18th Amendment could become ineffective

The Supreme Court on Thursday said the 18th Amendment would become ineffective if the government makes law under international conventions and commitments. Justice Azmat Saeed Sheikh, heading a three-judge bench, was hearing Federal Ombudsperson for the protection against harassment of women at workplace (FOPHWW) petition regarding its jurisdiction.
The bench summoned attorney general for Pakistan to assist whether jurisdiction of Federal Ombudsperson for protection against harassment of women at the workplace should be extended to all the provinces or the provinces should have their own laws regarding the matter. The federal and the provincial laws on protection against harassment of women at the workplace are almost the same except the Khyber Pakhtunkhwa with little variation. Apart from Balochistan the other provinces have also appointed ombudspersons on protection of women.
The court also directed additional attorney general (AAG) and the advocate generals of all provinces to provide all the Supreme Court judgments on entries 32 and 58 of Federal Legislative List of Constitution. "Come up with the solution on next hearing," Justice Azmat told them. AAG Sajid Ilyas Bhatti informed that Pakistan had signed international conventions/commitments/treaties that include Beijing World Conference on Women 1995, Equal Remuneration Convention 1951(No.100), Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) regarding women rights in the country.
He argued that under international conventions/commitments/treaties Pakistan made for the rights of women, law of the federal Ombudsperson for the Protection against Harassment of Women at Workplace was enacted in 2010 before the 18th Amendment.
Justice Sajjad Ali Shah, another member of the bench, remarked: "The 18th Amendment would become ineffective if the government makes law under conventions, as it had made the commitment."
Justice Azmat said even though the court passes a consent order regarding the matter then rest of the laws will be badly affected as it will have consequence on the 18th Amendment. "If we use this then we will have disaster ahead," he added.
Justice Azmat said they wanted to harmonise the laws instead of creating disturbance. "We are here to reinforce the laws and not to strike down them."
Earlier, the AAG contended that in light of the Supreme Court judgement on Industrial Relation Act 2012, if the treaties or conventions are considered the touchstone then Federal Ombudsperson for the Protection against Harassment of Women at Workplace would prevail upon the provincial laws on Protection against Harassment of Women.
He referred Entry 32 of Federal Legislative List, which relates to international treaties, conventions and agreements and International arbitration." He said under Entry 58 of the Federal Legislative List the matters under the Constitution are within the legislative competence of Parliament or relate to the federation.
He said if a government servant is accused of misconduct then there are penalties for him under Section 4 of Government Servants (Efficiency and Discipline) Rules, 1973.
Justice Azmat remarked that all the laws made for the protection of women at workplace do not cover the domestic servants.
The Federal Ombudsperson for Protection against Harassment of Women at the Workplace had filed the petition that the wisdom enumerated in the NIRC case is applicable to this case. "Where an organisation is trans-provincial as the bank with branches all over Pakistan, the federal ombudsperson is competent to look into the complaint of harassment at workplace anywhere in the country."
It submitted that the jurisdiction of the federal ombudsperson should not be limited to the federal capital areas, rather the federal ombudsperson should have jurisdiction in relation to all employers, organisations, institutions and workplaces, which have a federal character or are established under a federal law or are directly consequent to an international obligations under an international treaty or convention.
It said that in case the jurisdiction of the federal ombudsperson is limited only to the federal area, the organisation or any institutions of federal nature or trans-provincial, the cases of harassment cannot be addressed properly by the relevant provincial ombudsman.
It requested that the jurisdiction has to be interpreted in accordance with the natural principals of law. The overlap between the provincial ombudsperson and federal ombudsperson has created a situation which is not helpful for any ombudsperson to deal with the cases, which involves the federal nature of organisations or institutions. The case was adjourned until 1st April.