By Malik Muhammad Aqdus
ABSTRACT
Before a few centuries, the word “Ombudsman” was begun to be used as a public office which redressed the public grievances and held public officials accountable for their injustices and abuse of power. But, the concept and philosophy behind this very institution is as old as the concept of public office. Existing literature shows that civilized societies have developed this concept to ensure check and balance above the ruling class. Islam, being a gap-less system, always preferred accountability of public officials in order to watch the ruling class, constituting it as an essential manifesto of the Islamic State. It is based on the Islamic politico-legal Philosophy and includes Shariah doctrines of “Adl” (Justice) and “hisbah” and the one who exercises this function of accountability is commonly known as “Muhtasib”. Concerning it, this study seeks to explore the history and philosophy of Ombudsman institutions and its concept. Central to it, this study is dedicated to analyze the concept of Ombudsman or Muhtasib in the light of Shariah and Pakistani Law. It will also highlight the famous doctrine of Islamic Law like “Hisbah” and draw a sketch of Office of Muhtasib from the era of Khulfa-e-Rashiddin and explain how this institution was working in earlier Islamic State. This article will also explore the legal frameworks regarding Ombudsman Institutions in Pakistan and their compatibility with the office of Muhtasib in earlier Islamic States. The article will also identify the loop holes in Pakistani Ombudsman Institutions on the basis of traditional Hisbah Institutions and suggest certain recommendations for its improvement.
KEYWORDS
History of Ombudsman/Muhtasib; Islamic concept of accountability; Shariah guidelines regarding Office of Muhtasib; Ombudsman Institutions of Pakistan; Differences between accountability mechanisms of earlier Islamic States and Pakistan.
LITERATURE REVIEW
“Ombudsman Institutions” have remained a fertile ground where scholars have successfully cultivated the seeds of knowledge. Sometimes scholars have classified this subject in the field of Governance, sometimes ruled-ruler relationship, and sometimes in the fields of Civil and Human Rights. These Institutions particularly gained prominence in the beginning of 19th century, hailing their origin from Sweden. It is believed that this institution was recognized and adopted or adapted, as the case maybe, by developed and developing countries after its successful implementation in Sweden, where it began unofficially in 1713 and now considered as a gift of Sweden (Abedin, 1986). This institution was described as an agency to protect general public from abuse of government authorities and violations of human rights at their hand (Swedish Institute Of Ombudsman – An Instrument Of Human Rights | Office of Justice Programs, n.d.). It was also found as “remarkably versatile, flexible and adaptable: cloth that can seemingly be cut to any form” (Gregory & Giddings, 2000a, p. 18). The Ombudsman institutions are now globalized and the sociological picture of institutional analysis provides a ground for understanding the global dissemination of institutional ideas, its cultural aspects and perspectives (Erkkilä, 2020). After Sweden, Finland adapted and developed this institution followed by a series of adaption by different countries. The primary objective of Ombudsman Institution has been to promote and ensure good governance by encouraging accountability, efficiency and transparency in administration (Batalli, 2015). While summing up, the concept of Ombudsman Institution isbelieved to be a western concept where it was promulgated after the Swedish King Charles, who appointed an Ombudsman-like official, called Chancellor of Justice, to look into complaints against Royal officials in 1713 (Abedin, 2011). Subsequently, in 1809, Swedish Parliament made provisions regarding “Ombudsman office” and gave it a constitutional effect (Hill, L. 2002). But, this concept was in actual derived from the Islamic politico-legal Philosophy under the subject of “ميمللسإيو ملايملو يف ملاظملا ةيالو “and the Swedish King was inspired by the system of Qazi-ul-Quzzat in Turkey, when he took refuge there in 1709 and upon restoration in 1713, he established a similar system which afterwards developed into the Office of Ombudsman (Rahmani, Z. 1985).
HISTORY AND PHILOSOPHY OF OMBUDSMAN OR MUHTASIB
Considering the western perspective regarding the history of Ombudsman first, the institution formally began for the first time in Sweden in 1809, when the Swedish Parliament gave it a constitutional effect through legislation. The significance of this institution primarily lies in its independence from the executives and this is because the Ombudsman was elected by, and report to the legislature (Wieslander, 1994). After Sweden, Finland was the next country to adapt Ombudsman institution in 1919, with extensive powers granted to the Institution; even an Ombudsman can act as a public prosecutor by authority of Parliament and can initiate criminal proceedings against Judges of Supreme and High Administrative Courts. After the WWII, the concept Ombudsman Institution spread rapidly and countries began to establish this institution for better administration and governance. In 1952, it was established in Norway followed by Denmark in the next year. In 1967, Great Britain established this office, however the powers were limited. In the same year, Canada established the Institution followed by Australia, France, Spain and Poland in the years 1979, 1973, 1981 and 1988 respectively (Batalli, 2015). It was also established in Pakistan in 1983 through the Establishment of the Office of Wafaqi Muhtasib Order 1983.
Another key point regarding Ombudsman Institution is the establishment of an International Ombudsman Institute in 1978, which had much contributed to the growing Institution through its studies, educational programs, conferences and publications etc. The Maastricht’s Treaty of 1993 first established the European Ombudsman for the purpose of enhancing public relations with EUlevel governments (Diamandouros, 2005).
In accordance with Islamic perspective, there is an Institution of “Hisbah”, also known as
“Ihtisab”, derived from the roots “h.s.b” in Arabic. It has different meanings including; calculation,
verification or to take into consideration. The Institution of Hisbah was established in the first
Islamic State of Medina, where its functions was exercised by Holy Prophet (Peace Be Upon Him)
followed by the Khulfa-e-Rashiddin for the application of Islamic principles (enjoining right and
forbidding wrong) as laid down in Holy Quran [Al-Imran 3:101]. Therefore, its main function was
to promote lawful and proper conducts and to avoid all forms of improper or unjust deeds (Ateş,
H. 2017). Since its establishment in the early Islamic State in Prophet’s time, the main purpose of
Hisbah Institution was to protect members of society from aberrance, preserve their faith and
guarantee the public welfare in both religious and worldly matters according to Shariah. Inaddition, its core purpose also include to serve as a control mechanism to maintain social order
(Abdullah, 2010; Dogarawa, 2013). However, Hisbah Institution has undergone through an
evolutionary stages of development. Initially, its functions was broadened by increasing its
jurisdiction to general social issues (Elsergany, 2010). With the passage of time, the functions of
Hisbah Institution continued to grow and evolve. In this regard, the development of this Institute
in Muslim era, particularly the Abbassid Caliphate and Ottoman Empire is of quite worth, and this
institution, after many changes, was then transformed into what we called now as Ombudsman
Institution.
The philosophy behind the Institution of Hisbah has been adopted from the Islamic
politico-legal philosophy. Considering the principle of Amr bil Maroof Wa Nahi Anil Munkar in
its broadest sense and the principle of Justice; as mentioned in the Holy Quran “Do Justice! For
it is better than piety” [Al-Quran 5:8], Hisbah institutions was established. In order to keep an eye
over the authorities and to make better the mode of governance, Islam has founded this institution
which constantly remained in the process of evolution and was eventually accepted throughout the
globe as an instrument of better governance, eradication of injustices and upholding of public
rights through accountability and check and balance mechanism. The same philosophy was
adapted by the Swedish government with a view to maintain a check and balance mechanism and
to hold public officials accountable for their misuse of powers and to redress the public grievances
against authorities.
ISLAMIC CONCEPT OF HISBAH INSTITUTION AND ITS DEVELOPMENT
The Islamic concept of Hisbah (accountability) aims at what we called as “Al-amr bil
Maroof Wa Nahi Anil Munkar”; translated as enjoining right and forbidding wrong as understood
and defined by (Al-Mawardi, 1966; Ibn Taymiyyah, 1973). Initially, it was particularly related to
financial and business matters and refers to the administrative and organizational systems of an
Islamic State. Hisbah Institution have undergone a number of progressive developmental changes,
making it, for the West, a perfect model for maintaining justice and good administration in society.
As Islam regards justice, the core principle of governing people, therefore, Muslim Governments
have always institutionalized the administration of justice. Because of this, Hisbah Institution had
remained a central major institution throughout the Muslim history and was the core componentof management and development of Islamic nation, particularly in the Abbasid Caliphate. Many
historians held a view that the term “Al-Muhtasib” was first used in the era of Abbasid Caliph AlMehdi (Ateş, 2017). Although, this institution faced serious decline when the Abbasid Caliphate
followed by Fatimiyyah got weakened during early 10th century. But, later on this Institution was
restored to its prestige and heights during the period of Ottoman Caliphate, where many other
functions was included in the domain of Hisbah Institution.
During Ottoman Caliphate, Hisbah Institutions was vested with the powers to levy duties
and taxes on traders and artisans, in addition to their previous responsibilities. Ottomans also
codified the roles and functions of Muhtasib for the first time in Islamic history, which has proved
to be a very significant development began under the rule of Sultan Bayazid II’s era and continued
by his successors (Ateş, 2017). The original functions of Muhtasib includes supervising public
behaviors and morality and observing religious duties. In addition, he was also made responsible
to collect certain taxes (Islahi, 2005).
The functions of Muhtasib of an Islamic State are quasi judicial functions, encompassing
all affairs of life, whether religious or worldly matters. Its essential feature is its independent and
impartial nature. Its modus operandi and functions have evolved throughout the period of its
development which, according to Islamic teachings, includes: to order for fulfillment of trusts; to
prohibit all evils and misdemeanors; to ensure honesty with regards to weights and measure and
also manufacturing of goods; too prevent fraud in all sorts of transaction; to keep an eye over
traders or rulers in order to protect the public interests and so on (Khan, 2011). In essence, the
modus operandi of Hisbah Institutions in Islamic Law revolves around business matters, religiousmatters, upholding of public morality and ethics, and protection of public interest against any
injustice done to them by any authority.
OMBUDSMAN INSTITUTIONS OF PAKISTAN
Pakistan, as being part of the sub-continent, had a good experience with Hisbah Institution
in the classical era. According to a 14th century Muhtasib of Tughlaq Dynasty, Umar bin
Muhammad Al-Sunami (1320-1430 C.E.), main functions of Hisbah Institution included;
combating with innovations in Islam (Al-Bida’h), advising public in religious matters, leading in
daily prayers, dealing with social affairs of people, and discouraging bad habits and ill-morals like
gambling and trade of wine. But, this institution, like many others Islamic Institutions, had lost its
prestige and essence under the colonial rule which began in 18th century. But, after the end of
colonial rule in 1947, Pakistan came into being with a sheer commitment of Muslims to shape their
lives in accordance with Islamic teachings. Following this, the need for establishing Islamicoriented Institutions including Hisbah Institution was realized and subsequently the office of
Wafaqi Muhtasib was established in 1983, under the military regime. However, its domain was
far short and narrow in comparison with the traditional Hisbah Institutions. It was assigned the
function of only redressing public grievances and complaints against public officials, which is
quite appreciable but considerably lacks many functions of Hisbah Institution in traditional Islamic
era.
Nowadays, there are five types of Muhtasib (Ombudsman) in Pakistan, working in different
domains but mainly exercise the same function of redressing public grievances against the public
functionaries. All of these institutions operate under their relevant legislation. The first one is
Federal Tax Ombudsman (FTO) which redress the grievances of taxpayers against tax authoritiesand operate under Federal Tax Ombudsman Ordinance, 2000. The second one is Federal
Ombudsperson Secretariat for Protection Against Harassment (FOSPAH) in the workplace which
operate under the Protection Against Harassment of the Women at Workplace Act, 2010. Its main
function is to create secure and harassment-free working environment for all, particularly females.
Another one is Federal Insurance Ombudsman (FIO) which operate under the Insurance
Ordinance, 2000 and investigate grievances of policy holders due to maladministration at the hand
of Insurance companies. We also have Banking Muhtasib (Ombudsman) Pakistan (BMP) which
derives its authority from the Banking Companies Ordinances, 1962 (BCO, 1962). It investigates
complaints of customers related to or that are based on banking mal-practices, discrimination,operational inefficiencies and violation of any Bank Rules and Regulations. Lastly, unlike other
Ombudsmen institutions, Pakistan also has its Federal Ombudsman who can exercise its functions
in various domains. Federal Ombudsman may investigate any public complaint against the public
functionaries, thereby provide swift, just and inexpensive mechanism for redressing public
complaints. This ensures accountability and transparency of the public functionaries. The Federal
Ombudsman Of Pakistan operates under The Establishment of the Office of Wafaqi Muhtasib
Order, 1983. All the Ombudsman Institutions in Pakistan, as mentioned hitherto, also exercise
their powers conferred under the Federal Ombudsmen Institutional Reforms Act, 2013. These
institutions have made the justice accessible for common man and paved a way for the country to
improve its governance.
DIFFERENCES BETWEEN THE OFFICES OF MUHTASIB OR OMBUDSMAN IN
EARLIER AND CONTEMPORARY ISLAMIC STATES, PARTICULARLY PAKISTAN
Although the basic philosophy behind the Ombudsman or Muhtasib Institutions has
remained similar but the contemporary institutions lacks that prestige which the earlier institutions
possessed. However, the concept is same, which promote accountability of those in power, but
today’s Ombudsman Institutions are only concerned with a few functions of traditional Hisbah
Institutions and significantly lapse in the moral, ethical and religious functions. Moreover, theseinstitutions were established by following western footsteps, particularly in areas where colonial
rule had left its mark. These were not established keeping in view the Islamic teachings and
principles. The roles and responsibilities of Muhtasib or Hisbah officials encompassing a number
of public affairs including, but not limited to, ensure that weights and measures are correctly used,
look after moral and religious responsibilities of individuals, to order for specific performance of
agreements, to ensure that all evils are discouraged and good deeds are encouraged, to collect some
taxes, to hold authorities accountable in order to secure public interests etc. But, nowadays,
Ombudsman institutions in Pakistan are limited to accountability of public officials for their
maladministration, particularly in domains of taxes, banking, insurance, harassment and redress
other public grievances. But, there is no one to investigate matters related to unjust weights and
measurements, quality of manufacturing of goods, ensure enjoining of good and prohibiting what
is bad or evil, supervising whether Muslims are performing their religious responsibilities or not.So, these areas are some gaps which needed to be filled. As Ombudsman Institutions are already
playing an effective role in ensuring accountability and transparency of public functionaries,
therefore, such matters should also be taken into consideration for effectively including and
implementing Islamic perspective regarding Hisbah Institutions in their true letter and spirit.
RECOMMENDATIONS TO IN LINE THE PRESENT OMBUDSMAN INSTITUTIONS
WITH THE OFFICE OF MUHTASIB IN EARLIER ISLAMIC STATES
Although, the Ombudsman Institutions in Pakistan are playing their effective role to
maintain justice by doing an extensive task of accountability of public officials when they make
abuse of power, which is quite commendable. But, there is always a room for improvement. The
article suggests that certain modifications should be made to broaden the scope of Ombudsman
Institutions, constitutionally and practically, in the light of the Draft Hisbah Bill, prepared by the
then Provincial Government of Khyber Pakhtonkhuwa in 2002, which was supposed to prevent
the deterioration of Islamic social norms in society (Ateş, 2017). Some of the functions which
should be exercised by Ombudsmen for preservation of Islamic values and morality, based on the
Draft Hisbah Bill may include:
a) To discourage beggary and child labor;
b) To execute adherence to moral values of Islam at public places;c) To prevent cruelty to animals;
d) To discourage un-Islamic social étiquettes;
e) To execute standard weights and measures and to have check on artificial price hike;
f) To protect public properties and eliminate bribery from government offices.
CONCLUSION
In a nutshell, Ombudsman (Muhtasib) Institutions in accordance with Shariah are more
inclusive and have a broader scope. These were responsible for exercising a variety of functions
in different domains for the sacred purpose of ensuring justice, promoting good or righteousness
and forbidding of all evils in order to maintain Muslim society in accordance with the teachings
of Islam. However, Ombudsman Institutions in Pakistan have limited powers and they exercise
their functions in accordance with powers conferred under relevant legislation to only on limited
subjects. Their main function is to hold public officials accountable for their maladministration,
which is indeed a milestone in the way for better governance. But, the concept of Hisbah
Institution, as practiced by Muslim States in their Golden era, is much more than accountability of
public officials. Therefore, the scope of these institutions should be broaden in order to
accommodate all the traditional functions of Hisbah Institutions. So that, such present institutional
mechanisms could be brought in line with the traditional concept of Hisbah Institution and Islamic
doctrines.
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