ISLAMABAD: The Chief Justice of Sindh High Court (SHC) decided to hear and ultimately ruled on the petitions challenging the Section 31 (8) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997.
The petitioners have prayed to the SHC to declare that Section 31 (8) of the Nepra Act is ultra vires of the 1973 Constitution.
A division bench Constitutional High Court comprising Chief Justice SHC Justice Muhammad Shafi Siddiqui, and Justice Jawad Akbar Sarwana heard the petitions.
It noted that since the challenge to the vires of a statute would fall under the inherent powers of the High Court or under Article 199 (1) (a) (ii), “in our opinion, the Constitutional High Court alone has the jurisdiction and powers to strike down legislation on the touchstone of the Constitution.”
“Thus, the instant petitions, which only challenge the vires of Section 31 (8) of the Act, shall remain before this bench and all other like matters,” it added.
The bench said that the Constitutional High Court alone has both the jurisdiction and the power to grant the relief/ remedy sought by the petitioners, if successful, that Section 31 (8) is ultra vires of the 1973 Constitution. This approach is also practicable if Section 31 (8), after hearing the parties at some future date, is declared ultra vires, and then such declaration of the Constitutional High Court can also stand on its own. There is no need for any consequential relief, such as a direction or further direction to be granted by this Court following a declaration by the Constitutional High Court that Section 31(8) in the NEPRA Act, 1997 is illegal/ unlawful/ void. Our decision to continue with the hearing of this lis does not and will not disturb the independence of the judiciary and the balance of trichotomy of power.
It noted that the legislature has ousted part of the jurisdiction of the Constitutional High Court by assigning work to Constitutional Benches created through subject-specific constitutional assignment and its roster. Such ouster clauses prima facie are to be construed strictly and narrowly and cannot be lightly inferred.
In the absence of express words, it cannot be presumed that the constitutional court’s benches/ judges can be deprived of a jurisdiction or powers they have previously exercised. Indeed, a comparison of the ouster clause for the Supreme Court under Article 191A and the ouster clause for the High Court under Article 202A also reveals that the High Court’s ouster clause is narrower than the Supreme Court’s.
It said that in the case of the Supreme Court of Pakistan, the ouster clause under Article 191A is very wide as it takes away the entire substantive work/ assignment vested in the Supreme Court of Pakistan and transfers it to the Constitutional Benches of the Supreme Court. In contrast, the High Court’s ouster clause (Article 202A) is narrower because the High Court benches (judges) not covered by Article 199 (1) (a) (i) and (1) (c) continue with the otherwise residual constitutional jurisdiction of the High Court.
The judgment said that it is settled law that in the case of ousters to the superior courts in the Constitution, the ouster is to be construed strictly in the narrowest meaning possible. Therefore, if there are multiple possible interpretations of such an ouster, the narrowest interpretation must be applied.
The ouster within Article 202A must be construed strictly to its narrowest possible interpretation to only include powers under Article 199(1) (a) (i) and 199 (1) (c). As a consequence of it, all the remaining powers of the Constitutional High Court – whether under Article 199 or inherently conferred – would remain with the other Benches. In other words, it is a misnomer that the exclusive constitutional jurisdiction of the High Court has now been handed to the so-called “Constitutional Benches” under Article 202A.
It noted that the newly created “Constitutional Benches” inherits only the limited and narrow Roster assignment by the Constitution and powers articulated in Article 202A, limiting its legislative assignment to exercising jurisdiction in the High Court under Article 199(1)(a)(i) and Article 199 (1) (c) of the 1973 Constitution only. In its infinite wisdom, the legislature has not blessed the “Constitutional Benches” of the High Court with the entire gambit of constitutional reliefs/ remedies, powers, and jurisdiction.
The relief/ remedy prayed by the petitioners is not covered and cannot be granted by the “Constitutional Benches” under Article 202A of the 1973 Constitution. This bench has competent jurisdiction to continue to hear this matter. The case was adjourned until second week of December.
Copyright Business Recorder, 2024
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