Per Nazim Hussain Siddiqui J–
(a) Constitution of Pakistan (1973) Arts.184(3), 18 & 25.
Petitioners have alleged violation of fundamental rights guaranteed under Articles 18 and 25 of the Constitution. The questions raised in these petition are of great public importance, which involve interpretation of various provisions of the Constitution. The decision of this Court, one way or the other, will directly affect the entire population of the country.[p.13] F.
(b) Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance (II of 2000)—
Item 5 in the Concurrent Legislative List, Fourth Schedule to the Constitution, speaks about ‘marriage and divorce, infants and minors; adoption’. Walima emanates from Marriage and the Federal Government is competent to enact law on said subject. Indeed, the Federal Government had already enacted law in the shape of Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Ordinance No. II of 2000, which is valid and in force. The Government of the Punjab was not legal competent to enact the Punjab Marriage Function (Prohibition of Ostentatious Displays and Wasteful Expenses) Act (V of 2003). On this point, Article 143 is clear and it reads as under:-
“143. If any provision of an Act of Majlis-e-Shoora (Parliament), which Majlis-e-Shoora (Parliament) is competent to enact, or to any provision of any existing law with respect to any of the matters enumerated in the “Concurrent Legislative List, then the Act of Majlis-e-Shoora (Parliament), whether passed before or after the Act of the Provincial Assembly, or as the case may be, the existing law, shall prevail and the Act of the Provincial Assembly shall, to the extent to the repugnancy be void.”
Perusal of above Article clearly shows that the Punjab Marriage Function (Prohibition of Ostentatious Displays and Wasteful Expenses) Act No. V of 2003 enacted by the Punjab Provincial Assembly is inconsistent with the Ordinance No. II of 2000 promulgated by the Federal Government and as such is void. The Ordinance No. II of 2000 holds the field as it was neither withdrawn nor amended nor struck down by this Court, as such the Punjab provincial Assembly enacted the Punjab Marriage Function (Prohibition of Ostentatious Displays and Wasteful Expenses) Act No. V of 2003 in violation of the spirit of the Constitution. Besides, two materially difference laws on the same subject-one passed by the Federal Legislature and the other by a Provincial Legislature, are against the sprit of federation. Since Federal law has supremacy under Article 143 of the Constitution, as such the law enacted by the provincial Assembly, vis., the Punjab Marriage Functions (Prohibition of Ostentatious Displays and Wasteful Expenses) Act No. V of 2003 being ultra vires is struck down.
Maqbool Elahi Malik, Senior Advocate Supreme Court, Khalil Ahmed Supreme Court,
M. A. Zaidi, Advocate-on-Record and Sh. Masood Akhtar, Advocate-on-Record (absent) for Petitioners.
Syed Shabbar Raza Rizvi, Advocate-General Punjab and Ms. Afshan Ghazanfar, Asstt. Advocate General for Respondents (in Constitutional Petition No.21 of 2004).
Dr. Qazi Khalid Ali, Addl. Advocate-General Sindh.
Jehanzeb Rahim, Advocate-General, N.W.F.P.
Raja Abdul Ghafoor, Advocate-on-Record/Advocate Supreme Court on behalf of Advocate-General Balochistan.
Muhammad Hanif Abbasi (in person) (in C.M.A.No1466 of 2001).
Dates of hearing: 23rd and 24th September 2004.