High courts’ regular benches alone have powers to strike down legislation: SHC

The Sindh High Court (SHC) on Monday ruled that the high court’s regular benches alone have the jurisdiction and powers to strike down legislation on the touchstone of the Constitution.

The ruling came during hearing identical petitions that challenged vires of the section 31 (8) of the Regulation of Generation, Transmission and Distribution of Election Power Act 1997 (Nepra Act) with regard to imposition of electricity charges when a question arose whether the matter could be heard by a regular bench of the high court or it should be referred to a constitutional bench constituted under the 26th constitutional amendment.

A counsel for the petitioners submitted that the vires of the Nepra Act 1997 alone had been challenged in all these petitions, which fell under the Article 199(1)(a)(ii) of the constitution therefore, a regular bench of high court had the power to decide matters within the scope of the leftover clauses of the Article 199 of the Constitution following the 26th Amendment under the Article 199(1)(a)(ii).

He contended that these petitions could not be decided by the constitutional benches which exercised jurisdiction in terms of the Article 199(1)(a)(i) and Article 199(1)(c) only. He argued that the similarity between the two sub-articles, i.e., Article 199(1)(a)(i) and Article 199(1)(c) was that under both the said provisions, an order had been sought from the high court ‘directing’, either performance of a certain act (writ of Mandamus), or otherwise, directing a restrain from performing a certain act (writ of Prohibition).

A counsel for the K-Electric also adopted arguments of the petitioners on the same point submitting that if these cases were referred to the constitutional bench under the Article 202A(3) for the exercise of its powers under the Article 199(1)(a)(i) or (1)(c) under its ‘special jurisdiction’, the relief sought in the petition could not be considered as no power of issuing a declaration or striking down the law had been conferred thereupon expressly by the Article 202A.

A division bench of the SHC headed by Chief Justice Mohammad Shafi Siddiqui after hearing the arguments of the counsel on the jurisdiction point of view observed that it appeared that after the 26th amendment, the benches/judges of the high courts had been split, including the subject-matter power to grant relief/remedy and to make rules regulating the practice and procedure of the benches (judges) of the high court.

The SHC observed that the two categories of constitution benches may be described as follows: (i) the constitutional bench under the Articles 199(1)(a)(ii) and (b) dealing with all nature of writs of certiorari and habeas corpus, as well as all other reliefs, remedies, powers, jurisdictions, etc. available under the 1973 Constitution excluding the Articles 199(1)(a)(i) and 199(1)(c) and the constitutional bench under the Article 202A having limited powers dealing with restricted subject-matter relief/remedies under the Articles 199(1)(a)(i) and Article 199(1)(c) only.

The court observed that in the case of the Supreme Court of Pakistan, the ouster clause under the Article 191A was very wide as it took away the entire substantive work/assignment vested in the Supreme Court of Pakistan and transferred it to the constitutional benches of the Supreme Court.

The SHC observed that in contrast, the high court’s ouster clause (Article 202A) was narrower because the high court benches (judges) not covered by the Article 199(1)(a)(i) and (1)(c) continued with the otherwise residual constitutional jurisdiction of the high court.

The SHC observed that the courts must uphold and enforce the will of the legislature and observed that in the Article 191A(3)(b), while Parliament had recognised that the high courts could issue judgments on the constitutionality of any law, at the same time, Parliament had not placed such cases within the ouster clause under the Article 202A(3).

The SHC observed that this was all the more striking, given that the amendment inserted both the provisions simultaneously, i.e. 191A(3) and 202(3) and this demonstrated Parliament’s definite intent, and it must be given effect.

The high court observed that after the 26th amendment, the constitutional high court and its constitution bench alone exercised inherent and ultimate jurisdiction and were empowered to grant relief/remedy of declaration within the constitutional framework.

The SHC observed that since the challenge to the vires of a statute would fall under the inherent powers of the high court or under the Article 199(1)(a)(ii) a regular bench of the high court alone had the jurisdiction and powers to strike down legislation on the touchstone of the Constitution.