Implied repeal

2021 PLD 45 PESHAWAR-HIGH-COURT Judicial Precedent

Arts. 2-A, 175 (3), 203 & 264General Clauses Act (X of 1897), S.6

Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), S. 22 (4) [as amended by Khyber Pakhtunkhwa Control of Narcotic Substances (Amendment) Ordinance (II of 2020)]

Control of Narcotic Substances Act (XXV of 1997), Ss.45 & 46

Subordinate judiciary

Control and supervision

Independence of Judiciary

Implied repeal

Defective doctrine

Subsequent consultation with Chief Justice

Effect

Petitioner was aggrieved of amendment inserted on the basis of Ordinance promulgated by Provincial Governor abridging powers of Chief Justice designating Special Courts without consultation with Chief Justice of Peshawar High Court

Validity

Matters of appointment, promotion, posting, transfer and conferment of powers including terms and conditions of service of members of Subordinate Judiciary, were controlled and governed by High Court of the Province

Any legislative enactment in the garb of power of promulgating an Ordinance, for grabbing Constitutionally assigned mandate of Judiciary was not only violative of Arts. 175(3) & 203 of the Constitution but also offended against Constitutional scheme of independence of Judiciary enumerated in Art. 175 of the Constitution and Objectives Resolution

Inappropriate and unwarranted interference with powers vested in Chief Justice and High Court by any Executive Authority, could create an imbalance in Constitutionally empowered organs of the State which resulted into a state of great confusion and turmoil

Division of functions of three main Organs of State were recognized and emphasized by the Constitution

Later statute repealed the earlier statute and by insertion of S.22 in Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, i.e. specific provision for establishment of Court in Khyber Pakhtunkhwa, provisions of Ss.45 & 46 of Control of Narcotic Substances Act, 1997, had lost their efficacy and applicability in Khyber Pakhtunkhwa and was deemed as impliedly repealed

Any amendment abridging powers of Chief Justice and High Court and empowering the Executive Authority to confer power on a judicial Officer or designate a Court without consultation of Chief Justice, not only amounted to intrusion and encroachment on the powers vested in Chief Justice and High Court but also was violative of Arts. 2-A, 175(3) & 203 of the Constitution

Powers conferred upon Sessions Judges, Additional Sessions Judges and Judicial Magistrates 1st Class as Special Court under Khyber Pakhtunkhwa Control of Narcotic Substances (Amendment) Ordinance, 2020, without consultation and consent of Chief Justice of the High Court was in violation of S.22 of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 and Arts. 2A, 175(3) & 203 of the Constitution

Such act of government was void ab initio and holder of the posts of Special Judges as Special Court was to be treated as having exercised powers and functions in a defective capacity

High Court protected all acts done and orders and judgments passed by judges so appointed, including all proceedings under Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, under defective doctrine, as Provincial Government had rectified its mistake through a subsequent notification and had consulted Chief Justice as required under S. 22 of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019

Constitutional petition was allowed accordingly.

2019 YLR 1560 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

Implied repealScope

Where two enactments on identical point/subject were holding the field then Court was to try to harmonize the both but if same could not be done then the Act which was earlier in time would be deemed to have been repealed by the later on the doctrine of 'implied repeal'.

2019 YLR 911 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 6Implied repealPrinciple

Generally, no repeal can be implied in absence of an express repeal unless it can be established that the two statutes/ provisions are inconsistent with each other and cannot co-exist.

2019 PLD 209 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Intent of framers of law/ConstitutionImplied repealParliament/Legislature was not bound by a predecessor or could bind a successor

Determination and principles of Parliamentary supremacy vis-à-vis Legislation, explained.

2018 PLD 498 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 6Implied repealPresumption

Principle of implied repeal recognizes that while it is to be presumed that when enacting a law, legislature was aware of existing state of statute book, it may yet make a law that comes in conflict with earlier legislation

Presumption exists against implied repeal and burden of establishing that same has come about was on the party asserting such repeal

Such is a burden not lightly discharged; it is for party claiming that prior law has been impliedly repealed or overridden to show one or more particular provisions of earlier legislation that is said to conflict with specific provision of latter.

2014 PLD 170 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 3 & 53

Khyber Pakhtunkhwa Medical and Health Institutions and Regulations of Health Care Service Ordinance (XLVII of 2002), Ss.2(k), 3 & 34

Khyber Pakhtunkhwa Medical and Health Institutions Reforms Act (XII of 1999), Ss.2(f), 3 & 19

Ayub Medical College (Board of Governors) Ordinance (XIX of 1978), S. 1

West Pakistan General Clauses Act (VI of 1956), S. 7

Constitution of Pakistan, Arts.199 & 264

Constitutional petition

Implied repeal

Past and closed transaction

Contention of petitioner was that after revival of Ayub Medical College (Board of Governors) Ordinance, 1978, any action taken by Management Council established under Khyber Pakhtunkhwa Medical and Health Institution and Regulations of Health Care Service Ordinance, 2002 was illegal

Validity

Provisions of Khyber Pakhtunkhwa Medical and Health Institutions and Regulations of Health Care Service Ordinance, 2002, were not restricted to 'medical institutions', such as, Ayub Medical College but also extended to other institutions, such as private hospitals, nursing homes, maternity home clinics, laboratories and blood banks

Provisions of Khyber Medical University Act, 2006, were restricted to 'Medical Institutions' such as Ayub Medical College and did not provide any provision for dealing with private hospitals, nursing homes and others, which remained within the domain of Khyber Pakhtunkhwa Medical and Health Institutions and Regulations of Health Care Service Ordinance, 2002

Provisions of Khyber Medical University Act, 2006, did not 'take away' entire subject matter of Khyber Pakhtunkhwa Medical and Health Institutions and Regulations of Health Care Service Ordinance, 2002

Khyber Pakhtunkhwa Medical and Health Institutions and Regulations of Health Care Service Ordinance, 2002, was not impliedly repealed by Khyber Medical University Act, 2006

High Court declared that S.53 of Khyber Medical University Act, 2006, could not repeal Ayub Medical College (Board of Governors) Ordinance, 1978, when the same had already stood repealed by Khyber Pakhtunkhwa Medical and Health Institutions Reforms Act, 1999

Ayub Medical College (Board of Governors) Ordinance, 1978, was not non-existent

Notifications dated 3-7-2009 had no legal application to Ayub Medical College

Actions taken and orders passed in regulating and carrying on affairs and management of Ayub Medical College under Khyber Pakhtunkhwa Medical and Health Institutions and Regulations of Health Care Service Ordinance, 2002, stood protected under principle of 'past and closed transactions' unless the same were varied, set aside or altered in accordance with law

High Court directed the authorities to take all steps to ensure constitution and functioning of Board of Governors of Ayub Medical College, as provided under Ayub Medical College (Board of Governors) Ordinance, 1978 and Regulations of 1980

Petition was allowed accordingly.