A good law compromised

In a widely welcomed decision that President General Pervez Musharraf took on the advice of Finance Minister Shaukat Aziz, the government set up the office of Federal Tax Ombudsman (FTO) nearly four years ago in the interest of public good.
Like in so many other countries, the FTO is supposed to provide relief to the public against mal-administration in the tax machinery.
It is not surprising if those likely to find themselves accused of errors of commission or omission are resentful of the idea of having the office of FTO, and seek to place as many restrictions on its jurisdiction as possible.
This resentment has found expression in Section 9(2)B of the Federal Tax Ombudsman Ordinance.
As per this provision, the Ombudsman is not to interfere in the valuation, assessment and classification matters or for any other matter in which an appellate procedure exists in law.
While talking to this paper the other day, the Federal Ombudsman Justice (Rtd) Saleem Akhtar rightly pointed out that the matters that come to the Ombudsman's office would, in one way or the other, relate to valuation, assessment, etc.
The main purpose of the ordinance, he said, was to provide relief to aggrieved parties arising out of mal-administration such as misuse of authority and arbitrary exercise of power.
Needless to say, so far as tax default and recovery issues related to income and sales taxes, customs duty and central excise are concerned, elaborate systems have always been in place to deal with them.
Those who have to pursue cases of income tax default or excesses, for example, can go to an income tax tribunal; and if still unsatisfied, they can proceed to the higher courts.
The chief responsibility of the FTO is to ensure that tax payers do not suffer on account of the CBR officials' wrong-doings, which can be the result of honest mistakes as well as unscrupulous tendencies.
According to well-established legal traditions an adjudicator is not supposed to follow the law only in literal terms but also to take into account its spirit and the intent of the law enactment authority.
If in the present context the tax officials are accused of making wrongful use of their authority, the Ombudsman should be able to look into assessment, valuation and classification matters so as to establish whether or not the same has been done with a malicious intent.
Hence Justice Akhtar is fully justified when he maintains that if these issues are not to be addressed by the FTO, the purpose of the law would stand defeated.
It is only logical therefore to ask the government to make the necessary change in the law.
Whereas Section 9 (2) B bars the FTO from having jurisdiction over affairs involving valuation, assessment and classification etc, it should also include the sentence 'except where mal-administration is involved.'
Section 9 contains another provision that is also aimed at undermining the Ombudsman's role.
The final authority to review the appeals being that of the President, under the original law, status quo was to be maintained until the President made the final decision on an appeal. Which made ample sense.
That provision has been amended and replaced with a new one, which says that the Ombudsman's findings are to be held in abeyance till the disposal of the appeal.
The provision is as absurd as can be. Besides being contrary to the requirements of justice and established practice, it makes a mockery of the whole concept of having the office of FTO.
Obviously enough, it gives the tax officials a free hand to harass the tax payers while the concerned officials in the President's office or the Ministry of Law, take their own time to process the appeals against the FTO's decisions.
The government must review this nonsensical legal provision and restore the original one, which called for status quo as long as the appeal lay in the President's office for review.
The Law Ministry, which is still without a full time minister, must also pay urgent attention to the need of selecting people of integrity and competence for processing the appeals that it receives for presidential review.