ISLAMABAD - Chief Justice Mian Saqib Nisar has observed that the courts should lean in favour of upholding the constitutionality of the legislation.
He further observed that it was incumbent upon the courts to be extremely reluctant to strike down laws as unconstitutional.
“This power should be exercised only when absolutely necessary for injudicious exercise of this power might well result in grave and serious consequences,” observed chief.
He further observed that it was also a cardinal principle of interpretation that law should be interpreted in such a manner that it should be saved rather than destroyed.
Chief justice Mian Saqib Nisar made these observations in a 55-page judgment, authored by him, on different appeals and petitions against orders of at least four high courts of the country entailing the common question of law as to whether the Industrial Relations Act (IRA) 2012 comes under the legislative domain of Parliament.
Chief justice, however, observed that it is well established that this court while considering the vires of a legislative enactment under its powers of judicial review can consider not only the substance of the law but also the competence of the legislature.
The appellants including Sui Southern Gas Company Ltd, Karachi Electric Supply Company, Karachi Electric Ltd, S.M.E. Bank Ltd. Islamabad, Muslim Commercial Bank Ltd and President Meezan Bank Ltd. Karachi had challenged IRA 2012 in relevant high courts mainly on the ground that the same is incompetently enacted by the Parliament as the subject of labour and the trade unions were no more in the legislative domain of the Parliament rather within the domain of the Provincial Assemblies.
The Chief justice while dismissing these appeals observed that it is an accepted principle that no mala fide can be attributed to the legislature.
The judgment, however, further stated that 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.
“It is to be noted that there is always a presumption in favour of the constitutionality of a legislative enactment unless ex facie it appears to be violative of any of the constitutional provisions and in a case where two opinions with regard to the constitutionality of an enactment are possible, the one in favour of the validity of the enactment is to be adopted,” chief justice observed.
“Meaning thereby that when a law is enacted by the Parliament, the presumption lies that Parliament has competently enacted it (law), and if the vires of the same (law) are challenged, the burden always lies upon the person making such challenge to show that the same (law) is violative of any of the fundamental rights or the provisions of the Constitution,” it added.
The judgment ruled that the Federal Legislature has extra-territorial authority but no such extra-territorial authority has been conferred to the Provincial Legislature by the Constitution.
It further ruled that the Federal legislature does, but the Provincial Legislature does not, have legislative competence to legislate to regulate the trade unions functioning at trans-provincial level.
“The IRA 2012 neither defeats the object of the Eighteenth Amendment to the Constitution nor does it destroy or usurp the provincial autonomy. The IRA 2012 has been validly enacted by the Parliament and is intra vires the Constitution,” the top court held.
“The workers of the establishments/industries functioning in the Islamabad Capital Territory or carrying on business in more than one provinces shall be governed by the IRO 2012, whereas, the workers of establishments/industries functioning or carrying on business only within the territorial limits of a province shall be governed by the concerned provincial legislations,” the court further held.
“It is held that the National Industrial Relations Commission (NIRC) formed under Section 35 of the IRA 2012 has jurisdiction to decide the labour disputes, etc., relating to the employees/workers of companies/corporations/institutions/establishments functioning in more than one Province,” it top court ruled.
The top court further ruled that the IRA 2012, being a procedural law, would be applicable retrospectively with effect from May 1, of 2010 when the IRO 2008 ceased to exist.
SYED SABEEHUL HUSSNAIN