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Substantive Rights, such as Transferring Complaints, must be expressly conferred by Law --- FOSPAH does not have Authority to Transfer Complaints to Provincial Forums --- Islamabad High Court, Islamabad

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Islamabad 06-12-2024: In a significant ruling, the Islamabad High Court (IHC) has declared that the Federal Ombudsman for Protection against Harassment of Women at Workplace acted beyond its jurisdiction by transferring a harassment complaint to the office of the Provincial Ombudsman. Mr. Justice Miangul Hassan Aurangzeb presided over the case, ruling that the transfer order dated September 12, 2019, was without lawful authority and set it aside.

The case arose from a complaint filed by Ms. Sidra Younas against Professor Dr. Qamar ul Wahab, Vice Chancellor of the University of Technology, Nowshera. Ms. Sidra Younas alleged workplace harassment and misuse of authority. Initially, the complaint was lodged under the Protection against Harassment of Women at Workplace Act, 2010 (“2010 Act”) with the Federal Ombudsman.

Following the enactment of the Khyber Pakhtunkhwa Protection against Harassment of Women at Workplace (Amendment) Act, 2018 (“2018 Act”), which established a Provincial Ombudsman, the Federal Ombudsman transferred the case to the new provincial office in Peshawar. This transfer was challenged by Dr. Qamar ul Wahab as being unlawful.

Mr. Justice Miangul Hassan Aurangzeb highlighted several crucial legal points in the judgment:

The Court ruled that neither the 2010 Act nor the 2018 Act granted the Federal Ombudsman authority to transfer complaints to provincial forums. It emphasized that substantive rights, such as transferring complaints, must be expressly conferred by law.
The judgment noted that while the 18th Constitutional Amendment devolved many federal powers to the provinces, the relevant laws did not provide mechanisms for handling pending cases during this transition.
The Court reaffirmed that sub-constitutional legislation, such as the Federal Ombudsmen Institutional Reforms Act, 2013, cannot oust judicial review under Article 199 of the Constitution, especially when an ombudsman’s order exceeds lawful authority.
The Court recommended that the Federal Government consider amending the 2010 Act to provide explicit mechanisms for transferring cases to provincial forums, ensuring consistency and clarity in such transitions.

The Court declared the transfer order null and void and remanded the matter back to the Federal Ombudsman. It directed the ombudsman to consider returning the complaint to Ms. Younas, allowing her to refile it before the Provincial Ombudsman. The Court also emphasized the need for legislative amendments to address gaps in the existing laws.