Govt challenges FCC ruling

Files review petition against Dec 11 verdict of constitutional court

ISLAMABAD:

For the first time, the federal government has challenged the Federal Constitutional Court (FCC) judgement which had upheld the validity of legislation enacted by the Balochistan Assembly, empowering the provincial government to levy excise duty on minerals to fund labour welfare in the mining sector.

The federal government through law ministry has filed a review petition against December 11, 2025 judgement which was authored by FCC judge Justice Aamer Farooq.

The decision settled a constitutional challenge to amendments introduced through the Balochistan Finance Act, 2020, affirming the province's legislative competence to impose the levy and reinforcing the post 18th Amendment framework that broadens provincial authority over residual subjects.

The court had noted that the Eighteenth Amendment to the Constitution consciously embraced the ethos of cooperative federalism.

Challenging FCC ruling, the federal government has contended that the interpretation rendered by this court pertaining to the boundaries of legislative competence between the federation and the provinces is in clear deviation to the clear mandate of Article 143 of the constitution and the supremacy of federal legislation.

"The judgment has rather disturbed the delicate architecture of the distribution of legislative powers by validating the encroachment by the province into federal domain. The judgment itself caution to not upset this structural balance and to assess the intrusion with a constitutional compass."

The review petition contended that the judgement in an attempt to further cooperative federalism has forcibly injected the doctrine of double aspect into the 1967 Act which in essence is simply a direct exercise of exclusive power under Entry 44 of the Federal Legislative List (FLL) which includes "duties of excise".

It is being cautioned that alowing this interpretation to subsist will not only create a constitutional conundrum but will encourage other provincial legislatures to easily override federal supremacy by carving out double aspects from every federal legislation. This will not only blur the lines between Article 142 (a) and 142 (c) but will also aid in rendering Article 143 redundant", says the revie petition.

It is also stated that the judgment through its reliance upon doctrine of double aspect legislation and cooperative federalism has given a carte blanche to the provincial assembly of Balochistan to amend section 3 of the Excise Duty on Minerals (Labour welfare) Act, 1967 through section 7 of the Balochistan Finance Act 2020.

The said amendment has effectively altered the rate and nature of the excise duty a matter being beyond the legislative purview of the provinces.

"The premise upon which the entire judgment is built furthers the notion that a single legislative subject may legitimately attract both federal and provincial competence. Moreover, this narrative has been designed around placing reliance on the preamble of the 1967 Act wherein a disjoint reading of the preamble has divided the objective of the 1967 Act into imposition of duty being the federal subject and welfare of the labour being a provincial subject".

It is contended that the misplaced reading of the preamble of the 1967 Act in the judgment has overstretched the provincial jurisdiction into matters that do not fall within the Federal Legislative List (FLL).

"The FLL (along with the Concurrent Legislative List that existed prior to the 18th Amendment) have been considered by this court in various judgments in differing contexts. The review petition referring earlier SC judgement said that this court was faced with the question as to whether the item of "electricity" was a federal or provincial subject (prior to the 18th Amendment) for the purposes of ascertaining who has the power to determine the tariff for electricity supply by WAPDA".

It is also contended that Pakistan is a democratic state with its Federating units (provinces) and the constitution recognizes and creates a balance between the authority of the federation and the autonomy of the provinces, which recognition has been given an iron cladding by virtue of the Eighteenth Amendment.

"This Amendment to the constitution has inter alia introduced a drastic enhancement in the legislative authority of the provinces by deleting the Concurrent Legislative List (CLL), whereby previously both the parliament and the provincial legislatures could legislate on the subjects enumerated therein.

The omission of the CLL, left only a single Legislative List (CLL) in the Constitution which exclusively list subjects that can be legislated upon by the Parliament alone, and by virtue of Article 142(c) of the constitution any subject not enumerated in these two lists would subject to the constitution, be within the legislative competence of the provinces.

"After considering Articles 97, 137, 141, 142 and 232(2) of the constitution, the court found that only the federal legislature, and not the provincial legislatures has extra-territorial authority to legislate, therefore the Industrial Relations Act, 2012 which regulated trade unions functioning at a trans-provincial level was within the legislative competence of parliament".