Shahid Karim, J. This judgment shall also decide constitutional petitions W.P No. 19343 of 2021, W.P No.21325 of 2021 and W.P No.13908 of 2021. All of these petitions present for review the provisions of the Code of Civil Procedure (Punjab Amendment) Ordinance, 2021 ("Amendment Ordinance") . It was promulgated and published in the Punjab Gazette on 10.02.2021. The petitioners contend that the Amendment Ordinance is ultra vires the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution") as it offends the provisions of the Constitution and thus the promulgation is caught by the vice of unconstitutionality .
2. The case of the petitioners can be captured in the following contentions: "1. The Code of Civil Procedure (Punjab Amendments) Ordinance 2021 (The "Amendment Ordinance") is ultra vires Articles 202 and 203 of the Constitution and is violative of the basic structure of the Constitution which includes independence of judiciary and the fundamental rights of the litigants and citizens of the Province of Punjab, inter alia effectively destroying recent amendments and reforms introduced to the Code. a. Article 202 of the 1973 Constitution was newly added and approval of Governor was removed as had been in the from the equivalent article in 1962 constitution to ensure independence of judiciary . The passage of the Ordinance in effect renders the change to naught. b. The Amending Ordinance is ultra vires Articles 202 and 203 particularly as the same was issued without consultation with the Lahore High Court or even with its knowledge. c. The Amending Ordinance violates the independence of judiciary as it renders at naught all the procedural changes previously made in the Orders of the CPC (Schedule-I).
2. The issuance of any Ordinance under Article 128 of the Constitution requires satisfaction of the Governor before said issuance and no evidence of any material being available is available on record of the basis of formation by the Governor or Cabinet.
3. That given that the present Amending Ordinance overrides the 2020 CPC Amendment Ordinance, there is no material on record indicating reasons for a change of satisfaction as well.
5. That various individual provisions too are ultra vires the previous well-considered Amendments made in 2018 by the Lahore High Court (p.16 of WP) and in effect renders them at naught, that too without prior consultation with the High Court.
6. That the Ordinance entirely disturb the entire scheme of the CPC. Entire process put in s. 25 and 26 and in effect renders the entire Schedule I of the CPC to naught, which once again in ultra vires the independence of judiciary and Articles 202 and 203 of the Constitution.
7. That the Code is a special type of law which requires active consultation between the Legislature and the Judiciary as Schedule 1 is managed by the Judiciary and the sections by the Legisl ature. One cannot be allowed to contradict the other and in so far as the Amending Ordinance is without active participation and consultation of the Lahore High Court, the same is liable to be set aside as such. ?
3. The learned counsels appearing in W.P No.19343 of 2021 and connected petitions made initial arguments based on the rule that there was no debate on the various provisions of the Amendment Ordinance as also reiterated the arguments of Mr. Muhammad Ahmad Qayyum, Advocate regarding the entirety of the Amendment Ordinance being ultra vires Article 202 read with Article 175 of the Constitution. These arguments of the learned counsels in this Court shall be dealt with during the course of this opinion.
4. The learned A.A.G filed written statement on behalf of Province of the Punjab ("Punjab") and retorted that the Amendment Ordinance is constitutional. It was based on the advice of the Chief Minister to the Governor and the opinion to be formed by the Governor under Article 128 of the Constitution is subjective and is not liable to interference by this Court by superimposing its opinion for that of the Governor . The Advocate General Punjab chose not to appear pursuant to notice under Order XXVII, A, CPC and did not file any written statement.
Opinion of the Court:
5. As adumbrated, the primary argument of the petitioners was that the satisfaction of the Governor prior to promulgation of the Amendment Ordinance under Article 128 of the Constitution must be based on existence of objective conditions justifying the issuance of the Ordinance which has urgency as its primary consideration.
Further this Court has the jurisdiction to examine whether the prerequisites provided in Article 128 of the Constitution for the exercise of power thereunder existed when the Amendment Ordinance was promulgated. If the answer to the above question is in the negative, the exercise of power will be without jurisdiction inviting an interference by this Court. The exercise of power by the Governor is hedged in by two conditions-precedent. Firstly , the Assembly should not be in session and second the circumstances must exist which render it necessary to take immediate action. It was further argued that to what purpose is the doing of something tied to a precondition if that something can be done in disregard of the precondition or prerequisite.
6. Notwithstanding the above arguments, Punjab filed its written statement and attached documents with that written statement which have given rise to further grounds of challenge. Having read those documents, the learned counsel for the petitioners as well as amicus curiae appointed by this Court focused their attention on the fresh ground which arose out of consideration of these documents. The new grounds, in a nub, are premised on the twin challenge of dictated exercise of power by Punjab and infringement of the Punjab Government Rules of Business 2011 (Rules of Business) in a manner of submission of the case regarding promulgation of the Amendment Ordinance to the Governor . Closely tied in with the challenge based on dictation is the broader question of republicanism and constitutional balance of federal and provincial powers. Since these petitions are being decided on the basis of the latter challenge, it will not be necessary to advert to the earlier challenge regarding the purported violations of the preconditions for the promulgation of an ordinance under Article 128 of the Constitution and its amenability before this Court.
The documents submitted by Punjab:
7. The learned A.A.G filed a set of documents to support the contents of the written statement on behalf of Punjab.
By collating these documents which make an interesting reading the process by which the relevant departments of the government proceeded to prepare a summary for the Chief Minister and finally culminated in the advice to the Governor for the ordinance to be promulgated is unraveled. The first document is entitled Summary for the Chief Minister and provides that: "Subject: CIVIL LAW REFORMS In a meeting chaired by the Prime Minister of Pakistan on 04.02.2021 on Prog ress Review Meeting on Prime Minister's Priority Sectors (5) (Annex-A), it was desired by the Prime Minister that the Punjab should consider making laws on the analogy of the federal laws titled as the Letters of Administration and Succession Certificates Act, 2020 (VI of 2020); the code of Civil Procedure (Amendment) Act, 2020 (VII of 2020); and, the Enforcement of Women's Property Rights Act, 2020 (XII of 2020). It has been desired by the law Minister that this Department should initiate Summary for the Chief Minister to comply with the directions of the Prime Minister mentioned above.
2. In view of the above, the drafts of the Punjab Letters of Administration and Succession Certificates Ordinance, 2021; the Code of Civil Procedure (Amendm ent) Ordinance, 2021; and the Punjab Enforcement of Women's Property Right Ordinance, 2021 are placed at Annex-B, c & D respectively .
3. The Chief Minister may be pleased to allow that the Draft Ordinances may kindly be approved by the Cabinet through circulation in terms of sub-rules (1) and (5) of rule 33, read with clause (b) of sub-rule (1) of 25 of the Punjab Government Rules of Business, 201 1.?
8. A reading of the summary to the Chief Minister , set out above, would bring forth two ineluctable conclusions. First the summary was prepared pursuant to a meeting chaired by the Prime Minister of Pakistan on 04.02.2021 on Progress Review Meeting of Prime Minister 's Poverty Sector . It further goes on to say that the Prime Minister had desired that Punjab (interestingly no other province was mentioned) should consider making laws on the analogy of the federal laws which include the Amendment Ordinance. It seems that at the federal level the CPC (Amendment Act) 2020 had already been promulgated and the Amendment Ordina nce is a mirror image of that law.
The summary then states that "it has been desired by the Law Minister that this department should initiate summary for the Chief Minister to comply with the directions of the Prime Minister mentioned above." This part of the summary gives rise to the challenge based on the rule that the act of promulgation of the amendments suffers from the vice of dictation and therefore must be struck down. The summary seeks the permission of the Chief Minister to have the draft ordinance approved by the Cabinet through circulation in terms of sub-rule (1) and
(5) of rule 33 read with clause "b" of sub-rule (1) of rule 25 of the Rules of Busines s. Another aspect which comes out starkly from a reading of the summa ry is that draft ordinance had already been sent to Punjab by Federal Government and which draft ordinance had been attached with the summary for approval by the Chief Minister and consequently by the Cabinet. Plainly , no deliberation took place at any level with the Punjab Government or internally within the department which was tasked with initiating the summary or the draft of the ordinance. This summary is dated 4.2.2021 and is sent by the Secretary Law, Govt. of the Punja b. It was countersigned by the Chief Secretary on 5.2.2021. The next document is dated 6.2.2021 and has been issued by the Secretary to Chief Minister and states as follows: "6. Chief Minister has seen and, in view of the exigency , is pleased to desire that the instant matter may be placed before the Provincial Cabinet, through circulation, for its consideration/ approval."
9. It can be seen that the Chief Minister on 6.2.2021 decided that the matter be placed before the Provincial Cabinet through circulation for its consideration / approval. The Chief Secretary countersigned this document on 7.2.2021. Now we come to another document which too is entitled "Summary for the chief Minister". It says that the "Provincial Cabinet has approved the draft ordinance placed in duplicate at Annexure A & B, Annexure C & D and Annexure E & F through circulation". It further states that "at the moment, Provincial Assembly of the Punjab is not in session and Governor of the Punjab is competent to promulgate the subject ordinance in terms of Article 128 of the Constitution". The most conspicuous aspect of this document is that it is also dated 4.2.2021 . Reading the three documents together presents a unique situation. The summary for the Chief Minister is initiated on 4.2.2021 which is approved by the Chief Minister on 6.2.2021 and by the Chief Secretary on 7.2.2021. However , in another summary for the Chief Minister , sent by the Secretary Law, it has clearly been stated that on 4.2.2021 the Provincial Cabinet had already approved the draft ordinance by circulation. Despite opportunities the learned A.A.G was not able to reconcile the glaring and egregious conflict in these 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. It was mechanically applied without a robust and inclusive decision-making process. It falls to be noted that the culmination of the process took place within less than a week in a matter having far-reaching consequences.
Ordinance making power:
10. The power to promulgate ordinance vests in the Governor by Article 128 of the Constitution. In essence, it is a legislative power but in actuality it is exercised by the political executive. This is a contradiction in terms but this issue will not detain us any further as it does not arise in the present proce edings. What is relevant to be considered is that the power to promulgate an ordinance by the Governor is subject to the conditions that the Provincial Assembly is not in session and he is satisfied that the circumstances exist which render it necessary to take immediate action. Closely tied in with this concept is the principle that under a written constitution the courts' duty is to see that the constitution is not infringed and is preserved inviolate (The Bribery Commissioner v.
Ranasinghe (1964) 2 All E.R. 785, 790). Although ordinance-making power is legislative but it must not be forgotten that the power vests in the political executive. Therefore it should be judged by the tests applicable to determine the validity of executive acts. The challenge to the Amendment Ordinance is therefore bifurcated into various grounds, the first of which entails that since the ordinance is an executive act and so its legality or otherwise must be considered on the touchstone of the principles of administrative law relating to executive acts such as illegality , irrationality and proced ural impropriety . I shall proceed to determine firstly whether the political executive of the province was compliant of the procedural formalities which must precede the promulgation of an ordinance and for the purpose reliance will be placed on the Rules of Business. While doing so, we will have to bear in mind the oft-quoted words of Lord Brightman in Chief Constable v Evans (1982) All ER 141, 154 that: "Judicial Review is concerned not with the decision, but with the decision-making process. Unless that restriction of the power of the court is observed, the court will, in any view, under the guise of preventing the abuse of power , be itself guilty of usurping power ."
11. It was stated by Chief Justice John Marshall in Marbury v Madison (1803) 5 US 137 that "to what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a governm ent with limited and unlimited powers is abolished, if these limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation."
12. The constitutional scheme envisages a limited government. It follows indubitably that 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 . This is the cardinal feature of the Constitution and illuminates the meaning and ef fect of this centrality .
13. The Rules of Business 2011 have been enacted by virtue of powers conferred by Article 139 of the Constitution.
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. An elaborate procedure has been laid down which not only acts as a bulwark against abuse but also ensures that sufficient consultation precedes the making of a law. The summary for the Chief Minister dated 4.2.2021 drafted by the Secretary Law and Parliamentary Affairs Department refers to the approval of the draft ordinance by the Cabinet through circulation in terms of sub-rule (1) and sub-rule (5) of Rule 33 read with clause `b' of sub-rule
(1) of Rule 25 of the Rules of Business. Firstly , therefore, we will advert our attention to these rules.
14. Clause `b' of sub-rule (1) of Rule 25 provides for the disposal of business by the Cabinet by circulation. It states that cases referred to the Cabinet shall be disposed of inter alia by circulation amongst the Ministers and by discussion at a meeting of Committee of the Cabinet. Thus, while the disposal of business by the Cabinet could be at a meeting of the Cabinet, in case it is to be done by circulation, the twin conditions of circulation amongst the Ministers as well as a discussion at a meeting of a Committee of the Cabinet must take place simultaneously . No document was produced before this Court which showed a compliance of sub-clauses `b' and `c' of sub-rule (1) of1 Rule 25 of the Rules of Business. For the purpose, the Cabinet may constitute Standing or Special Committees of the Cabinet and may assign to each a class of cases or a particular case. Sub-rule (2) envisages that unless the Cabinet authorizes otherwise, the decision of a Committee of the Cabinet shall be ratified by the Cabinet.
Therefore, Rule 25 contains an entire procedure for the disposal of business by the Cabinet by circulation and as explicated, it entails not only circulation amongst the Ministers but also discussion at a meeting of a Committee of the Cabinet. Obviously this is to bridge the gap left by actual discussion at a meeting of the Cabinet and in case a business is to be disposed of by circulatio n, the intention is that at least a discussion must take place at a meeting of the Committee of the Cabinet. This procedure has gone abegging in the instant case and the matter was circulated amongst the Ministers and upon its approval it was sent to the Chief Minister for advising the Governor .
15. Rule 26 of the Rules of Business, 2011 deals with the manner of submission of cases to the Cabinet. It lays down an extensive procedure which must precede the submission of the cases to the Cabinet and is based on time honoured rule that decision must not be taken in haste, for enactment of laws has far reaching consequences on the lives of people and therefore must be preceded by extensive consultative process. Rule 26 states that for submission of a case to the Cabinet, the Secretary of the concerned department shall transmit to the Chief Secretary a concise and lucid memorandum of the case giving the background and relevant facts, the points for decision and the recommendations of the Minister concerned. Also by sub-rule (3), a summary for approval in principle of the proposed legislation or for approval of a bill or an ordinance shall also contain the salient features of such legislation. More importantly , by sub-rule (4) where a case concerns more than one department, the summary shall not be forwarded to the Cabinet unless the case has been considered by all the concerned departments. In the present case, not only the Amendment Ordinance was part of the summary but also other laws in respect of which the relevant departments had not been consulted and so there was no consideration by those departments priorly . Sub-rule (6) of Rule 26 clearly provides that all ordinances shall be submitted to the Cabinet after they have been vetted by Law and Parliamentary Affairs Department. Thus, the entire Rule 26 has a purpose and that purpose is for a meaningful and extensive consultation process to be undertaken punctiliously not only by the relevant departments but also that any draft of a bill or an ordinance must be vetted by the Law and Parliamentary Affairs Department. None of the ingredients of Rule 26 seem to have been complied with in the instant matter . Not only that the summary was not considered by the concerned departments but also the laws meant to be promulgated were not vetted by the Law and Parliamentary Affairs Department which in fact acted as a post office by complying with the directions issued by the Prime Minister without taking into consideration the procedures envisaged by the Rules of Business to be valid in all case and especially while promulgating an ordinance.
16. Rule 27 relates to the procedure regarding Cabin et decision by circulation. By clause "a" of sub-rule (2) of Rule 27, in the event of full agreement to the recommendation in the summary , the Chief Secretary shall treat it as a Cabinet decision and proceed further in terms of rule 28(12), which is to the following ef fect: "28 (12) The Chief Secretary shall circulate to the Ministers, a copy of the record prepared under sub-rule (11) as approved by the Chief Minister ."
17. The above rule states that the Chief Secretary shall circulate to the Ministers a copy of the record prepared under sub-rule (11) as approved by the Chief Minister . Sub-rule (11), in turn, obliges the Chief Secretary to attend all meetings of the Cabinet and prepare a brief record of the discussion and a record of the decisions without any statement or reasons thereof. Once again, no document was produced which would show clearly that the Chief Secretary proceeded to fulfill his obligations cast by Rule 28(11) and (12). Plainly , a reference to a brief record of the discussion in the matters of disposal of business by circulation has a nexus to the discussion at a meeting of a Committee of the Cabinet and correlating the two would clearly show the importance of such a discussion by the Committee of the Cabinet.
18. From the discussion above it is clear that decisions by circulation by the Cabine t must be based on certain prior actions and cannot be simply done on a summary prepared by the Secretary Law but must be compliant of the procedure laid down in Rules 25, 26 and 27 read cumulatively . The role of the Chief Secretary in this procedure is of pivotal importance and cannot be downgraded. In the instant matter , no document was produced which would show that the Chief Secretary perform ed his functions under the Rules of Business while circulating the2 3 Amendment Ordinance for approval not only by the Ministers but also by the Chief Minister for onward transmission to the Governor to be enacted as the law .
19. Central to the present discussion are two more rules viz. Rule 33 and 35 of the Rules of Business. Rule 35 provides that the provisions of Rule 33 shall mutatis mutandis apply where the proposed legislation is an ordinance. This brings us to Rule 33 which contains crucial aspects with regard to any proposed legislation. It says that the department administratively concerned shall be responsible for determining the contents of the proposed legislation, for consulting the concerned departments where necessary and for obtaining the approval in principle of the Cabinet to the issue involv ed before asking Law and Parliamentary Affairs Department to give legal shape to the bill (read as ordinance for our purposes by virtue of the mandate of Rule 35). Thus, what comes out starkly from a reading of sub-rule (1) of Rule 33 is that the proposed legisla tion has to be initiated by the department concerned which shall obtain the approval of the Cabinet to the issue involved before asking the Law and Parliamentary Affairs Department to give legal shape to the bill. Therefore, even if a direction had been given by the Prime Minister , what was to be done by virtue of Rule 33 was for the concerned department to obtain the approval of the Cabinet regarding the issue and that approval was merely for the purposes of seeking directions to initiate the proposed legislation. Thereafter the matter should have been referred to the Law and Parliamentary Affairs Department for giving legal shape to the bill. What was done in the instant case was that the drafts of the laws received from the Federal Government were sent to the Chief Minister in a summary for approval and thereafter placed before the Cabinet to be approved by circulation. The first feature of rule 33 is that it conforms to the constitutional principle of autonomy to inhere in the Province and second for an independent consultation to be undertaken in any proposed legislation and a prior approval of the Cabinet must be obtained regarding initiation of such a process. Concurrently the role of Law and Parliamentary Affairs Department has been settled by sub-rule
(1) of Rule 33 while clearly stating that the said department shall give legal shape to the bill. Sub-rule (3) further provides that while referring the legislation to the Law and Parliamentary Affairs Department after it has been approved in principle by the Cabinet, the concerned department shall send a memorandum indicating the lines on which it is proposed to legislate. The place with the Law and Parliamentary Affairs Department occupies is highlighted by sub-rule (4) which provides that apart from giving shape to the draft legislation, the Law and Parliamentary Affairs Department shall advise the department concerned if any legal requirements are to be complied with as also to advise whether the proposed law disregards or violates any of the fundamental rights conferred by the Constitution. It is thereafter that the concerned department shall submit the case including the advice of the Law and Parliamentary Affairs Department to the Cabinet.
20. Rule 20 enunciates that the primary object of Law and Parliamentary Affairs Department is consultation by the other departments on matters relating to substantive legislation, delegated legislation, on the interpretation of substantive or delegated legislation and other matters delineated therein. Sub-rule (3) enacts clearly that the Law and Parliamentary Affairs Department is not, in respect of legislation, an originating office and its proper function is to put into correct legal form the proposed legislation. The bills for the law to be enacted shall be initiated by the department concerned which is obliged to consult the draft legislation with the Law and Parliamentary Affairs Department. It therefore seems plain that the Rules of Business have spelt out the function of the Law and Parliamentary Affairs Department and the initiation of legislation is not one of its functions. No legislation can be originated from the of fice of the Law and Parliamentary Affairs Department.
21. From the above narration, it indubitably follows that the procedural formalities for an ordinance to be issued and promulgated have been put to the wayside while enacting the Amendment Ordinance. These rules and in particular Rules 33 and 35 encapsulate the concept of provincial autonomy in the matter of promulgation of an ordinance.
Any direction by the Prime Minster 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. Mr. Shehzad Shaukat, Advocate, amicus curiae mounted this argument to contend that the Amendment Ordinance be struck down as having been passed under dictation of the Prime Minister/Federal Government. However , in my opinion, the Amendment Ordinance is without lawful authority on the twin grounds of illegality and dictation. Firstly , the Amendment Ordinance was promulgated under the dictated exercise of powers and secondly , Punjab failed to4 5 6 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 .
22. Rules of Business are constitutional rules and occupy a pedestal higher than ordinary statutory rules formulated under delegated exercise of power . They have their provenance in Article 139(3) of the Constitution. The rightful place of those rules in the constitutional scheme of conduct of business of a Provincial Government has, eruditely , been brought out by Saqib Nisar J. in his seminal opinion Mustafa Impex v. Government of Pakistan (PLD 2016 SC 808). (Though the precedent concerned the authority of the Federal Government to frame rules, its holding applies, a fortiori, to the Rules of Business made by a Provincial Government). Saqib Nisar , J., noted that: "...Article 90 envisages a parliamentary form of Government which is based on decision making by the Cabinet. To turn the Cabinet into such a rubber stamp in pursuit of decisions making by the Prime Minister to the exclusion of his Cabinet would violate the letter and spirit of our Constitution. That would be to reduce a cabinet form of government into a prime ministerial one which is a concept which is lien to the Constitution, as it stands at present..."
"...This necessarily means that the concept of business Government includes not merely executive matters but also those which pertain to legislation..."
23. The Supreme Court of Pakistan then went on to proffer its binding opinion on the importance of the Rules and the consequences that flow from any violations in their observance: "50. The importance of the Rules of Business cannot be understated within a constitutional framework. Although, generally speaking, it is correct to state that all rules are binding for, and in relation to, the powers thereby conferred on the Executive, this is especially so in the case of the Rules of Business. The concept of rules, as is obvious, is subsumed in subordinate or delegated legislation. It is an integral part thereof. All legislation is binding and should be acted upon. The Federal Government does not have the prerogative to follow , or not to follow , legislation, both primary as well as secondary or delegated, in its discretion. The authority to frame rules is normally conferred by an Act of Parliament. In the case of the Rules of Business this authority flows from the Constitution itself. As noted above, Clause (3) of Article 99 makes it mandatory for the Federal Government to make rules which cover two related sub-fields; firstly , for and in relation to the allocation of the business of the Government and secondly , for transacting the said business. This clause is to be read as essenti ally ancillary to the overarching concept of the rule of law. The Constitution confers vast powers on the Governmen t for the transaction of executive business. There is no reason to suppose, or believe, that the framers of the Constitution intended, in disregard of the explicit language employed, that the Federal Government could, in its discretion, either follow , or not follow , the provisions of the Rules of Business. The framer of rules is as much bound by the content thereof as anyone else is subject thereto. These are basic precepts of constitutional interpretation. To allow the Executive to depart from the language of the Rules, in its discretion, would be to permit, and legitimize, unconstitutional executive actions. Quite independently of the above, there is ample case law stressing the importance of a structured exercise of discretionary power . In this case the discretionary executive powers have already been fettered by the Constitution.
The framing of rules for this purpose is inextricably linked to the guided exercise of official power . The following of the Rules of Business is a salutary exercise intended to enhance, and amplify , concepts of good governance. We have no doubt that it is mandatory and binding on the Government, and so hold. A similar view was taken by this Court in the case of Ahmad Nawaz Shah (supra)."
"...He must establish that there is a sound and powerful reason why they should not be considered mandatory and binding. This principle applies with redou bled force, for and in relation to two sets of rules; firstly , constitutionally mandated rules i.e. the Rules of Business, and secondly , rules framed under fiscal enactments. Constitutionally mandated rules are closely intertwined with the concept of good governance for and in the public interest. Allowing a departure therefrom would be detrimental to open and transparent forms of governance. If a government department admits that although it has violated explicit provisions of the rules, its violation should be condoned by treating the breach as non-actionable merely on the ground of its supposedly being directory , then surely serious questions arise in relation to the good faith of the department. In each and every case the presumption of law would be that the rules are mandatory and should be observed and followed. If, and only if, a compelling public interest is established as a reason for non-compliance with the rules i.e. other than inadvertence, or negligence, or incompetence then, and only then, can the court consider whether or not to condone the breach in the observance of the rules..."
24. The principles that may be culled out of a reading of Mustafa Impex are firstly , that Rules of Business are constitutional rules and operate within a constitutional framework and, second, it is mandatory for the Federal as well as the Provincial Government to follow their mandate and no discretion lies with either of them to disregard these Rules. If the binding nature of these Rules is an immutable concept, then what follows indubitably is the rule of illegality which renders all acts which flow out of such illegality to be null and of no ef fect.
25. In the context of judicial review on the principle of administrative law regarding an act to be illegal which is brought about by dictation, suffice to refer to the treaties De Smith's Judicial Review (seventh edition) and the following statement which aptly applies to the present case: "An authority entrusted with a discretion must not, in the purported exercise of its discretion, act under the dictation of another body or person. In at least two Commonwealth cases, licensing bodies were found to have taken decisions on the instructions of the heads of government who were prompted by extraneous motives. But, as less colourful cases illustrate, it is enough to show that a decision which ought to have been based on the exercise of independent judgment was dictated by those not entrusted with the power to decide...."
"...Authorities directly entrusted with statutory discretions, be they executive offices or members of distinct tribunals, are usually entitled and are often obliged to take into account considerations of public policy , and in some contexts the policy of a minister or of the Government as a whole may be a relevant factor in weighing those considerations, but this will not absolve them from their duty to exercise their personal judgment in individual cases, unless explicit statutory provision has been made for them to be given binding instructions by a superior ..."
Federalism and Republican form of Government:
26. It may be stated, as a prefatory , that this topic and the need to advert to these concepts has arisen out of the contents of the "Summary for the Chief Minister" dated 04.02.2021 and more specifically in its reference to the "directions of the Prime Minister" to be complied. Such, direction, followed without demur by Punjab, reflects a deep-seated servility which runs counter to the grand constitutional scheme with provincial autonomy as its centerpiece. This direction has been held to be unlawful on the ground that it was dictated by those not entrusted with the power to decide. However , by seeking footing in the constitution' s text, it is plain that act of Punjab in complying with the direction also of fends the basic features of federalism and provincial sovereignty .
27. "Our Constitution" so observed Muhammad Haleem CJ in Benazir Bhutto v. Federation of Pakist an (PLD 1988 SC 416), "envisages democracy as ethos and a way of life in which equality of status, of opportunity , equality before law and equal protection of law obtains. It has its foundation in representation; it is not a system of self government, but a system of control and the limitations of government. A democratic polity is usually identified by the manner of selection of its leaders and by the fact that the power of the government functionaries is checked and restrained. In a democracy the role of the people is to produce a governme nt and therefore the democratic method is an institutional arrangement for arriving at political decisions in which individuals acquire the power of decide by means of a competitive struggle for the people's vote."
28. The Constitution envisages a limited government which means that it has put in place a system of restraints and limitations to constrain its power and to define its periphery . Ours is a representative democracy in which the people act not directly but through their representatives. This system of government is called republicanism. Thus, a republic is a democracy but a representative democracy . One of the most cherished principles regarding a republic was enunciated by U.S Supreme Court in McCulloch v. Maryland (1819) 17 US 316 where it was held that "in a republic the government is emphatically and truly a government of the people. In form and substance it emanates from them and for their benefit." In a later case the US Supreme Court observed that "in a republican government, like ours, political power is reposed in representatives of the entire body of the people." This concept was further elaborated by James Madison in the Federalist No.39 in the following words: "A republic is a government which derives all its powers directly or indirectly from the great body of the people and is administered by persons holding their offices during pleasure for a limited period or during good behavior . It is essential to such a government that it be derived from the great body of the society , not from an inconsiderable proportion or a favoured class of it... It is sufficient for such a government that the persons administering it be appointed, either directly or indirectly , by the people; and that they hold their appointments by either of the tenures just specified...."
29. Article 1 lays the architecture of our Constitution. Pakistan is a "Federal Republic" and is comprised of federating units set out in clause (2) of Article 1. In describing Pakistan as a "Federal Republic", the Constitution lays down the most fundamental feature of our Constitution which must be preserved inviolate and is immutable.
These words resonate the twin concepts of federalism and Republican form of government which are imbued in our Constitution. They are the motifs of a liberal democracy on which our Constitution is predicated. "Republican from of government presupposes that neither the state nor the Federal Government could undermine ultimate popular control over certain state officials, their qualifications, and the state law-making process." (Gregory v. Ashcroft, 501 US 452 (1991). John F. Manning, a constitutional academician, in his article, Federalism and the Generality Problem in Constitutional Interpretation, 2009 Harvard Law Review 2004 , noted that: "What makes the new federalism decision s so interesting is that the court seeks the founder's decisions not in the meaning of any discrete clause, but in the overall system of government they adopted in the document....T aking all of those provisions together , the Court ascribes to the document as a whole a general purpose to preserve a significant element of state sovereignty ."
30. Article 1 in our Constitution is the "Guarantee Clause" which is equivalent to Article IV, of the American Constitution which provides that: "United States shall guarantee to every State in this Union a Republican form of Government". Read in the backdrop of structural building blocks of the constitution, this not only implies a republican form of government at the federal level but ensures the same form and guarantee to trickle down to the provinces as well so that people are able to participate in the processes of their own governance. The provincial governments, in a representative democracy , are elected by the electorate separately and under the constitution, have independent and separate functions to perform. Therein lies the basic rule regarding provincial autonomy as these governments, after being elected, serve the popular will of the people and act as their representatives. They are beholden by their oath to preserve the autonomous character of their functionality in all matters which the constitution vests in their domain. The most crucial aspect of these functions relates to law-making which tends to leave an indelible imprint on the lives of people. It can neither be superimposed nor dictated by the federal government. Such commands are fundamentally incompatible with our constitutional system of dual sovereignty .
The direction by the Prime Minister trenched upon provincial sovereignty and breached the guarantee contained in Article 1. Laurence H. Tribe in his seminal work , American Constitutional Law (Third Edition-V olume One), articulates the guarantee clause in the following manner: "Although the "tacit postulates" of the constitutional plan, as explicated in a decision like Printz, may well be as sound a basis for doctrine as any express provision of the Constitution can be, there is an express provision that might plausibly be invoked in support of the proposition that the Constitution recognizes in the National Government a duty, running directly "to every State in this Union" rather than to individuals, to respect the state's most fundamental structural choices as to how its people are to participate in and shape the processes of their own governance: Article IV, & 4, expressly provides that the "United States shall guarantee to every State in this Union a Republican Form of Government.: When Justice O'Connor observed, in her dissen t in Federal Energy Regulatory Commission v. Mississippi , that "federalism enhances the opportunity of all citizens to participate in representative government," and when she quoted Alexis de Tocqueville's remarks that " 'the love and the habits of republican government in the United States were engendered in the townships and in the provincial assemblies,'" and that " ` this same republican spirit (is) engendered and nurtured in the differe nt States'" she appears to have identified an important link between the tacit postulate of state sovereignty and the textual guarantee of republican government.
"The "guarantee" in the Article IV has a dual nature with respect to state sovereignty: the clause can be read both as a restraint on the range of permissible state government forms, and as a protection from exercises of federal power that would either eliminate the "republican" nature of any particular state government or render "non- republican" a state's choice of a particular structure for governance. The history of the Constitutional Convention and ratification debates indicates that the Clause's purpose includes both facets, although the former aspect has usually received more attention. Determining the essential elements of "republican" forms a government is certainly no easy task, but we are not without guidance. Madison explained that the Guarantee Clause represented a rejection of "aristocratic or monarchical innovations." Other authority indicates that the Constitution's assurance of republican forms also presupposed that neither the states nor the federal government could undermine ultimate popular control over certain state officia ls, their qualifications, and the state lawmaking process --- assuring a measure of democracy and independence vital to maintaining our federalism's intended division of authority . At the same time, preserving federalism's capacity for institutional innovation. A definition of "republican" forms that rested solely on historical understandings or traditional arrangements would suffer from the same flaws as National League of Cities. But whatever the interpretive difficulties, the text of the Constitution provides a compelling justification for the Court to use Article IV as a basis for marking the outer limits inviolate spheres of state autonomy . Enforcement of the Guarantee Clause would ensure that independent status; some revenue with which to operate; some sphere of autonomous lawmaking, law-enforcing, and dispute resolving competence; and some measure of choice in selecting a political and administrative structure."
31. Thus the essence of self-government is how people will represent themselves and take part in their own governance.
32. This has been described by Justice Kennedy (US Supreme Court) as "attempts to alter the Federal balance"
(by Congress), U.S v . Lopez 1 15 S.ct.1624 (1995). In the trite words of Justice Kennedy: "There is irony in this, because of the four structural elements in the Constitution just mentioned, federalism was the unique contribution of the Framers to political science and political theory . Though on the surface the idea may seem counterintuitive, it was the insight of the Framers that freedom was enhanced by the creation of two governments, not one. "In the compound republic of America, the power surrendered by the people is first divided between two distinct governments , and then the portion allotted to each subdivided among distinct and separate departments. Hence a doub le security arises to the rights of the people. The different governm ents will control each other , at the same time that each will be controlled by itself." The Federalist No.51.
"The theory that two governments accord more liberty than one requires for its realization two distinct and discernable lines of political accountability: one between the citizens and the Federal Government; the second between the citizens and the States. If, as Madison expected, the federal and state governments are to control each other , the Federalist No.51, and hold each other in check by competing for the affections of the people, the Federalist No.46, those citizens must have some means of knowing which of the two governments to hold accountable for the failure to perform a given function. This Court has noted, "Federalism serves to assign political responsibility , not to obscure it." Where the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory .
The answerable to the citizens is more dangerous even than devolving too much authority to the remote center power ."
For the reasons, it would be mistaken and mischievous for the political branches to forget that the sworn obligation to preserve and protect the Constitution in maintaining the federal balance is their own in the first and primary instance. In the Webster -Hayne Debates of last century , and in the debates of the 1960's over the Civil Rights Acts, some Congresses have accepted responsibility to confront the great questions of the proper federal balance in terms of lasting consequences for the constitutional design. The political branches of the Government must fulfill this grave constitutional obligation if democratic liberty and the federalism that secures it are to endure.
At the same time, the absence of structural mechanisms to require those officials to undertake this principal task, and the momentary political convenience often attendant upon their failure to do so, argue against a complete renunciation of the judicial role. Although it is the obligational design, the federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of Government has tipped the scales too far .
33. In Lopez , federalism was aptly described as one of the structural elements in the Constitution as also that Judiciary plays a significant role in "preserving the federal balance" and its legitimacy is undoubted. (see for example, 'The Most Wonderful Work' , Our Constitution Interpreted , by Thomas E. Baker).
34. The Canadian judiciary has forthright ly taken on the role of the arbiter of feder alism. "It is the high duty of this Court to insure that the Legislatures do not transgress limits of their constitutional mandate and engage in the illegal exercise of power (Amax Potash Ltd. v Saskatchewan, 2 S.C.R. 576, 590 (1977). See also K.E. Swinton, the Supreme Court of Canada and Canadian federalism: the Laskin-Dickson years 57-58, 65-68 (1990).
35. The emphasis must be on individual rights in a Federal State (based on the spirit of federalism) and to treat provinces' rights largely as mirror images of individual rights. This notion of a federal republic was stated by James Madison (the father of U.S Constitution) in the Federalist No.46 (and relied upon consistency in case law) in the following terms: "the federal and State governments are in fact but different agents and trustees of the people, constituted with different power , and designed for differen t purposes." "most of a state's rights" must, in at least a loose sense, be derived from the rights of its citizens..."
Later , it was succinctly put forth in one of the cases by the U.S Supreme Court: "the Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary , the Constitution divides authority between federal and state governments for the protection of individual. [New York v United States, 505 U.S 144 (1992)]"
36. In New York, State officials consented to the enactment and the above discussion in the majority opinion appeared in response to the question that how can a federal statute be found an unconstitutional infringement of state sovereignty when state officials consented to it? The rule was laid down emphatically that the constitutional guarantee of state sovereignty was closel y tied in with individual rights and was meant to be for their protection and not for the benefit of state governments. The dicta in New York applies on all fours to our constitutional scheme and so it can be said without any fear of contr adiction that provincial autonomy is prima rily anchored in individual rights which must be protected as one of the fundamental rights conferred by the constitution. It is a penumbra which springs from the federal structure of the constitution and the republican form of government.
37. Tribe in his American Constitutional Law has captured the issue thus: "Richard Stewart has described how claims of state sovereignty might be grounde d in individual rights. Professor Stewart identifies four features of a decentralized federal structure which can be stated as values an individual would wish to further: the greater accuracy with which a local decisionmaker can operate as a utilitarian calculator of costs and benefits; the greater protection of liberty which each state's decentralized decisionmaking affords by making it harder for any one group to seize total national power , the greater degre e of community fostered by the opportunity for political participation that decentralization makes possible, and the greater diversity which decentralization fosters."
38. Thus the constitutional balance of federal and provincial powers would be upset if there are no restrictions on actions by the Federal Government which threatens the separate existence and vitality of provincial and local government which play an important role in the constitution' s architecture.
39. Let us now allude to some of the leading cases in American history regarding jurisprudence on state sovereignty and their rights. These opinions bear a remarkable similarity to our structural framework and their use as precedents lends support to the foundations on which our constitution envisions Pakistan to be nurtured as a Federal Republic. Many of the concepts espoused in these precedents like preserving federal balance and state sovereignty are applicable, a fortiori , to our constitutional dispensation in order to maintain the balance which the founding fathers were striving to strike. A strong national government is indeed necessary yet it has to be balanced by a robust provincial autonomy so that the rights of individuals in the provincial sphere are ably protect and granted to them to be enjoyed to the fullest extent. For, we must bear in mind the indubitable fact that our constitution delineates different fields within which the respective legislatures i.e. Parliament and provincial assemblies are empowered to legislate and so within these fields of activity , only the relevant legislature may legislate and none else.
40. In Garcia v San Antonio Metropolitan Transit Authority , 469, U.S 528 (1985), Justice Blackmun noted that the "States unquestionably do retain a significant measure of sovereign authority" and that "State sovereign interests, then are more properly prohibited by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power ."
41. The next two cases rooted the anti-co mmandeering principle firstly in American jurisprudence. This principle, judicially evolved, protects against federal commandeering of State legislatures. This is precisely what happened in the case in hand which 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. 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. These essential prerequisites, too, were brushed under the carpet and the Amendment Ordinance was issued with undue haste.
42. In New York v United States, 505 US 144 (1992) the court held that Congress could not commandeer State law-making processes by forcing States to regulate--whatever the substantive field might be. The court ruled that: "Whatever might be the outer limits of State sovereignty , a core element of that sovereignty was control over state lawmaking processes."
Further stated that: "That provision represented a threat to state sovereignty in past because, while encouragement to states in the form of conditions on the receipt of federal funds or threatened preemption, the direct compulsion to pass regulations or otherwise exert sovereign lawmaking authority could, among other things, cause confusion among citizens as to which government officials were responsible for particular actions."(at pp. 168-69 & 188).
43. Thus, lawmaking process was held to be a core element of (provincial) sovereignty which could not be infringed. As will be seen later, our Constitution, too, enumerates lawmaking process to be a core element of provincial autonomy .
44. In Printz v United States, 521 U.S 98 (1997), the U.S Supreme Court announced that "the Federal Government may neither issue directions requiring the States to address particular problems, nor command the States' officers, or those of their political subordinations to administer or enforce a federal regulatory program."
45. A fuller grasp of the holding of the Court in this case can be had by referring to the articulations by Tribe in American Constitutional Law . He says that: "The Court then turned to "the structure of the Constitution, to see, if [the Court could] discern among its 'essential postulates[s]' a principle" controlling the case before it. The Court began by reemphasizing its conclusion in New York v. United States : "'the Farmers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States.'" A stat's Government, the Court emphasized, is accountable to its own citizens, and separation of federal and state governments "is one of the Constitution's structural protections of liberty": "The power of the Federal Government would be augmented immeasurably if it were able to impress into its service and at no cost to itself - the police officers of the 50 States.: In response to Justice Stevens' reliance in dissent on the Necessary and Proper Clause as justifying the congressional enactment at issue, Justice Scalia focused on that clause's use of the word "proper" and quoted from New York: "'[E]ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts."
Turning finally to the Court's own precedents, Justice Scalia highlighted both the Court's warning in FERC v.
Mississippi that the Court had "never sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations," and New York's holding that Congress " 'may not compel the States to enact or administer a federal regulatory program.'" Justice Scalia found unpersuasive the government's efforts to distinguish the Brady Act from the "take title" provis ions invalidated in New York. The government argued for a distinction between impermissible congressional efforts to commandeer the states by requiring them to make law and what the government argued were permissible efforts simply to require state and local officials to provide "limited, non- policymaking held in enforcing that law.: The Printz majority found the proffered line as difficult to discern as "the line that separates proper congressional conferral of Executive power from unconstitutional delegation of legislative authority for federal separation of powers purposes." The Court doubted whether any such line could be drawn with clarity , for any choice by a CLEO as to what constituted "reasonable efforts" in conducting a background search under the Brady Act would require the making of policy , and the Court would be left "fall[ing] back upon a line of "not too much policymaking.'" The Court, however , wanted a clear , nonbalancing approach: "How much is too much is not likely to be answered precisely; and an imprecise barrier against federal intrusion upon state authority is not likely to be an effective one."
46. Relying upon past precedents, the Court in New York reiterated that it had never sanctioned a federal command to the States to promulgate and enforce laws. Also that a State's governm ent was accountable to its own citizens and separation of federal and state government was one of the Constitution's structural protections of liberty . This, in turn, is of the essence of a representative and responsible government. Unfortunately , these principles were dis-applied by Punjab in this case and a multi-layered and multi-faceted tapestry of interwoven sources and principles ranging from federalism to provincial autonomy were appallingly enfeebled in the process.
47. Our Constitution has placed a number of constraints on the Federal Government and the Parliament lest they may not trample upon provincial autonomy and disregard the principles of federalism on which our Constitutional structure stands. In McCulloch v. Maryland 17 U.S. (4 Wheaton) 316 (1819) , Chief Justice John Marshall (US Supreme Court) said this about sovereignty: "...But all legislative powers appertain to sovereignty . The government which has a right to do an act, and has imposed on it, the duty of performing that act, must, according to the dictates of reason, be allowed to select the means; and those who contend that it may not select any appropriate means, that one particular mode of effecting the object is expected, take upon themselves the burden of establishing that exception.
In America, the powers of sovereignty are divided between the government of the Union, and those of the states.
They are each sovereign, with respect to the objects committed to it, and neither sovereign, with respect to the objects committed to the other ..."
48. There is a federal-province hierarchy which can be gleaned out by a reading of the Constitution. It spells out restrictions that are crucial in preserving the overall constitutional structure, and reinforces the Federal balance.
Provincial autonomy in our Constitution:
49. Federalism has been recognized as one of the salient features of the Constitution. This view can be traced to a cluster of judgments by the superior courts of Pakistan and lastly reconfirmed in Rawalpindi Bar Association v.
Federation (PLD 2015 SC 401). It would suffice to refer to the observation s of Justice Sheikh Azmat Saeed where in paragraph 59 he noted that: "Some of salient features identified in the precedent cases include federalism , parliamentary form of government, along with the Islamic independence of essential fundamental rights..."
50. These features of federalism are scattered throughout the Constitution. The principles have to be adhered by different constitutional authorities, by the Federal Government as well as provincials governments as this would, in turn, engender rule of law. We must bear in mind that in a country governed by a written constitution, the written constitution is the rule of law. While the rule of law underlies our entire Constitution in particular , Articles 4 and 5 seem to embody the essence of the rule of law. It was observed by Kaikaus J. in Jamal Shah v. Election Commission (PLD 1966 SC 1) that rule of law prevents "the government from taking any action in this country from which there is no legal sanction and at the same time bars the legislature from creating an authority whose actions are not subject to law." The legisla ture cannot enact that whatever action a particular person may take shall be immune from challenge. All persons exercising authority in Pakistan must do so only in accordance with law. In Ahmad Nawaz v. Pakistan (PLD 1998 Sindh 180) it was held that "Pakistan is a republic. In this country , there is government of laws and not men."
51. We will now begin an analysis of different provisions in our Constitution which embody the rule of provincial sovereignty in matters of lawmaking and the checks and balances contained therein. Article 97 defines the extent of executive authority of Federation and provides that: "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 laws, 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.
52. The command of Article 97 is catego ric and without equivocation. It says that the executive authority of the Federation shall extend to matters with respect to which the Parliament has power to make laws. There is a further command in the proviso to Article 97 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. Civil procedure and laws relating thereto is a matter with respect to which the Provincial Assembly of Punjab has power to make laws and on this basis the direction is ultra vires the constitutional mandate.
53. Part V contains the relations between Federation and Provinces whose Chapter 1 relates to the distribution of legislative powers. Article 142 rests on the essential role of the provinces in our federal system of government and is the source from which is invoked the principle of provincial sovereignty as a limit on Federal Government (or the Parliament) regarding domestic powers and acts as a constraint. Article 142 provides that: "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]."
54. Thus, the subject of Federal and Provincial laws has been delineated in Article 142 which sets out the boundaries within with the Parliament or the Provincial Assemblies may operate and have the power to make laws.
There is no quarrel, as adumbrated, that the Parliament does not have power to make laws in respect of civil law and civil procedure which is exclusively within the domain of the Provincial Assembly . That is the reason why the Prime Minster did not choose to extend the operation of the laws within the federal territory to Punjab as well and chose to issue a direction to Punjab to enact similar laws in the Province of Punjab as well. Clause 'c' of Article 142 is couched in prohibitory terms and restrains the Parliament from exercising any power to make laws with respect to any matter not enumerated in the Federal Legislative List. There could not be a clearer command in the Constitution to the Parliament to abstain from exercising its law-making power to matters within the provincial domain. Doubtless, the command of the Constitution must be followed and it would be tantamount to circumventing that command if what cannot be achieved directly is sought to be achieved indirectly by issuing a direction to the province to be complied with.
55. Article 147 confers power on the provinces in certain circumstances and with the consent of the Federal Government to entrust either conditionally or unconditionally to the Federal Govern ment or its officers, functions in relation to any matter to which the executive authority of the province exists provided that it has to be ratified by the Provincial Assembly within sixty days. Article 149 may aptly be described as the supremacy clause which defines the hierarchy of federalism which is so essential for the federal republic to sustain and exist. Article 149 provides that: "149. Directions to Provinces in certain cases
(1) The executive authority of every Province shall be so exercised as not to impede or prejudice the exercise of the executive authority of the Federation, and the executive authority of the Federation shall extend to the giving of such directions to a Province as may appear to the Federal Government to be necessary for that purpose.
(2) **
(3) The executive authority of the Federation shall also extend to the giving of directions to a Province as to the construction and maintenance of means of communication declared in the direction to be of national or strategic importance.
(4) The executive authority of the Federation shall also extend to the giving of directions to a Province as to the manner in which the executive authority thereof is to be exercised for the purpose of preventing any grave menace to the peace or tranquillity or economic life of Pakistan or any part thereof.
56. Inter alia, the above provision clearly states that the executive authority of the federation shall extend to the giving of such direction to a province as may appear to the Federal Government to be necessary for that purpose, namely , the executive authority of a province is being exercised to impede or prejudice the exercise of the executive authority of the federation. Clauses 3 and 4 of Article 149 enumerate circumstances under which directions may be issued to the provinces. In none of these are comprised the circumstances under which a direction to make a law may be given by the Federal Government. To reiterate, the direction may only relate to the exercise of the executive authority of the federation and in no other case. Mr. Nasar Ahmad, Advocate, learned amicus curiae laid great emphasis on Article 149 to argue that this provision in the Constitution is a complete code in all matters where directions may be issued by the federation to a province. Article 149 does not contemplate any such direction as has been given by the Prime Minister/ Federal Government in the present case and so undoubtedly the direction offends the mandate of Article 149 and is unconstitutional. An interesting fact which has been alluded to in the forgoing paragraphs may once again be highlighted. It is that the direction was merely issued in respect of Punjab and no other province which proceeded in an utter show of servility in complying with that direction without regard to either the constitutional provisions or the Rules of Business by exercising the executive act of promulgating an ordinance. Not only that the direction contravened the express provisions of the Constitution, it also threatened the republican form of government and the Federal-Provincial balance of power . In the ultimate analysis, and as a trickle-down effect, the direction (and the ensuing Amendment Ordinance) had the unpalatable effect of impacting the rights of citizens and individuals (which Punjab represented) who have sought judicial review to have the Amendment Ordinance struck down. Their primary grievance is that the Amendment Ordinance is an aberration and runs against the grain of the core principles on the basis of which civil rights ought to be determined. It fails to meet the ethos of the people of Punjab and offends the legal sensibilities of the primary stakeholders, that is, the representative bodies of lawyers who, in turn, help the litigants attain speedy and expeditious dispensation of justice. The changes introduced by the Amendment Ordinance also undermine the stated goal of speedy justice which has been cast on the State (which incidenta lly 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.
Amendment Ordinance and the Lahore High Court (LHC) Amendments:
57. The learned counsel for the petitioners expounded their grounds of challenge primarily by reference to the amendments made to First Schedule of the Code of Civil Procedure, 1908 (CPC) which contains the rules.
According to the petitioners, not only that the Amendment Ordinance and the provisions sought to be introduced by that Ordinance are irrational and impractic able but also that they run counter to the amendments made by the LHC in the exercise of the delegated powers conferred upon it by Part X of CPC. They contended that there were material differences between the two amendments which may lead to unsavory situations and would be hard to reconcile by the civil courts.
58. As explicated, Part X of CPC relates to power of rule-making which are contained in the First Schedule. This division of CPC delegates power on a High Court to make rules regulating its own procedure and the procedure of the civil courts and also has power to annul, alter or add to all or any of the rules in the First Schedule. This is a unique power the significance of which can neither be belittled nor disregarded. There is statutory Committee to be constituted under Section 123 whose composition is made up of three Judges of the High Court, two Advocates practicing in that Court and a Judge of a civil court subordinate to the High Court. The Rule Committee shall make a report to the High Court to any proposal to annul, alter or add to the rules or to make new rules and before making any rules under Section 122, the High Court shall take such report into consideration. Section 126 obliges the rules made by the High Court to be subject to the previous approval of the government of the province and thereafter the rules so made and approved shall be published in the official gazette . Section 128 lays down matters for which rules may provide relating to the procedure of civil courts.
59. The LHC in exercise of its delegate d powers and after an extensive and inclusive exercise undertook the consideration of the entire First Schedule and that exercise entailed the consideration of each rule separately . This process spanning over more than one and a half year resulted in an elaborate overhaul of the entire First Schedule in its application to the Province of Punjab. During the process, the entire body of stakeholders including Bar Councils, Bar Associations, Judges of the subordinate judiciary as well as the Govt. of the Punjab were consulted.
The rules were approved by the Full Court of the High Court and prior to which interactive sessions and deeper consultation took place amongst the hono urable Judges of LHC. After approval by the High Court, the rules were sent to the Govt. of the Punjab for approval in terms of section 126 which too was granted and on 05.08.2018, the amendments in the Rules & Orders of the First Schedule to CPC were published in the official gazette (The LHC amendments). LHC took care to postpone the implementation of these rules immediately and for the purpose delayed the enforcement to a later date to be notified by the High Court which was ultimately done on 23.10.2020.
During this period, training workshops and seminars of subordinate judiciary were held to acquaint the judges of a tectonic shift which was about to take place in respect of trial of civil cases. Corresponding administrative changes were also set in place to comport to LHC amendments. Since then these amendments have come into force throughout the Province of Punjab and have brought about a paradigm change in the trial of cases and their expeditious disposal. It was acknowledged by all concerned that the amendments introduced by LHC were seminal in nature and brought about for the first time since independence. That such a large scale reconsideration of the rules in the First Schedule was not undertaken priorly . The amendments were introduced keeping in view the changed times as well as to counter the common refrain that justice was being delayed and thus effective steps were required to be taken to keep in tune with changing times. The Amendment Ordinance has suddenly derailed the process introduced by LHC and which was successfully being implemented throughout the Province of Punjab and was showing results to the satisfaction of lawyers as well as the primary stakeholders, the litigants. For the first time, it truly seemed that the State of judicial inertia had been shaken and one could see light at the end of the tunnel. An aspect which was completely ignored by the Govt. of the Punjab in promulgating the Amendment Ordinance was that the amendments made by LHC were approved by the Govt. of the Punjab and while issuing the Amendment Ordinance, various potentially conflicting issues which were likely to arise regarding these two amendments, were not considered as a matter of crucial importance. The wise words of Lord Bingham (in The Business of Judging) that "on the whole, the law advances in small steps, not by giant bounds". This was based on the statement by Bacon that: "The work which I propound tendeth to pruning and grafting the law , and not to ploughing up and planting it again."
60. It is established that the rules are part of the CPC and are concerned with the details of procedure and can be more readily altered. It was stated in PLD 2005 Lah. 662 that the body of the Code creates jurisdiction while the rules indicate the mode in which it has to be exercised. In the statement of objections and reasons, it has been stated that this division (Part X CPC) was introduced "to enable variations to be introduced in procedure, to meet different requirements as well as enable defects to be remedied as they are disco vered without resort to the tardy process of legislation." The Code is an amalgam of substantive and procedural laws. Although the substantive part contains provisions enacting fundamental principles of procedural law but the rules provide the procedure to be followed by the courts in the application of those principles. Historically , this distinction has always been maintained by the legislature while enacting any amendments in the Code. It has always been the practice that the main body of the Code (excluding the First Schedule) comprise of substantive provisions and merely fundamental principles of procedural law, if any. All matters of procedure and their details have always been part of the First Schedule and that is why the delegation has been made on the High Court to not only make rules but to alter or add to any of the rules in the First Schedule. This powers also flows from Article 202 of the Constitution which provides that: "202. Subject to the Constitution and law, a High Court may make rules regulating the practice and procedure of the Court or of any court subordinate to it.
61. Thus, the High Courts have been conferred the constitutional power regarding rules of procedure which may not only regulate the practice and procedure of a High Court but also any court subordinate to it. In exercise of this power , LHC has made rules entitled High Court Rules & Orders? which contain an elaborate procedure to be followed by the courts subordinate to it in matters relating to adjudication of cases before civil courts. Thus, not only has the High Court been delegated the power of making and amending rules in the First Schedule by the Code itself but also by the Constitution by virtue of Article 202. This central question regarding power of High Court (LHC in this case) has escaped the attention of the Govt. of the Punjab while promulga ting the Amendment Ordinance which impinges upon the powers of LHC to enact and amend the rules. This proposition is being stated for the simple reason that the amendments introduced by the Amendment Ordinance are made part of the substantive body of the Code and not in the rules comprised in the First Schedule and almost all of them relate to the details of procedure to be followed by the civil court s in the adjudication of cases and which, as adumbrated, has traditionally been part of the First Schedule. A grossly egregious and anomalous situation has now been created which pits the procedure introduced by Amendment Ordinance against the amendments made by LHC which now run a parallel course. There are serious contradictions between the two processes which in most cases are irreconcilable. The Amendment Ordinance and its promulgation has introduced a situation which impedes justice rather than promoting the cause of expeditious and speedy justice. One of the petitions has been brought by the Punjab Bar Council which speaks for the entire body of lawyers in Punjab and is categoric in asserting that matters before the civil courts of Punjab have come to an intersection with utter chaos reigning before the civil courts. Not only that LHC was not consulted in the matter but also the Bar Councils were not required to proffer their comments in this regard. Although in such matters consultation with LHC is not normally a sine qua non but in the peculiar circumstances of this case where across the board amendments in the rules had been made by the Committee of the High Court only a few months ago, the Govt. of the Punjab was obligated to have consulted LHC for the purposes of reconciliation of the two amendments in order to avoid inconsistency and confusion. Also while a reference to Article 202 of the Constitution has already been made, it also by implication follows that the exercise of rule making power is constitutional which resides in a High Court and, therefore, if such power has already been exercised, it emerges as an unwritten rule to be followed in all such matters that it is of utmost importance that consultation be held between a High Court and the government of province. It is not only essential for the administration of justice but also to preserve the independence of judiciary that in a unique situation where judicial legislation is permissible, Punjab should act conformably with LHC's rule-making process. If the two were to act in tandem with each other , it would only advance the cause of litigants and help achieve speedy justice. At the time of enactment of LHC amendments, there was a palpable sense of excitement and it was generally accepted that, in the words of Walter Bagehot, "a new world has arisen." Roscoe Pound, academician and legal jurist, in "Interpretation of Legal History" said that: "All thinking about law has struggled to reconcile the conflicting demands of the need of stability and of the need of change. Law must be stable and yet it cannot stand still."
62. The Amendment Ordinance has had the pernicious effect of putting the stability of law at great risk. Wide- ranging and polycentric amendments have suddenly thrown the entire system in a disarray . The foregoing articulation is peculiar to the context of ordinance making power of Punjab, which is an executive act. A distinction is clearly discernable between the Act made by the Provincial Assembly and the act of promulgating an Ordinance by the political executive. The latter is subject to judicial review on the ground that it is an arbitrary uncontrolled discretion and falls foul of clear principles. It may be said that the ordinance-making power is not fixed in legislative cement but written in softer sand of Executive Order .
63. Let us now advert our attention to the contradictions which become apparent when we square the Amendment Ordinance with LHC amendments. This would bring forth clearly not only that the provisions of the Amendment Ordinance are largely unworkable but also that they breed inconsistency with LHC amendments. It would also bring forth starkly the fact that substantially these amendments relate to rules of procedure and their rightful place was in the First Schedule of the Code.
64. Section 6 relates to pecuniary jurisdiction of the civil courts. It provides that where the amount or value of subject matter of the suit is below Rs.50 million, the suit shall be filed in the court of civil judge and where the amount or value of the subject matter of the suit is above Rs.50 million, the suit shall be filed in the court of a District Judge prescribed by the High Court. Astonishingly , it does not mention the court where a suit for an amount or value of Rs.50 million may be instituted. Section 26 has been substituted to provide that: "26. Institution of suits through plaint or otherwise.- (1) Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed."
65. The above contradicts the amendments made by LHC in the rules where a suit shall be instituted by presentation of a plaint and not in such other manner as may be prescribed. Further, section 26-A has also been substituted and concerns with the filing of written statement which has been directed to be filed not later than 30 days from the date of service. This provis ion empowers the civil court to allow further adjournments in the filing of the written statement. Once again, this runs counter to LHC amendments made in Order VIII of the First Schedule which provides a maximum period of 30 days for the filing of the written statement including any permission to present the written statement beyond the time given by the court. Likewise, section 26-C prescribes a period of 90 days from the institution of the suit for the court to determine the material propositions of fact and laws and frame issues. Contrarily , by Order XIV, Rule 1 CPC, LHC amendments require the court at the first hearing of the suit after proceeding under Orders X, XI and XII to frame the issues. It may be noted that LHC amendments laid much emphasis on the fixation after the close of pleadings (by substitution of Order IX-A) which would include a day for examination of parties under Order X; a day for discovery and inspection under Order XI; and a day for its proceeding under Order XII. It has been made a duty of the court to undertake these proceedings and to satisfy itself that the parties go to trial for precise and exact issues of law and facts that they are at variance with each other . A crucial addition to the rules is therefore Order IX-A which relates to altern ate dispute resolution where the court shall refer for mediation before the parties are called upon to adduce evidence. Once again the alternate dispute resolution is an important plank brought in by LHC amendments and the Amendment Ordinance makes no reference to this aspect and which would completely nullify the effect of mediation as an engine of dispute resolution.
66. One of the drastic changes made through Amendment Ordinance is the taking down of evidence of witnesses through appointment of a Commission. There is no concept of the appointment of a Commission for the purposes of recording of evidence in LHC amendments. This concept is not in accord with the principles of fair trial as various aspects such as demeanor of the witnesses regarding which emphasis has been laid in the rules in the First Schedule would be circumvented and jeopardized. Moreover , LHC amend ments introduces an important concept of an administrative judge and a trial judge by bringing in a new Order IV-A. In short, the administrative judge to be designated by the District Judge is empowered to undertake complete pre-trial proceedings in a suit which have been mentioned in rule 3 of Order IV-A. Thereafter the administrative judge shall cause the suit along with entire record to be placed before the trial judge for its trial under the Code which primarily comprises evidence to be adduced by the parties. Thus separate trial judges have been designated under LHC amendments which would complete the trial under the Code and would be tasked with recording of the evidence of the witnesses. This scheme initiated by LHC amendments would, by the Amendment Ordinance, be rendered as redundant. Moreover , since the respective proceedings would still be part of the Code as well as the rules, the civil courts would struggle to grapple with the provisions to be actually and practically enforced. The notifications issued by Lahore High Court would also become redundant and which have been issued precisely to give effect to LHC amendments which set up the structural framework proposed to be introduced by the High Court.
67. The most invidious amendment in my opinion is the addition of new section 75A in the Code. This section provides that: "'75A. Spot checks. (I) In order to further the primary objective mentioned in sub section (4) of section l, in any proceedings in a suit, the Presiding Officer of the Court in its discretion may, on his own or at the application of any of the parties, at any stage may carry out spot checks including inspection of documents and premises in order to ascertain issues of partition, demarcation, possession, state of construction and anything incidental and ancillary thereto.
Explanation I.-For the purposes of this sub-section, spot checks may be carried out after passing of decree to ensure that order of the Court are implemented as decreed.
Explanation II.-For the purpose of this subsection a spot check conducted by Presiding Officer of a Court should not be construed to be an inspection through the appointment of Commission.
(2) The Court may call for the evidence of any person or documents at the spot.
Explanation.- For the purpose of this sub-section, 'person' includes parties to the suit, individual persons at the spot or any individual whom the Court may deem proper to give evidence in the matter in issue.
(3) After conducting spot checks, an interim order recording the findings of the spot inspection shall be prepared and signed by the Presiding Officer of the Court: Provided that the interim order shall state the date, time, purpose of visit, evidence recorded and interim findings.
(4) The Presiding Officer , in his discretion shall be entitled to pass an order or judgment upon the basis of interim order mentioned in sub-section (3) of this section provided the same is confronted to all the parties, who are given a reasonable opportunity to file objections to the same."
68. As can be seen from a reading of section 75A above, it introduces the concep t of spot checks and empowers the presiding officer of a court to carry out spot checks including inspection of documents and premises in order to ascertain the issues of partition, demarcation, possession, state of construction and anything identical and ancillary thereto. This provision has many flaws which were not considered at the time of its enactment. For one, it transposes the presiding officer from being a judge and an arbitrator of the competing claims before him and relegates him to the position of a witness for interim order passed under sub-section (3) shall contain the findings of the spot inspection and any party to the litigation may choose to challenge those findings by requiring the presiding officer to be summoned as a witness. This provision also takes us back to the days of palm tree justice as was known in the 12th and 13th century and which we thought had been consigned to oblivion long ago. It gives the presiding officer a carte blanche during the spot checks who may call for evidence any person or documents at the spot whether relied upon by a party or not. This process, to say the least, is grossly offensive to the Qanun-e- Shahadat Order , 1984 and the provisions contained therein. It also offends Article 10A of the Constitution which mandates that for the determination of the civil rights and obligations, a person shall be entitled to a fair trial and due process. Sub-section (4) of section 75A confers on the presiding officer the discretion to pass an order or judgment upon the basis of the interim order mentioned in sub-section (3). Once again, there is no mention of the rights of the parties to adduce evidence and the corresponding obligation of the presiding officer to consider that evidence while announcing his judgment. Thus, it seems that section 75A is a complete code of procedure by which a case may be decided by the presiding officer at his discretion on the basis of spot checks. Notwithstanding the other provisions of the Code and many other enactments like the Qanun-e-Shahadat Order , 1984, section 75A establishes a wholly new procedure by which cases could be decided by the presiding officer of a court. This, if I may say with respect, upends and destroys the very foundation of the civil law in our country for which elaborate and rational procedures have been laid down to conform to the due process of law .
69. Section 96 will inundate the Lahore High Court with hundreds of appeals weekly for which the number of Judges is woefully deficient. By substituting section 96, all first appeals shall now lie before the Lahore High Court within thirty days of the passing of the final judgment and which shall have to be decided within ninety days. This amendment once again lacks proper appraisal of the ground realities and the capacity of the Lahore High Court to entertain and decide these appeals which will henceforth land on its docket. No thought process went into the enactment of section 96 which was not preceded by comparison of empirical data to show that providing the first appeal directly to the Lahore High Court is likely to run riot at the expense of speedy justice.
70. The Amendment Ordinance also substituted section 141. Previously section 141 was addressed to all proceedings in any court of civil jurisdiction and made applicable the procedure provided in the Code to be followed in such proceedings as well. The amended section 141 is improvident and has been extended unreasonably and thoughtlessly to provide for matters which have no nexus with sub-section (1). It merely goes on to state that all suits in which interlocutory applications have been filed shall have duplicate sets, one of which shall be placed in the court hearing main suit and the other shall be placed in the court hearing interlocutory applications without specifying the procedure as to how these two sets of courts will be designated and by whom? Therefore, by section 141 two parallel streams of civil courts have been envisaged without any further explanation as to how these courts will function.
71. The above salient features of the Amendment Ordinance and their comparison to LHC amendments has been brought forth simply to show that they not only counteract with each other but also that the provisions sought to be introduced leave much to be desired and are improvident and pernicious. The basic notions of administration of justice regarding determination of civil rights have been consigned to the oblivion while promulgating the Amendment Ordinance and these provisions taken together make breath-taking inroads upon civil procedural rights of the litigants. To reiterate, these amendments disregard the previously enacted LHC amendments which too not only had statutory but constitutional basis and were the result of thoughtful and inclusive consultative process.
They are liable to be struck down also on the ground that there was no prior consultation with the Lahore High Court in order to streamline and reconcile the amendments made through the Amendment Ordinance with LHC amendments which had their source in the Constitution.
72. The above petitions are allowed . The Amendment Ordinance is held to be without lawful authority and of no legal ef fect and unconstitutional. It is hereby struck down.
The above are the detailed reasons in support of the short order passed by this Court.
33. Official Bills and amendments.- (1) Subject to sub-rule (2), the Department administratively concerned shall be responsible for determining the contents of the proposed legislation, for consulting the concerned Departments including Finance Department where necessary and for obtaining the approval in principle of the Cabinet to the issue involved, before asking Law and Parliamentary Affairs Department to give legal shape to the Bill.
(5) The concerned Department shall then submit the case, including the advice of Law and Parliamentary Affairs Department, to the Cabinet: (a) for approval of the draft Bill vetted by Law and Parliamentary Affairs Department;
(b) for deciding any issue that may still be outstanding; (c) for orders as to which of the following motions should be made in the Assembly: i) the Bill should be taken into consideration at once; or ii) it should be taken up at a specified date in future; or iii) it should be referred to a Select Committee or any other Committee of the Assembly; or iv) it should be circulated for purposes of eliciting public opinion thereon.
25. Methods of disposal by the Cabinet.- (1) The cases referred to the Cabinet shall be disposed of:
(a) by discussion at a meeting of the Cabinet;
(b) by circulation amongst the Ministers; and
(c) by discussion at a meeting of a Committee of the Cabinet.
26. Manner of submission of cases to the Cabinet.- (1) For submission of a case to the Cabinet, the Secretary of the concerned Department shall transmit to the Chief Secretary a concise and lucid memorandum of the case (hereinafter referred to as the `Summary?), giving the background and relevant facts, the points for decision and the recommendations of the Minister .
(2) A Summary shall be self-contained and may include as appendices such relevant papers as may be necessary for the proper appreciation of the case.
(3) A Summary for approval in principle of the proposed legislation or for approval of a Bill or an Ordinance shall also contain the salient features of such legislation.1 2
(4) Where a case concerns more than one Department, the Summary shall not be forwarded to the Cabinet unless the case has been considered by all the concerned Departments. In the event of a difference of opinion, the points of difference between them shall be clearly stated in the Summary , a copy of which shall be sent by the sponsoring Department to the concerned Departments simultaneously with the transmission of the Summary to the Cabinet.
(5) A Summary containing a proposal involving financial implications shall not be submitted to the Cabinet unless Finance Department has been consulted and its views incorporated in the Summary .
(6) All Drafts, Bills, Ordinances or Orders having the force of law shall be submitted to the Cabinet after they have been vetted by Law and Parliamentary Affairs Department and no change shall be made therein without bringing it to the notice of that Department.
(7) Subject to sub-rule (8), no case for inclusion in the agenda shall be accep ted unless it reaches the Chief Secretary at least four clear days in advance of the meeting.
(8) If the case is urgent, the Secretary concerned may request the Chief Secretary for its inclusion in the agenda, and if he agrees, a note shall be sent for circulation to the Cabinet showing how the case is urgent and why it could not be submitted on time.
(9) Services and General Administration Department shall satisfy itself that the papers submitted by a Department are complete in all respects and are in the appropriate form, and shall ordinarily return the case which does not meet the requirements of these rules or instructions on the subject 27. Procedure regarding Cabinet decision by Circulation.- (1) When a case is circulated to the Cabinet for recording opinion, the Chief Secretary shall specify the time by which the opinion should be communicated to him.
If a Minister does not communicate his opinion by that time, it shall be deemed that he accepts the recommendations contained in the Summary .
(2) After all opinions have been received, or the time specified has expired, the Chief Secretary shall:
(a) in the event of full agreement to the recommendation in the Summary , treat it as a Cabinet decision and proceed further in terms of rule 28(12); and
(b) in the event of a difference of opinion, obtain the direction of the Chief Minister whether the case shall be discussed at a meeting of the Cabinet or the recommendations of the majority of the Ministers be accepted and communicated as a Cabinet decision.
(3) If the Chief Minister directs that the recommendations of majority of Ministers be accepted as a Cabinet Decision, the Chief Secretary shall act in terms of rule 28(12) and if the Chief Minister directs that the case shall be discussed at a meeting of the Cabinet, the Chief Secretary shall circulate the opinions recorded by the Ministers in the form of a supplementary Summary .
(4) The Reports made to the Cabinet and the other cases submitted only for information of the Cabinet shall ordinarily be disposed of by circulation.
35. Ordinances.- (1) The provisions of rule 33 shall mutatis mutandis apply where the proposed legislation is an Ordinance.
(2) The Law and Parliamentary Affairs Department shall promulgate an Ordinance, arrange to lay it before the Assembly , and seek, if necessary , its extension from the Assembly in terms of Article 128 of the Constitution.
33. Official Bills and amendments.- (1) Subject to sub-rule (2), the Department administratively concerned shall be responsible for determining the contents of the proposed legislation, for consulting the concerned Departments including Finance Department where necessary and for obtaining the approval in principle of the Cabinet to the issue involved, before asking Law and Parliamentary Affairs Department to give legal shape to the Bill.
(2) Where the proposed legislation involves only a verbal or formal amendment of an existing law, it shall not be necessary to obtain the Cabinet' s approval before asking Law and Parliamentary Affairs Department to give legal shape to the Bill.
(3) While referring the legislation, approved in principle by the Cabinet, to Law and Parliamentary Affairs Department, the concerned Department shall send a memorandum indicating precisely the lines on which it is proposed to legislate, which shall include:3 4 5
(a) a statement in the form of a series of propositions detailing the provisions required to be made or preferably a draft Bill; and
(b) a statement giving the objects and reasons for each provision.
(4) When a proposal for legislation is referred to Law and Parliamentary Affairs Department, that Department:
(a) shall, apart from giving shape to the draft legislation, advise the Department concerned whether any legal requirements are to be complied with before the Bill is introduced in the Assembly; and
(b) shall also advise whether the proposed law disregards or violates, or is not in accordance with the Fundamental Rights conferred by the Constitution and whether a reference should be made to Council of Islamic Ideology for advice, if not already done, and if so, what shall be the terms of that reference.
(5) The concerned Department shall then submit the case, including the advice of Law and Parliamentary Affairs Department, to the Cabinet:
(a) for approval of the draft Bill vetted by Law and Parliamentary Affairs Department;
(b) for deciding any issue that may still be outstanding;
(c) for orders as to which of the following motions should be made in the Assembly: i) the Bill should be taken into consideration at once; or ii) it should be taken up at a specified date in future; or iii) it should be referred to a Select Committee or any other Committee of the Assembly; or iv) it should be circulated for purposes of eliciting public opinion thereon.
(6) The concerned Department shall thereafter prepare a brief for the use of the Minister which shall include the directions given by the Cabinet regarding the line of action to be adopted with regard to the Bill.
(7) The concerned Department shall forward to Law and Parliamentary Affairs Department, through the Chief Minister , the draft Bill as approved by the Cabinet.
(8) Law and Parliamentary Affairs Depa rtment shall arrange to include the Bill in the official business of the Assembly .
(9) The Bill shall be introduced in the Assembly by a Minister or a Parliamentary Secretary .
(10) If the Bill is of great urgency , Law and Parliamentary Affairs Department may request the Assembly Secretariat to publish it in the Gazette before its introduction.
(11) When the Governor returns a Bill to the Assembly for reconsideration or for consideration of an amendment specified in the message, the concerned Department shall place the matter before the Cabinet for appropriate decision. Further steps, in the light of the decision of the Cabinet, shall be taken in accordance with the Rules of Procedure of the Provincial Assembly of the Punjab 1997.
(12) The procedure prescribed for official Bills shall mutatis mutandis apply to a proposal for the amendment of a law.
20. Consultation with Law and Parliamentary Affairs Department.- (1) Law and Parliamentary Affairs Department shall be consulted by other Departments:
(a) on matters pertaining to substantive legislation;
(b) on matters concerning delegated legislation, such as rules, regulations, bye-laws, agreements and Memoranda of Understanding (MoUs);
(c) on the interpretation of substantive or delegated legislation;
(d) on legal questions arising out of any case;
(e) before instituting civil proceedings in a court of law in which the Government is involved; and (f) whenever civil proceedings are instituted against the Government.
(2) For any proposed legislation, substa ntive or delegated, Law and Parliament ary Affairs Department shall be consulted in accordance with the provisions contained in Part-F of these rules.
(3) Except as provided in sub-rule (4), Law and Parliamentary Affairs Department is not, in respect of legislation, substantive or delegated, an originating office, and its proper function is to put into correct legal form the proposed legislation.6
(4) Codification of substantive laws or legislation for the consolidation of existing enactments, or legislation of a purely formal character , such as repealin g and amending Bills and short title Bills, may be initiated by Law and Parliamentary Affairs Department. That Department shall, however , consult the concerned Department, which shall consider the draft legislation in its bearing on administration, make such inquiries and consultations as may be necessary and tender advice to Law and Parliamentary Affairs Department accordingly .
(5) The Department interested in consulting the Advocate General shall draw up specific points on which the opinion of the Advocate General is desired and shall send a self-contained reference to Law and Parliamentary Affairs Department for consulting the Advocate General. [Provided that in cases involving urgency , or where public interest so demand, the Department concerned may, after recording the reasons for the urgency or, as the case may be, public interest involved, forward such specific points directly to the Advocate General for legal opinion.]
(6) In cases where the Department desires to consult the Advocate General Punjab through Law &Parliamentary Affairs Department, the Law & Parliament ary Department shall first record its comprehensive opinion on the points of law on which opinion is sought before forwarding the reference to the Advocate General for his opinion.
(7) If there is disagreement between the views of the Advocate General and Law and Parliamentary Affairs Department, their views shall be conveyed verbatim to the concerned Department, and if that Department does not accept the view of Law and Parliamentary Affairs Department, the case shall be submitted to Minister for Law and Parliamentary Affairs for submission to the Cabinet for decision.
(8) No Department shall engage a private counsel for representing it in any case before the High Court, Federal Shariat Court or the Supreme Court of Pakistan, except with the prior permission of the Law & Parliamentary Affairs Department and its approval by the Advocate General.