This document summarizes key points from an article on constitutional law in Pakistan. The article discusses the distribution of legislative powers between the federal and provincial governments according to Part V and Chapter 1 of the Pakistani constitution. It outlines that the federal parliament has exclusive power to make laws on matters in the Federal Legislative List, while provincial assemblies have power over matters not in that list. Both levels of government can make laws around criminal law, procedure and evidence. The article then examines various constitutional law doctrines that relate to legislative powers, such as the doctrines of colourable legislation, pith and substance, and occupied field. It also discusses how conflicts between federal and provincial laws are resolved based on the doctrine of rep

1. Part V: Relations between Federation and
Provinces [Articles 141-159]
Chapter 1: Distribution of Legislative Powers [Articles 141-
144]
Presentation given before Justice Shakirullah Jan as on 25-07-2016 at
PULC during studying LLM subject constitutional Law
Muhammad Arshad
LLM Batch 2016-2018
arshad.tabassum@gmail.com
1

2. 141. Extent of Federal and Provincial laws. Subject to the
Constitution, Majlis-e-Shoora (Parliament) may make laws
(including laws having extra-territorial operation ) for the whole
or any part of Pakistan, and a Provincial Assembly may make
laws for the Province or any part thereof.
Points determined
 Law making authority of Federal laws including laws having extra-territorial
operation
Parliament is competent to make Federal Laws including having extra-territorial
operation
 Law making authority of Provincial laws or any part thereof
Provincial Assembly is competent to make Provincial laws or any part thereof
2

3. Article 41
Questions & Court’s Inpretations
 Article 141… Colourable Legislation ?
 Legislative competence of Provincial and Federal legislature ?
 Overlapping of two legislative fields ?
 Conflict between the Federal Legislature and Provincial Legislature ?
Constitutional Law Doctrine applied
 Doctrine of Colourability / Colorable Legislation
 Doctrine of Pith and Substance
 Doctrine of Occupied Field
3

4.  Art. 141---Colourable legislation---Description
(Refer Doctrine of Colorable Legislation)
A colourable legislation is that which is enacted by a Legislature which lacks the
legislative power, or is subject to Constitutional prohibition, but it is framed in such
a way that it may appear to be within the legislative power or to be free from
Constitutional prohibition or where the object of the law is not what is
contemplated under the Constitutional provision pursuant whereof it is framed.
Ref.
1. Constitutional Law of India, A Critical Commentary, 3rd Edn. by H.M. Seervai
2. Attorney-General of Alberta v. Attorney-General of Canada and others AIR
1939
3. Edinger, Elizabeth: "Constitutional Law - The Doctrine of Colorability and
Extraterritoriality", 63 Canadian Bar Review, (1985) 203
4. Federation Of Pakistan Vs Shaukat Ali Mian 1999 PLD 1026 Supreme Court
4

5. Doctrine of colourability / Doctrine of Colorable
Legislation….. Constitutional Law Doctrine
This Doctrine also traces its origin to a Latin Maxim:
“Quando aliquid prohibetur ex directo, prohibetur et per
obliquum”
This maxim implies that “when anything is prohibited directly, it is
also prohibited indirectly”. In common parlance, it is meant to be
understood as “Whatever legislature can’t do directly, it can’t do
indirectly”.
The literal meaning of Colorable Legislation is that under the ‘color’ or
‘guise’ of power conferred for one particular purpose, the legislature
cannot seek to achieve some other purpose which it is otherwise not
competent to legislate on.
5

6.  Legislative competence of Provincial and Federal
legislature
(Refer Doctrine of Pith and Substance)
Provincial Assemblies were not empowered to make laws having operation beyond its
territories---Provincial legislation in its application could not travel beyond the
territorial boundaries of the province---Where a law in its application was required to
travel beyond the territorial boundaries of a province, it went beyond the legislative
competence of the provincial legislature---Any matter or activity of a trans-provincial
nature which could not be regulated by a provincial law on account of the constitutional
constraints, could not be allowed to remain unregulated by any law---Whenever such a
peculiar situation arose, the Federal legislature as of necessity, must step in order to
protect, preserve and regulate the right---Federal legislature was the only forum left to
come up with a law to address such a situation---To come up with a Federal law to deal
with a situation which could not be addressed through the provincial legislation could
not be taken as usurpation of the provincial autonomy.
Ref.
KESC Vs N.I.R.C 2015 PLC 1 Karachi High Court Sindh
KESC Vs N.I.R.C 2014 PLD 553 Karachi High Court Sindh
6

7. Doctrine of Pith and Substance
 Pith means ‘true nature’ or ‘essence of something’ and Substance means
‘the most important or essential part of something’.
 Doctrine of Pith and Substance says that where the question arises of
determining whether a particular law relates to a particular subject
(mentioned in one List or another), the court looks to the substance of
the matter. Thus, if the substance falls within Federal Legislative List, then the
incidental or ancillary encroachment by the law on the Provincial Legislative
List does not make it invalid.
Ref.
The State of Bombay And Another vs F.N. Balsara
AIR 1951 SC 318.
Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra
and Ors.
AIR 2010 SC 2633.
7

8.  Overlapping of two legislative fields
Where legislative powers were distributed between the two legislative
bodies and such legislative fields overlapped, High Court could ascertain to
what degree and to what extent, the authority to deal with matters falling
within such classes of subjects existed in each Legislature, and to define
the limits of respective powers. To prevent any conflict between the two
provisions, both the provisions be read together and the language of one
interpreted and modified by that of the other.
Ref.
Syed bhais (pvt) ltd vs GOP 2000 PLD 20 Lahore High Court,
Lahore
8

9.  Conflict between the Federal Legislature and Provincial
Legislature… Constitutional Doctrine of Occupied Field
In the event of any inconsistency between the Federal Law and
Provincial Law, the mandate of the Constitution, as contained in Art.
143 is to prevail--Principles --- Doctrine of occupied field ---
Applicability
Ref.
Shamas Textile Mills Ltd Vs Pronvice of Punjab
1999 SCMR 1477
9

10. Doctrine of Occupied Field
The general concept of Occupied Field refers to the situation
where two legislative authorities have jurisdiction (or legislative
competence) to legislate over one particular subject or field.
When the superior legislative authority has already enacted
legislation on the subject or field, regardless of the fact whether
it is exhaustive or otherwise, it precludes the remaining
legislative body from enacting any law thereon, as the field is
already "occupied".
Ref.
Shamas Textile Mills Ltd Vs Pronvice of Punjab
1999 SCMR 1477
State of Kerala & Ors v. M/S. Mar Appraem Kuri Co.Ltd. & Anr.
Civil Appeal No. 6660 OF 2005.
10

11. 142. SUBJECT-MATTER OF FEDERAL AND PROVINCIAL LAWS. SUBJECT TO THE CONSTITUTION-
(a) MAJLIS-E-SHOORA (PARLIAMENT) SHALL HAVE EXCLUSIVE POWER TO MAKE LAWS
WITH RESPECT TO ANY MATTER IN THE FEDERAL LEGISLATIVE LIST;
[(b) MAJLIS-E-SHOORA (PARLIAMENT) AND A PROVINCIAL ASSEMBLY SHALL HAVE POWER
TO MAKE LAWS WITH RESPECT TO CRIMINAL LAW, CRIMINAL PROCEDURE AND EVIDENCE.]
(c) SUBJECT TO PARAGRAPH (B), A PROVINCIAL ASSEMBLY SHALL, AND MAJLIS-E-SHOORA
(PARLIAMENT) SHALL NOT, HAVE POWER TO MAKE LAWS WITH RESPECT TO ANY MATTER
NOT ENUMERATED IN THE FEDERAL LEGISLATIVE LIST.”.
(d) MAJLIS-E-SHOORA (PARLIAMENT) SHALL HAVE EXCLUSIVE POWER TO MAKE LAWS
WITH RESPECT TO ALL MATTERS PERTAINING TO SUCH AREAS IN THE FEDERATION AS ARE
NOT INCLUDED IN ANY PROVINCE.]
Points determined
 Law making authority of Federal Legislative list and matters pertaining to such areas in the federation which
are not included in any province
Only Parliament is competent to make laws on the matters enumerated in the Federal Legislative list and
matters pertaining to such areas in the federation which are not included in any province
 Law making authority of any matter not enumerated in Federal Legislative list
Only Provincial Assembly is competent to make laws on any matter not enumerated in Federal Legislative list
 Law making authority of Criminal Law, Criminal Procedure and Evidence
Both the Parliament & Provincial Assembly are competent to make laws relating to Criminal Law, Criminal
Procedure and Evidence
11

12. Article 42
Questions & Court’s Inpretations
 Emergent legislation ---Art. 142 & 70
 Subject-matter of Federal and Provincial laws---Scope.
 Words "Subject to the Constitution" used in Arts. 142 of the
Constitution---Scope
 Interpretation of entries in legislative lists
 Laws with respect to Municipal functions---Art.142(c)
 competence of Parliament to promulgate any legislation, not covered
by ---Art.142(d)
 Mala fides on part of legislation
12

13.  Emergent legislation---Art. 142 & 70
Mere fact that the required results from emergent legislation could
be achieved by taking effective action under other relevant
enactments which were already on the statute book could not be a
Constitutional bar on the competence of the Legislature to enact a
special law.
Ref.
Province Of Punjab Vs National Industrial
2000 SCMR 567 Supreme Court
13

14.  Art. 142---Subject-matter of Federal and Provincial laws---Scope.
(Residuary Legislative Clause)
A bare perusal of Article 142 of the Constitution would reveal that the
Federal Parliament has the exclusive powers to make laws in respect of the
matters mentioned in the Federal legislative list, while both the Federal and
Provincial Parliaments have the powers to legislate in respect of the matters
mentioned in the Concurrent legislative list. In case any item is neither
mentioned in the concurrent nor in the federal legislative lists the same falls
within the exclusive domain of the provincial legislature. This is what is
called a residuary legislative clause in the parlance of constitutional
jurisprudence. In other words, the residuary power to legislate in respect of
items not appearing in the federal and concurrent legislative lists fall within
the ambit of the Provincial Parliaments. Lastly, the Federal Parliament is
equipped with the exclusive powers to make laws with regard to matters
not mentioned either in the concurrent or the Federal legislative lists,
pertaining to those areas which do not fall in any of the provinces for
example the Islamabad capital territories.
Ref.
Sanofi Aventis Pakistan Limited Vs Province Of Sindh
2009 PLD 69 Karachi High Court, Sindh
14

15.  Scope---Words "Subject to the Constitution" used in Arts. 142 of
the Constitution
Meaning---Said words meant that where the Constitution itself
placed a bar on the exercise of legislative or executive authority by
the Province such authority could not be exercised in spite of its
conferment by Arts. 137 & 142 of the Constitution---Words, "Subject
to the Constitution" did not make Arts.137 or 142 of the Constitution
subservient to the remaining provisions of the Constitution---Said
words only meant that where the Constitution created a specific bar
to the exercise of such executive or legislative authority or provided
a different manner for such exercise then that authority must either
not be exercised at all or exercised in such manner as the
Constitution permitted.
Ref.
Lahore Development Authority Vs Ms. Imrana Tiwana
2015 SCMR 1739 Supreme Court
15

16.  Interpretation of entries in legislative lists
General principle for interpretation or construction of entries in
Legislative Lists are that entries are to be interpreted broadly and
liberally and widest amplitude is to be given to words employed
therein---Entries in the lists are mere legislative heads having an
enabling character that define and delimit the respective areas of
legislative competence for Federation and Provincial Legislatures.
Ref.
Defence Authority Club, Karachi Vs Federation Of Pakistan
2007 PTD 398 Karachi High Court, Sindh
16

17.  Art.142(c)---Laws with respect to Municipal functions
Provincial Assembly concerned and not the Parliament, would have
power to make laws with respect to Municipal functions.
Ref.
Zeshan Builders Vs Karachi Building Control Authority
1992 MLD 2259 Karachi High Court, Sindh
17

18.  competence of Parliament to promulgate any legislation, not
covered by Art.142(d)
--Where a question arises as to the competence of Parliament to
promulgate any legislation, not covered by Art.142(d), it has to be
seen whether the subject-matter of legislation is covered by any
entry either in Federal or the Concurrent Legislative List of the
Constitution.
Ref.
Farrukh Hamid Rizvi Vs Managing Director
1989 PTD 488 Karachi High Court, Sindh
18

19.  Mala fides on part of legislation
legislation cannot be struck down on ground of mala fides on part of
legislation.
Ref.
Golden Industries Ltd. Vs Province Of Sind
1983 PLD 76 Karachi High Court, Sindh
19

20. 143. Inconsistency between Federal and Provincial law. If any
provision of an Act of a Provincial Assembly is repugnant to any
provision of an Act of Majlis-e-Shoora (Parliament) which
Majlis-e-Shoora (Parliament) is competent to enact, then the Act
of Majlis-e-Shoora (Parliament), whether passed before or after
the Act of the Provincial Assembly, shall prevail and the Act of
the Provincial Assembly shall, to the extent of the repugnancy,
be void.]
Points determined
 Act of Parliament repugnant to the Act of Provincial Assembly
In case of inconsistency of any provision of an Act, Act of Parliament
(which the Parliament is competent to enact), whether passed before
or after the Act of Provincial Assembly, shall prevail
 Effect of repugnancy on the Act of Provincial Assembly
Act of Provincial Assembly shall be void to the extent of repugnancy
20

21. Article 43
Questions & Court’s Inpretations
 Inconsistency between Federal and Provincial law
 Legislative competence of Federal Government through Parliament
and Provincial Government through its Provincial Assembly
 Conflict between Federal and Provincial Statutes
Constitutional Law Doctrine applied
 Doctrine of Repugnancy
21

22.  Inconsistency between Federal and Provincial law
Under provisions of Art. 143 of the Constitution, laws enacted by
Parliament had been given over-riding and superimposing effect
over laws enacted by a Provincial Assembly of any of the Provinces,
and in case of any clash or repugnancy between the two, the laws
enacted by the Parliament would prevail---On the touchstone of
Art.143 of the Constitution, an Act of Parliament had been placed on
a higher pedestal and any Provincial law enacted by a Provincial
Assembly shall give way to the Federal law enacted by Parliament, if
the former was inconsistent or repugnant to the latter.
Ref.
Pakistan Telecommunication Company Ltd. Vs Member Nirc
2014 PLC 203 Supreme Court
Contd....
22

23.  Inconsistency between the Federal and Provincial law
Where there is inconsistency between a Federal and Provincial law,
the former shall prevail to the extent of inconsistency.
Ref.
Kashif Nadeem Alias Pappi Vs The State
1992 PCRLJ 1799 Federal Shariat Court
23

24.  Doctrine of Repugnancy …..Constitutional Law
Doctrine
If there is a conflict between Federal and provincial laws on a subject
then the Federal law prevails. That is known as the “doctrine of
repugnancy” and is covered by Article 143 of the constitution.
Ref.
M. Karunanidhi v. Union of India (1979) 3 SCC 431.
Pakistan Telecommunication Company Ltd. Vs Member NIRC
2014 PLC 203 Supreme Court
24

25.  Legislative competence of Federal Government through
Parliament and Provincial Government through its Provincial
Assembly
Parliament and Provincial Assembly could exercise legislative
competence to the extent conferred under the Constitution---
Parliament could frame law on the subject not falling in Federal
Legislative List, if same was requested only by resolution of
Provincial Assembly and by non else and no other means---
Principles
Ref.
Mirpurkhas Sugar Mills Ltd. Vs Federation Of Pakistan
2013 MLD 433 Karachi High Court, Sindh
25

26.  Conflict between Federal and Provincial Statutes
In case of a conflict between a Federal Statute and a Provincial
Statute, the Provincial Statute has to yield to the Federal Enactment.-
--[Interpretation of statutes].
Ref.
Kabal Shah Vs The State
1995 PCRLJ 2058 Karachi High Court, Sindh
26

27. 144. Power of Majlis-e-Shoora (Parliament) to legislate for [one] or more
Provinces by consent. (1) If [one] or more Provincial Assemblies pass
resolutions to the effect that Majlis-e-Shoora (Parliament) may by law regulate
any matter not enumerated in [the Federal Legislative List] in the Fourth
Schedule, it shall be lawful for Majlis-e-Shoora (Parliament) to pass an Act for
regulating that matter accordingly, but any act so passed may, as respects any
Province to which it applies, be amended or repealed by Act of the Assembly of
that Province.
Points determined
 Power of Parliament to legislate any matter not enumerated in the Federal
Legislative list by consent of Provincial Assembly (ies)
Parliament may legislate in any matter not enumerated in the Federal Legislative
List whereby consent is given by Provincial Assembly (ies) concerned (by passing
resolution (s))
 Consequences thereof
Act of Parliament so passed may be amended or repealed by Act of Provincial
Assembly concerned
27

28.  Power of Majlis-e-Shoora (Parliament) to legislate for one or more
Provinces by consent
Such power was applicable or attracted only when at the instance of
the Provincial Assembly or Assemblies, Federal legislation was
required on any matter which was not covered by any Entry of the
Federal Legislative List.
Ref.
KESC Vs N.I.R.C 2015 PLC 1 Karachi High Court Sindh
KESC Vs N.I.R.C 2014 PLD 553 Karachi High Court Sindh
28