PESHAWAR: The Peshawar High Court has declared the grant of judicial powers to the provincial anti-harassment ombudsperson for deciding women’s property issues unconstitutional and asked the government for “appropriate” legislation on the matter.

Justice Syed Arshad Ali of a single-member bench ruled that theEnforcement of Women’s Property Rights Act, 2019, was meant to allow the executive limb of the state to conduct a parallel judicial proceeding.

“This, in my humble view, is an excessive delegation of power and would offend the principle of trichotomy of power, which is one of the fundamental value of our constitution where under all the three organs of the State namely the legislature, the executive and the judiciary are required to perform their functions and exercise their powers within the allotted sphere,” it declared.

The bench issued the order while accepting an appeal by Ms Falak Shehnaz and others against the June 18, 2021, orders of the ombudsperson to “attach and seal” the entire disputed property until the disposal of the main complaint.

Court asks govt to legislate on matter

Ghulam MohiuddinMalik was the lawyer for appellants.

The order was issued on a complaint of Ms Khushnood and two other people under Section 4 of the KP Enforcement of Women’s Property Rights Act.

The bench discussed in detail different provisions of the KP Enforcement of Women’s Property Rights Act and the question whether when courts were established under Article 175 of the Constitution, parallel adversarial functions, which the courts exclusively enjoyed, could be conferred upon any limb of the state other than judiciary and whether the office of the ombudsperson fell within the judicial limb of the state.

“Our constitution is founded on the theory of trichotomy of powers between three limbs/ organs of the state, namely the legislature, the executive and the judiciary. It delineates functions of each of the organs,” the bench observed.

The court observed that adversarial functions of the court on any authority would then obviously offend the basic theory of trichotomy.

The court also discussed different offices of ombudsmen established under different laws including that of the federal ombudsman (wafaqi mohtasib), federal tax ombudsman, banking mohtasib, insurance ombudsman, etc. and their respective powers.

Referring to different judgments of the superior courts, the bench ruled that the office of an ombudsman fell in the executive limb of the state though he performed his functions as quasi-judicial and could record evidence, investigate a matter and functioned as a watchdog on government institutions.

It added that it was high time that the issue where a woman was deprived of her property more particularly in inheritance, the provincial government should pass an appropriate legislation to safeguard the women rights but within the sphere of the Constitution.

The bench observed that it was conscious of the fact that in the present legal dispensation and in the absence of appropriate legislation, the women were normally deprived of their share provided in the Sharia in their inherited property.

It ordered the sharing of its judgement with the law and justice department for appropriate action.

While referring to different provisions of the Code of Civil Procedure regarding mode of attachment of immovable properties, the bench observed that Rule 54 of the CPC’s Order 21 did not allow in any way the court to take actual possession of the disputed property and despite issuance of attachment order it remained within the possession of defendants.

It added that ordering sealing of any property by the ombudsperson was not backed by any law and any order for attachment of immovable property should be implemented and interpreted in the manner provided in the said rule.

The court declared the impugned order of the ombudsperson, allowing the sealing of the disputed property, as without jurisdiction and set it aside. However, the order of attachment, the bench ruled, of the disputed property should remain in the field.

It ruled that there was an apparent disparity between sections 4 and 7 of the Act, which had an inherent defect.

The bench declared that Section 4 provided that a woman, who was deprived of her ownership or possession of the property, might file a complaint to the ombudsman if no proceedings in a court of law were pending regarding the property.

It added that Section 7 empowered the ombudsman to entertain a complaint in respect of any dispute relating to a property right of a woman despite the pendency of claim before the competent court of law.

Published in Dawn, December 28th, 2022