4387/2014 Const. P. Pakistan Tibbi Pharmaceuticals Manufacturers (Petitioner) V/S Fed. of Pakistan and Ors (Respondent)
Sindh High Court
Bench: Hon'ble Mr. Justice Omar Sial, Hon'ble Mr. Justice Munib Akhtar(Author)
Order Date: 26-FEB-18
The petitions arise under and in relation to the Drug Regulatory Authority of Pakistan Act, 2012 (DRAP Act). petitioners contend, the DRAP Act cannot, does not and should not apply to various products as manufactured, sold, used or imported by them, including Unani medicines, prescriptions and preparations, We start with the first set of questions, which relate to the constitutionality of the DRAP Act as enacted under Article 144. This Article originally had two clauses, of which the second was omitted by the 8th Amendment in 1985. two changes made by the 18th Amendment, one was necessitated by the omission of the Concurrent List, and need not detain us. The other, which will require some comment, was that originally Article 144 applied only if two or more Provincial Assemblies passed the necessary resolutions. The present Constitution of course had two Legislative Lists on its commencement. The competences listed in the Federal List were exclusive to the Federation, those on the Concurrent List were common, and those which were not enumerated were exclusive to the Provinces. VThat ability of course is one of the defining characteristics of federal legislative power, since in respect of matters that lie in the Federal domain by right Parliament can make laws for the whole of Pakistan or any part thereof. It would be unduly restrictive of the purpose and intent behind Article 144 if Parliament, while making the law for which it has been given power cannot include therein provisions that relate to matters in the Federal domain as of right. Secondly, a provincial law made subsequent to the law made by the Federation under Article 144 may override or impliedly repeal the latter. This follows directly from the express provision that the Provincial Assemblies may amend or repeal the law made by Parliament. The 1976 Act, in like manner, fractured and receded. It became provincial legislation and hence territorially bound. It now so operates in this and all other Provinces. It must be kept in mind that this position has remained unaltered, and is unaffected by the enactment of the DRAP Act under Article 144. Whatever may be the relationship of, and interaction between, the two laws, the 1976 Act does not now transcend or cross provincial boundaries in the manner of the DRAP Act. It is therefore our conclusion that in the present case, the scope of the legislative competence entrusted to Parliament in terms of Article 144 is governed by the terms of the resolution passed by the Punjab Assembly. Within 30 days of announcement of judgment the Authority under the DRAP Act shall issue proper guidelines, Simultaneously with posting the guidelines on its website, the Authority shall issue notice to each petitioner in the petitions to which this para applies. Interim orders made in any petition to which this para applies shall continue but will lapse 30 days from the date on which the guidelines are posted as above or the date on which the determination is made, whichever is later. following petitions are dismissed: CP D-4387/2014 and CP D-1684/2017. e following petitions are disposed off in terms of para 50 herein above: CP Nos. D- 6532/2014, 2623/2016, 6262/2016, 6263/2016, 6264/2016, 6265/2016, 6310/2016, 6820/2016, 7134/2016, 7135/2016, 1135/2017, 1921/2017, 2329/2017, 424/2017, 4421/2017, 5237/2017 and 5892/2017.Full judgment text for this case is not yet available on Pakistan Law Reports. Check the official Sindh High Court case law portal for the complete order.
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