Sub-Constitutional Legislation and Powers of the Constitutional Court

Sub-Constitutional Legislation and Powers of the Constitutional Court Case Laws Constitutional Law Contempt Interpretation of Statutes Knowledge - Constitutional Law Lahore High Court Litigation & Arbitration Ombudsman Solutions - Constitutional Law Mr. Justice Syed Mansoor Ali Shah in his judgment has decided the issue of sub-constitutional legislation and powers of the constitutional court in Writ Petition No. 33483 of 2015.

1. Respondent No.2 filed a complaint against petitioners on 14.09.2015 under section 8 of the Protection against Harassment of Women at the Workplace Act, 2010 (“Federal Act”) before respondent No.1 i.e., the Federal Ombudsman for Protection against Harassment of Women at Workplace, Islamabad (“Federal Ombudsman”). Petitioners (i.e., accused in the complaint) objected to the assumption of jurisdiction by the Federal Ombudsman in entertaining the complaint through their application dated 12.10.2015. They, inter alia, contended that as the cause of action arose in Lahore, Punjab, the Provincial Ombudsperson for Punjab under Protection against Harassment of Women at the Workplace Act, 2010 (“Provincial Act”)1 has the jurisdiction to entertain such a complaint. Application of the petitioners was dismissed by respondent No.1 vide impugned order dated 16-10-2015. Simultaneously, Petitioners had preferred writ petition (W.P.No.31289/2015) before this Court challenging the assumption of jurisdiction by respondent No.1. This petition was dismissed in limine vide order dated 19-10-2015 on the ground that the application of the petitioners was already pending before respondent No.12, hence, the writ petition was not maintainable in the light of the alternate remedy already availed.

2. The petitioners, through the titled petition, challenged the rejection of their application, on the question of jurisdiction, by the Federal Ombudsman vide impugned order dated 16-10-2015. During the pendency of the titled petition and in gross violation of the interim relief granted by this Court, respondent No.1 decided the complaint of respondent No.2 through Judgment dated 4-1-2016, holding the petitioners guilty and imposing penalty of Rs.100,000/- on each of the petitioners, with a direction to the President (sic) of Pakistan Bar Council to issue letters of censure to the petitioners.

3. Learned counsel for the petitioners argued that the Federal Act draws its legislative competence from the Concurrent List (entry/item No. 25) which has since been omitted by the Constitution (Eighteenth Amendment) Act, 2010 (Act X of 2010) (“Amendment Act”), the entries/legislative areas in the Concurrent List stood devolved onto the Provinces. Under article 270AA(6) of the Constitution, notwithstanding the omission of the Concurrent List, the laws in existence prior to the 18th amendment continue to be in force unless altered, repealed or amended by the competent legislature. In Punjab through The Punjab Protection Against Harassment of Women at the Workplace (Amendment) Act, 2012 (Act III 2013) the Federal Act was altered/amended into a Provincial Act. It is submitted that after the provincial enactment, under the constitutional scheme, the Federal Act does not remain in force and stands succeeded by the provincial enactment. In this background it is submitted that the complaint of respondent No.2 which states that the cause of action has arisen in Lahore and against the petitioners, who also reside in Lahore, the Federal Ombudsman has no jurisdiction to entertain the said complaint and therefore the proceedings, orders and the final Judgment passed by respondent No.1 are unconstitutional, unlawful and without jurisdiction.

4. He also argued that petitioners are lawyers working in an individual capacity, without there being any registered law firm, hence for this reason they do not fall within the definition of accused or the employer under section 2 (a) and (g) of the Federal Act. On the whole, learned counsel for the petitioners placed reliance on A.F Ferguson & Co. v. The Sind Labour Court and another (PLD 1985 S.C 429), Messrs Simma Fabrics Ltd, Gujranwala v. Authority under the Payment of Wages Act and 3 others (1981 PLC 498), V. Sasidharan v. (M/s) Peter and Karunakar and others (1985 PSC 777), Dr. Shagufta Hussain and another v. Water and Power Development Authority through Chairman and 4 others (2004 CLC 293), State of Rajasthan v. Ganeshi Lal (AIR 2008 S.C 690).

5. Learned Deputy Attorney General (DAG) on behalf of the Federation, the office of the Federal Ombudsman and in response to notice under Order 27-A CPC, relied on Article 270 AA(6) of the Constitution to support the contention of the learned counsel for the petitioners, to the extent that federal law automatically morphs into provincial law after the constitutional declaration under the 18th amendment and goes on to argue that the Federal Act also continues to exist but within restricted territorial jurisdiction i.e., within Islamabad Capital Territory and territories which do not form part of the Provinces. He concludes by submitting that respondent No.1 could not have entertained the complaint of respondent No.2 as the cause of action arose in Lahore, Punjab and therefore the matter fell exclusively within the domain of the Provincial Ombudsperson.

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