SHAHID ANWAR BAJWA, J. --- The Industri I Relations Act, 2008 received assent of the President of Pakistan on 6.12.2008; notification was issued by the Ministry of Law and Justice on 14.12.2008 and it was published in the Gazette of Pakistan (Extraordinary) on December 15, 2008. Section 87(3) of the Industrial Relations Act, provided as under:- "87(3). This Act shall unless repealed earlier, stand repealed on 30th April, 2010."
2. The Constitution (Eighteenth Amendment) Act, 2010 after having been passed by the two houses of the Parliament received assent of the President on April 19, 2010. Eighteenth Amendment extensively amended the Constitution. For the purpose of present proceedings relevant Article is Article 270-AA clauses (2), (6), (8) and (a). The same are reproduced as under:- "Article 270AA. Declaration and continuance of laws etc:
(2) Except as provided in clause (1) and subject to the provisions of the Constitution (Eighteenth Amendment) Act, 2010, all laws including President's Orders, Acts, Ordinance, Chief Executive's Orders, regulations, enactments, notifications, rules, orders or bye-laws made between the twelfth day of October, one thousand nine hundred and ninety-nine and the thirty-first day of October, two thousand and three (both days inclusive) land still in force shall, continue to be in force until altered, repealed or amended by the competent authority.
(6) Notwithstanding omission of the Concurrent Legislative List by the Constitution (Eighteenth Amendment) Act, 2010, all laws with respect to any of the matters enumerated in the said List (including Ordinance, Order, rules, bye-laws, regulations and notifications and other legal instruments having the force of law) in force in Pakistan or any part thereof, or having extra-territorial operation, immediately before the commencement of the Constitution.
(Eighteenth -Amendment) Act, 2010, shall continuing to remain in force until altered, repealed or amended by the competent authority.
(8) On the omission of the Concurrent Legislative List, the process of devolution of the matters mentioned in the said List to the Provinces shall be completed by the thirtieth day of June, two thousand and eleven.
(9) For purposes of the devolution process under clause (8), the Federal Government shall constitute an Implementation Commission as it may deem fit with fifteen days of the commencement of the Constitution (Eighteenth Amendment) Act, 2010."
3. Question that has arisen in this petition is as to what is the legal status of the Industrial Relations Act, 2008.. (hereinafter called the Act of 2008) keeping in view provisions of Section 87(3) which section mandates that the Act of 2008 shall, unless sooner repealed, stand repealed on April 30, 2010. All the parties are at one that it was not repealed sooner and therefore, the question that has arisen is whether in view of provisions contained in Article 270AA (6) the Act of 2008 continued in existence or it has now stood repealed.
4. It may be pointed out that prior to amendment in the Constitution through 18th Amendment there used to be a Federal Legislative List and a Concurrent Legislative List. Residuary subjects were entrusted to the Provincial Legislature. In the Concurrent Legislative List items. 26 and 27 were as under:--- "26. Welfare of Labour: conditions of labour, provident funds; employer's liability and< workmen's compensation health insurance including invalidity pensions, old age pensions.
27. Trade unions: Industrial and Labour disputes."
Therefore, as long as there was Concurrent Legislative List both the Federation and Provinces were competent to legislate on the subject enumerated in the Concurrent List including 'above stated items 26 and 27. However, the 18th Amendment abolished the Concurrent Legislative List and since the trade unions and labour and industrial disputes etc. Are not, included in the Federal Legislative List, question mark has sprouted around as to which. Legislature has power to legislate on these subjects. This Constitution Petition was filed in this background with the following prayers:--- "(A) the provision of Section 87(3) of the I.R.A., 2008 is ultra vires to the Constitution and is liable to be struck down being in conflict with the fundamental rights guaranteed under Chapter 1 of Part II of the Constitution of Islamic Republic of Pakistan and also in violation of the international commitments made by the Islamic Republic of Pakistan by ratifying various conventions of I.L.O.
Including convention No. 87. . ) - may further be pleased to declare and hold that till declaration as (A) above and/or promulgation of new enactment, both the orders (Annexures 'P' & 'P/I' of the learned Tribunals are in excess of jurisdiction.
(C) may further be pleased to grant any other or additional relief(s) which this Hon`ble Court - deems fit and proper in the circumstances of the case."
5. On 17.5.2010 Ch. Muhammad Ashraf Khan, learned counsel for the petitioner made preliminary submissions and raised the following questions for consideration of this Court:- "(i) Whether in view of Section 87(3) of the Industrial Relations Act, 2008, the very Act was a temporary legislation?
(ii) What is the cumulative effect of Article 270AA(6) and (8) brought in the Constitution by way of 18th Amendment on 19.4.2010 and whether it extends the life of Industrial Relations Act, 2008 until 30.6.2011 or not?
(iii) whether the Industrial Relations Act, 2008 has in fact and law repealed itself on 30.4.2010?
6. Earlier in connected Petition bearing No. 1280/2010, on 4.5.2010 notices were issued to the Advocate General, Sindh and Attorney General of Pakistani Federal Secretary Labour and Provincial Secretary Labour were directed to attend the Court. On 24.5.2010 Federal Secretary Labour appeared in the Court and filed a statement. He essentially submitted that:--
1. In the opinion of the Federal Government, the competent Legislature after deletion of Concurrent Legislative List by the 18th Amendment in the Provincial Assembly.
2. In view of the provisions contained in Article 270AA(6) read, with Article 270AA(8) the Industrial Relations Act, 2008 continues unless it is amended or repealed by the provincial legislature concerned.
7. Chaudhry ,Muhammad Ashraf Khan, learned counsel for the petitioner made the following submissions:---
1. Pakistan is a member of International Labour Organization and has ratified various conventions adopted by I.L.O. From time to time including.
Convention No. 87 relating to right of collective bargaining.
2.. Article 17(1) of the Constitution grants fundamental right to form Union and such right includes concomitant rights of unions.
3. Article 270AA(6) continued with the I.R.A., 2008 but it continued with I.R.A., 2008 alongwith it Section 87(3) and therefore with effect from April 30, 2010 I.R.A., 2008 came to an end and it being a temporary law, consequence is revival of Industrial Relations Ordinance, 2002. Learned counsel in this regard relied upon Hansraj Moolji v.
State of Bombay, AIR 1957 SC 497.
8. On request of the Court M/s. Khalid Anwar, Munir A. Malik; Rasheed A. Rizvi and Khalid Javed Khan appeared as Amicus Curiae. The Court will be failing in its duty if it did not record its gratefulness and did not appreciate the very valuable contribution made by the learned counsel. M/s. Mehmood Abdul Ghani, Khalid lmran and S.M. Yaqoob also made their submissions. Court is grateful to them also.
9. Mr. Munir A. Malik, learned Amicus Curiae submitted that. In view of Section 87(3) of the Act of 2008, the Act is a piece of temporary legislation and since it is temporary legislation upon its repeal or expiry the preceding legislation i.e. The Industrial Relations Ordinance, 2002 (hereinafter referred to as the Ordinance of 2002) stood automatically revived.
10. Mr. Khalid Anwar, made the following submissions:---
(i) Article 17(1) of the Constitution confers right to form Unions. Such right is, firstly, available only to the citizens. Secondly authority is given to the State to place reasonable restrictions on such right in the interest of what is enumerated' in Article 17(1) of the Constitution. Thirdly reasonableness of the restriction is justiciable on the .Touchstone of what is stated in the Article itself.
(ii) Learned counsel then referred to Article 8 of the Constitution and submitted that it is in two parts: clause (1) is retrospective looking and states that any law insofar as it is consistent with the rights conferred by the Chapter on fundamental rights shall, to the extent of such inconsistency, be.
Void. Clause (2) is prospective looking and states that any taking away or abridging of any of the fundamental right shall be, if made, to the extent of inconsistency, void.
(iii) Section 87(3) is in normal parlance referred to as "sunset" clause. Such clauses are frequently found in statutes of United Kingdom and United States" .
(iv) Section 87(3) does not impose any restriction on the fundamental right because fundamental rights do not require a positive law stating that a citizen can exercise such right. Right is available irrespective of any subsidiary legislation. Fundamental rights do not constitute a direction to the legislature to pass any particular law. They ordain that if a law is passed, it can be challenged on the ground. Of inconsistency with the fundamental rights.
(v) Significance of Concurrent List is that it acted as a shock absorber. Federation had necessary resources, experience and wherewithal to legislate and then to monitor implementation of such legislation. In case of Concurrent List co-extensive powers were available with both the Federal Government as well as the Provincial Government and frequently the Federal Government legislated and the Provincial Governments implemented.
(vi) Had there been no Article 270AA (6), with the onset of 18th Amendment and elimination of Concurrent List all the Labour Laws would have cease to exist.
(vii) Competent authority to legislate in the field of Labour and Industrial Relations is now the Provincial Legislature.
(viii) Article 270AA(6) does not make any change in the text of I.R.A., 2008 and therefore it kept intact Section 87(3) i.e. Sunset clause and such clause cannot be deemed to have been amended or deleted by Article 270AA(6).
(ix) In respect of Article 270AA(8), learned counsel submitted that devolution means transfer of powers. Such devolution was administrative devolution and not Legislative devolution because power of the Parliament to legislate in respect of items included in the Concurrent List came to an end the moment 18th Amendment received assent of the President. Therefore, Article 270AA(6) has no impact on text of any law and it cannot be deemed to make a textual change in the I.R.A., 2008.
(x) Learned counsel referred to Section 6 of the General Clauses Act and submitted that Clause (a) of Section 6 provides that repeal shall not revive anything not in existence on the day of repeal, unless a contrary intention appears. There are two types of temporary laws firstly there are Ordinances and secondly there are sunset Acts. Section 6 of the General Clauses Act is only applicable to permanent law and it has no applicability to temporary laws . Learned counsel relied upon Muhammad Arif and another v. State and another, 1993 SCMR 1589, Commissioner of Income Tax, Karachi v. Ebrahim. D. Ahmad & others, 1992 P.T.D. 1353, Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, NWFP and another, PLD 1995 SC 66 and State v. Muhammad Sharif, PLD 1960 Lahore 236.
(xi) A temporary legislation cannot permanently - erase a permanent law. In this regard learned counsel relied upon Federation of Pakistan and others v. Muhammad Nawaz Khokhar and others, PLD 2000 SC 26, Sargodha Bhera Bus Service Ltd. And others v. Province of West Pakistan and another, PLD 1959 SC 127, Gooderham & Works Ltd. v. Canadian Broadcasting Corporation AIR 1949 Privy Council 90, State of Orrisa v. Bhupendra Kumar Bose and others, AIR 1962 S.0 945, Qudrat Ullah v. Municipal Board, Bareilly, AIR. 1974 S.0 396, Ameer-un-Nissa Begum and others v. Mehboob .
Begum and others, AIR 1955 SC 352.
(xii) The Ordinance of 2000 is a permanent law and I.R.A., 2008 is a temporary law. Temporary law stands repealed by its own clause and therefore, the permanent law stood resurrected.
(xiii) Even if the Court comes to the conclusion that Ordinance of 2002 does not come back, it has the power to issue directions to the Government to take necessary steps for bringing out legislation in this regard. Learned counsel relied upon Government of Baluchistan through Additional Chief Secretary v. Azizullah Memon and 16 others, PLD 1993 SC 341.
11. Mr. Mehmood Abdul Ghani, made the following submissions :---
(i) Right to form a Union includes right to be continued to be associated with the Union and, within the confines of law, strive for achievements of lawful objections of the Union. He relied upon Smt.
Damyanti Naranga v. The Union of India and others, AIR 1971 S.0 966.
(ii) Section 87(3) of the Act of 2008 is ultra vires of the Article 17 of the Constitution. Therefore, Act of 2008 continues in operation.
(iii) If no machinery is made available for regulating formation etc. Of Unions the fundamental rights stands violated. Learned counsel relied upon Fertilizer Corporation Kamagar Union v. Union of India, AIR 1981 S.0 344.
(iv) Learned counsel referred to pages 164 to 170 of UNDERSTANDING STATUTES by S.M. Zafar in respect of the effect of repeal and temporary statutes.
(v) The Court should give such interpretation as would save the statute and give breathing time to the Provincial Legislature which has now been conferred power to legislate on the subject of Industrial Relations. Learned counsel relied upon Akhtar Mehmood v. District Magistrate, Lahore, PLD 1964 (WP) Lahore 93 and Crown v. Haveli, PLD 1949 Lahore 550. Learned counsel in this regard also referred to Interpretation of, Statutes by N.S. Bindra and Principles of Statutory Interpretation by G.P.
Singh.
(vi) Relying upon Gujarat Steel Tubes Ltd. v.
Gujarat Steel Tubes Mazdoor Sabha, 1980 (ILLJ) 137, learned counsel submitted that if there is a defect in legislative drafting the Court must supplement words as to give force and life to the intention of the Legislature.
Learned counsel submitted that there are thousands of appeals which are pending and if.
Ordinance of 2002 is revived those will come back to the High Court and will increase workload of the High Court.
(viii) Learned counsel next referred to news-item in daily "Dawn" of May 22, 2010 which news item states that the Hon'ble Chief Justice of Lahore High Court upon receipt of information that Labour Courts have become non-functional called the Chief Secretary and the Chief Secretary informed the Chief Justice that the Labour Courts are functioning normally and in accordance with the law.
12. Mr. S.M. Yaqoob submitted that Article 17 is not attracted to the case in hand. He further submitted that Article 89 of the Constitution is not attracted because Act of 2008 is not an Ordinance. He submitted that by virtue of Section 87(3), the Act of 2008 has expired on April 30, 2010 and consequence of its expiry is that Ordinance of 2002 has been resurrected.
13. Mr. Khalid Imran, submitted that Section 87(3) is ultra vires of the Article- 17 of the Constitution of Islamic Republic of Pakistan.
14. Mr, Rasheed A. Rizvi, relying upon District Mining Officer and others v. Tata Iron and Steel Co. And another (2001) 7 Supreme Court Cases 358 submitted that I.R.A., 2008 died on 30.4.2010 because intention of Legislature was very clear and legislature made it as a temporary legislation. Learned counsel submitted that neither Section 6 of the General Clauses Act nor Article 264 of the Constitution is applicable to the situation brought about by Section 87(3) of the Act of 2008. He relied upon Federation of Pakistan and others v. Muhammad Nawaz Khokhar and others, PLD 2000 SC 26. Mr. Rizvi, further submitted that Article 270AA(6) protects I.R.A., 2008 but on 30.4.2010 the I.R.A.
Killed itself. On 28.5.2010 Mr. Rizvi sought time to assist on the aspect of implied repeal of Section 87(3) by Article 270AA(6). Subsequently on 31.5.2010 Mr. Rizvi submitted his submissions in writing and he relied upon doctrine of implied repeal to contend that Section 270AA(6) impliedly repealed Section 87(3) of the Act of 2008 and therefore, the Act of 2008 continues to be valid law.
15. Mr. Khlaid Jawaid Khan, made the following submissions :---
(i) Since Provincial Assembly after 19.4.2010 has expressed no desire to the country, desire of Parliament as expressed in Section 87(3) continues and therefore, the Act of 2008 expired on 13.4.2010.
Under Article 270AA(8) reference to devolution is only to administrative devolution and the competent Legislatures now are Provincial Assemblies. In this regard he relied upon Abdul Ghani and another v. Province of Baluchistan and 2 others, PLD 1982 Quetta 63.
(iii) The Court cannot convert a temporary legislation into a permanent legislation and just as an Ordinance issued before April 19, 2008 cannot be deemed to have been converted into permanent Act by Section 270AA(6); Act of 2008 cannot be deemed to have been given permanency for the same reason.
16. Mr. Sarwar Khan, learned Additional Advocate General, submitted that:---
(i) By virtue of Article 270AA(6) life of the Act of 2008 has been extended 30.6.2011.
(ii) A power given by Constitution can be taken away only by the Constitution and not otherwise. In this regard learned counsel relied upon R.S. Jhamandas and others v. Chief Land Commissioner, West Pakistan and others, PLD 1966 SC 229.
(iii) Neither under .Article 264' nor Section 6 of the General Clauses Act can the Ordinance of 2002 be declared to have revived. Ordinance of 2002 is a dead horse and no judicial pronouncement can be made to breathe life into it. In this regard he relied upon Pir Sabir Shah's case (Supra).
(iv) Article 270AA(6) is a part of the Constitution and therefore, principles applicable to interpretation of the Constitution and not principles applicable to interpretation of statutory laws should be made applicable. In this regard learned counsel relied upon Collector of Customs, Karachi and others v. New Electronic (Pvt.) Ltd. And 59 others, PLD 1994 SC 363.
(v) Section 87(3) of I.R.A. Is in conflict with. Article 270AA(6) and therefore must yield to the provisions of the Constitution. Learned counsel relied upon The State v. Zia-ur-Rehman and others, 'PLD 1973 SC 49, Sardar Farooq Ahmed Khan Leghari and others v. Federation of Pakistan and others, PLD 1999 SC 57, Abdul Qayyum and another v. Niaz Muhammad and others, 1992 SCMR 61.3.
(vi) Article 270AA(6) extended life of all laws and therefore Section 87(3) is in conflict with Article 270AA(6) and therefore it must be struck down and the Constitution must be allowed to prevail. He relied upon Sharaf Faridi and 3 others v. Federation of Islamic Republic of Pakistan and another, PLD 1989 Karachi 404, and Emirate Bank International PJSC v. Excise & Taxation Officer and Assistant Collector First Class Karachi and others, PLJ 2002 Karachi 84.
(vii) In support of doctrine of implied repeal learned counsel relied upon Pehalwan Khan v. J.F. Elahi and another PLD 1962 Lah. 751, Asghar Jehan Begum v. Syed Jalilur Rehman and others, PLO 1969 Kar. 436.
17. Mr. Ashiq Raza, learned Deputy Attorney General supported contentions of Mr. Sarwar Khan and relied upon Fouji Foundation and another v. Shamim Rehman, PLD 1983 SC 457 and State v. Zia-ur- Rehman (Supra).
18. We have considered the submissions made by the learned counsel and have also gone through the record as well as extensive case-law cited at the bar.
19. The first question is whether the Act of 2008 is a temporary law or whether it is a permanent law.
Mr. Khald Anwar called it a "sunset" legislation. We have already quoted above Section 87(3) of the Act of 2008. In Black's Law Dictionary "Sunset Law" is defined in the following words:--- "Sunset law. A statute or provision in a law that requires periodic review of the rationale for the continued existence of the particular law or the specific administrative agency or other governmental function. The legislature must take positive steps to allow the law, agency, or functions to continue in existence by a certain date or such will cease to exist." (Underlining added)
20. Craies on Statute Law, 7th Edition, on the subject of temporary and perpetual statutes, says as under:--- "Acts are also classified, by reference to their duration, as, temporary or perpetual:
(a) Temporary: Temporary statutes are those on the duration of which some limit is put by Parliament. The Standing Orders of the House of Commons require a time clause to be inserted in such Acts. The Expiring Laws Continuance Acts always contain a specific date for the expiry of the continued Acts.
(b) Perpetual: Perpetual Acts are those upon whose continuance no limitation of time is expressly named or necessarily to be understood. They are not perpetual in the sense of being irrevocable."
21. Crawford's Interpretation of Laws at page 103 states as under:-- "71. Permanent, or Perpetual, and Temporary Acts.-- A permanent, or perpetual act, is one whose operation is not limited to a particular term of time but which continues in force until it is duly altered or repealed. A temporary act, on the other hand, is one whose life or duration is fixed for a specified period of time at the moment of its enactment, and continues in force, unless sooner repealed, until the expiration of the time fixed for its duration.
22. Mr. S.M. Zafar, in his Book Understanding Statutes primarily quoted from Crawford in respect of temporary Acts. A law may be temporary because of nature of Legislative power. For example power to legislate through Ordinance is quasi- legislative powers: power is legislative but exercise is executive. The Constitution itself fixes life of such enactment. Then there may be Acts of Parliament which may also be temporary because either the Act itself or any other law provides for at terminal moment for the enactment. Since Section 87(3) clearly stipulated a death knell moment for the Act of 2008, notwithstanding it having been' enacted as ari Act of Parliament it has to be treated as a temporary law and has to be given effect accordingly.
23. The logical next question is what is the effect of repeal of a temporary law. To start with, case- law may be referred in this regard. In Muhammad Arif's case (Supra) the Special Courts for Speedy Trial Act, 1987 was enacted and was to remain in force for a period of one year. It was however, provided that Parliament may by resolution of each house extend the said Act for similar term or terms. Subsequently through an Ordinance term was extended from one year to two years. The amending Ordinance was not placed before the National Assembly and it expired. The Special Court took cognizance on a date on which the Ordinance had not expired but it decided the case when Ordinance stood expired. The Supreme Court firstly observed as under:--- "12. At this stage it may be appropriate to point out that there is a marked distinction between a temporary enactment and a permanent enactment. In the case in hand, the Act was a statute of a temporary nature as sub-section (2) of Section 1 of it provided that it was to operate for a period of one year from the date on which it was assented to by the President. The rules of interpretation of such statutes are different from those which are permanent." (emphasis supplied)
And finally it held as under:--- "16. From the above-cited cases, it is evident that there is judicial consensus that, where a law is repealed, it will not inter alia affect any investigations, legal proceedings or remedy in respect of any right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the law had not been repealed. This is so, inter alia, because of Section 6 of the General Clauses Act, 1897 (which corresponds to Section 4 of the West Pakistan General Clauses Act, 1956), in the absence of any contrary intention manifested in the relevant statute. Since the General Clauses Act is not applicable to the Constitution, the above provision has been incorporated therein in the form of Article 264. However, the above principle cannot be pressed into service, while dealing with temporary statutes as highlighted in the above treatises on the interpretation of statutes. The general rule in regard to a temporary statute is that in the absence of special provision to the contrary, proceedings which were taken under it would ipso facto terminate." (emphasis added).
24. In Ebrahim. D. Ahmad's case (Supra) it was laid down as under:- "11. The amendment introduced by - Finance Ordinance No. )0(1 of 1972 by adding sub-section (4AA) to Section 1566 had indeed the curative effect of making the law as modified from its very inception i.e. 1.4.1959. However, the Ordinance was itself a temporary statute, did not receive the approval of the National Assembly, lapsed on account of the Constitutional provision and being temporary in nature could leave no permanent consequence. The previous position got restored.
The amendment stood effaced and it could not be utilized for adjudicating on the rights of the parties." (emphasis added).
25. In Pir Sabir Shah's case (Supra), it was observed as under--- "In' view of the above discussed legal position there is no doubt in my mind that on the repeal of Ordinance XXX of 1993, which was never placed before the. Assembly for approval and which stood repealed on the expiry of 4 months period from the date of its promulgation in accordance with the provisions of Article 89 ibid, the amendment introduced in Section 8-B by Ordinance XXX of 1993 stood removed from the statute book with the consequence the original provisions of Section 8-B of the Act stood revived on such repeal." (emphasis supplied)
26. In M. Nawaz Khokhar's case (Supra), the law was laid down in the following words:--- "The contention appears to be correct. Ordinance II of 1998 was promulgated on 4.2.1998. It is not disputed that Ordinance II of 1998 was not passed by Majlis-eShoora. Under Article 89 of the Constitution, this Ordinance stood repealed on 3.6.1998. We have already held that an Ordinance promulgated under Article 89. We have already held that an Ordinance promulgated under Article 89 of the Constitution is a temporary legislation, therefore, the amendments made in the Act by Ordinance II of 1998 stood obliterated and original provisions in the Act stood revised on repeal of Ordinance II of 1998."
27. In Muhammad Sharifs case (Supra), it was held as under:- "The provisions about repeal contained in Section 6 of the General Clauses Act, 1897 have no application to a temporary statute, so as to carry the effect of a temporary statute beyond its original life. All that Section 6 of the General Clauses Act, 1897 means is that in spite of the repeal a statute is deemed to be in force in respect of the particular matters enumerated in that section i.e., its original life would continue in spite of the repeal, but the section certainly does not mean that by the repeal it would be in force even after the period for which it was legally to be in force as enacted. Therefore, the mere repeal, a day before its expiry, of the control of Essential Commodities Ordinance V of 1956, which was a temporary statute, did not make Section 6 of the General Clauses Act, 1897 applicable so as to save the prosecution under. Ordinance V of 1956 even after its expiry on 18.11.1956."
28. In Sargodha Bhera Bus Service Ltd.'s case. (Supra) it was laid down as under:--- "The power of legislature of the Governor, therefore, were of transitory, temporary and contingent nature. They are, no doubt, co-extensive with those of the Provincial Assembly, as argued by Mr. Brohi, but this can be said only with regard to the field of legislation as regards the Provincial list and the concurrent list of subjects as given in the Fifth Schedule to the late Constitution. But it is evident that the powers of the Assembly are more extensive, inasmuch as it was empowered to enact permanent Acts at all times not subject to any limitations as the Governor's powers are meant to be by Article 102, which are to be exercised in emergency and with temporary effect only and carry with them the implication that when a permanent Act is repealed by an Ordinance, the Act will revive on the expiry of the Ordinance."
29. In Gooderham and Works, Ltd.'s case (Supra) observations of the Privy Council were in the following words:--- "The result is that on 31st March, 1936, the temporary legislation contained in the first Act of 1933 repealing provisions of the principal Act of 1932 and substituting other provisions came to an end not by repeal of the temporary legislation but by the efflux of the prescribed time. No question as to the revival of the temporarily repealed provisions of the principal Act of 1932 by the repeal of repealing legislation arises. The repeal effected by the temporary legislation was only a temporary repeal. When by the flat of Parliament the temporary repeal expired the original legislation automatically resumed its full force. No re-enactment of it was required. This is what sub-section
(3) of the Act of 5th July, 1935, was designed to make clear. The principal statute of 1932 is to be read on and after 1st April, 1936, as if the temporary legislation had never been enacted; it is to be in force as if there had been no temporary legislation affecting its provisions." (emphasis added)
30. In Bhupendra Kumar Bose's case (Supra), it was observed as under:--- "(19) It is true that the provisions of Section 6 of the General Clauses Act in relation to the effect of repeal do not apply to a temporary Act. As observed by Patanjali Sastri, J., as he then was, in S. Krishnan v. State of Madras, 1951 SCR 621: (AIR 1951 SC 301), the general rule in regard to a temporary statute is that in the absence of special provision to the contrary, proceedings which are being taken against; a person under it will ipso facto terminate as soon as the statute expires. That is why the Legislature can, and often does, avoid such an anomalous consequence by enacting in the, temporary statute a saving provision, the effect of which is in some respects similar to that of S. 6 of the General Clauses Act.
(22) This question sometimes arises in another forma As Craies has observed: "If an Act which repeals an earlier Act is itself only as temporary Act, the general rule is that the earlier Act is revived after temporary Act is spent; and inasmuch as ex hypothesi the temporary Act expires and is not repealed, the rules of construction laid down by Ss. 11(1) and 38(2) of the Interpretation Act, 1889, do not apply. But there will be no reviver if it was clearly the intention of the Legislature to repeal the earlier Act absolutely."
Therefore, even as regards the effect of the repealing of an earlier Act made by a temporary Act, the intention of the temporary Act in repealing the earlier Act will have to be considered and no general or inflexible rule in that behalf can be laid down."
31. In Qudrat Ullah's case (Supra), Supreme Court choose to say the same thing in the following words:--- "25. We may mention as an additional reason for our conclusion that the provisions of S. 6 of the General Clauses Act in relation to the effect of repeal do not ordinarily apply to a temporary Act.
Stating this proposition, Gajendragadkar, J, as he then was indicated the consequence of repeal of a temporary Act. In State of Orissa v. Bhupendra Kumar, AIR 1962 SC 945, the learned Judge continued: "As observed by Patanjali Sastri, J., as he then was in S. Krishnah v, State of Madras, 1951 SCR 621 (AIR 1951 SC 301), the general rule in regard to a temporary statute is that in the absence of special provision to the contrary, proceedings which are being taken against a person under it will ipso fact() terminate as soon as the statute expires. That is why the Legislature can and often does, avoid such an anomalous consequence by enacting in the temporary statute a saving provision, the effect of which is in some respects similar to that of S. 6 of the General Clauses Act."
32. In Ameer-un-Nissa Begum's case (Supra), for the same effect choice of the words was as under:- "Under the English Common Law when a repealing enactment was repealed by another statute, the repeal of the second Act revived the former Act 'ab initio'. But this rule does not apply to repealing Acts passed since 1850 and now if an Act repealing a former Act -is itself repealed, the last repeal does not revive the Act before repealed unless words are added reviving: vide Maxwell's Interpretation of Statutes, p. 402 (10th edition).
It may indeed be said that the present rule is the result of the statutory provisions introduced by the Interpretation Act of 1889 and as we are not bound by the provisions of any English statute, we can still apply the English Common law rule if it appears to us to be reasonable and proper. But even according to the Common Law doctrine, the repeal of the repealing enactment would not revive the original Act if the second repealing enactment manifests an intention to the contrary."
33. In Hansraj Moolji's case (Supra), it was laid down as under:--- "14. Even though the Governor-General's Acts and the Ordinance promulgated by him were thus equated with the Acts passed by the Federal Legislature or the Indian Legislature as the case may be, the period of duration thereof had to be determined. Every statute for which no time is limited is called a perpetual Act, and its duration is prima facie perpetual. It continues in force until it is repealed (Vide Cralies on Statute Law, Ed. 5, p.374; Halsbury's Laws of England, Hailsham Ed. Vol. XXXI, p. 511, para 664). If an Act contains in proviso that it is to continue in force only for a certain specified time, it is called a Temporary Act. This result would follow not only from the terms of the Act itself but also from the fact that it was intended only as temporary measure."
34. In Abdul Ghani's case (Supra) which case was a case before a Division Bench of Baluchistan High Court, after coming to the conclusion that subject of land acquisition does not find place either in the Federal Legislative List or in the Concurrent Legislative List and there domain of making law on the subject of land acquisition lay with the Provincial Assembly, question which cropped up before the Court was whether promulgation of the Baluchistan Acquisition of Land Act, 1974 had repealed the Central Act of 1884 or not by its own force. The High Court held that, since the provisions of the Provincial Act were not exhaustive on the subject of land acquisition, the Central Act would stay inspite of enforcement of the Provincial Act.
35. Section 6 of the General Clauses Act, provides as under:- "6. Effect of, repeal.-- Where this Act, or any (Central Act) or regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not:---
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability , acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."
36. Reference may also be made to Article 264 of the Constitution, which is in the following words:-- - - "264. Effect of repeal of laws.- Where as law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not except as otherwise provided in the Constitution:-
(a) revive anything not in force or existing at the time at which the repeal takes effect;
(b) affect the previous operation of the law or anything duly done or suffered under the law;
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the law;
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or
(e) affect any investigation legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed."
37. The present i.e. The case of. Section 87(3) of the Act of 2008 is a case of repeal of the Act of 2008 by a provision contained in the Act itself. Section 6 of the General Clauses Act, deals with the cases where General Clauses Act or any other Central Act repeals any enactment made thereafter. Thus, it is a case where one piece of legislation repeals another piece of legislation. It has therefore no applicability to a situation where an Act expires by its own force rather than by being repealed by another piece of legislation. Moreover, as has been held by the Supreme Court repeatedly (and for example in Muhammad Arif's case and in Muhammad Nawaz Khokhar's case. Section 6 of the General Clauses Act, has no applicability to repeal by a temporary legislation or to a temporary legislation. Therefore, Section 6 of the General Clauses Act gives no help and 'should not be sought help from in deciphering meaning and effect of Section 87(3) of the Act of 2008 because it has no applicability to repeal of a temporary law by its own force.
38. Similarly Article 264 also does not have any applicability because the opening words are "where a 'law is repealed or, is deemed to have been repealed, by, under, or by virtue of the Constitution".
Case Of Section 87(3) is not a case of repeal by, under or by virtue of the Constitution. Therefore, Article 264 also does not have any applicability to the consequences of Section 87(3) of the Act of 2008. Thus, neither Section 6 of the General Clauses Act, nor Article 264 are applicable to the situation brought about by Section 87(3) of the Act of 2008.
39. When a temporary law disappears by its own force what are the consequences? Craies on Statute Law says as under-- 1f an Act which repeals an earlier Act is itself a temporary Act, the general rule is that the earlier Act is revived after the temporary Act is spent; and inasmuch as ex hypothesi the temporary Act expires and is not repealed, the rules of construction laid down by Sections 11(1) and 38(2) of the Interpretation Act, 1889 do not apply. But there will be no reviver if it was clearly the intention of the legislature to repeal the earlier Act absolutely." (emphasis supplied)
40. S.M. Zafar in his book Understanding Statutes has written as follows:- "The. Effect of the expiry of a temporary statute is in each case a matter of construction. The general law, with regard to the effect of expiry of temporary statutes, has been laid down in the famous case Crown v. Haveli, in this case it was held that, when a temporary statute expires it ceases altogether to have effect as if it has never been enacted, except as to transaction past and closed. This result follows unless there be provisions made in the statute itself for continuing the effect thereof in any respect."
41. In Crown v. Haveli PLD 1949 Lahore 550, a Full Bench of Lahore High Court was seized with the question regarding effect of temporary enforcement of a law in a particular area. The matter was referred to a Full Bench and judgment of the Full Bench was authored by Mr. Justice A.R. Cornelius, J. (as his late lordship then was). His lordship observed as under:- "The general law in relation to temporary statutes is that once such a statute has expired it ceases altogether to have effect as if it had never been, except as to transactions past and closed. This result follows unless there be provision made in the statute itself for continuing the effect thereof in any respect."
42. Consequently the Full Bench went on to hold as under:--- "The effect of the withdrawal by the Provincial Government of the provisions of the Disturbed Areas Act from the Sialkot District is in my opinion, to leave the law as it previously was so that the punishment for the offence was that laid down in the Indian Penal Code. This was the punishment applicable at the time of the trial, of Haveli, and following R. v. M.'Kenzie I would hold that immediately upon the withdrawal of the Disturbed Areas Act viz. On the 12th February, 1948, the punishment of death could no longer be imposed on him. It is quite clear that the temporary statute in question was the Disturbed Areas Act contains no words which can have the effect of saving its operation in respect of any transaction not commenced and, closed prior to the date of its withdrawal."
43. Therefore in our opinion the Industrial Relations Act, 2008 was a temporary law; it expired of its own force on April 30, 2010, it is to be presumed as if it never existed, except for transactions past and closed; neither Section 6 of the General Clauses Act nor Article 264 are applicable and for all legal purposes, except for transaction past and closed the law returns to the position to, which it would have been had the Act of 2008 never been enacted,
44. This brings us to the question as to what is the impact of Article 270AA (6) and 270AA (8). Under Article 142 of the Constitution the Parliament has exclusive power make laws in respect of any matter in the Federal Legislative. List. However clause (b) of Article 142 states that both the Parliament and Provincial Assembly shall have powers to make laws with respect to criminal law, criminal procedure and evidence. Provincial Assembly has the power to make laws in respect of all matters i.e. All residuary matters excluding the matters enumerated in the Federal Legislative List.
Previously there used to be Concurrent List, which list, as stated above has been deleted by the 18th Amendment. Thus, as far 'as legislative power is concerned between the Parliament and the Provincial Assembly it is delineated by Article 142 of the Constitution.
45. .As far as executive authority is concerned, extent of executive authority of the Federation is laid down by Article 97 and extent of executive authority of a Province is laid down by Article 137 of the Constitution. They are reproduced as under:-- "97. Extent of executive authority of Federation.- Subject to the Constitution, the executive authority of the Federation shall extend to the matters with respect to which Majlis-e-Shoora (Parliament) has power to make law, including exercise of' rights, authority and jurisdiction in and in relation to areas outside Pakistan: Provided that the said authority shall not save as expressly provided in the Constitution or in any law made by Majlis-e-Shoora (Parliament), extend in any Province to a matter with respect to which the Provincial Assembly has also power to make laws.
137. Extent of executive authority of Province.- Subject to the Constitution, the executive authority of the Province shall extend to the matters with respect to which the Provincial Assembly has power to make laws: Provided that, in any matter with respect to which both Majlis-e-Shoora (Parliament) and the Provincial Assembly of a Province have power to make laws, the executive authority of the Province shall be subject to, and limited by, the executive authority expressly conferred by the Constitution or by law made by Majlis-e-Shoora (Parliament) upon the Federal Government or authorities thereof."
46. Reading of the above Articles indicates that founding fathers of the Constitution have shown immense wisdom and provided a very simple, if I may say so litmus test; if Parliament has power to legislate, Federal Government has the executive powers; if Provincial Assembly has power to legislate, Provincial Government has the executive powers. Thus, legislative power and executive power co-exist.
47. Mr. Khalid Anwar in his usual lucid style submitted that Concurrent List was a shock absorber. He appears to be dot on the mark on this score. Now probably the Legislature in its wisdom has decided to do away with the shock absorber. As far as legislative power is concerned, as stated above, it is delineated by Article 142. There cannot be any question of any devolution of legislative power except what has been done by the 18th Amendment on the crack of dawn on 19.4.2010.
Whatsoever, Parliament wanted to transfer to the Provincial Legislature it has done that No rope and strings have been kept by the Federal Legislature in' its own hands. However, as far as executive power is concerned, therein comes the concept of devolution. Therefore what is contemplated by sub-Article (8) of Article 270AA relates to devolution of administrative machinery and not the legislative power because the legislative power completely and absolutely as far as items mentioned in the Concurrent List are concerned (excluding Criminal Law, Criminal Procedure and evidence) stood transferred by legislative fiat to the Provinces on 19.4.2010 i.e. The day on which 18th Amendment became an integral' part of the Constitution of the Islamic Republic of Pakistan. Therefore, Article 270AA(8) has no applicability in respect of Section 87(3) of the Act of 2008 because the Act of 2008 is related to legislative power and does not have any relationship with devolution of executive authority.
48. This brings us to meaning of the most contentiously argued provision i.e. Section 270AA(6). This Article has been already reproduced above . And the emphases of the learned counsel were on the words "shall continue to remain in force unless, altered, repealed or amended by the competent authority". Mr. Khalid Anwer and other learned counsel who supported the point of view that by virtue of Section 87(3) the Act of 2008 has stood repealed on 30.4.2010 primarily submitted two fold arguments:---
(a) Article 270AA(6) does not make any change in the text of the Act of 2008 and therefore, it cannot be held to have deleted or amended the sunset clause.
(b) Since Provincial Assembly after 19.4.2010 has not expressed any desire to the contrary desire of Parliament expressed in Section 87(3) continues to be the expression of legislative will.
49. On the other hand, Mr. Sarwar Khan submitted that the effect of the words used in Article 270AA(6)
(a) life of the Act of:2008 has been extended (and it was only Mr. Sarwar Khan and no other counsel who argued that, it is extended till 30.6.2011);
(b) under the doctrine of implied repeal Section 87(3) is impliedly repealed by Article 270AA(6); and
(c) in any case Section 87(3) is in conflict with Article 270AA(6) and therefore, it must yield to the Constitutional provisions.
50. Contention of Mr. Sarwar Khan, that if a statute is in conflict with the Constitution then statute must yield to the Constitutional provisions needs no authority as it has been there since as judgment of Justice Marshall in Marbuty v. Madison. But for that we have to come to a definite conclusion that Section 87(3) is in conflict with Article 270AA(6). Same is the position in respect of argument on the touchstone of doctrine of implied repeal as under that doctrine a later statute implied repeals an earlier statute but only to the extent of inconsistency. But as a first step Court must always make every possible attempt to harmonize the two provisions.
51. One of the principles for interpretation of statutory instrument is, called the "mischief rule".
Maxwell on Interpretation, of Statutes, 12th Edition says the following:--- "In Heydon's case, in 1584, it was resolved by the Barons of the Exchequer (at p. 7b) "that for the sure and true interpretation of all statutes in general (be they penal or, beneficial; restrictive or enlarging of the common law) four things are to be discerned and considered (1st). What was the common law before the making of the Act. (2nd). What was the mischief and defect for which the common law did not provide. (3rd). What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth. And, (4th). The true reason of the remedy; and then the office of all the Judges of is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief,' and pro private commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico."
52. Let us visualize a situation that there is no Article 270AA(6). Eighteenth Amendment has deleted the Concurrent List. Legislative authority of the Parliament in respect of items enumerate in the Concurrent List has come to an end with the deletion of the Concurrent List. Article 264 becomes applicable to all items and all pieces of legislation enacted by the Parliament in respect of the items enumerated in the Concurrent List. However, Article 264 only protects past operations and does not protect the legislation itself. Had there been no Section 270AA(6) on the morning of 19.4.2010 all laws made by the Parliament in respect of the items enumerated in the Concurrent Legislative List would have come to an end. This was the mischief which is sought to be cured by Article 270AA(6). That is why the Article starts with the words "notwithstanding omission of Concurrent Legislative List" -Word 'notwithstanding' means 'despite' are "in, spite of". A non- obstinate clause is used in a provision to indicate that the provision shall prevail despite anything to the contrary in any provision and it operates so as to set aside as no longer valid anything contained in the relevant existing provision which is inconsonant with what followed the word 'notwithstanding'. Reference may be made in this regard to M. Durab Yousuf Qureshi v. Punjab Labour Appellate Tribunal and another, PLD 1979 .Lah. 406 and M. Tayab Khan v. Punjab Labour Appellate Tribunal, Lahore and another, 1979 PLC 377. Thus, the mischief sought to be cured by sub- Article (6) was that had this Sub-Article not been there all Federal legislation in respect of items enumerated in the Concurrent Legislative List would have come to an end on 19.4.2010. This was mischief cured and it is in line with this principle that we will have to ascertain meaning of Article 270AA(6) and its implication on Section 87(3) of the Act of 2008. The protection given by Article 270AA(6) is to be seen in the light of such principle. It protects the Legislation from its, now made, congenital defect. "Now made" because it was not there when such enactments were first enacted congenital because now (i.e. w.e.f. 19.4.2010) they became a legislation on a subject not included in the Federal Legislative List but enacted by Parliament which is no longer competent, prima facie, to enact such legislation. It is this defect which is sought to be cured by Article 270AA(6): it is this mischief that the Article seeks to avoid and evade. It is this protection that it provides: It is a condonation and not a validation.
53. Mr. Mehmood Abdul Ghani, for reliance on, referred to an order passed by the. Punjab Labour Appellate Tribunal, in Muhammad Yaseen, Factory/Administration Manager M/s. Crescent Mills, Nishatabad, Faisalabd and another v.
Muhammad Arif, Rev: Petition No. FD-36 on 4.5.2010. After referring to Section 83 of the Act of 2008 Article 270AA(8), the Tribunal held as under:--- "3. Now a combined reading of these two Clauses reveal that all the laws with respect to the concurrent list including Ordinances, Orders, Rules etc., in force in Pakistan or any part thereof or having extra territorial operation before the commencement of the Constitution (Eighteenth Amendment) Act, 2010, shall continue to remain in force until altered, repealed or amended by the competent authority in terms of clause (8) all the matters shall devolve on the Provinces and they shall, complete their exercise by 30.6.2011.
4. It is noteworthy that when the Constitutional amendment came into force on 19.4.2010, the Industrial Relations Act, 2008 was very much alive and in full force. As such its life, by virtue of Article 270AA(6) and (8) has been extended till 30.6.2011 unless, sooner amended, modified or repealed by the competent authority, which obviously is provincial legislature.
5. As a consequence of the Article 270AA there is implied repeal of Section 87(3) of the Industrial Relations Act, 2008. In such cases, the legislative intend, rather than the grammar or the letter of the enactment is the determining factor. The very heading of the Article 270AA reads as "Declaration and continuance of laws etc." would manifestly demonstrate that the legislature was fully cognizant of the effect of Section 87(3) of the Industrial Relations Act, 2008, therefore Article 270AA (6) has injected life into the Industrial Relations Act, 2008 uptill 30th June, 2011. Constitution is a living document portrays the aspirations and genius of the people and aims at creating progress, peace, welfare, amity amongst the citizens; it is a basic structure upon which the entire edifice is built, therefore it has to be interpreted in a manner which may keep it alive and blossoming under all circumstances and in every situation. Law should be interpreted in a manner which suppresses the mischief and advances the remedy. As a equal to the above discussion it is obvious that this Tribunal as well as the Labour Courts have every lawful authority to function and exercise their jurisdictions."
54. Chaudhry Muhammad Ashraf, by way of information, supplied a copy of the order passed by the Chairman, N.I.R.C. In Pakistan Sports Board Employees Union v. Pakistan Sports Board, case No. 7A(52)/10 on 18.5.2010. The Hon'ble Chairman, N.I.R.C. Firstly held that the Act of 2008 is a temporary legislation. Thereafter the Chairman referred to Article 264 of the Constitution and came, to the conclusion that I.R.O., 2002 does not stand revived in view of that Article. Thereafter case-law was referred by the Chairman which pertain, to - repeal by Ordinance. Thereafter the Chairman observed that impact of Article 270AA(6) was that irrespective of the fact whether a law is permanent or temporary it was protected.
55. With respects both the Punjab Labour Appellate Tribunal as well as the Chairman, N.I.R.C. Do not appear to have been properly assisted in respect of scope of Article 264 which is limited only to repeal "by, under, or by virtue of the Constitution". As discussed above, I.R.A. Is repealed not by, under, or by virtue of the Constitution but by a provision contained in the Act itself. Similarly the nature of protection provided by Article 270AA(6) was not brought to the attention of the learned Chairman. Therefore in our C.L.R. opinion but the Punjab Labour Appellate Tribunal and the Chairman, N.I.R.C. Were not properly assisted and the two orders do not reflect correct statements of law.
56. Let us take a case of an Ordinance issued by the President immediately before 19.4.2010 in exercise of powers under Article 89 in respect of a matter enumerated in the Concurrent Legislative List. Will that Ordinance be a protected (in the sense in which learned AAG wishes us to have it) legislation under Article 270AA(6) and therefore would not need approval by competent Legislature. Even Mr. Sarwar Khan was not prepared to go to that extent. If that cannot be in case of one kind of temporary legislation i.e. An Ordinance how can it be in case of another kind of temporary legislation i.e. An Act having built in it a terminus quo. Mr. Khalid Anwer is correct in arguing that Article 270AA(6) does not make any change in the text of any law and same is the position of each and every word used in the I.R.A., 2008. Therefore, on the morning of 19.4.2010 by virtue of Article 270AA(6) I.R.A., 2008 was protected. This protection was to each and every word of the I.R.A., 2008. Therefore, on the morning of 19.4.2010 above Section 87(3) of I.R.A., 2008 as completely protected as the rest of I.R.A. Itself and Mr. Khalid Jawaid Khan appears to be correct in arguing that since Provincial Assembly has not expressed any view contrary to the view contained in Section 87(3), Section 87(3) continues to be the will and intent of the Legislature. Similarly Ch. Muhammad Ashraf Khan appears to be dot on the mark when he stated that it cannot be said that Article 270AA(6) protects Act of 2008 but repeals one part of it. No such intention is either expressed in the words of Article 270AA(6) nor does it follow by necessary intendment. Therefore, in our opinion, Article 270AA(6) on the morning of 19.4.2010 protected I.R.A., 2008 including its Section 87(3) on 30.4.2010 Section 87(3) did what it was stated to be its purpose i.e. It repealed the I.R.A., 2008. To our mind this is the intent of Article 270AA(6) and therefore on April 30, 2010 I.R.A., 2008 breathed its last in view of provisions contained in its own Section 87(3).
57. There is another aspect to, it. What would have been the position had there been no Eighteenth Amendment: I.R.A. Would have expired on 30.4.2010 in view of Section 87(3). What has deletion of Concurrent List done: it has transferred Legislative authority from Parliament to Provincial Assemblies and concomitantly executive authority from Federal Government to Provincial Government: Article 270AA(6) is aimed at avoiding a consequence of such a transfer. The consequence being: A law made by Parliament on a (now) provincial subject shall continue till the competent authority amends, repeals or alters it. How can such a fiat be read to mean that though it continues all sections of one law but it repeals one section of only one particular enactment.
58. Mr. Mehmood Abdul Ghani and Khalid lmran submitted that Section 87(3) of the Act of 2008 is ultra vires of Article 17 of the Constitution. The argument appears to be misconceived. In the case of Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another, PLD 1997 SC 781, the question before the Supreme Court was whether the provisions contained in Section 19 of the Civil Aviation Authority Ordinance, 1982 which section excluded employees of the Civil Aviation Authority from the operation of I.R.O., 1969. The Supreme Court held as under:- "18. It will not be out of context to mention that, besides the exclusion of the employees of the various establishments specified in clauses (a) to
(h) of subsection (3) of Section 1 of the I.R.O., quoted hereinabove in para 11., the employees who do not fall within the definition of the "workers" and "workmen" given in clause (xxviii) of Section 2 of the I.R.O., have also been excluded from the purview thereof. The said clause (xxviii) expressly excludes any person:---
(a) who is employed mainly in a managerial or administrative capacity, or
(b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature.
In this view of the matter, the exclusion of the application of I.R.O. To the employees of the Authority and the Corporation by the Legislature and' not by an executive order does not suffer from any.
Constitutional legal/infirmity. The same cannot be held to be violative of Article 17(1) of the Constitution. Particularly keeping in view the above background that all the employees of all the establishments are not covered by the provisions of I.R.O." (Underlining added)
59. In Nisar Ahmed and others v. Federation of Pakistan, 1.999 SCMR 1338, again the Supreme Court held that exclusion of application of the Industrial Relations Act does not violate any fundamental rights. Even otherwise the. I.R.A. Is firstly applicable to only those employed in industry whereas Article 17 of. The Constitution is applicable to all citizens; secondly under sub-section (4) of Section 1 of the Industrial Relations Act, 2008, employees of many organizations are excluded from the purview of I.R.A. Of 2008 whereas Article 17 is equally applicable to all citizens and thirdly even where the I.R.A. Is applicable it effectively grants (my emphasis is on the word "effectively") rights only to the workmen employed in those organizations and not to non-workmen employees of such organization. We must hasten to add that though right to form Union or, Associations has been given in the I.R.A. To non-workmen employees also however since they cannot have .a C.B.A. And only C.B.A. Can represent workmen, raise industrial disputes and resort to industrial action, unions of non-workmen employees are, at least as for as I.R.A. Is concerned, nothing more than impotent imbeciles. Moreover, as Mr. Khalid Anwer argued, fundamental rights do not constitute a command to the Parliament to legislate on that particular subject. They, when read in the context of Article 8, only provide the touchstones on which validity of any law, if enacted, is to be tested. Therefore, if exclusion from I.R.O. Of many and vast segments of the population such an employees of Civil Aviation Authority, persons in the administration of State, persons employed in hospitals, persons employed in educational institution, even agricultural workers and many others, does not violate Article 17(1) how can wiping away of I.R.A., 2008, from the Statute Book violate Article 17(1) of the Constitution. This is notwithstanding the position that we have not yet reached the conclusion that if I.R.A., 2008 has ceased to exist, whether there is any other law to take its place or not.
60. Although it was stated by the Federal Secretary Labour in his written note submitted and also by all the learned counsel that after deletion of Concurrent Legislative List, in the field of Labour Laws and Industrial Relations it is only the Provincial Assembly which is competent to legislate, we do not deem it appropriate to go into this question because it would involve comparison of the Federal Legislative List and on the touchstones of well-settled law that an entry in Legislative List must be most widely construed. The items in the Legislative List are not in the nature of crevices from which only puny shoots can peep out. They are mighty and broad rivers on the banks of which can many a dandelions and daffodils lay fields of rainbow colors. Therefore this question we leave for determination in an appropriate case.
61. Mr. Mehmood Abdul Ghani referred to news- item in daily Dawn of May 22, 2010 which news item stated that Hon'ble Chief Justice of Lahore High Court upon receipt of information that Labour Courts had become nonfunctional called the Chief Secretary and the Chief Secretary informed the Chief Justice that Labour Courts are functioning normally and consequently the Chief Justice discharged the suo motu notice issued by him. Reading of the news-item makes it clear' that the precise question raised in this Constitution Petition were never raised and argued before the Hon'ble Chief Justice of Lahore High Court.
62. Now comes the question that since the I.R.A., 2008 has ceased to exist on April 30, 2010 and since, in accordance with the principles settled by the superior judiciary in Pakistan and India and the law books which have been quoted above, Act of 2008 being temporary. Legislation upon repeal of Act of 2008 by its Section 87(3) the law prevailing' on the date when Act of 2008 came into force stood revived, what was the law prevailing on that. Date. This turned out to be a very interesting question. Article 270AA (1) of the Constitution as inserted by 17th Amendment, read asunder:--- "270AA. (1) The proclamation of Emergency of the fourteenth day of October, 1999, all President's Orders, Ordinances, Chief Executive's Orders, including the Provisional Constitution Order No. 1 of 1999, the Oath of Office (Judges) Order, 2000 (No. 1 of 2000), Chief Executive's Order No. 13 of 2002, the amendment made in the Constitution through the Legal Framework 'Order, 2002 (Chief Executive's Order No. 24 of 2002), the Legal Framework (Amendment) Order, 2002 (Chief Executive's Order No. 29 of 2002), the Legal Framework (Second Amendment) Order, 2002 (Chief Executive's Order No. 32 of 2002) and all other laws made between the twelfth day of October, one thousand nine hundred and ninety-nine and the date on which this Article comes into force (both days inclusive), having been duly made are accordingly affirmed, adopted and declared to have been validly made by the competent authority and notwithstanding anything contained in the Constitution shall not be called in question in any Court or forum on any ground whatsoever.
63. As appears from the above, Article 270AA(1), as inserted by the 17th Amendment, validated all laws made between 12th day of October, 1999 and the date on which the said amended Article came into operation. I.R.A. Was promulgated on October 26th, 2002. Its preamble reads as under:-- - "WHEREAS it is expedient to amend, consolidate and rationalize the law relating to formation of trade unions, regulation and improvement of relations between employers and workmen and avoidance and settlement of any differences or disputes arising between them; AND WHEREAS, the President is satisfied that circumstances exist which render it necessary to take immediate action; NOW, THEREFORE, in pursuance of the Proclamation of Emergency of the fourteenth day of October, 1999, Land the Provisional Constitution Order No. 1 of 1999, read with the Provisional Constitution (Amendment) Order No. 9 of 1999, and in exercise of all powers enabling him in that behalf, the President of the Islamic Republic of Pakistan is pleased to make and promulgate the following Ordinance:-"
64. As is evident from its preamble, the Ordinance of 2002 was issued in pursuance of the Proclamation of Emergency of 14th day of October,. 1999 and the Provisional Constitution Order of 1999 etc. It was consequently declared as validly enacted by Article 270AA(1) as inserted by the 17th Amendment. The same was the finding, in Water and Sanitation Agency (WASA) Employees Welfare, Union (L.D.A.) v. Registrar Trade Unions, Lahore and 4 others, 2003 PLC 386. Then came the 18th Amendment. 18th Amendment completely substituted Article 270AA. Its clauses (1) & (2) now read as under:--- "270AA. (1) The Proclamation of Emergency of the fourteenth day of October, 1999, the Provisional Constitution Order No. 1 of 1999, the Oath of Office (Judaes) Order, 2000 (Chief Executive's Order No. 19 of 2000), the amendment made in the Constitution through the Legal Framework Order, 2002 (Chief Executive's Order No. 24 of 2002), the Legal Framework (Amendment) Order, 2002 (Chief Executive's Order No. 29 of 2002) and the Legal Framework (Second Amendment) Order, 2002 (Chief Executive's Order No. 32 of 2002), notwithstanding any judgment of any Court including the Supreme Court or a High Court, are hereby declared as having been made without lawful authority and of no legal effect.
(2) Except as provides in clause (1) and subject to the provisions' of the Constitution (Eighteenth Amendment) Act, 2010, all other laws including President's Orders, Acts, Ordinances, Chief Executive's Orders, regulations, enactments, notification, rules, orders or by-laws made between the twelfth day of October, one thousand nihe hundred and ninety-nine and the thirty-first day of October, two thousand and three (both days inclusive) and still, in force, shall, continue to be in force until altered, repealed or amended by the competent authority ." .65. Reading of the above indicates the position as under :---
1. Promulgation of Emergency on 14th day of October, 1999 and the Provisional Constitution Order of 1999 as well as other instruments named in Section 27AA(1) have been notwithstanding judgment of any Court including the Supreme Court (for example, the judgment of the Supreme Court in the case of Zafar A.I Shah v. Pervaiz Musharaf, Chief Executive of Pakistan, PLD 2000 S.0 869) to the contrary, have been declared as having been made without lawful authority and therefore are fno legal effect.
2. Except as protected by sub-Article (2) all legislative, instruments made during the period between October 12th, 1999 and October 31st, 2003 except those protected under sub-Article (2) are instruments which were made without lawful authority and therefore of no legal effect.
3. Under sub-Article (2) only such instruments made between October 12th, 1999 and October 31st, 2003 that are still in force are protected and are to continue in force.
4. Therefore in respect of any legislative instrument such as. a Presidential Order, Act, Ordinance, Chief Executive Order etc., made during above-stated period, if it was not still in force it cannot continue. In fact, except for transactions past and closed, it is now void ab initio because legitimacy given to it by 17th Amendment has been withdrawn and the very instruments (P.C.O.
Etc.) on which it was based, have been declared lawful authority.
5. Still in force refers to the date of 19.4.2010.
6. I.R.O., 2002 was not in force on. April 19th, 2010.
7. Since I.R.O., 2002 is thus without lawful authority and of no legal effect, except for the protections provided under Article 264 of the Constitution, it is to be deemed and presumed as never having been made.
8. Since that is so, it ipso facto leads to the conclusion that I.R.O., 1969 was never lawfully repealed.
Therefore, with the demise of the I.R.A., 2008 I.R.O., 1969 again comes into force and shall continue unless alternated repealed or amended by the competent authority.
66. It may not be out of place to mention that I.R.O., 1969 was one of the pieces of legislation protected under Article 268(1) of the Constitution.
Said Article read as under:--- "268(1.). Except as provided by, this Article, all existing laws shall, subject to the Constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature."
67. Result of the above discussion is that we hold :---
(1) That the Industrial Relations Act, 2008 stood repealed on April 30th, 2010 by force of its Section 87(3).
(2) With effect from that date, the I.R.O., 1969 came back into operation.
68. This Constitution Petition is disposed of in the above terms. .