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Importance of Subordinate Legislation to be in harmony with the Principal legislation in Pakistan

Legislation:

Legislation is a rigid law making process, in which the preparation and enactment of laws is done by legislative body.

Principal Legislation:

Primary legislation is the enactment of laws done by the Parliament or any other Primary Legislature.

Subordinate Legislation/ Delegated Legislation:

Subordinate Legislation/ Delegated Legislation is done by Subordinate authority or Subordinate legislative body, which has been given powers from superior authority to legislate, within the specified rules or in accordance with the terms prescribed in parent act. Delegated legislation is the process of law making which proceeds from any other authority other than the sovereign power and therefore is dependent, for its continued existence and validity on some superior or supreme authority. Delegated legislation is thus law made by a person or body other than the legislature but with the legislature’s authority.

Procedure of Legislation:

The legislative procedure is rigid in Pakistan and lengthy as well, in order for a bill to become a law it has to undergo a lengthy legislative process. When a bill regarding federal legislative matter is presented in any house, when it is passed by the house where it was presented then that bill is transmitted to the other house and if the bill is passed in other house without any amendment then it goes to the President for assent. Furthermore, if the bill is passed with amendments through the house where it was transmitted then that amended bill will be sent back to the house where it was initiated. Moreover, if the bill to a house is rejected or is not passed within ninety days or the bill sent to house with amendment is not passed, then on the request of the house where the bill was initiated a joint sitting is called and if it is passed by the majority of the members then it is presented in before the President for assent. This procedure for legislation is described in Article 70 of constitution of Pakistan.

The procedure shows the rigidness of legislative procedure as well as complexity and also shows that the legislative procedure is lengthy as well.

Importance of Delegated Legislation:

Delegated legislation takes off burden from the parliament because if there is no concept of delegated legislation then the workload for the parliament would drastically increase, therefore delegated legislation is essential to take the burden away from the Primary source of legislation.

Moreover, the members of parliament do not have the expertise required to legislate for technical matters. For example, Parliamentary body does not have neither the expertise nor the time to make rules for the administration of an Institute such as Bahria University, which cover all aspects related to university therefore the parliament/ legislature has delegated some powers to the university through an enactment namely Bahria Ordinance 2000, whereby they can make laws for their day-to-day administrative work.

Another reason which shows the importance of subordinate legislation is that it can be used in emergency cases or if an urgent legislation is required for any purpose. Moreover, the parliamentary process of law making is quite lengthy therefore powers are delegated to institutions in order to tackle such situations. For example, an urgent legislation is required in traffic rules, so in this situation subordinate legislation would benefit because it can be done in less time rather than parliamentary or supreme legislation.

Also, the subordinate legislation is flexible and helps to amend the rules and laws, related to an institution, with respect to time and according to the need of society.

Legislature in Pakistan:

Parliament of Pakistan is a bicameral federal legislature that consists of the senate as the upper house and National Assembly as the lower house. There are 104 senatorial seats and a total of 342 seats of National assembly. For any law/ Act to be enacted, a bill must be passed through both the houses with a single majority and any constitutional amendment needs to be passed with a 2/3rd majority.

Subordinate Legislation in Pakistan:

The principle of subordinate legislation is provided under Article 98 of the constitution and it is described under the article that the parliament can delegate their legislative power to officers or authority subordinate to Federal government.

The Subordinate authorities can legislate for themselves by the authority of parliament through subordinate legislation.

Subordinate authorities has been given authority to legislate because the procedure of primary legislation is lengthy and rigid in nature and cannot be adopted for subordinate legislation because subordinate authorities has to legislate to regulate every aspect regarding the constitution and working of authority.

Limitations on powers to delegate

There are certain limitations on the powers to delegate which are as follows:

  • Power to apply future Acts of another legislature. This power cannot be delegated by the primary legislature to the subordinate legislature.
  • Power to modify/ amend/ make changes in the Parent Act. The subordinate legislature cannot modify or make amendments in the Parent Act unless the Act provides for it to do so;
  • Powers that affect policy making. The legislature cannot delegate its essential powers of legislation and the excessive delegation by the Primary legislature is prohibited.

Checks on Subordinate Legislation

There are certain checks that autonomous institutions need to keep in mind when they exercise the powers of delegated legislation. Some of them are as follows:

  • The delegated legislation should be in conformity with the Constitution and the Parent Act;
  • The maxim ‘Delegatus Non Potest Delegare’, which means that a delegated authority cannot further delegate;
  • The rules made by the delegated authority should not give a retrospective effect unless the parent Act allows it to do so, etc.

Subordinate Legislation in conformity with the Principal Legislation:

Due to increase in technology and rapid increase in economic growth, subordinate legislation has become a necessity. In this regards the experts give their opinion that the laws made for any matter or field should be made by the experts in that particular field because they have the required knowledge related to the matter for which legislation is required, So they can legislate better than the supreme law makers in that particular or specified matter.

It is important that subordinate legislation should be in accordance with principal legislation because if it is against or opposite to the any provision of parent act or primary legislation then in this condition the provision of parent act or primary legislation will prevail to the extent of inconsistency.

When any independent institute or body is made through an act of parliament, there are some powers given to that institute or body to make laws for them and for administration of the institute, so the institutions are given the authority to legislate for themselves to administer the work done by them. The basic principal which should be followed by the institutions, while legislating through the authority provided under subordinate legislation is that the principals or rules made by them should be in harmony with principal legislation, otherwise it would not prevail to the extent of inconsistency.

The primary legislation is done by parliament and is also known as principal legislation. In Pakistan, Parliamentary form of government is used to run the state. In the parliamentary system there are two types of legislation one is primary or principal and second is secondary or subordinate.

It is necessary for subordinate legislation to be in harmony and consistent with principal legislation. This principal is also discussed in Article 143 of 1973 Constitution of Pakistan, wherein it is stated that if there is inconsistency between any provision of an Act of any provincial assembly with any provision of an Act of Parliament than Act of Parliament will prevail whether it is made before or after the act of provincial assembly and the act of provincial assembly would be void to the extent of repugnancy.

Conclusion

The subordinate legislation needs to be in conformity with the primary legislation to be valid as the power or authority that the autonomous institutions derive for the purpose of delegated legislation comes from the parent Act under which they are allowed to enact laws and make rules for their administrative work.

However, if there is any conflict between the subordinate legislation and the primary legislation, the primary legislation would prevail. This principle was reaffirmed in the case of Sikandar Mustafa Khan Vs Head of Department (Enforcement), SECP, Islamabad, (2017 CLD 759, [SECP]), where the Honourable Court held that in case there is any conflict between the primary and subordinate legislation, the primary legislation would prevail.

Bibliography

Books

  • Constitution of Pakistan, 1973.
  • Administrative Law, 9th Edition, by Massey, I.P. (Dr.)

Cases

  • Punjab Healthcare Commission V. Mushtaq Ahmad Ch, (2016) PLD (lah) 237. (Pak.).
  • Sikandar Mustafa Khan V. Head of Department (Enforcement) SECP, Islamabad, (2017) CLD 759. (Pak.).

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