The Clash Of Titans
When viewed through a legal prism, it becomes apparent that a judge of the Lahore High Court has an elevated position, and therefore, cannot be issued a show cause notice if cognizance has been taken by such judge in accordance with law.
Factually, as has been reported in the media, the tension started in and around December 2015, when in a case pertaining to the harassment of a woman at her workplace pending before the Ombudsperson, the proceedings were stayed by the judge of the honourable Lahore High Court (on whatsoever grounds). However, in utter disregard of the stay order, the learned Federal Ombudsperson continued the proceedings. Ultimately, it boiled down to the issue of jurisdiction, raising the question as to whether the constitutional office of the Lahore High Court is possessed with the jurisdiction to interfere in the matter pending before the Wafaqi Mohtasib (in terms of Section 18 of the Federal Ombudsmen Institutional Reforms Ordinance, 2013). The honourable court, taking account of the adamant violation of its order by the officer of Ombudsman issued warrants in contempt proceedings. Subsequently, upon personal appearance of the said officer of the Federal Ombudsman, along with the Attorney General of Pakistan and the Inspector General of Punjab, and after tendering an unconditional apology, the honourable Judge of Lahore High Court dropped the contempt proceedings, giving the following remarks: “The respondent [woman member of office of Federal Ombudsman] has thrown herself at the mercy of the court and submitted her unconditional apology.”
However, this event did not bring an end to the long pending issue. A day later, the Ombudsperson passed an order in the same case, holding that “…resultantly the contempt notice issued on May 10, 2016 to Justice Syed Mansoor Ali Shah for his appearance needs compliance as per law”. The order further stated, “Let the bailable warrant of arrest be issued against Syed Mansoor Ali Shah, judge of the Lahore High Court, for his appearance before office of Federal Ombudsman for Protection against Harassment of Women at Workplace on May 13, 2016 with a direction to the Inspector General of Police, Punjab, to ensure Syed Mansoor Ali Shah’s appearance before the Office of Ombudsman”. The learned officer of the Federal Ombudsman did not stop here, and also went on to file a reference before the President of Pakistan against the honourable judge of the Lahore High Court.
From the facts surfacing the issue, it seems like the clash has changed its nature from legal to personal, as is apparent from the observation given by the learned officer in her same recent order as reported by the newspapers. Along with the above stated remarks, she observed that during the hearings before the honourable Lahore High Court, the dignity of the office of Federal Ombudsperson was compromised and her institution was undermined.
It is important to put the basic question into context about the legal status of both the office of Federal Ombudsperson as well as the office of a judge of the Lahore High Court. It is abundantly clear that a judge of the Lahore High Court holds a constitutional office, constituted under Article 192, read with Article 175 of the Constitution of Pakistan, which establishes the High Court in all provinces and in the capital territory. However, there is no specific provision in the Constitution that provides for the establishment of the office of Federal Ombudsman. Entry No. 13 in the Federal Legislative List, which is appended as Fourth Schedule with the Constitution, empowers the National Assembly to legislate on the matters pertaining to the Federal Ombudsman.
It is paramount to highlight that the office of Federal Ombudsman in Pakistan was established through Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (President’s Order No. 1 of 1983), which law was validated and protected vide Article 270-A of the Constitution, and therefore, only a competent authority may alter, amend or repeal the same. As such, the difference between the legal status of a member of the Wafaqi Mohtasib and the judge of the High Court becomes very clear. From a jurisdictional point of view, it is important to mention that the office of Federal Ombudsman, which has been established through a Presidential Order, later validated through a constitutional provision, is a subordinate institution as compared to the office of a judge of the High Court, which is a constitutional office. Moreover, even in the presence of Clause 29 of the 1983 Order as well as Section 18 of the 2013 Reforms Ordinance, the jurisdiction of a judge of the learned High Court is maintained, provided for in the law, and there is no cavil to the fact that no subordinate legislation can oust the jurisdiction of the High Court. This legal framework, thus, establishes that an office bearer of the High Court has a higher legal position than an officer of the Ombudsman.
Although it is an irrefutable fact that both the members are judicial officers in view of the offices they hold, however, when viewed through a legal prism, it becomes apparent that a judge of the Lahore High Court has an elevated position, and therefore, cannot be issued a show cause notice if cognizance has been taken by such judge in accordance with law. As such, the actions of the learned member of the office of Federal Ombudsperson seem mala fide, biased and without jurisdiction, and which need to be defended before the august Supreme Court in suo motu.
This article was previously published in Daily Times and is being republished here with permission.
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