Legislative powers

Powers of legislature: Power of purse, power of the legislature to delegate legislation. In US, it is called
delegated legislation while in Pakistan it is called subordinate legislation. Mostly this power is delegated
to executive. Legislature can also make laws for itself such as the rules of business. Rules of general
applicability. Design categories of legal importance and sort individuals. Do legislation, amend it and
alter it.

Judicial power is about existing legal prism, interpreting law, determine liabilities and particular while
the legislature is about future laws.

Extent of the legislative power:

Article 142(4) - Subject matter like FLL.

Article 141 - Limited to the territorial jurisdiction.

Article 8(2) - no laws against FR.

Article 144 – If provincial assemblies allow on something not in FLL. For example: In industrial relation
act, there was a sunset clause that will not work for provinces after 2008-2010 and after 18 th
amendment, labor was given to provinces and provinces did not have the statute so they asked the
federal legislature. Two proposals: Article 157 – legislature can make legislation to comply with
international obligations or article 144. The legislature adopted the latter.

Article 165 – Taxes can’t be applied by one province to another.

Exercising of legislative province:

Art 70-Introduction and passing of bills- Either house, Passed. Send to other house. Passed. President.
Money Bill is to originated in NA.

Art 72- Any related to the FLL then go to President. Not money bill. If the other house does not pass,
then joint session.

Art 73- Money Bills passed by NA but senate consideration should be taken.

Art 66- Privilege of the members -- Independence of legislature—nobody can discuss the conduct of
legislatures. In US, art 6 4, 9 of bill of rights 1689.

Can legislature punish as well? Art 66(3) yes, can ask the court to punish if they don’t produce evidence.

Article 127 replicates this to the provinces.

Art 63A: ---Added to prevent horse trading. Restriction on voting power on the election of PM, No
confidence and money bill/Constitution amendment bill.
Art 62- Pre-election - 62(d)—violate Islamic provisions. 62(e), 62(g)(not worked against Pakistan). Moral
62(2). reputation for non-muslim. Art 63(a)-(f) Art 63(1)©- post and pre-election both.

Provincial Assembly—113, 41(2)-Qualification

67(1)---rules for Internal proceedings for regulating the NA.

Irregularity of procedure--can`t be called out in court? Art 69. CPC 115

What is irregularity? In CPC, material irregularity that affects final decision. In constitution for NA, the
material is not used.

Retrospective legislation- can`t do in criminal cases but can in civil to a certain extent.

Legislature can also validate whatever has happened in the past judicial decision by passing acts but also
negate it, can also validate previous acts and ordinances. Article 269-270A

Bribery Commission Case, Interim Constitution 1973 was validated,Yusuf Patel Case, Atiqa Begum Case,
Priori Dussadt Case , Molasses case, Zia-ur-Rehman case (Bhutto repealed the effects of the 1st Zia-ur-
Rehman case though legislature)

art 89(2)--- NA--- Law making by ordinance just like statute—No power in UK and US. In Pakistan, legacy
of colonialism. Sargodha bhera service case. An ordinance may be a permanent law if in military rule. Art
128(2)- Governor can issue ordinance as well. Thus legislation can also validate by bill, extend or negate
the ordinance through article 89.

However in Pakistan - Constitutional supremacy and not parliamentary supremacy and thus court can
strike down legislations—Shamim-ur-Rehman, Jackson and her Majesty, Liaqat Hussain and Mehram Ali
Case.

Legislature has the power to impose taxes – Article 77 for the NA and Article 127 for the PA.

Limits on this power: It should not be violative of other provisions of Constitution. Should not be against
FR like other religion financing (Article 21). It should not destroy businesses and should be within the
competence of legislature like in subject matter and jurisdiction.

Article 165- Public properties or income can`t be taxed by other assemblies except by its own. However
if business or trade by government then can’t be taxed if under your government but if the public
property of Punjab is in Sindh then Sindh government or FG can tax it and any property in connection
with it.

Difference between Fee, tax, eminent domain and rate making:

Eminent domain: can confiscate property. Not for all community.

Tax: proportion of income and all community.

Fees: Against services rendered.

Rate-making: Legislature has the power of fixing wages and prices.

Elahi Cotton Mills case, McCray Case, Gadoon Textile v WAPDA, All Newspaper Case

Definition/Composition of legislature:

Article 50 – bicameral.

Article 51: 342 seats

Art 52- term of NA-5 Years

Article 59- Senate Composition and election- Proportional representation.

Art-106-PA and Art 107 –(terms of PA -5 years)

Executive Power

What is the executive power?

Power is a constitutional concept. It is not a person. However, it is exercised by a person. Administration

of the government. “We are running the govt according to the law”. Dilemma: On the one hand we
want to give the executive powers to implement and it is a leadership branch but the continuous
dilemma is to limit this branch. Implement the law.

For our own understanding: leadership of political party which wins the elections. The party elects the
PM which is the head of the government. In Parliament, the cabinet comes from Parliament. Till 17 th
century, everything was debated in Privy Council. Charles 2 made the cabinet as it was easier to control.

What is the source of executive power? Literalist theory. The best government Is which governs the
least. Constitution is limited government. No action which is not specified. Non-interventionist state.
Stewardship theory: President acts as the chief executive unless there is a specific prohibition—
Roosevelt however believed in more power for executive. Sources of powers--- Interpretation ---
Stewardship theory –do everything which is not prohibited. Leadership theory---another theory is that
Do what is allowed only.

Formal definition: no definition in the constitution. As there is no definition of it, it is called residuary
power.

Article 90: Federal government- Chief executive-PM-EXECUTIVE AUTHORITY BY FEDERAL

GOVERNMENT EXCERCISED BY PM AND HIS CABNINET WHICH INCLUDES FEDERAL MINSITERS in the
name of president. 90(2) THE PM can act as directly or through Federal Minister.

Exercise of executive provinces

Art 99(1)- executive functions in the name of President.

Sources of Executive Power:

Article 91,92,93--Federal Minister, Minister of state, Advisors, Special Assistants.- Cabinet --United Case.
91(9)- Minister who shall be for 6 months not the member of the house will at the end of the period will
cease to be minister. Article 41- President

The executive power of the federations vests in the federal govt. Cabinet is the larger body as includes
minister of state, advisers

Extent of the executive power---Article 97 –“Subject to the contituion” Where the federal laws can be
made is in relation to all the laws which Parliament can make including in relation to the areas outside of
Pakistan. Nixon v USA, Sharif-ud-din Case. External affairs—Art 97--- Parliament can make laws related
to outside Pakistan/obligations Article 137. Replicated to provinces.

Article 91—Cabinet –the Prime Minister and cabinet will advise the President. The cabinet.

Art-92, How Federal Ministers will be elected.

Art 91(6)-Minister shall be responsible to NA and Senate. UK- They don’t believe in legislature and
executive separation. US Constitution Art 1 sec 6: Separation of power clear.

Art 130(7)- Provincial Cabinet

How to remove PM/CM?

President can dismiss the PM if there is vote of no confidence. Article 95- 20% for the motion of the
Vote of no confidence.

Article 58- Shall dissolve if PM advises for next election. But not when there is a vote of no confidence.

58 (2)- When there is no confidence vote or no body commands confidence.

Art 91(7)- When has to remove, then the function itself is in pleasure of President and that when
president can remove when no confidence or advised. Not in his own discretion.

Article 133- Provincial No Confidence

Art 48(5)-Caretaker Cabinet--90 days before the election.

18th Amendment made it very clear what is the cabinet power. The caretaker power, their function is
day to day. Khawja Asif Case, Saif Ullah Case.

How the executive power is executed?

Executive and administrative functions same as given to their respective legislatures: When we use
executive powers, we mean the political power i.e. PM and Cabinet. Administrative power – Like the
delegated ones. This is Subject to the constitution and the executive powers are defined in Art
141(extent), 142(subject matters,criminal law, lists)-143(inconsistency on the same subjects, federal
government will prevail),144(if one or more PA pass resolution that Majlis-e-shura do the legislation on
it, then Parliament should do the legislation)

Executive power :

To appoint officers etc

Art 98- Confer functions upon officers.

Messrs Mustafa IMPAX case. PLD 2016 SC 808.

Executive functions. When executive is doing its administrative functions, regulatory functions.

Art 99(2)- Rules of business--Government shall make procedures, authenticated and validated for
federal orders and not to be called in court on the ground that it was executed by the President. Article
99(3)—rules for allocation and transaction of its business.

Minister and Civil Servants---Executive power is a political power. Civil service is administrative power.

How to determine the relation between executive power and legislative power? Blurred. Zahid Akhtar v
Govt of Punjab. It will change from reality to reality and country to country.

Ministerial duty: Discretion to make order, appointment. It is a simple definitive duty arising under the
conditions admitted or proved to exist and imposed by law.

Who has been vested of executive power?

Article 41. Previously Governor General Had the executive powers.--- 1935.1962. President. 1973-
Article 41. President.

Art 90- The executive powers does not vest alone in the President or Federal Government. President `s
power is not personal rather it is constitutional.

Relationship between the President, PM and Cabinet:

Whether President is the part of Federal Government? Art 75- the President is the part of legislature
because bills are presented to him.

Art 41- the president is the head of state.

Art 46- the PM shall inform the president on all matter.

Art 48(1)- President to act on advice, however can sent back for 15 days to reconsider. Art 104-
Province replicated.

Art 48(4) ---Advices to the President couldn’t be challenged in the court.

Article 40s, removal, term etc of President.

No Advices needed for President and can act in discretion:

Art 48(2)- Can act in his discretion on matters allowed but subject to the constitution.

Art 45---President can pardon, postpone, remit (less severe punishment) etc.

Art 48(1) –the President shall act in advice on the PM. Address the legislature. Article 48(2)-
Consultation and can act in his discretion of which he is empowered.

Saifullah Khan case--- Whether President has the power or PM.

The judiciary cases are not referred to the advice of the PM. It goes to the President( Article 175A, list
forwarded by the Parliamentary Committee and Article 213). Implied.

Art 213: President – Election Commissioner---- Advice is excluded by implication and the Parliamentary
committee shall nominate. Nature of the function itself excludes advice of PM. Consensus of Opposition
leader and the PM needed first otherwise Parliamentary Committee.

When some mala fide advice or illegal, the President can disregard.

Article 91(7)—when the nature of function itself excludes like dismissing PM on vote of no-confidence.

Emergency Powers:

Article 232—Executive power to proclaim emergency. Bhagat Singh Case. Farooq Leghari case—1997 –
atomic explosions after that emergency., Liaqat Hussain case.

Caretaker PM:

Article 224(1A) Caretaker PM —effective consultation between Opposition leader and the PM and the
President shall appoint then. Article 224A—in case of disagreement-parliamentary committee.

Appointment of Judges:

Art 175(A)(1) --- 175(13)— Haji Saif-ullah khan case. Who has the power to appoint judges?
Appointment of judges: When forwarded by the PM, the President shall appoint. In Judges Case, the
process is followed and neither PM nor President has much say. They just act as a mere procedural
functionary.

Article 190. Executive authorities shall aid to SC-Al Jehad trust to make BB promulgate it. NRO case.
Sakina Bibi case. - BB gave pardon to those people who were sentenced in the Zia era. The court ordered
that executive power to act in the aid of judiciary.
ART 240- Appointment to the service of Pakistan---Power to appoint and remove officers through the
act of Parliament, then under that act it could be accorded to different people

Art 260 defines what is the service of Pakistan.

Acts of the state.-- an act done by the sovereign power or delegated to those authorities in the limits
prescribed by the constitution. .

External affairs ---Art 173(3)—in the name of the president all contract and all treaties. Also entry 32-
FLL.

Armed forces: Art 243, 244, 245.

Art 243(1)--Federal Government --- command and control of Armed Forces.

Art 243(4) Appointment : President on advice of PM can appoint chiefs. 242(2)--President-supreme

commander has the duty to raise the armed forces.

3rd Schedule- The oath of the Armed forces. – Art 244

Uphold the constitution of armed forces, will of armed officers, and not interfere in politics.

Art 245—Functions of Armed Forces –

Military life- Protect Pakistan.

Art 245(1) & (4) --Civil life—martial law, emergency, in aid of civil powers, in elections.

Who has the power to declare war? Art 245(1) FG

Who is spending the money?

Art 164-- Executive i.e. Federal government from Federal money allocation bill.

Art 84—federal consolidated fund/ supplementary and excess grants if insufficient amount as in budget.

Admin Law -- the constitutions` powers in action.

When the department issues administrative actions, all the transaction arising through it is the admin
law.

Defines structure of administration, powers and procedures of administrative authority, the structure,
power and procedures, its fairness and its limits.

Admin Law—Constitutional law in action --- scope of admin law

 - Conduct of the general business of the government. Broad principle are made by policy makers.
Example is of ministerial circulars.
- Ends and modes of exercise of constitutional powers.

Uses:

- Structures of administration: Like labour department—worker`s fund where it will go.

- Powers and procedures.
- Limits of power and procedure.
- Fairness of the exercise of this power and procedure.
- The ways these authorities can be kept in limit.
- The machinery which we need to stop maladministration.

History of Admin Power:

When it started: 1492-1776 - Period of mercantilism. Heavy taxes—initially interventionist

state .Periods of tariffs, taxes etc. Laisez fairz after that in France –1776—1880—Market economy—
less intervention. 1880-1945—Period of monopoly capitalism. GM motors, coke etc. 1945- Social
democracy ---welfare state. Department started to prop up----admin law rise. Post colonial—less
industrialized--- developmental state/ bureaucracy. State was given the job to make industry. Scope of
admin law: AR kiyani ---writ jurisdiction to check excesses.Corenlious--- To make admin courts in the line
of France. After Bhutto, more nationalization is needed. SM Haider wrote a book on it. No we are
encountering a welfare state so it is everywhere.- State activism. Delegated legislation has increased a
lot.

Why it important after independence? To nation building and welfare system.

What are the procedures to review this admin authority? Machinery needed to check this authority.

Administrative action

4 classes of Admin Law:

- Rulemaking, quasi-legislation.
- Decision making or quasi-judicial.
- Rule application action or administration action.
- Finality of administrative action.

Rulemaking action – quasi legislation--- Delegation of law making power. In that process, the
administration creates new rights like wage fixing/ rate fixing. General rules applicable for all. Rule
making reside within administration. Rulemaking action is generally controlled by parliament/
legislation or under the legislation. It is also controlled by judicial review. Within the statutory
provision as well.
European Newspaper v. Union of India AIR 1958 SC 578 – Question: Whether wage commission under
working journalist service act? It is quasi legislation or judicial? The general rule is that commission
should give these wages.

When the admin is acting as quasi legislation, they are basically reading law, they are called delegated
legislation. Income Tax Ordinance 1979 Section 85, it gives the power that BOR could make certain
laws, regulation according to the changing position of the economy. It is a statutory source and under
that by-laws are framed. The income tax ordinance can stated enabling statute.

PBC Act 1974- section 35 of the legal practitioners act is empowering the Bar to give license, exams
etc. In that capacity, whatever the bar council under this is administrative action.

How to classify this and what is importance of this classification? This classification shall help to argue
that this is in that type like quasi legislature and if the process of that classification is not followed, we
can challenge it.

Delegated legislation –which proceeds from any authority other than the sovereign power and is
therefore dependant upon its continued existence and validity and some superior and supreme
authority. The legislation would require continuous legitimacy from any statute or some Federal govt
or provincial govt.

East India Company – First Charter Sec 85 – to do business. Charter of 1720 and 1753. To do business
and settle courts. The power is getting from the charter and the sovereign/legislature in uk and then it
is doing many things within it. After that regulation act 1773, all possessions are controlled and make
laws about British possessions. Legislative power is given to Governor General Council. 1857
Independence Act –crown took control, 1861 Act- notables were included but approval was ultimately
given from UK. That was delegated legislation as it was allowed to do many things.

That delegated legislation is very difficult to classify, however it is classified through this—types of
delegated legislation on basis of the name.

Through title based classification, 1-rules, some rule are applicable on classes of people or in general,
some rules are substantive and some are procedural.

2- regulations- These are the instruments by which decision/orders and act of the government are
known to the public. Ex- Emission control regulations. Orders are written in a collective way. Who does
it? The Admin. Second tier legislation.

3- Orders – mostly these are the administrative actions and sometimes it can be also rule making—ex-
the income tax officer should do this.

4- directions.- Vehicle owner should do this. Some are binding and some are not. All the vehicle ow
ners are directed to use this oil-this is binding.

5- Instructions --This is mostly guidance to the subordinate and may not be binding or not.
6- Bye-laws—are for semi-governmental authority. NEPRA can make this bye-laws.

If it is quasi legislative, whether there was power or objectiveness while in quasi-judicial we would see
that whether he has acted judicially. --- Important

Subordinate legislation --- full power is given to authority to frame rules.

Contingent and conditional legislation : if such a situation arise, then the admin can do this. The
president of US was empowered to make free introduction of goods in USA after seeing that the import
is not harming the USA. The president has the power if the import is harming then you may stop the
goods.

Purpose based classification: The legislation that has enabled the rule making. Purpose enabling.

Enabling clause – gun and target is given.

Appointed clause, under what circumstances you can make such laws.

Dispensing and suspending the acts.

Ex- the registration act 1908, FG it gives the power to provincial Government to make exempt certain
lands from registration thus it allowing the suspending of the acts. FG giving to PG and then delegated
legislation and frame rules on it.

Supplementary – to make rule and elaborate the existing acts, Classifying and fixing certain acts. They
are continuously making rules. Penalty for the violation of the act like fines.

Limits on delegated legislations.

Curtailed usually in Pak on tax and penalization especially criminal as legislature has to do it exclusively.

Parliamentary supremacy and in UK the parliament can delegate as there is no check. Separation of
powers. But in USA, the parliament is not supreme. In Uk, the executive is part of legislature then who is
actually making the legislation and thus the executive power is very difficult to control. The remedy
against the legislature can only be brought into the remedy.

Delegatus non potus--- delegated cannot further delegate its power. In USA, the strict separation of
power. The one who is enforcing cannot make laws. Usually the congress cannot delegate its power.
However, in USA the practical consideration must be there and now the congress can delegate but with
very defined what delegated legislation is.

In Pak/ India , there is a confusion and therefore the courts either go one side or the other. The rule is
that the legislature can`t delegate essential functions.

Controls of the delegated legislation ---- Judicial control and legislative control.
Judicial control is on some parameters . So delegated legislation cannot encroach upon the rights of
the indvidual. It should be beyond the rule making authority. The words should not govern the main
legislature. Delegated legislation should not adversly affect the rights created by the main act right
cannot be taken by the delegated legislation. Delegated legislation cannot enlarge the provisions of
the main act like the tax itself may not increase if legislature has defined it. When a word is defined in
the main act then it should not be restricted. Delegated legislation cannot grant power not conferred
on the main act. Penal should be done strictly. Different course of action cannot be taken.

Legislature can also control—if it is ultra vires to the constitution.

Quasi decision making or quasi-judicial/ like NEPRA /going to Commissioner challenging mutation. This
is the product of welfare state. It is actually about deciding the individual cases. It is more about
application of general rules on particular actions. Like our newspaper is not giving us the wage. General
policy is applied on particular situation.

First two of these Adjudication demands has to be met by officer:

- Presentation of case/ plaint

- Evidence
- Legal argument/ issue framing.
- Decision making.

If quasi-judicial, then only the first two are required.

Doctrine called judicially must be applied in the quasi-judicial. If the selection committee of job then
under that those cases, the selection is quasi-judicial. It should act judicially.

Rule application/ Admin action

Admin Action is the application of policy; they are not applying the law. Law can only by applied by the
courts. If the case is decided, then collection of bills, the removing of shops, pure administrative action.
It is not quasi legislation nor quasi-judicial. It is very difficult to identify.

AK Kraipark v. union of India -- To see the nature of power and framework under which it is exercised.

AP v SMK Parasurama Gurukul AIR 1972 2 SC 232

Whether a statute is admin action or quasi-judicial. If the opinion is to be formed on objective

condition, it is pure administrative action. If the power is on the subjective satisfaction, it is quasi-
judicial. If there is only objective satisfaction , then administrative action.

GG Patel v Ghulam Abbas 1973 SC 179

Bombay tenacy act – s 61 determine collector non-agriculture people, can the land be transferred to
non-agriculture people. Question affecting the right of any party? There is nothing in the act that
collector has to act judicially. It is the question whether the class is judicially.
Pure-admin action. --- Direction which are not binding or have the force of law. – Like cleaning the
office. NIRC is a judicial body. Whether filing a reference? It is admin action.

Examples: Externment, deportation- administrative action not a quasi-judicial. Fact finding is not
adjudication. Report presenting it is objective. Allotment/ clearing of land. Ministerial action—
administrative agencies –duties imposed by certain ministers saying that we need DATA and ask the
people. Executive power is cabinet. Administrative directions, --letter public notice, memorandum,
press notices etc. They can be either delegated legislations or direction

Finality of admin action – They can act finally like commissioner.

Usually, whatever policy is made, the finality clause, the exclusion clause, the ouster clause, the
conclusive clause. The courts are excluded. Expressly bar of jurisdiction. Expressly barred (can`t be
challenged), not expressly barred/ousting (this is a final decision) self-contained statute—(mechanism
of vindication of rights, not expressly barred, by implication barred). Sometime it is said that only
through this mechanism, it can be challenged.

To challenge the finality clause-- Constitutional modes of judicial review.

S.9 of CPC 1908--- non-constitutional modes. Civil code states that civil nature can be transacted.
However some statutes say that it can`t be, then CPC jurisdiction it is barred.

Madras case, sales suit- barred the jurisdiction-- suit instead of sales like purchase, then we can go.

The excess tax can be challenged in the civil court but it can be barred from jurisdiction as well. However
it would be contested.

NIRC- Labor court—many disputes are of civil nature. Labor statutes does not exclusively bar civil
jurisdiction.

Baba Jan tea Company—s 24 of the minimum wages act- does not bar the jurisdiction of the civil
courts expressly. Some Administrative actions are directory (day to day, more in general power) in
nature while some are mandatory in nature (some statutory source).
Cases

Jackson v Her Majesty, 2005.

Hunting Act, 2004 prohibited hunting of foxes by dogs by Parliament Act 1949. Challenged- Parliament
Act 1949. They tried to limit the power of house of Lords as they could not hold the bill for 2 years.
House of Lords is mostly elite. Till 1906, the liberals thought that house of lords would be stopping their
legislations. 1911---House of Common tried to limit the reading of the house of lords in 6 months. Right
now you can have three reading (2 years). After that it would be automatically passed. In 1949—
Restricted the reading to 1 year. It was held that supremacy of crown is unnecessary and the statute has
the highest authority. Now that assent of a crown is just a formality. Supremacy of legislature is thus
most important.

The challenge is the procedural validity. Public will go to 3 successive sessions and the act is passed
through a procedure.

Shamim-ur-Rehman 1980.

President passed martial law regulation no 3 because it was self-operating through an ordinance which
was self-enacting. Rehmani suger mills dissolved and shares were given to Fauji foundation. He brought
interim constitution Act of 1972 and validation was given- Asma Jilani case. Interim constitution
protected the nationalization process. In 1980s, Zia came. Whether the acts of Bhutto were valid acts?
Petitioner has challenged legislation and called it mala fide? Whether the legislature could do this? In
Asma jilani case, all the decisions/ordinances were void ab intio but interim constitution validated it and
excluded the jurisdiction of courts.

Supreme Court- this was the law and it can`t be challenged. But other judges did not give judgment. KHC
validity is considered more valid.

Can the court strike down validly passed legislation? In mehran ali case, yes on fundamental rights.

Liaqat Hussain case: In late 1990s, the military was brought to normalize Karachi. The power was given
to military to try civilians. Under article 245, army can come in aid of civil power. Military courts are
temporary and they are not replacing the normal system. Court held the act is in violation of right to life
and dignity. The court set aside most of the judgments and sent to the ATC.

Mehram Ali case: article 10,9, 14. – Miranda case—Police arrested, counsel access, right to remain
silent.

Legislative power to validate: Yousaf Patel Case ---- District magistrate- failure to pay security they were
confined in prison. It is infringing right to liberty. Chief court held that detention is illegal. Main question:
assent of the governor general was not necessary. The court held that constituent assembly is not doing
its work and tha no legislation have been made. The dissolution was upheld. Who is the legislative
authority? Here the court stops that you cannot do whatever you want, you still need to abide by
government of India act 1949. GG sent a reference to court and the court said that you are restricted to
legislate according to constitution. GG was not competent to pass but after reference he was allowed
temporarily.

Priara Dusaddt case 1944--- There is some validation of the previous acts. Legislature makes a new act
and that it can also validate the previous sentences. Is this power judicial power or legislative power?
That type of act of validating the act is the ancillary power of legislature and it is similar and equal to the
power of legislation. It is similar to the power of legislature and legislature has unfettered power unless
it violates fundamental rights and procedure.

Indvidual cases were considered whether the act is validated.

Atiqa begum case--- UP Govt was collecting the revenue and they were functioning under a particular
act. An act is being legislated and UP assembly tried said that the act is validated. Yes, the act is valid but
judiciary still has the power to interpret and consider some parts of the act as invalid.

Validating power of the legislature for judgment of the court:

Al Samraiz, Duty 35A to nullify the judgment. Basically the amount owed to Japanese company was
increased. If the assembly has revised its legislation, that revised legislation can`t be applied on the
previous acts. You can`t just tax on previous acts. The principle: The new law should not be merely said
that this law is not binding on the authorities rather to avoid decision of the court, statute should be
fundamentally altered. Good is to re-enact a new legislation retrospectively which was re-validate the
tax. Must be a proper legislation accordance to the procedure.

Molasses: 31(A) was added to obliterate Al-Samraiz case. Tax is the right of legislature and legislature
has clearly stated that in the form of 31(A). If any legislature is trying to validate acts, then the
legislature must find defects in it.

Legislative powers to impose tax: Illahi Cotton case: Income tax ordinance of 1979. You are taxing
turnovers, foreign people, you are taxing this. What is this power of imposing tax? Legislative power is
coming from federal legislative list. Art 77—4th schedule. Powers were given to legislature. Can you tax
through both the articles which allow tax; no you can do it only through one article. Taxing power is
inherent in legislature. Constitution only imposed limitations but the power is inherent in legislature. For
public purpose. The court approach should eb progressive, dynamic and the federal legislature has the
power to tax but business should not be destroyed. However, provincial and federal taxes must be
accorded to their own legislatures.

Margarine Case, maragarine was coloured artificially and coloured tax was not given tax. Did the
congressional tax was valid. The congress had the power to impose tax but stopping it would hinder
legislative purpose. Why it was not on butter and only on colored margarine?

Gadoon Textile Case:

RCO 1985, all the Zia`s was validated after doing all acts. Retrospective legislation. Musharraf—LFO.

All Pakistan textile Mills case

Facts: Section 9 of the Newspaper employee services act was under scrutiny. Under that act, sections
were there to empower government to impose wages under the wages board. Newspaper challenged
the this as newspaper owner challenged it. In SC, the composition of the wage board is whether it is
judicial , quasi-judicial, administrative or legislative capacity. The board said that chairman is delegator
of the legislative activity. In that sense, whatever they did was valid. Intra vires of the constitution.
Delegated legislation.

M Ismaael Case

Tax and fees: Bahawalpur ginning factories challenged the act that imposed fees for the services
rendered. Control board imposed the taxes. Increase of fees because they have to research. Ginning
factories came as more tax were imposed as the services rendered were in from of fees and research
does not come into this fees. High court said that they could not because there was no direct
connection. Many functions are delegated. Essential legislation power is constitutionally delegated.
Executive is also given authority to make fees. Appeals of factories were rejected on this basis. SC
upheld it. Legislature has unfettered power but there are limits to legislative power. Geographical areas,
fundamental areas, Federal legislative list. Marbury Case, Bhartia case, yusuf patel case.

Tamizzudin khan case said that assent was necessary. Constituent assembly dissolved by Governor
General. Assent is therefore necessary as the country is still dominion.

Hamilton Case (privilege to whatever they want to say)

There was a person Hamilton. Whatever they say can`t be challenged in the courts. Hamilton raises
issues in parliament. AF gives money to Hamilton for lobbying in parliament. A committee was made to
investigates A was given money. Hamilton said there is certain privilege. Whether AF can use the
contents of that? AF say that you can`t use privilege.

Article 1(6) USA Constitution ---can’t be questioned in legislature. Reaffirmed it and come up from the
long struggle of parliamentary sovereignty and separation of power. Relied on kilbert.

1685-1688--- Glorious revolution ---- hobbes in favour of monarch – Locke strong monarch but that is
parliament.

Kilborn case: Speical committee called on kilborn to testify. Kilborn was a congressman and he was
involved in real estate.Kilborn did not come. Congress does has the power to contempt and they can`t
force someone to come. In us they can hold inquiry but they don’t have power to punish but in uk those
powers are not limited and parliament does have some power of adjudication. The court held that
house is investigating the private matter of individuals.
In Pak, the parliament can hold investigation but for punishment, they can ask the court to punish if
somebody doesn’t come for witness

MS Sharma---some remarks in parliament between two ministers. Newspaper published it. Patna
legislative assembly and the speaker expunged parts of that speech. Journalists actually published that .
Called by the committee of privilege. Went to SC that is against his fundamental right of speech. There
were confrontation between article 19 i.e. freedom of speech and article 193 to hold people
accountable of its own rule.

Reference case 1965 --- Facts: article 143 of the Indian constitution. President took an opinion on
conflict between legislative and judicial powers. He published a pamphlet and defamed the speaker of
assembly. Speaker ordered his imprisonment. Speaker did not come. Court surety bond and released.
Speaker issued arrest of judges and the journalist as well. Judge went to allahbad high court and they
allowed to go. Legislature appearing to supreme court does nto eman we are submitting to court. With
regard to privilege, privelges are meant for sommoth functioning of legislature for the due discharge.
Fundamnetal rightsa re absolute and that it does not trump your priveleges. Since this incident did not
happen within four walls of the house. Parliamentary priveleges are not general and not outside the
legislature. Also discussed judges.

Article 66(1), 66, 68, 204---abdul hafeez pirzada case

Judges comment--- fall under 204 that they remain privileged within parliament itself. Senior courts
have not decided. The court has the power to amenable the conduct of members under 204 and
parliamentary privileges under subject to constitution but would tolerate certain contempt for the
legislature. Legislature can discuss anything but judges also has to decide freely.

McCarthy era: communists were removed.

Woshkin case: A committee on un-American activities. Right to silence and to which party you are a
member. Three powers to decribe: inestigate of government misconduct

Certain laws are working

How new laws has to be made.

All the powers to investigate are for these three purposes not to investigate poor people all the time.

1951 act—attorney general had unlimited power. Hamphire subservient activity act to suppress leftist
politics. Professor was called and he did not give the details of progressive party details and memebers.
Executive power: Distict court said please give information and professor ddint. Went to appeal in
supreme court after affirmation of high court. Delievered an opinion on the plurality . The basic
distinction has been turned into investigative agency. The government`s interest was unknown.

Shahid Nabi Case

Power to add words is to amend errors in drafting.

Article 63(d)€ and (k), where the language of the statutes leads to manifest constructions to objective
and manifest injustice, the judiciary will take the object in view.

Ishaq Dar case: Mr Dar and Mr Malik election seat was challenged. If in office, you can come back in 2
years.

Office of profit-

Judicary denied this appeal.

Whether speaker, pm, election commission has the power?

Sabir Shah --- 1962 politcal parties act , if the member defect then it would be a valid ground for
defection. PMLN government formed the government in KPK after 1993.

Issue: Political parties act, for defection you can disqualify?

Who will disqualify and what is the procedure?

Political parties act, political parties act-- election commission did not disqualify the speaker and deputy
speaker on the defection. Went to SC, the forum of appeal is with chief election commissioner, so
should go there.

Aftab shaban merani case--- Chief election commissioner is the final arbitrator.

Point in assembly, then speaker then election commission, then cec final authority final decision.

Muhammad Azhar siddique case 2012

PM Gillani case

Court convicted him. That they wrote a letter to speaker through assistant register of SC to disqualify.
The speaker said that it is not one of the valid grounds for disqualification from seat. Appeal went –SC
said that Speaker is not an appellate authority as she goes beyond the authority. 63 A G H are actually
disqualifications by the court. Election commission should decide cases within 90 days. In certain cases,
the final authority is the court.

Executive

Election Commissioner Powers have both judicial and executive powers.

Government – The Prime Minster and cabinet is the executive.

What is the relation between PM and President? Advise, can dissolve if no one has the confidence of the
house, pardon.

Legislature: Taxation, validate, amending, limits on the legislative power- fundamental rights, territorial
jurisdiction, federal legislative list.

Ram javvaya kapur case

The petitioner was publisher. 1905-1950. PTB, RULES OF BUSINESS FOR THE QUALITY OF EDUCATION
WITH PUNJAB EDUCATION DEPARTMENT. All the petitioner went to court as violation of the right of
freely trade. Notifications nationalized and books were published according to the notification and the
previous rules of 1905-1950 will not apply. If the government wants to impose restriction, it should be
according to the legislations. Through a simple notification, it cant be allowed. Fundamental right that
their books should not be published from anywhere.

Motilal case – issue-business started through notification. The cj has the right to own and carry a
business as any person.

Executive can do within the domain of legislation. If the executive wants to do another act, then
legislation ,ust done according to legislature.

If the executive has to do some business, then they can do through legislation.

Shamsher singh

The judges were working even after probation. After expiry of the probation, whether governor can
write in his discretion to terminate from job? The SC said that appointment of judges was not personal
rather it was to go through the constitution.

Governor—Aid and advise of the cabinet.

Should have taken the advice but not to act alone.

Subordinate judiciary should have asked HC and then HC should ask the Cabinet.

Nixon Case

He was accused of FIA breaking into the NDC in Watergate of stealing info for political purposes.
Accused of wiretapping. He had only re-appointed. He used CIA to suppress the FIA investigations.

Prosecutor asked Nixon to hand those tapes. Nixon argued that he has executive privilege that I can
withstand whatever the ministries are saying.

Only in military and diplomatic affairs, you can give leeway but only in those issues. But this is our won
matter and we can look into it. The judiciary interest in fairness of justice in criminal cases is important.
Art 6,7 of qaunun-e-shahadat order. HOD can write a letter to the judiciary that this is privileged
communication. Art 5-Husband and wife-- Art 6- communication within officials Art 9—professionals not
bound to disclosed. Interpreter.

BB v. Brig imtiaz--- IB funds ---did not agree.

Asghar khan case --- ISI not giving documents.

What is federal govt?

Mustafa impex case

Importers of cell-phone. Was given exemption. This exemption was withdrawn. Tax exemption were
withdrawn. Can grant this notification. What is the procedure of this notification? No tax can be given
unless it passes the legislature. In here, additional secretary is doing it. Can he do it. The federal govt is
a collective entity. The points? Neither the secretary nor the Pm are the federal government. Federal
government means cabinet. Secretary of revenue division can issue notification under the rules of
business. How do they issue notification? Federal government cannot delegate such authorities such as
taxation. Part of executive but federal government cant. PM is most strong but he is not cabinet in itself.
PM cant take the decision himself by bypassing the cabinet.

Sabir Shah Case

Government was dissolved, emergency powers are in governor and president.

Meyers v. USA.

Bhagat Singh Case

Three trials.

Lahore conspiracy case was going suite slow. Government of India act. You can set up a tribunal. Right of
appeal is only in Privy council. Trail is very slow and his bhook hartal was causing anger. They wanted to
hear the case. Ordinance comes. Emergency imposition. Conditions. 1915, 1919 , 1935, 1947, 1956,
1962, 1973. Interim 1972 constitution. When executive can use ordinance?

Article 232 clause 1---

Dick Cheney--- was vice president of national policy group. Suit was filed by non-profit groups.
Developing energy policy and were stakeholder—NGO, procedural and disclosure requirement. Cheney
exercised privelelge of executive branch. The requirments of the criminal law outweighed. Private cause
of action and cant be overruled.

What is state and what is executive?

Miligan case
A civilian person and he was tried in Indiana and was engaged in the act of disloyalty. Art 1, sec 8
empowers congress to militia to aid for law and order. Civil war between north and south. Miligan was
arrested due to this. Lincoln estanlushed many military tribunasl there. Whether president can do this
because military court can only be established where civil coirts were not there.

Congress took lacked such authority as well as the executive.

1999 Case--- Liaqat Hussain case Military courts. –Pak court also stated that similarly

Liaqat hussain--- military courts were establidhed. Aid in cviil power and that this is not a situation.
Judiciary is jealously protecting it jurisdiction.Art 245.

21st amendment case.

Derwesh.M.Ibrahiam case.

Power of the executive to pardon/ art 45/ Sakina Bibi case

Presidential Amnesty Order. BB promised that I will allow you to go outside/ political prisoners were
released.

Death sentences should be turned into life sentences.

Art -2-A

Why article 2A is invoked because we have qisas and had, can the president pardon on this and under
article 2A, court is empowered to look into art 45. An impression that article 2A should control all
constitution. Hakim Ali Khan case--- Art 2A does not include the constitution and it is not self-executing.
What is the scope of article 2A? --- Justice Khosa, we have not pushing the scope of article 2A. Article 2A
can’t check the repugnancy of article 45. This power of article 45 is not extended to cases under Hadd
and Qisas. Tazzir is by state, had is not by the state rather it is by God. Not in Hadd cases.

Executive power, legislative power, Admin Law(a little not much) FR, Constitution + Int. --- Paper
.

Marbury v. Madison

State to interfere: Established separation of power. Judiciary act extended the power of which of
extending the constitution and that legislature did not had the power. Judiciary can review the
legislation and strike it down. The president has the power to appoint judge, but then the rules
regulations will be decided by the judges.

Not State to interfere: Economy--- Conservatisms.

Once it is send, the domain of the executive was removed.

Tariq transport case: The judiciary can intervene that if the executive action is of judicial nature.

Merj-ud-din case: Till now writ jurisidiction was in the favor of british system of writs, but Corenlius was
impressed by the French system and that the adminisitrative court should be established.

Fareed Sons case: Adminstrative courts were formed through this but practically in Bhutto`s time.

Bousher v. Synar

In 1980s, the welfare system is taken amid cold war.

Supply side economics: Huge cuts for the public spending. Non-interventionists.

Due to rising government budget deficits during the first term of the Reagan Administration,
Congress passed the Gramm-Rudman-Hollings Deficit Control Act of 1985. The act was
designed to eliminate the federal budget deficit by restricting spending during fiscal years 1986
through 1991. Under the law, if maximum allowable deficit amounts were exceeded, automatic
cuts, as requested by the Comptroller General, would go into effect.

You made a law. Gave powers to comptroller. Whether he can be removed from legislature.

Yes, this violates separation of power.

Budget cuts were eliminated.

Computer general role is part of executive and that is making budgets.

Legislature does have the power to create a post but if it is created, the removal should be
through a legislature.

Even after that, there is a procedure which needs a post termination judicial.

Congress can pass another legislation to end.

Can legislature enact the laws after which judiciary can have the final decision on that to undo
that?

Why legislature as our legislature is snubbed by military and why do we need separation.

Judicial power can not be separate in relation to their clauses. While the constitution diffuses
powers, the powers are also correlated in a workable government. Actual judiciary also in
correlation of the whole system.
Montesqu --- while he was writing the separation of power, he was appreciating British and the tyranny
in continental Europe was in his mind.

Election commission should not be under the legislature.

Buckley v. Value

About an act of funding for election. Can you fund a political party and whether that is problem with
freedom of association?

PAC : Corporation can fund the parties. If you restricting these funds,you are restricting freedom of
association.

1st curtailment: not

2nd curtailment: yes

Legislature can legislate election rules but the legislature cant intrude on freedom of association.

Ultimately, funds restriction was removed.

“You cant stop like-minded people from pooling in together for a cause”

Bharti Case:

Power to amend constitution limited or unlimited? Govt passed an act which can take lands.

Golakh Nath Case, Privy Purses and Nationalization bank Case: Against Freedom of religion.

“Fundamental rights and principles of policy should be harmonized” 1951, kerala made land reforms.
Communist party of India made government. Telenganga movement fought against nizam of hyderbaad
and CPI won elections.”

Freedom of property and freedom of religion.

Principles of Policy and fundamental rights are in contradiction

Destruction of fundamental rights are not for the free.

Khana judge: parliament can change but cant destroy.

Basic structure doctrine was protected. Judiciary resisted Indira Gandhi. 1975, Indira gandi promulgated
emergency. Judiciary removed. Result; amendment made that elections cant be contested in court.

Parliament has the power to amend constitution but not against basic structure.

Overruled golakh nath. – Parliament can amend constitution even if fundamental rights.

Most important: gives legitimacy—HC, SC

Lower courts/; applying. Obedient citizenship.

Bribery Commission case: President can appoint but that is it and that there is no separation of power
and cant remove. A bribery act was passed.

175A- 18th Amendment appoint of judges.

Saif ur rehman 1988-fight between president and PM---most of the cases were decided by the ad hoc
appointments by the benazir – Judges case 1996 –no adhoc, removed all the judges by the appointment
of Benazir, made exclusive power to appoint judges. ----Musharraf—sharing power at that time and
there was no legislature etc. In Musharraf time, appointment of judges was also made by judges
themselves. –Bar was resisting judiciary---- COD—removed the power of judiciary---Lawyer movement---
Rawalpindi Bar case--- 175A