Vires of Statutes

Principles stated.

Cardinal principles of construction of statutes stated.

Cardinal principles of construction of statutes stated.

Courts exercise judicial restraint when it comes to the fiscal policy of the State and questions about its rationality and reasonability, in view of the doctrine of separation of powers that forms a foundational basis of the Constitution.

Court must lean in favour of the constitutionality of a legislation.

Ignorance of existing laws, judicial pronouncement, and judicial interpretation of law by the highest judicature of the State could not be attributed to the legislature.

If the statute, or any part thereof, under which relief is sought is ultra vires the Constitution or is against the law laid down by the Supreme Court, the High Court, while declining the relief, would be fully justified and competent to look into the vires of such statute and to declare it ultra vires

High Court would be failing in its constitutional duty if it keeps its eyes shut by allowing such statute to remain in the field.

Only such law is valid and effective which is made in accordance with law and not which violates the law or which will have the effect of frustrating the law

Piece of legislation which is against the command of the Constitution and or the law laid down or direction given by the Supreme Court cannot be applied or enforced.

If the statute, or any part thereof, under which relief is sought is ultra vires the Constitution or is against the law laid down by the Supreme Court, the High Court, while declining the relief, would be fully justified and competent to look into the vires of such statute and to declare it ultra vires

High Court would be failing in its constitutional duty if it keeps its eyes shut by allowing such statute to remain in the field.

Only such law is valid and effective which is made in accordance with law and not which violates the law or which will have the effect of frustrating the law

Piece of legislation which is against the command of the Constitution and or the law laid down or direction given by the Supreme Court cannot be applied or enforced.

Survey of case law from Pakistan and foreign jurisdictions highlighting the conventional jurisprudence with regard to the determination of constitutionality or otherwise of the statutes, particularly statutes dealing with tax, financial and economic matters.

While considering the vires of a legislative enactment under its powers of judicial review, the Supreme Court could consider not only the substance of the law but also the competence of the legislature

Further no mala fide could be attributed to the legislature,however, the bona fides of the legislature as also the purpose and object of a statute may also be considered in the determination of the vires of a statute

Vires of a statute could also be determined on the ground that the legislation was colourable.

While considering the vires of a legislative enactment under its powers of judicial review, the Supreme Court could consider not only the substance of the law but also the competence of the legislature

Further no mala fide could be attributed to the legislature, however, the bona fides of the legislature as also the purpose and object of a statute may also be considered in the determination of the vires of a statute

Vires of a statute could also be determined on the ground that the legislation was colourable.

Court must attribute widest possible meaning (to a statute), and the rule of liberal construction should be followed and every possible effort should be made to save the law rather than destroy it

Even where two views were possible, the one making the enactment constitutionally permissible had to be adopted.

Court must attribute widest possible meaning (to a statute), and the rule of liberal construction should be followed and every possible effort should be made to save the law rather than destroy it

Even where two views were possible, the one making the enactment constitutionally permissible had to be adopted.

Once a statute had been declared as being unconstitutional for any reason, all direct benefits continuing to flow from the same were to be stopped

When a statute (whether existing or repealed) was found to be ultra vires the Constitution, the Court was empowered to examine whether any person continued to enjoy the benefits of the ultra vires statute, or whether any state of affairs continued to exist as a result, and if it was found so, the Court was mandated to undo/reverse the same, provided that the benefit or state of affairs in question was not a past and closed transaction.

Normally the courts made utmost efforts to save a piece of legislation from becoming invalid, but in certain cases, the courts also applied, the doctrine of severance to remove a piece of legislation that distorted the scheme of a parent law, or deviated from the provisions of the Constitution.

Legislature enjoyed much leeway and competence in matters of legislation, but every law enacted may not necessarily be tenable on the touchstone of the Constitution

Legislative competence was not enough to make a law valid

Law must also pass the test at the touchstone of constitutionality to be enforceable, failing which it became invalid and unenforceable.

Absence of Rules may affect the enforceability or operation of the statute, however, for considering the constitutionality or otherwise of a statute on the touchstone of the Constitution or Fundamental Rights, framing or non-framing of the Rules under that statute could hardly be relevant.

Court cannot sit in judgment over the wisdom of legislature and strike it down, except on two grounds, namely lack of legislative competence and violation of any of the fundamental rights guaranteed in the Constitution.

Question as to what was best for the people was to be left to the legislature as it was the members of the legislature that were entrusted with the function to understand the needs of the people who had chosen them

Unless there was brazen violation of any constitutional provision, a statute could not be declared unconstitutional.

Said doctrine required that primacy should be given to the object which the law aimed to achieve rather than to the subjects it dealt with.

Where material provisions of a section contained in a statute were ultra vires the Constitution, and remaining provisions of the same section were incapable of being severed and their presence in the statute would be ineffective and cause further mischief, then entire section could be held to be ultra vires the Constitution

Illustration.

Question as to what was best for the people was to be left to the legislature as it was the members of the legislature that were entrusted with the function to understand the needs of the people who had chosen them

Unless there was brazen violation of any constitutional provision, a statute could not be declared unconstitutional.

Said doctrine required that primacy should be given to the object which the law aimed to achieve rather than to the subjects it dealt with.

Courts generally leaned towards upholding the constitutionality of a statute rather than destroying it, however if a statute was ex facie discriminatory or capable of discriminatory application or violated any provision of the Constitution, it may be declared void ab initio since its inception.

Doctrine of severability permitted a court to sever the unconstitutional portion of a partially unconstitutional statute in order to preserve the operation of any uncontested or valid remainder, but if the valid portion was so closely mixed up with the invalid portion that it could not be separated without leaving an incomplete or more or less mixed remainder, the court would declare the entire act void.

Legislative enactment could be struck down by court only on two grounds, firstly where the appropriate Legislature did not have competency to make the law and secondly, where it (enactment) abridged any of the fundamental rights enumerated in the Constitution or any other constitutional provisions.

Where a court was dealing with the constitutional validity of a taxation law enacted by Parliament or Provincial Legislature, it must have regard to the principles that there was always presumption in favour of constitutionality of a law made by Parliament or a Provincial Legislature; that no enactment could be struck down by just saying that it was arbitrary or unreasonable or irrational but some constitutional infirmity had to be found; that the court was not concerned with the wisdom or unwisdom, the justice or injustice of the law as the Parliament and Provincial Legislatures were supposed to be alive to the needs of the people whom they represented and they were the best judge of the community by whose suffrage they came into existence; that hardship was not relevant in pronouncing on the constitutional validity of a fiscal statute or economic law, and that in the field of taxation, the Legislature enjoyed greater latitude for classification.

Court must be able to hold beyond any iota of doubt that the violation of the constitutional provisions was so glaring that the legislative provision under challenge could not stand

Sans flagrant violation of the constitutional provisions, the law made by Parliament or a Provincial Legislature was not to be declared bad.

Absence of challenge to any particular law or a provision thereof in the past would not make it immune to any challenge in the future.

Illegal morsel gives birth to evils; similarly any legislation which hurts the welfare of the people should not be allowed to stand among the people.

If any Act of the Parliament is found to be in derogation of any provision of the Constitution, it would not be allowed to hold the field because of the mandate of the Constitution, which is supreme to all intents and purposes.

Considerations. The question of constitutionality of a law, or to put it differently, whether a law is intra vires or ultra vires does not depend upon consideration of jurisprudence or of policy; it depends simply on examining the language of the Constitution and of comparing the legislative authority conferred on the Parliament with the provisions of the sub-constitutional law by which the Parliament purports to exercise that authority.

Vires or propriety of a law cannot be assailed though collateral proceedings.

Courts, generally lean towards upholding the constitutionality of a statute rather than destroy it unless such a statute is, ex facie discriminatory or capable of discriminatory application and otherwise clearly violative of any provision of the Constitution.

Function of judiciary is not to legislate or question the wisdom of Legislature in making a particular law nor it can refuse to enforce law even if the result of it be to nullify its own decision, provided the law is competently made

Vires of law can only be challenged being violative of any provision of the Constitution, but not on the ground that it nullifies the judgment of superior Court.

Service Tribunal is competent to go into the vires of the statute or the statutory rules.

Presumption regarding constitutionality of laws is rebuttable-Where on a plain reading of a statute and the Constitution, the legislation is so ultra vires that the same cannot be saved despite a very liberal connotation, it is the duty of Courts to strike down the same.

Legislature is presumed not to legislate a law manifestly causing injustice or abuses of the jurisdiction of legislation

Where such abuses of jurisdiction are manifest the Courts have the exclusive powers to examine the validity of the same.

Doctrine of "pith and substance" -Application It is only where the powers of the Legislature are defined in the Constitution, question in regard to its legislative competence may be raised before the Court. However, while determining the validity of an act .of Parliament, its true character must first be ascertained.

Decision of question of vires of a statute can be safely based upon the rule that a Tribunal or Authority is empowered to decide, if the objection is based on vires, particularly if the power-giving enactment contains machinery which enables a party effectively to raise in the Courts the question whether a particular provision of law is or is not ultra vires.

Unless a validating statute transgresses a Constitutional limit or provision, its vires cannot be questioned solely because it tends to render a declaration of law made by the superior Court to be ineffective.

Statute or any of its provisions can be struck down on the ground being ultra vires of the Constitution.

Intra vires or ultra vires of an Act or an Ordinance depends simply on examining the competence of the legislative authority which enacts them and by no other criterion.

Question of validity or voidance of certain statute arises when a claim for its enforcement is made through a Court of law and Court is to decide vires of the law when question comes up before it to determine one's right or liability.

Order challenged in writ jurisdiction without impleading those students who were to be affected if petitioners were to succeed

High Court held,, that petitioners were not entitled to seek relief without impleading those who were to be affected even though Court, held, that their admissions were not to be disturbed

View upheld by Supreme Court

Leave to appeal refused.

Power of Court to examine-Court itself being a creature of Constitution, its powers are limited to examine legislative competence or to such other limitations as are provided in Constitution.

Vires of statutes-Objectives Resolution-Not a supra-Constitutional instrument - Constitution-Not subject to such Resolution-Objectives Resolution having been incorporated in preamble to Constitution of Pakistan (1972)-Not enforceable through Courts-Nor does Constitution of Pakistan (1972), offend against grund norm in any manner whatsoever.

S. 6Vires of statute-Contention that S. 6 of the Act, having failed to specify amount of fine that could be imposed, Act is bad-Not tenable.