LAHORE: The Lahore High Court has ruled that the prime minister or the federal government cannot dictate a province to make legislation in a matter with respect to which the provincial assembly has power to make laws.

A 65-page judgement authored by Justice Shahid Karim says the constitutional scheme envisages a limited government and there are spheres of powers delineated for each organ of the federal as well as the provincial governments to operate.

“They cannot transgress those spheres and encroach upon other areas of activity,” it adds.

Through a short order, the judge had on May 3 set aside the Code of Civil Procedure (Punjab Amendment) Ordinance 2021. There were challenges by Punjab Bar Council and others against the ordinance on multiple grounds. One of the grounds was that the Punjab government promulgated the amendment ordinance on the dictation of the prime minister, which was an unconstitutional act.

LHC issues detailed verdict in CCP amended ordinance case

Justice Karim observes in the verdict that despite opportunities the law officer was not able to reconcile the glaring and egregious conflict in the documents and this court is constrained to draw an inference that the entire process was laced in with undue haste and without following the procedural formalities.

He notes that prior to an advice by the chief minister to the governor for an ordinance to be promulgated, there are certain essential steps which are required to be followed under the rules of business for a draft ordinance to be made into law.

“Any direction by the Prime Minister or by the Federal Government offends the sovereignty of Punjab in the law-making process and is ultra vires on the principle of illegality and dictated exercise of powers,” the verdict states.

The judge regrets that firstly, the impugned ordinance was promulgated under the dictated exercise of powers and secondly, Punjab failed to comply with the procedure set out in the rules of business and so committed an illegality which renders the executive act of promulgating the ordinance as ultra vires.

Justice Karim rules that the direction by the prime minister trenched upon the provincial sovereignty and breached the guarantee contained in Article 1 of the Constitution.

He observes ours is a representative democracy in which the people act not directly but through their representatives.

The judge also holds that the provincial governments, in a representative democracy, are elected by the electorate separately and under the constitution, have independent and separate functions to perform.

He says what happened in the case in hand can be cited as classic example of federal commandeering of provincial law-making and complied by Punjab mechanically. By so doing, Punjab not only abdicated its provincial authority but compromised individual rights which it was obliged to protect.

The judge observes that it would have been a different matter perhaps, if Punjab, despite prime minister’s direction, had engaged in a deliberative process with stakeholders and the law had undergone an independent analysis regarding its efficacy in Punjab.

“We must bear in mind that in a country governed by a written constitution, the written constitution is the rule of law,” he maintains.

The judge further observes that there is a further command in the proviso to Article 97 of the Constitution, which prohibits the executive authority of the federation from extending in any province to a matter with respect to which the provincial assembly has power to make laws.

“This provision itself puts paid to a contrary argument that the Prime Minister or the federal government could have issued a direction to Punjab in respect of a matter regarding which the Provincial Assembly has power to make laws,” he adds.

Justice Karim also remarks that the changes introduced by the amendment ordinance also undermine the stated goal of speedy justice which has been cast on the state (which incidentally does not include the judicial branch) by the principles of policy in the Constitution.

“It can be assumed that, perhaps, the Prime Minister was not properly advised on these nuances at the time of issuing the direction,” he notes.

The judge also finds the impugned ordinance a disregard to previously enacted LHC amendments which too not only had statutory but constitutional basis and were the result of thoughtful and inclusive consultative process.

Published in Dawn, June 10th, 2021