success. Keywords: Ombudsman, Mohtasib-e-Punjab, Lokayukta, Parliamentary Commissioner, Hawaii Ombudsperson, Performance Review. *Associate Professor, Department of Political Science, Islamia University Bahawalpur, Adjunct Research Fellow Faculty of Arts, Monash University Melbourne Australia ** Research Student of MPA, Department of Political Science, Islamia University Bahawalpur COPY RIGHT 2013 Institute of Interdisciplinary Business Research 709

2 Introduction: It is the duty of a state to perform the functions of legislative, executive and judiciary. The Constitutions of democratic set up clearly define these functions. The legislature has to make the laws. The executive has to execute or implements these laws and the judiciary interprets and applies these laws. Judiciary has authority to pertain the office of a judge and this authority relates to hearing and determining the questions in controversy. Further, this judicial authority includes Court and appellate Court. The word ombudsman is derived from a Swedish word ombuds that means the grievance man or complaint officer. It is a quasi-judicial administrative authority for criminal justice system to protect the public from any mal-administration done by public servants or public agencies. This institution, however, is very old and originates from the Arab "Mohtasib" the roots of which go back to the times of the Prophet Muhammad (S.A.W.W) in the 7th century. When the second Caliph Hazrat Umar (R.A), who followed the Prophet in 640 as a guardian of public morals. Caliph Omar was ambitious to ensure the observance of religious principles one of them was Justice in routine life, gave the concept of Qadial-Qadat (judge of judges), and established an office of Diwan al-mazalim. Sweden was the first country who establishes this institution in In Pakistan, this institution established in 1983, India in 2011 that extend to the whole country after Lokpal Act 2011, UK in 1967 and in USA state level ombudsman introduced in Ombudsman office; in these countries plays different roles and functions. This paper examines a comparative analysis of structures and performance of two developed country s ombudsmen like Parliamentary Ombudsman in England, Hawai`i State Ombudsman (USA), and two developing countries like the Mohtasib-e-Punjab (Pakistan) and Haryana State Lokayukta (India). The reasons behind choosing the Punjab Ombudsman office, is population and political noninterference. It is the highest population province in Pakistan. Its population estimated to be 93,963,240 in About in 16 Indian states, Lokayukta is established, 11 of them are working properly and other s acts have passed only. Although the Haryana State Lokayukta started its working in 2006, yet its performance is better as compared to the other states of India. England is the most divers region as compare to Scotland, Wales and Northern Ireland. Its total population according to 2011 census is 53,012,456. About 85% are white while remaining 15% people are from other ethnic groups like Pakistanis, Indians, Arabs, Chinese, Africans, Caribbean, and Bangladeshis. Among them 59% of total population is Christians and 41% belongs to other religions. (UK Census, 2011). Like England Hawai`i is also the most diverse state in US. Its estimated population in 2012 is 1,392,313 in which only 26% peoples belong to white and remaining 74% are belongs to other regions. Among those 74.0 % other ethnic groups; 38.5% are Asian. (United States Census Bureau, 2012) COPY RIGHT 2013 Institute of Interdisciplinary Business Research 710

3 The paper is structured into three parts. The first phase is the introduction, hypothesis and methodology, literature review is also discussed as a second component of the study. The third segment examines structural and functional comparison, testing hypothesis and concludes the article. Hypothesis of the Study can be discussed as under: H1: The developed countries ombudsmen have more autonomy and powers as compared to developing countries ombudsmen? H1o: The developed countries ombudsmen have less autonomy and powers as compared to developing countries ombudsmen? H2: The developed country s ombudsmen are more efficient and effective in resolving complaints than the under developing countries ombudsmen? H2o: The developed country s ombudsmen are not more efficient and effective in resolving complaints than the under developing countries ombudsmen? Secondary data is used as methodology in this paper. The analysis is based on the foundation documents of these ombudsmen institutions and the laws under which these institutes are established. Some sections of the annual reports are also the part of this paper that highlights their performance. Comparisons with other ombudsman institutions are also based on these reports as well as legal documents and research journals. Literature Review: A number of studies have been conducted regarding the ombudsman system to check performance in pre-describe countries. Patel (2013, pp. 1-15) argues that corruption is the main cause of the violation of human rights and security due to Public official s wrong doings. They damage the rule of law and there is need of single directive to protect this violation. For this, the institution of the ombudsman is established. Khan (2006, pp ) says that the term ombudsman is a Scandinavian originated that translated as a grievance man or a complaint officer. It is an instrument, establishes legally to protect citizens from the abuses of public servants. Bnerjee (2012, pp. 1-16) views it as a quasi-judicial authority and its duty is to investigate and inquire all complaints made by the citizens of a country. National Democratic Institute (2005, pp. 6-20) describes in its report that the basic roles performed by the institution like protect individual, promote administrative reforms, and support the judiciary to overcome injustice and reduced corruption. More than 120 countries have established this office with different names and with different powers of jurisdiction for accountability. According to Yasmeen & Ali (2011, pp. 1-12) the supremacy of rule of law is a universal obligation of every civilized society. Every citizen born free and have legal and fundamental rights. To protect these rights judicial system of a country plays an important role. In Pakistan, different institutions play their roles in different ways.v. Carmona, Brillantes & Tiu Soco (2012, pp. 1-9), discuss that many of Asian countries adopt New Public Management Approach for decentralization and involvement of private area to improve public service delivery. Ombudsman In these countries faced different challenges and their authority is COPY RIGHT 2013 Institute of Interdisciplinary Business Research 711

4 increased from public to private sector. By Niazi (1994, pp ), in Pakistan; there are many administrative courts and tribunals are working for accountability such as Supreme Court, High Courts, Wafaqi Mohtasib (Federal Ombudsman), Federal Anti Corruption Committee, Courts, Assemblies, Public Accounts Committee, Institution of audit and Accounts, Services Tribunals etc. Hussain (2010, pp. 1-28), discusses in his report that there are eight institutions of ombudsman which are working in Pakistan, four on federal level and four on provincial level. The federal ones are Wafaqi Mohtasib (Federal Ombudsman), Federal Insurance Ombudsman, Federal Tax Ombudsman and Banking Mohtasib. The other four offices established in Punjab, Sindh, Baochistan and Khyber Pakhtunkhwa. Shahid & Shahid (2011, p. 134), in Pakistan, the office of Wafaqi Mohtasib established in 1983 under the President Order No. 1. It is empowered to investigate and award compensation to those who have suffered loss due to the poor administration of public officials. Its main concern is to manage maladministration done by public servants and agencies. Ahmad & Qadeer (2011, pp ), addresses about the Federal Tax Ombudsman (FTO) and its performance. FTO resolved most of its complaints within 74 days in 2009 and in 2010, complaints are resolved in 67 days; pending complaints are only 5.0% and 11.3% complaints are under proceeding. Shahid (2007, pp ), found that, since the establishment of this office, the accountability in public sector is improved and public servants use their powers within limitation and become more cautious. It is a court for poor man and checks the excesses of bureaucracy and it leads the country to more democratic one. Corrie (2008, pp. 1-13) says that the continuous failure of government in passing the Lokpal bill increase maladministration as well as decreases the public confidence and faith on bureaucracy. Since 1970, the Lokpal bill could not pass due to the lack of political will while different states established this office but could not achieved much success. After this, Dahra (2012, pp. 1-46) compared the historical anticorruption movements of India and Indonesia. In India, the national anti-corruption movement started in 2011 and spread in the whole country to put the pressure on government to establish and empower the Lokpal to tackle the political corruption. Garg (2012, pp. 1-10), briefly discusses the role and importance of Lokayukta in India. It is an anti-corruption authority and handles complaints at state level. Different state s Lokayukta (ombudsman) has different powers of jurisdiction and punishment. Karnataka Lokayukta has power to investigate as well as he can take action about investigated person while the UP Lokayukta has no such power. His duty is to investigate only. Narayana, Krishnaswami & Kumar (2011, pp. 2-12), considered the performance of Karnataka Lokayukta as a cause of establishment of Lokpal at Country level. Karnataka Lokayukta tackles more than 60 % cases against corruption and crimes. It considers as a successful model and needs more reforms. Kundu (2012, pp. 4-9), built a relationship between Lokpal and corruption in governance. The need for a strong administrative authority increased after the performance of Lokayukta of Karnataka. Two Administrative Reforms Commissions have introduced. In second Administrative Reforms Commission 81 recommendations are accepted, 45 rejected, 05 are partially accepted and 03 are pending from total 134 recommendations. Several recommendations have accepted related to Lokpal and local body s ombudsman. According to Kumar (2012, pp. 1-17), the office of banking ombudsman introduced in 1995 under the banking ombudsman scheme that was implemented by Reserve Bank according to Section 35A of Banking Regulation Act Aparna (2006, pp. 1-18), evaluated that the Banking Ombudsman under the Banking Ombudsman Scheme and the Consumer Redressal Authorities under the Consumer Protection Act both redresses the complaints received by banking service. However, there is a difference in redressal machinery as well as in the procedure for redressal, that make an attempt to provide the reasons, but most of consumers rely on Consumer Protection Act instead of ombudsman and then proposed remedies for it. During the period of , the banking ombudsman disposed about 98% complaints. Dake & Mathur (2012, pp ), from , COPY RIGHT 2013 Institute of Interdisciplinary Business Research 712

5 85.60% complaints are resolved and during the year % complaints are resolved and other remaining 38% complaints are rejected by ombudsman due to various reasons. According to Niazi (1994, pp ), the British ombudsman, legally established in 1967 and known as a Parliamentary Commissioner. After various reforms, the powers of commissioner increased and its circle of jurisdiction expended. Elliot (2006, pp. 1-40), argues that political accountability and legal accountability is the focus of judiciary. For this purpose, different courts and tribunals are formed but the Ombudsman office, as compared to other courts and tribunals, is more accessible. Elliot (2012, pp. 1-24), further examines the reforms of public sector ombudsmen for England, as well as the establishment of Scottish and Wales s ombudsman model. The adoptions of such model in other regions are complicated by nature. Zbiral (2007, pp. 1-22), analyzes the office of ombudsman in Scotland. Great Britain has a long history of ombudsman. However, with the end of 1990s constitutional changes process started in Britain that brought autonomy in various matters to Scotland, Wales and Northern Ireland. One of them was the shift of opportunity to establish new ombudsman s office in these regions. Gay (2005, pp. 1-19), discussed about the ombudsman bill 2004 that provide the establishment of ombudsman office. That recommends powers of jurisdiction, compensation and complaints procedures. Ferran (2002, pp. 3-35), wrote about the emergence of UK Financial Ombudsman to inform the international debate about optimal regulatory systems. The single statutory ombudsman scheme that will be the primary redress authority for retail consumers but it has failed to accomplish its goal due to lack of reforms as compare to other countries. Soye (2007, pp. 1-30), discussed about the legal barriers and ethical standards of United States Ombudsman. About 90% of public does not trust on government officials. To gain the public trust to make the officials accountable different states have adopted different ombudsman models like five US states Iowa, Alaska, Arizona, Nebraska and Hawaii have general legislative ombudsman on the Swedish model. Anderson (1993, pp. 1-8), says that the conflict resolution devices provide solutions to any problem and these devices should be Court Judges, ombudsmen, Mediators and Conciliators. Ombudsman is the most trustable institution that provides information, justice and bounds the administrators to be accountable effective and efficient in their actions in US. Wallace (1993, pp. 1-4), in recent years, United States established educational ombudsman and give the autonomy to states to introduce it at school and university level. The participation of students leads to the better quality of education. Culhane (1992, pp. 1-7), further discussed that the mission of student ombudsman is to make the institution more responsible, fair, credible, and responsive to the students. It resolved the individual problems faced by administration. The author suggests that the role of Student Ombudsman requires a great deal of understanding, sensitivity, consistency, and sometimes courage. Harrison, Hopeck, Desrayau & Imboden (2013, pp ), critically evaluate that the students feel the system will be confidential if it protects them from their administration and professors, for this, an ombudsman process is much more important than the type of ombudsman process. Structural Comparison The office of the Punjab Ombudsman came into existence through The Punjab Office of the Ombudsman Act, 1997 and known as Mohtasib-e-Punjab. The Governor of Province Punjab has the authority to appoint the ombudsman for the term of four years. Staff is appointed by government with the advice of ombudsman while he can appoint his advisers and consultants on his own behalf. Punjab Ombudsman does not have any jurisdiction to investigate or inquire into any matters that are sub-judice before any other Court, foreign affairs, military affairs, etc. He has the authority to investigate into any allegation of maladministration on the part of any Agency or any of its officer or employee. He has COPY RIGHT 2013 Institute of Interdisciplinary Business Research 713

6 power to punish like other High Courts in the country (The Punjab Office of the Ombudsman Act, Article 3, 4, 8, 9, 16 & 20, 1997). In India State Ombudsman is known as Lokayukta. The Haryana State Lokayukta established in January 2006 under the Haryana Lokayukta Act, He is appointed by Governor or Lieutenant Governor on the behalf of the President for the term of five years. He can appoint officers and staff with the consultation of the State Government. The Lokayukta has power to investigate the record of State Government, local authorities, corporation, society, Government Company, university, or any college that is affiliated with university any other person who is connected with inquiry but it cannot interfere in military and foreign policies. He can punish the guilty person with rigorous imprisonment that may extendable to three years or with fine that may extendable to ten thousand rupees or with both of these punishments. (The Haryana Lokayukta Act, Article 3, 6 & 19, 2002). The Ombudsman of England is officially known as the Parliamentary Commissioner. The Parliamentary Commissioner Act 1967 provides the creation of this office. The Parliamentary Commissioner is an independent status. He is appointed by the Crown. His Staff is appointed by the Crown, Ministers or Members of Parliament but he can appoint officers as he may determine with the approval of the Treasury according to the conditions of service. He has no power to entertain a complaint direct from a citizen and comes through a member of the House of Commons. He has no any other power except to investigate and report. He has to submit his report to the Select Committee of the House of Commons, which analyzes it and proposes action. Members of Parliament and Ministers are not excluded from his jurisdiction excluded certain matters such as foreign Affairs, investigation of crimes and extradition. He is empowered to call any person for investigation and takes any document that help him in investigation excluded Cabinet documents but he cannot implement his findings and has no power to punish. He refers the matter to court. (Parliamentary Commissioner Act, Article 1, 3, 4 & 5, 1967). The Hawaii State ombudsman is established in 1967 but the actual powers are assigned to him after the Hawaii Revised Statutes His appointment procedure is very different as compares to other ombudsmen. He is appointed by the legislature, by a majority of vote of each house in joint session for the term of six years. He may be reappointed but may not be served for more than three terms. The legislature, can also remove him by two-thirds vote of the members in joint session. He can appoint his first assistant and other officers and employees necessary to carry out the responsibilities. In determining the salary of employees, he has to consult with the department of Human Resources development and follows as closely as possible the recommendations of the HR department. He has jurisdiction to investigate the administrative acts of agencies and may exercise his powers without regard to the finality of any administrative act. He can call any person and can use any document that can help in investigation. If any complaint proves, he requests the agency to notify it within a specified time, of any action taken on his recommendations. After a reasonable time he present his opinion and recommendations to the legislature, the governor, the public, or refer this to the proper authorities. (Hawaii Statutes - Chapter No. 96: The Ombudsman, 2007) Testing Hypothesis 1: H1: The developed country s ombudsmen have more autonomy and powers as compared to developing country s ombudsmen? under COPY RIGHT 2013 Institute of Interdisciplinary Business Research 714

7 H1o: The developed country s ombudsmen have less autonomy and powers as compared to under developing country s ombudsmen? As compare the above discussion, the result is clear. The Mohtasib-e-Punjab (Ombudsman) has powers to punish like a High Court Judge while the Haryana Lokayukta has also authority to punish any guilty person with fine that is extendable to ten thousands and prison of three years. However, ombudsman in developed countries like Parliamentary Ombudsman (UK) and Hawai`i State Ombudsman (USA) have no such powers. They have the authority to investigate only and then send their report to the concerned authority for further actions. They have no powers to implement their recommendations. So, the null hypothesis is accepted, that the developed country s ombudsmen have less autonomy and powers as compared to developing countries ombudsmen. Performance Based Comparison: This paper also analyzes the functionality performance of ombudsmen. It is based on past five year s data that shows the efficiency and effectiveness of the office in resolving complaints. Table 1: Total History of Punjab Ombudsman from Years Brought Forward Received Total Processed Disposed Carried Forward Source: (Punjab Ombudsman Annual Reports ( )) COPY RIGHT 2013 Institute of Interdisciplinary Business Research 715

8 Table 1: Shows total complaints history of Mohtasib-e-Punjab (Ombudsman) in previous years from In 2006, total processed complaints are through which complaints are resolved. In 2007, total processed complaints are through which complaints are resolved. In 2008, total processed complaints are through which 5155 complaints are resolved. In 2009, total processed complaints are through which complaints are resolved. In 2010, total processed complaints are through which complaints are resolved. COPY RIGHT 2013 Institute of Interdisciplinary Business Research 716

9 Table 1.1: Total History of Punjab Ombudsman from with Percentage of Overall Disposed and Per Year Disposed Years Brought Forward Received Total Processed Disposed Percentage of Disposed Percentage of Disposed As per Received Carried Forward Table 1.1: Shows the percentage of overall disposed complaints and percentage of disposed complaints as per year's received complaints of Punjab Ombudsman during the period from COPY RIGHT 2013 Institute of Interdisciplinary Business Research 717

10 The percentage of disposed complaints of these years without adding the previous year s pending complaints is high. Table 2: Total History of Haryana Lokayukta (Ombudsman) from Years Brought Forward Received Total Processed Disposed Carried Forward Source: (Haryana State Lokayukta Annual Reports ( )) Table 2: Shows the complaints history of Haryana State Lokayukta (Ombudsman) in previous five years from From , total processed complaints are 133 while 60 complaints are resolved. From the period of , total processed complaints are 251 while 139 complaints are disposed. From , total processed complaints are 270 while 179 complaints are resolved. From , total processed complaints are 301 while 169 complaints are resolved. From , total processed complaints are 452 while 267 complaints are resolved. COPY RIGHT 2013 Institute of Interdisciplinary Business Research 718

11 Table 2.1: Total History of Haryana Lokayukta (Ombudsman) from with Percentage of Overall Disposed and Per Year Disposed Years Brought Forward Received Total Processed Disposed Percentage of Disposed Percentage of Disposed As per Year Received Carried Forward COPY RIGHT 2013 Institute of Interdisciplinary Business Research 719

12 Table 2.1: Shows the percentage of overall disposed complaints and percentage of disposed complaints as per year's received complaints of Haryana State Lokayukta (Ombudsman) during the period from The percentage of disposed complaints of the period is same because it is the year of office s establishment while the percentage of disposed complaints from without adding the previous year s pending complaints is high. Table 3: Total History of Parliamentary Ombudsman from Years Brought Forward Received Total Processed Disposed Carried Forward Source: (Parliamentary and Health Service Ombudsman Annual Reports ( )) Table 3: Shows the overall complaints of Parliamentary Ombudsman in previous five years from From , total processed complaints are while complaints are resolved. During the period of , total processed complaints are while complaints are disposed. In the period , total processed complaints are while complaints are resolved. In , total processed complaints are while complaints are resolved and from , total processed complaints are while complaints are resolved. COPY RIGHT 2013 Institute of Interdisciplinary Business Research 720

13 Table 3.1: Total History of Parliamentary Ombudsman from with Percentage of Overall Disposed and Per Year Disposed Years Brought Forward Received Total Processed Disposed Percentage of Disposed Percentage of Disposed As per Year Received Carried Forward Table 3.1: Shows the percentage of overall disposed complaints and percentage of disposed complaints as per year s received complaints of Parliamentary Ombudsman during the period from The percentage of disposed complaints without adding the previous year s pending complaints is high. COPY RIGHT 2013 Institute of Interdisciplinary Business Research 721

14 Table 4: Total History of Hawai`i State Ombudsman from Years Brought Forward Received Total Processed Disposed Carried Forward Source: (Hawai`i State Ombudsman Annual Reports ( )) Table 4: Shows the overall complaint s status of Hawai`i State Ombudsman in previous five years from From , total processed complaints are 4690 while 4521 complaints are resolved. During the period of , total processed complaints are 4818 while 4657 complaints are disposed. In the period , total processed complaints are 4721 while 4545 complaints are resolved. In , total processed complaints are 5154 while 5001 complaints are resolved and from , total processed complaints are 4839 while 4691 complaints are resolved. COPY RIGHT 2013 Institute of Interdisciplinary Business Research 722

15 Table 4.1: Total History of Hawai`i State Ombudsman from with Percentage of Overall Disposed and Per Year Disposed Years Brought Forward Received Total Processed Disposed Percentage of Disposed Percentage of Disposed As per Year Received Carried Forward COPY RIGHT 2013 Institute of Interdisciplinary Business Research 723

16 Table 4.1: Shows the percentage of overall disposed complaints and percentage of disposed complaints as per year's received complaints of Hawai`i State Ombudsman during the period from The percentage of disposed complaints without adding the previous year s pending complaints is high. Testing Hypothesis 2: H2: The developed country s ombudsmen are more efficient and effective in resolving complaints than the under developing country s ombudsmen? H2o: The developed country s ombudsmen are not more efficient and effective in resolving complaints than the under developing country s ombudsmen? The results of table show the performance of ombudsmen in developed and developing countries. The performance of Mohtasib-e-Punjab, during the period of , the Mohtasib-e-Punjab (ombudsman) disposed 75.5% complaints of total processed complaints and The Haryana Lokayukta, from , percentage of disposed complaints was 56.4% while Parliamentary Ombudsman performance was good and during the five year period he disposed 92% complaints and Hawai`i State Ombudsman disposed 96.7% of total processed complaints. So here, the null hypothesis is rejected and the alternate is accepted that the developed country s ombudsmen are more efficient and effective in resolving complaints than the developing countries ombudsmen. Conclusion: Ombudsman is the institution in the world that controls the maladministration done by the public official and other agencies. It plays an important role in developed countries as well as in developing countries. Every country has its own legal framework of this institution. In some countries, it has more autonomy and powers, and performing effectively and efficiently but in other countries; it has authority of investigation only. In this research the developing country s ombudsmen like Punjab Ombudsman and Haryana Lokayukta have more autonomy but their performance is low in complaint resolving then developed country ombudsmen such as Parliamentary Ombudsman and Hawai`i State Ombudsman. The study concludes that the lack of resources and qualified staff is the main cause of ineffectiveness and inefficiency of Mohtasib-e-Punjab (Ombudsman) and lack of public awareness in Lokayukta of Haryana State. The developed country s ombudsman should be given more autonomy and powers. The paper suggests that the reasonable resources and proper awareness leads the Punjab and Haryana ombudsman to efficient and effective institute while Parliamentary Ombudsman and Hawai`i State should have more powers and autonomy. There is a definite need to review the entire system and need of reforms to bring positive results and success. COPY RIGHT 2013 Institute of Interdisciplinary Business Research 724

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