Slide 1
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 [email protected]
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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
Contd....22
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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