In a recent important legal development the Supreme Court of Pakistan restored the provincial ombudsman, Badshah Gul Wazir, by declaring as illegal two controversial notifications through which it was notified that he ceased to be the provincial ombudsman after an amendment in the relevant law and instead another person, Khursheed Anwer, was appointed to the post.

Last year, the Khyber Pakhtunkhwa Assembly on Sept 17 passed the Khyber Pakhtunkhwa Provincial Ombudsman (Amendment) Act 2013, which received the assent of the governor on Sept 24, 2013. Through that law drastic changes were made in the Khyber Pakhtunkhwa Provincial Ombudsman Act 2010.

One important amendment was related to the term of office of ombudsman. Before these amendments section 4 of the Act provided that the provincial ombudsman shall hold office for a period of four years and shall not be eligible for any extension in his tenure or for reappointment as provincial ombudsman under any circumstances. Following the last year amendments the law now provides that the ombudsman shall hold office for a period of four years or till the age of 62 years, whichever is earlier and shall not be eligible for any extension.

Badshah Gul Wazir, a former provincial secretary for law, human rights and parliamentary affairs, who had also served on other key posts, was appointed the first provincial ombudsman through a notification on Dec 29, 2010, and subsequently he had taken oath of his office on Jan 5, 2011. He enjoyed good reputation during government service and that was one of the reasons for his appointment on this key post.

While he was appointed for four-year term, after amendments made in the law the provincial government announced that he had ceased to hold the post as under the amended law he had already turned 62.

Apparently, the said amendments were outcome of a tug of war going on between Mr Wazir and the then provincial minister for law and parliamentary affairs Late Israrullah Khan Ghandapur. It was reported in the newspapers that Mr Wazir had resisted the interference of the minister in the office of ombudsman on the ground that it was an autonomous body and it could not function on the dictates of the government. Due to same reason such amendments were made in the law so as to get rid of Mr Wazir and also to make the office of ombudsman subservient to the provincial government.

Mr Wazir had first challenged the amendments in the law and the two controversial notifications issued on Oct 29 and Oct 30, 2013, before the Peshawar High Court.

However, a two-member bench headed by the Chief Justice Mazhar Alam Miankhel dismissed the petitions on June 9, 2014, by declaring the acts of the government as legal.

Mr Wazir had adopted the plea that the said amendments were based on malafide intentions and even if these were considered legal these could not be applied to his post with retrospective effect.

Against the order of the high court appeals were filed before the Supreme Court and finally a three-member bench comprising Justice Anwar Zaheer Jamali, Justice Ejaz Afzal Khan and Justice Qazi Faez Isa on Sept 17 decided the matter in favour of Mr Wazir.

The bench allowed his appeal and ruled that the two notifications were illegal , without jurisdiction and legal effect, as a result the petitioner, Badshah Gul Wazir, stood restored to his original position till expiry of his term of office as envisaged in notification of Dec 29, 2010. The bench had announced a short order and detailed judgment would be released later on.

The amendments made in the law were viewed by experts as an attempt by the government to curtail powers of the ombudsman, which was a negation of the policy of introducing good governance by the Pakistan Tehreek-i-Insaaf-led provincial government.

While on one hand the government had introduced some important laws related to good governance especially the Khyber Pakhtunkhwa Right to Information Act 2013 and the Khyber Pakhtunkhwa Right to Public Services Act 2014, while on the other the controversial amendments had raised many eyebrows.

The most astonishing was reduction in the functions of the provincial ombudsman by removing the issues related to women and children from his jurisdiction.

Under the original law the ombudsman had the powers of a civil court in implementation of his orders, but through these amendments the government had deleted those powers. Furthermore, the powers of the ombudsman to issue restraining order against any government agency or official had also been removed.

On many issues it has now been made binding on the ombudsman to consult the provincial government, which raises the question how the ombudsman would function independently out of the influence of the government.

In Pakistan the office of ombudsman was first introduced on federal level during the military government of General Ziaul Haq in 1983 when the Establishment of the Office of Wafaqi Mohtasib (ombudsman) Order, 1983, was introduced.

Among the four provinces Sindh was the first where office of provincial ombudsman was set up in 1991 when the Sindh Assembly had passed the Establishment of the office of Ombudsman for the Province of Sindh Act, 1991. Subsequently, the offices of provincial ombudsmen were established in Punjab and Balochistan in 1997 and 2001, respectively.

The laws in practice in the centre and four provinces are almost identical and carry very minor differences.

Legal experts believe that after the apex court releases the detailed judgment in the case it will be clear to what extent the court has to deal with the amendments in the law.

However, they believe that it will also be appropriate that the government should realise its mistake and improve the law so as to make the office of ombudsman more effective and powerful rather than making it subservient to the government.

Published in Dawn, October 6th, 2014