The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Muhammad Haleem, C. J.(a) Constitution of Pakistan (1973)-Art. 185(2)(3) & 70(1)(4)—
r/w Customs Act (IV of 1969)—S. 18(2)(3)—
Leave to appeal was granted to consider whether the High Court was correct in deciding these questions of law against the appellants.
[p. 675] A.

The rule is that while construing the meaning of the word “regulatory duty” it is the substance and not the form which should be looked at. Therefore in arriving at its true meaning the context in which it occurs must be given proper weight. [p. 675] B.

Referring now to subsection (2) of section 18 of the Act “Regulatory duty” is a levy on all or any o the articles specified in the First Schedule which are chargeable to customs duty. The First Schedule under its separate heads prescribes the rates of duties chargeable on goods imported into Pakistan. The regulatory duty has, therefore, direct nexus to the goods imported which are liable to customs charge. If one were to give to it its dictionary meaning then it nowhere in the context in which it occurs exerts that meaning. In essence, therefore, it can have no other sense, but that of a customs charge imposed to maintain a proper balance in a fluctuating market although it is described by a different nomenclature which does not make it distinct from customs duty. Subsection (3) of section does not make it distinct from customs duty. Subsection (3) of section 18 of the Act further reinforces the concept of its being an additional customs charge.

In conclusion, therefore, having applied the above principle while construing the words “regulatory duty”, we are of the view that it comes within the ambit of Item No.43 of the Fourth Schedule. As to the applicability of Item No.59, the doctrine of incidental and ancillary powers is that every legislature must have incidental and ancillary powers to make sure that legislation with respect to its enumerated powers may be effective. It followed from this doctrine that everything necessary to the exercise of a power is included in the grant of the power. Although the words “incidental” and “ancillary” literally mean things of lesser or subordinate degree or of consequential nature but in the legislative interpretation they mean more than this. [p. 676] C.

In this context this item could be relevant for legislation matters to ensure the effectiveness of the legislation on the legislative item.
[p. 677] D.

The next limb of this contention namely that the power to impose regulatory duty was not available as the Federal Legislature had already exercised the power by making a provision of the levy of customs duty in subsection (1) of section 18 of the Act, is also of no substance. While considering the scope of the legislative power it should be borne in mind that it is a recognised principle of constitutional law that except where limitations have been imposed by the Constitution itself the power of legislature to legislate on the enumerated subjects is unlimited and practically absolute. The Legislature is free to exercise this power as and when the occasion requires. Keeping in view, a reading of Article 70(1) and (4) of the Constitution makes it plain that there is no constraint or limitation in the exercise of the power. It is essentially a legislative function to add, substract, decrease or increase the customs duty so long as the subject of legislation is covered by item No.43, which is the touchstone of the validity of the legislative measure. Accordingly, it was futile to say that the power of the Legislature was exhausted either to impose the further charge itself or to authorise the Federal Government to impose the additional charge. The further argument that as the power was exhausted it could not be delegated is also of no substance as it was always available and could be exercise from time to time. [p. 677] E.

“Delegation, as the word is generally used, does not imply a parting with powers by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would have to do himself. The best illustration of the use of the word is afforded by the maxim, Delegatus non potest delegare, as to the meaning of which it is significant that it is dealt with in Broom’s Legal Maxims under the law of contracts: it is never used by legal writers, so far as I am aware, as implying that the delegating person parts with his power in such a manner as to denude himself of his rights.”

The delegation of power is elemental in the creation of agency and is not exhausted by delegation, and in relation to the legislative power, delegation means:

“An attempt by Legislature to implicate its legislative power by delegating to another the power to enact a law, whether in form or effect, or to bestow upon another the power to determine the effectiveness of a specific act.” [p. 677] F.
Appeals dismissed.

Advocate for the Appellants (in C. A. No.70/78).
Ch. Khurshid Ahmad, Advocate Supreme Court and Tanveer Ahmad Advocate-on-Record.

Advocate for the Appellants (in C. No.71/78).
Tanveer Ahmad Advocate-on-Record.

Advocate for the Appellants (in C. A. No.72/78).
Tanveer Ahmad, Advocate-on-Record.

Advocate for the Respondents:
Sajjad Ahmad Sipra, Deputy Attorney-General instructed by Ch. Fazle Hussain, Advocate-on-Record.

Date of hearing: 4th November, 1987.