PESHAWAR: A lawyer on Thursday moved the Peshawar High Court challenging some provisions of the women’s property rights law, which assigned judicial powers to the provincial anti-harassment ombudsperson.

In the petition, Akhtar Ilyas requested the court to declare unconstitutional sections 7 and 12 of the Khyber Pakhtunkhwa Enforcement of Women’s Property Rights Act, 2019, insisting that the sections are in conflict with the constitutional provision guaranteeing the separation of the judiciary from the executive.

The respondents in the petition are the provincial government through its chief secretary, provincial law secretary and the provincial ombudsperson appointed under the Protection against Harassment of Women at the Workplace Act, 2010.

Section 7 of the Women’s Property Rights Act empowers a woman to file a complaint with the ombudsperson even if proceedings are pending before a court of law in relation to ownership or possession of any property claimed to be owned by the woman.

Petitioner claims granting judicial powers to ombudsperson unconstitutional

The ombudsperson is empowered under that provision to recommend the termination of the proceedings before a court of law or put it in abeyance over that complaint.

Section 12 of the law places bar on a court or other authority to have jurisdiction to question the validity of any action taken or order made under that Act.

The petitioner said the provincial government had enacted the Act to protect and secure the rights of the ownership of the women in the property in the province.

He said under Section 2-C of the Act, an ombudsperson meant the one appointed under the Protection against Harassment of Women at the Workplace Act, 2010.

The petitioner said that under the Act, the procedure and guidelines for filing of a complaint by an aggrieved woman had been given in sections 4 and 7, whereas the mechanism for their execution had been provided in section 5, 6 and 10.

The petitioner contended that the Act was contradictory in nature and in conflict with Article 175 of the Constitution, which guaranteed the separation of the judiciary from the executive.

He said that the ombudsperson had been given wide executive and judicial powers, which were against the Principle of Trichotomy of Power provided under the Constitution.

The petitioner added that the Act in question clearly provided the accumulation of powers in one entity i.e. ombudsperson.

He contended that the Act was self-contradictory as its sections 4 and 7 provided contradictory remedies to an aggrieved complainant.

The petitioner claimed that according to the Civil Procedure Code, Civil Courts Act and different landmark judgments of the superior courts, the civil court had been granted the jurisdiction in all civil matters unless expressly barred.

He added that the legislature had totally overlooked this aspect of the matter and had stripped the civil court from its jurisdiction in favour of an executive i.e. the ombudsperson.

The petitioner said the legislature had tried to give over and above role to the ombudsperson at the expense of the civil courts.

Published in Dawn, July 16th, 2021