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The Constitution of the Islamic Republic of Pakistan 1973Part V: Relations between Federation and Provinces [Articles 141-159]

Chapter 1: Distribution of Legislative Powers [Articles 141-144]

Presentation given before Justice Shakirullah Jan as on 25-07-2016 at PULC during studying LLM subject constitutional Law

Muhammad ArshadLLM Batch 2016-2018arshad.tabassum@gmail.com

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141.Extent of Federal and Provincial laws. Subject to the Constitution, Majlis-e-Shoora (Parliament) may make laws (including laws having extra-territorial operation ) for the whole or any part of Pakistan, and a Provincial Assembly may make laws for the Province or any part thereof.

Points determinedLaw making authority of Federal laws including laws having extra-territorial operation Parliament is competent to make Federal Laws including having extra-territorial operationLaw making authority of Provincial laws or any part thereofProvincial Assembly is competent to make Provincial laws or any part thereof

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Article 41Questions & Courts InpretationsArticle 141 Colourable Legislation ?Legislative competence of Provincial and Federal legislature ?Overlapping of two legislative fields ?Conflict between the Federal Legislature and Provincial Legislature ?

Constitutional Law Doctrine appliedDoctrine of Colourability / Colorable LegislationDoctrine of Pith and SubstanceDoctrine of Occupied Field3

Art. 141---Colourable legislation---Description(Refer Doctrine of Colorable Legislation)

A colourable legislation is that which is enacted by a Legislature which lacks the legislative power, or is subject to Constitutional prohibition, but it is framed in such a way that it may appear to be within the legislative power or to be free from Constitutional prohibition or where the object of the law is not what is contemplated under the Constitutional provision pursuant whereof it is framed.

Ref. Constitutional Law of India, A Critical Commentary, 3rd Edn. by H.M. SeervaiAttorney-General of Alberta v. Attorney-General of Canada and others AIR 1939Edinger, Elizabeth: "Constitutional Law - The Doctrine of Colorability and Extraterritoriality", 63 Canadian Bar Review, (1985) 203Federation Of Pakistan Vs Shaukat Ali Mian 1999PLD1026 Supreme Court

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Doctrine of colourability / Doctrine of Colorable Legislation.. Constitutional Law Doctrine

This Doctrine also traces its origin to a Latin Maxim:Quando aliquid prohibetur ex directo, prohibetur et per obliquum

This maxim implies that when anything is prohibited directly, it is also prohibited indirectly. In common parlance, it is meant to be understood as Whatever legislature cant do directly, it cant do indirectly.

The literal meaning of Colorable Legislation is that under the color or guise of power conferred for one particular purpose, the legislature cannot seek to achieve some other purpose which it is otherwise not competent to legislate on.

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Legislative competence of Provincial and Federal legislature(Refer Doctrine of Pith and Substance)

Provincial Assemblies were not empowered to make laws having operation beyond its territories---Provincial legislation in its application could not travel beyond the territorial boundaries of the province---Where a law in its application was required to travel beyond the territorial boundaries of a province, it went beyond the legislative competence of the provincial legislature---Any matter or activity of a trans-provincial nature which could not be regulated by a provincial law on account of the constitutional constraints, could not be allowed to remain unregulated by any law---Whenever such a peculiar situation arose, the Federal legislature as of necessity, must step in order to protect, preserve and regulate the right---Federal legislature was the only forum left to come up with a law to address such a situation---To come up with a Federal law to deal with a situation which could not be addressed through the provincial legislation could not be taken as usurpation of the provincial autonomy.

Ref. KESC Vs N.I.R.C 2015PLC1 Karachi High Court SindhKESC Vs N.I.R.C 2014PLD553 Karachi High Court Sindh

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Doctrine of Pith and Substance

Pithmeans true nature or essence of something andSubstancemeans the most important or essential part of something.

Doctrine of Pith and Substance says that where the question arises of determining whether a particular law relates to a particular subject (mentioned in one List or another), the court looks to the substance of the matter.Thus, if the substance falls within Federal Legislative List, then the incidental or ancillary encroachment by the law on the Provincial Legislative List does not make it invalid.

Ref.The State of Bombay And Another vs F.N. Balsara AIR 1951 SC 318.Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and Ors.AIR 2010 SC 2633.

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Overlapping of two legislative fields

Where legislative powers were distributed between the two legislative bodies and such legislative fields overlapped, High Court could ascertain to what degree and to what extent, the authority to deal with matters falling within such classes of subjects existed in each Legislature, and to define the limits of respective powers. To prevent any conflict between the two provisions, both the provisions be read together and the language of one interpreted and modified by that of the other.

Ref. Syed bhais (pvt) ltd vs GOP 2000PLD20 Lahore High Court, Lahore8

Conflict between the Federal Legislature and Provincial Legislature Constitutional Doctrine of Occupied Field

In the event of any inconsistency between the Federal Law and Provincial Law, the mandate of the Constitution, as contained in Art. 143 is to prevail--Principles --- Doctrine of occupied field --- Applicability

Ref. Shamas Textile Mills Ltd Vs Pronvice of Punjab1999SCMR1477

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Doctrine of Occupied FieldThe general concept of Occupied Field refers to the situation where two legislative authorities have jurisdiction (or legislative competence) to legislate over one particular subject or field. When the superior legislative authority has already enacted legislation on the subject or field, regardless of the fact whether it is exhaustive or otherwise, it precludes the remaining legislative body from enacting any law thereon, as the field is already "occupied".

Ref.Shamas Textile Mills Ltd Vs Pronvice of Punjab1999SCMR1477State of Kerala & Ors v. M/S. Mar Appraem Kuri Co.Ltd. & Anr. Civil Appeal No. 6660 OF 2005.

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142.SUBJECT-MATTER OF FEDERAL AND PROVINCIAL LAWS. SUBJECT TO THE CONSTITUTION-(a)MAJLIS-E-SHOORA (PARLIAMENT) SHALL HAVE EXCLUSIVE POWER TO MAKE LAWS WITH RESPECT TO ANY MATTER IN THE FEDERAL LEGISLATIVE LIST; [(b) MAJLIS-E-SHOORA (PARLIAMENT) AND A PROVINCIAL ASSEMBLY SHALL HAVE POWER TO MAKE LAWS WITH RESPECT TO CRIMINAL LAW, CRIMINAL PROCEDURE AND EVIDENCE.](c) SUBJECT TO PARAGRAPH (B), A PROVINCIAL ASSEMBLY SHALL, AND MAJLIS-E-SHOORA (PARLIAMENT) SHALL NOT, HAVE POWER TO MAKE LAWS WITH RESPECT TO ANY MATTER NOT ENUMERATED IN THE FEDERAL LEGISLATIVE LIST..(d)MAJLIS-E-SHOORA (PARLIAMENT) SHALL HAVE EXCLUSIVE POWER TO MAKE LAWS WITH RESPECT TO ALL MATTERS PERTAINING TO SUCH AREAS IN THE FEDERATION AS ARE NOT INCLUDED IN ANY PROVINCE.]

Points determinedLaw making authority of Federal Legislative list and matters pertaining to such areas in the federation which are not included in any provinceOnly Parliament is competent to make laws on the matters enumerated in the Federal Legislative list and matters pertaining to such areas in the federation which are not included in any province

Law making authority of any matter not enumerated in Federal Legislative list Only Provincial Assembly is competent to make laws on any matter not enumerated in Federal Legislative list

Law making authority of Criminal Law, Criminal Procedure and EvidenceBoth the Parliament & Provincial Assembly are competent to make laws relating to Criminal Law, Criminal Procedure and Evidence

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Article 42Questions & Courts InpretationsEmergent legislation ---Art. 142 & 70Subject-matter of Federal and Provincial laws---Scope.Words "Subject to the Constitution" used in Arts. 142 of the Constitution---ScopeInterpretation of entries in legislative listsLaws with respect to Municipal functions---Art.142(c)competence of Parliament to promulgate any legislation, not covered by ---Art.142(d)Mala fides on part of legislation

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Emergent legislation---Art. 142 & 70

Mere fact that the required results from emergent legislation could be achieved by taking effective action under other relevant enactments which were already on the statute book could not be a Constitutional bar on the competence of the Legislature to enact a special law.

Ref. Province Of Punjab Vs National Industrial2000SCMR567 Supreme Court13

Art. 142---Subject-matter of Federal and Provincial laws---Scope. (Residuary Legislative Clause)A bare perusal of Article 142 of the Constitution would reveal that the Federal Parliament has the exclusive powers to make laws in respect of the matters mentioned in the Federal legislative list, while both the Federal and Provincial Parliaments have the powers to legislate in respect of the matters mentioned in the Concurrent legislative list. In case any item is neither mentioned in the concurrent nor in the federal legislative lists the same falls within the exclusive domain of the provincial legislature. This is what is called a residuary legislative clause in the parlance of constitutional jurisprudence. In other words, the residuary power to legislate in respect of items not appearing in the federal and concurrent legislative lists fall within the ambit of the Provincial Parliaments. Lastly, the Federal Parliament is equipped with the exclusive powers to make laws with regard to matters not mentioned either in the concurrent or the Federal legislative lists, pertaining to those areas which do not fall in any of the provinces for example the Islamabad capital territories.Ref. Sanofi Aventis Pakistan Limited Vs Province Of Sindh 2009PLD69Karachi High Court, Sindh14

Scope---Words "Subject to the Constitution" used in Arts. 142 of the Constitution

Meaning---Said words meant that where the Constitution itself placed a bar on the exercise of legislative or executive authority by the Province such authority could not be exercised in spite of its conferment by Arts. 137 & 142 of the Constitution---Words, "Subject to the Constitution" did not make Arts.137 or 142 of the Constitution subservient to the remaining provisions of the Constitution---Said words only meant that where the Constitution created a specific bar to the exercise of such executive or legislative authority or provided a different manner for such exercise then that authority must either not be exercised at all or exercised in such manner as the Constitution permitted.

Ref. Lahore Development Authority Vs Ms. Imrana Tiwana2015SCMR1739 Supreme Court15

Interpretation of entries in legislative lists

General principle for interpretation or construction of entries in Legislative Lists are that entries are to be interpreted broadly and liberally and widest amplitude is to be given to words employed therein---Entries in the lists are mere legislative heads having an enabling character that define and delimit the respective areas of legislative competence for Federation and Provincial Legislatures.

Ref. Defence Authority Club, Karachi Vs Federation Of Pakistan2007PTD398Karachi High Court, Sindh16

Art.142(c)---Laws with respect to Municipal functions

Provincial Assembly concerned and not the Parliament, would have power to make laws with respect to Municipal functions.

Ref. Zeshan Builders Vs Karachi Building Control Authority1992MLD2259 Karachi High Court, Sindh17

competence of Parliament to promulgate any legislation, not covered by Art.142(d)

--Where a question arises as to the competence of Parliament to promulgate any legislation, not covered by Art.142(d), it has to be seen whether the subject-matter of legislation is covered by any entry either in Federal or the Concurrent Legislative List of the Constitution.

Ref. Farrukh Hamid Rizvi Vs Managing Director 1989PTD488Karachi High Court, Sindh18

Mala fides on part of legislation

legislation cannot be struck down on ground of mala fides on part of legislation.Ref. Golden Industries Ltd. Vs Province Of Sind 1983PLD76Karachi High Court, Sindh19

143. Inconsistency between Federal and Provincial law. If any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of Majlis-e-Shoora (Parliament) which Majlis-e-Shoora (Parliament) is competent to enact, then the Act of Majlis-e-Shoora (Parliament), whether passed before or after the Act of the Provincial Assembly, shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy, be void.]

Points determinedAct of Parliament repugnant to the Act of Provincial AssemblyIn case of inconsistency of any provision of an Act, Act of Parliament (which the Parliament is competent to enact), whether passed before or after the Act of Provincial Assembly, shall prevailEffect of repugnancy on the Act of Provincial AssemblyAct of Provincial Assembly shall be void to the extent of repugnancy

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Article 43Questions & Courts InpretationsInconsistency between Federal and Provincial lawLegislative competence of Federal Government through Parliament and Provincial Government through its Provincial AssemblyConflict between Federal and Provincial Statutes

Constitutional Law Doctrine appliedDoctrine of Repugnancy

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Inconsistency between Federal and Provincial law

Under provisions of Art. 143 of the Constitution, laws enacted by Parliament had been given over-riding and superimposing effect over laws enacted by a Provincial Assembly of any of the Provinces, and in case of any clash or repugnancy between the two, the laws enacted by the Parliament would prevail---On the touchstone of Art.143 of the Constitution, an Act of Parliament had been placed on a higher pedestal and any Provincial law enacted by a Provincial Assembly shall give way to the Federal law enacted by Parliament, if the former was inconsistent or repugnant to the latter. Ref. Pakistan Telecommunication Company Ltd. Vs Member Nirc 2014PLC203 Supreme Court

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Inconsistency between the Federal and Provincial law

Where there is inconsistency between a Federal and Provincial law, the former shall prevail to the extent of inconsistency.

Ref. Kashif Nadeem Alias Pappi Vs The State 1992PCRLJ1799 Federal Shariat Court

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Doctrine of Repugnancy ..Constitutional Law DoctrineIf there is a conflict between Federal and provincial laws on a subject then the Federal law prevails. That is known as the doctrine of repugnancy and is covered by Article 143 of the constitution.

Ref.M. Karunanidhi v. Union of India (1979) 3 SCC 431.Pakistan Telecommunication Company Ltd. Vs Member NIRC2014PLC203 Supreme Court

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Legislative competence of Federal Government through Parliament and Provincial Government through its Provincial Assembly

Parliament and Provincial Assembly could exercise legislative competence to the extent conferred under the Constitution---Parliament could frame law on the subject not falling in Federal Legislative List, if same was requested only by resolution of Provincial Assembly and by non else and no other means---Principles

Ref. Mirpurkhas Sugar Mills Ltd. Vs Federation Of Pakistan 2013MLD433 Karachi High Court, Sindh

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Conflict between Federal and Provincial Statutes

In case of a conflict between a Federal Statute and a Provincial Statute, the Provincial Statute has to yield to the Federal Enactment.---[Interpretation of statutes].

Ref. Kabal Shah Vs The State 1995PCRLJ2058 Karachi High Court, Sindh26

144. Power of Majlis-e-Shoora (Parliament) to legislate for [one] or more Provinces by consent. (1) If [one] or more Provincial Assemblies pass resolutions to the effect that Majlis-e-Shoora (Parliament) may by law regulate any matter not enumerated in [the Federal Legislative List] in the Fourth Schedule, it shall be lawful for Majlis-e-Shoora (Parliament) to pass an Act for regulating that matter accordingly, but any act so passed may, as respects any Province to which it applies, be amended or repealed by Act of the Assembly of that Province.

Points determinedPower of Parliament to legislate any matter not enumerated in the Federal Legislative list by consent of Provincial Assembly (ies) Parliament may legislate in any matter not enumerated in the Federal Legislative List whereby consent is given by Provincial Assembly (ies) concerned (by passing resolution (s))Consequences thereofAct of Parliament so passed may be amended or repealed by Act of Provincial Assembly concerned

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Power of Majlis-e-Shoora (Parliament) to legislate for one or more Provinces by consent

Such power was applicable or attracted only when at the instance of the Provincial Assembly or Assemblies, Federal legislation was required on any matter which was not covered by any Entry of the Federal Legislative List.

Ref. KESC Vs N.I.R.C 2015PLC1 Karachi High Court SindhKESC Vs N.I.R.C 2014PLD553 Karachi High Court Sindh

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