The Constitution of Pakistan, 1973 Developed by Zain Sheikh

In the light of the above-referred provisions of the Constitution read with Item 55 of the Federal Legislative List, it is obvious that with regard to the enlargement of the jurisdiction of the Supreme Court and conferring thereon of any supplemental power falls within the exclusive domain of the Parliament. The Provincial Legislature has no power whatsoever to deal with or to legislate with any matter in the Federal Legislative List. In this context, the Constitution of Pakistan jealously guards the power of the Federal Government and the Provincial Government, and neither of them can make inroad into the domain of the other. In this behalf, it will be advantageous to refer to Articles 90 and 97 of the Constituton of Islamic Republic of Pakistan. Under the former Article, the exercise of the executive authority of the federation shall not be deemed to transfer to the President any functions conferred by any existing law on the Government of any Province or other authority, nor it shall prevent the Parliament from conferring by law functions on authorities other than the President. Similarly, under the latter Article i.e. 97, the executive authority of the federation shall extend to the matters with respect to which the Parliament has power to make laws including exercise of rights, authority of the Federation shall not, save as expressly provided in the Constitution or in any law made by the Parliament extend in any Province to a matter with respect ot which the Provincial Assembly has also power to make laws. The executive authority of the Province has been defined in Article 137;—Subject to the Constitution, the executive authority of the Province shall extend to the matters with respect to which the Provincial Assembly has power to make laws; The proviso to Article 137 of the Constitution reads as under:—-

“Provided that in any matter with respect to which both Parliament and the Provincial Assembly of a Province have power to make laws, the executive authority of the Province shall be subject to, and limited by, the executive authority expressly conferred by the Constitution or by law made by the Parliament upon the Federal Government or authorities thereof.”

In the light of these provisions, it is crystal clear that the Provincial Legislature or the Govenror cannot legislate or deal with any of the subjects to be dealt with or to be legislated upon by the Federal Government. In this behalf, therefore, we have no hesitation to hold that the appointment of a Judge of the Supreme Court as Cooperative Judge under the Ordinance is unconstitutional and beyond the legislative competence of the Provincial Governor. [p. 500, 501] U

Similarly, the provision of section 22 of the Ordinance providing for an appeal before the Supreme Court of Pakistan against the final order of a Cooperative Judge is also violative of the Constitution because the matter pertains to the conferment of jurisdiction of the Supreme Court or in order words, the enalrgement of such jurisdiction, as envisaged by the Supreme Court of Pakistan. In this behalf, a reference to the provisions of Article 212 and 212-B would be relevant and it is thus obvious that only by way of the Constitutional provisions, an appeal to the Supreme Court was provided. No such jurisdiction can be conferred or enlarged with reference to the Supreme Court of Pakistna in view of the legislative incompetence of the Provincial Legislature in the light of Item 55 of the Federal Legislative List as contained in Schedule IV of the Constitution. [p. 501] V

The appointment of a Judge of the Supreme Court as a Cooperative Judge and conferring appellate jurisdiction on the Supreme Court are also beyond the legislative competence of the Provincial Governor or the Legislature. In this view of the matter, we allow these petitions and hold that the action taken under the Ordinance against 102 Cooperative Societies mentioned in the Schedule is without lawful authority and jurisdiction. [p. 502] X