Distribution of Legislative Powers

Question before the High Court was whether the Punjab Healthcare Commission Act, 2010 was ultra vires the Constitution on ground that it sought to regulate the medical profession, which fell within the domain of the Federal legislative power, under the Federal Legislative List of the Constitution

Held, that the Punjab Healthcare Commission Act, 2010 did not regulate the medical profession as the provision of healthcare services, establishment and service providers were to be regulated by the Punjab Healthcare Commission and such subjects did not fall under the subject of medical profession and rather fell within the ambit of public health or healthcare

Registration and licensing in any regulatory regime was fundamental for the authority to fulfil its objective and mandate, thus Punjab Healthcare Commission was required to create system of clinical governance and healthcare

Such function was distinct and separate from registering the profession of medical practitioner, therefore the Punjab Healthcare Commission Act, 2010 was not ultra vires the Constitution and the mandate of the Punjab Healthcare Commission Act, 2010 fell squarely within the Provincial domain

Constitutional petition was dismissed, in circumstances.

Martial Law had seriously disruptive and distorting effect on constitutional law and principles, and it disturbed the distribution of legislative power between the Federal and Provincial legislatures

Example (of a statute or law) from a time when the Constitution was in abeyance and the country under Martial Law was not a good example for how the federal nature and structure of the Constitution was to work in normal circumstances.

Reading exclusivity of Federal legislative competence under Art.142(a) of the Constitution in situations where there was vertical sharing of legislative power between Federation and Province(s)

Cooperative/participatory federalism, concept of

Cooperative federalism as an intrinsic part of the Constitution of Pakistan

Horizontal and vertical sharing of Legislative powers between the Provinces and Federation

Concept of cooperative federalism prevails over and dilutes legislative exclusivity in Art.142 of the Constitution into a workable and Constitutionally compliant inclusivity

Nature, scope and extent of legislative exclusivity of Art.142 of the Constitution

Application of Art.143 of the Constitution in situations where Federal and Provincial Legislatures were locked in an unavoidable and ineluctable direct conflict

Concept of cooperative / participatory federalism, in the context of legislative powers of the Federation and the Provinces, extensively discussed.

Cooperative Federalism, being an intrinsic part of Constitutional design, was also an effective and potent interpretative tool for the courts

Overlap in legislative space between the Federation and the Province and the limits of exclusivity under Art.142 of the Constitution could be resolved through purposive interpretation with said Constitutional purpose in mind

Article 142 of the Constitution opened with words, "subject to the Constitution," which meant that while interpreting said Article, other provisions of the Constitution and foundational Constitutional principles envisaged in the Constitution would take preference over Art.142 of the Constitution

Legislative subjects where there was overlap, had to be contextualized within the Constitutional architecture of Federalism and made to coexist under principles of cooperative federalism

Courts must, therefore, favour functional coexistence of the Federal and Provincial statutes in cases where there was vertical sharing or an overlap of legislative powers

Cooperative federalism flowing through the Constitution helped prevail over and dilute the exclusivity of Art.142 into a more workable and Constitutionally compliant inclusivity; giving both the Legislatures space to co-exist and only in cases of irreconcilable inconsistency between the Federal and Provincial statutes, Art.143 of the Constitution provided a solution, but only as a last recourse.