ISLAMABAD:
For the first time, the federal government has challenged the judgment of the Federal Constitutional Court (FCC) which had upheld the validity of legislation passed by the Balochistan Assembly, authorizing the provincial government to levy excise duty on minerals to fund social welfare for mining workers.
The federal government, through the Department of Justice, filed a petition for review against the December 11, 2025 ruling written by FCC Judge Aamer Farooq.
The ruling settled a constitutional challenge to amendments introduced by the Balochistan Finance Act, 2020, affirming the province’s legislative jurisdiction to impose the levy and strengthening the post-18th Amendment framework that expands provincial authority over residual matters.
The Court noted that the Eighteenth Amendment to the Constitution consciously adopted the ethos of cooperative federalism.
Challenging the FCC’s decision, the federal government argued that the interpretation given by this court regarding the limits of legislative jurisdiction between the federation and the provinces constitutes a clear deviation from the clear mandate of section 143 of the Constitution and the supremacy of federal legislation.
“The judgment rather disrupted the delicate architecture of the distribution of legislative powers by validating the encroachment of the province into the federal domain. The judgment itself warns not to upset this structural balance and to evaluate the intrusion with a constitutional compass.”
The review petition claimed that the judgment, in an attempt to promote cooperative federalism, forcibly introduced the doctrine of double aspect into the 1967 Act, which is in substance simply a direct exercise of an exclusive power under Entry 44 of the Federal Legislative List (FLL) which includes “excise duties”.
It is cautioned that maintaining this interpretation would not only create a constitutional dilemma, but would encourage other provincial legislatures to easily override federal supremacy by excluding the dual aspects of each federal legislation. This will not only blur the lines between Section 142(a) and 142(c), but will also contribute to making Section 143 redundant,” the review petition states.
It is also stated that the judgment, relying on the doctrine of dual aspect legislation and cooperative federalism, gave carte blanche to the Balochistan provincial assembly to amend Section 3 of the Minerals Excise (Labour Welfare) Act, 1967 through Section 7 of the Balochistan Finance Act, 2020.
The said amendment effectively changed the rate and nature of the excise tax, a matter which is beyond the legislative jurisdiction of the provinces.
“The premise upon which the entire judgment rests reinforces the idea that a single legislative subject can legitimately attract federal and provincial jurisdiction. Moreover, this narrative was framed around the preamble to the 1967 Act, in which a disjointed reading of the preamble divided the objective of the 1967 Act between the imposition of duties being the federal subject and the welfare of labor being a provincial subject.”
It is claimed that the misreading of the preamble to the 1967 Act in the judgment extended provincial jurisdiction into areas that do not fall under the Federal Legislative List (FLA).
“The FLL (along with the concurrent legislative list which existed before the 18th Amendment) has been considered by this court in various judgments in different contexts. The review petition referring to the previous judgment of the SC indicated that this court was faced with the question whether the point ‘electricity’ was a federal or provincial subject (before the 18th Amendment) for the purpose of determining who has the power to determine the tariff of supply of electricity by WAPDA.”
It is also claimed that Pakistan is a democratic state with its federative units (provinces) and that the constitution recognizes and creates a balance between the authority of the federation and the autonomy of the provinces, a recognition which has been given an iron breastplate under the Eighteenth Amendment.
“This amendment to the Constitution notably introduced a drastic improvement in the legislative authority of the provinces by removing the Concurrent Legislative List (CLL), through which previously Parliament and provincial legislatures could legislate on the subjects listed therein.
The omission of the CLL left only one Legislative List (CLL) in the Constitution which exclusively lists the subjects on which Parliament can legislate alone, and under Article 142(c) of the constitution, any subject not enumerated in these two lists would be subject to the constitution, falling within the legislative competence of the provinces.
“After considering Articles 97, 137, 141, 142 and 232(2) of the Constitution, the court held that only the federal legislature, and not the provincial legislatures, had extraterritorial power to legislate. Therefore, the Industrial Relations Act, 2012, which regulated trade unions operating at the trans-provincial level, fell within the legislative jurisdiction of Parliament.”
