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IMPLIED REPEAL
In Dr. Tariq MehmoodMian v Government of Punjab and Others [W.P. No 1671/2012], the petitioner contends that the Allopathic System (Prevention of Misuse) Ordinance, 1962 and the rules framed thereunder, ie Allopathic System (Prevention of Misuse) Rules, 1968 have as a consequence of the enactment of the Punjab Healthcare Commission Act, 2010 been impliedly repealed. This contention, however, is ill founded for it is based on a misunderstanding of not only the doctrine of implied repeal but also the scope and object of the Punjab Healthcare Commission Act, 2010 itself.
It has to be mentioned at the very outset that the courts do not look with favour upon the concept of implied repeal of statutes. In fact, the presumption in such circumstances is always against the intention of the legislature to repeal by implication. The absence of an express provision in a statute for the repeal of a prior law gives rise to this presumption. The intent to repeal must clearly appear, and such a repeal will be avoided if at all possible. The presumption against the intent to repeal by implication rests upon the assumption that the legislature enacts laws with the complete knowledge of all existing laws pertaining to the same subject, so that the failure to add a repealing clause indicates that the intent was not to repeal existing legislation on the matter.
Given this background, one can safely assume that since the Punjab Healthcare Commission Act, 2010 contains no express clause that outrightly repeals the Allopathic System (Prevention of Misuse) Ordinance, 1962 and seeks to destroy the Ordinance’s effectiveness in futuro , the presumption against its repeal by implication survives in the instant case.
The presumption referred to above is only overthrown in the context where the new law is inconsistent with or repugnant to the old law, for the inconsistency or repugnancy reveals an intent to repeal the existing law. This is a well established principle, and has been consistently relied on by the courts in the past. AnwarulHaq, CJ in the case titled Abdul Samad v Ahmad Khan Lodhi [PLD 1972 Lah 41] relied on this principle while delivering his judgment. The relevant portion of the said judgment is reproduced below:
- “The doctrine of implied repeal as expounded by CraiesC at. page 365 of his Book on Statute Law (Sixth Edition) clearly lays down that-
‘ where two Acts are inconsistent or repugnant, the later will be read as having impliedly repealed the earlier. The Court leans against implying a repeal, `unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied. Special Acts are not repealed by general Acts unless there is some express reference to the previous legislation or unless there is necessary inconsistency in the two Acts standing together'........ Before coming to the conclusion that there is a repeal by implication the Court must be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together before they can, from the language of the
later; imply the repeal of an express prior enactment i.e., the repeal must, if not express, flow from necessary implication .’”
(Emphasis Supplied)
The same principle was reiterated by NizamHussaidSidduiqui, J in the case titled Mumtaz Ali Khan Rajban and Another v Federation of Pakistan and Others [PLD 2001 SC 169] in the following terms:
- “... it is significant to note that the general rule is that no repeal can be implied, unless there is an express repeal of an earlier Act by the later Act, or unless it is established that the two Acts cannot stand together. However, a repeal by implication is possible, as laid down in N.S. Bindra's Interpretation of Statutes, Eighth Edition, page 829/830 in the following circumstances:
‘ (1) If its provisions are plainly repugnant to a subsequent statute ...’”
(Emphasis Supplied)
The inconsistency or repugnancy between two statutes necessary to supplant or repeal the earlier one must be more than a mere difference in their terms and provisions: the two statutes must be absolutely repugnant or irreconcilable. Otherwise, there can be no implied repeal, for the intent of the legislature to repeal the old enactment is utterly lacking. One of the main contentions raised by the petitioner is that since the Punjab Healthcare Commission Act, 2010 explicitly provides under section 2(xxix) that a person who is a healthcare service provider and is not registered with the Medical and Dental Council is a “quack” and since the Allopathic System (Prevention of Misuse) Ordinance, 1962 does not contain any provision to this effect, the Ordinance should be held to have been impliedly repealed by the Act.
Firstly, it has to be seen that this contention of the petitioner is misconceived. It was expressly acknowledged by ManzoorHussainSial, J in the case titled Kemal Sharif Rana and Others v Province of Punjab [PLD 1985 135] that the Allopathic System (Prevention of Misuse) Ordinance, 1962 had the objective of eliminating quackery. Like the petitioners in the present petition, the respondents contended that the 1962 Ordinance had been repealed by Pakistan Medical and Dental Degrees Ordinance, 1982 and that individuals who were not registered according to the provisions of the 1982 Ordinance were quacks as they had only been granted permits to practice under the Allopathic System (Prevention of Misuse) Rules, 1968. This contention of the petitioners, as noted above, did not hold.
Secondly, and more importantly, just because the Punjab Healthcare Commission Act, 2010 introduces a new criteria need not necessarily entail that the Allopathic System (Prevention of Misuse) Ordinance, 1962 has been impliedly repealed. It only means that the concerned healthcare service providers need to conform with both the requirements laid down in both the Allopathic System (Prevention of Misuse) Ordinance, 1962 and also the Punjab Healthcare
(Emphasis Supplied)
This principle was reiterated by AnwarulHaq, CJ in the case titled Abdul Samad v Iqbal Ahmad Khan [PLD 1965 Lah 41]. It was argued by the petitioners in this case that since the subject of preventive detention had been specifically dealt with in the West Pakistan Maintenance of Public Order Ordinance, 1950, it impliedly repealed the relevant portions of section 14 (1) (d) of the West Pakistan Control of Goondas Ordinance, 1959. However, his Lordship dismissed this contention of the petitioner in the following manner:
- “... The two Ordinances are designed to deal with entirely different situations and different categories of persons. The Goondas Ordinance (XXXV of 1959) is intended for consolidating and amending the law relating to the control of disorderly persons, commonly known as Goondas, in the Province of West Pakistan. It is not necessary to reproduce here the various sections of this Ordinance. It would suffice to observe that the entire scheme of the Ordinance is to deal with persons who indulge in causing annoyance and injury to individual members of the society, and whose acts tend to corrupt public morals and disturb public peace and tranquility. The power to restrict movements of disorderly persons or Goondas, after the necessary declaration has been made under section 13 of the Ordinance, is an ancillary power to control their activities as a corrective measure.
- The object of the West Pakistan Maintenance of Public Order Ordinance, 1960, on the other hand, is "to amend and consolidate the law providing for preventive detention and control of persons and publications for reasons concerned with public safety, public interest and the maintenance of public order in the Province of West Pakistan". A reference to the various provisions of this Ordinance shows that it is intended for the purpose of dealing with activities prejudicial to public order and safety of the realm. The object of this Ordinance is not to deal with disorderly and anti-social individuals who get drunk or indulge in criminal activities by intimidating or annoying their fellow citizens. The preventive detention prescribed in the 1960 Ordinance is obviously of a political nature and not intended to curtail or restrict the ordinary anti-social and criminal activities of Goondas. The two statutes being thus entirely different in their scope and purpose, the question of implied repeal of the Goondas Ordinance hardly arised .”
(Emphasis Supplied)
The Allopathic System (Prevention of Misuse) Rules, 1968 specifically deal with applications by persons other than medical practitioners for the permission to prescribe antibiotics and other dangerous drugs. Rule 3 of the Allopathic System (Prevention of Misuse) Rules, 1968 is reproduced below for reference:
3. Applications for permission to prescribe anti-biotics etc.-(1) Any person, other than a medical practitioner, desirous of prescribing any antibiotic or dangerous drug shall make an application in Form 1 to Government through the District Health Officer, Civil Surgeon or Agency Surgeon as the case may be, for the area where the applicant ordinarily resides, for the grant of a permit.
(2) If the application is in the proper form and the applicant appears to be a person eligible for the grant of a permit to prescribe anti-biotic or dangerous drugs, the officer receiving the application shall forward the same to the appropriate Regional Screening Board Committee constituted under rule 5.
On the other hand, the Punjab Healthcare Commission Act, 2010 deals with healthcare services generally. It is not limited to just those individuals who although are not medical practitioners and wish to prescribe antibiotics and other dangerous drugs. This category of subjects is specifically covered by the Allopathic System (Prevention of Misuse) Rules, 1968. The broad scope and the general nature of the Punjab Healthcare Commission Act, 2010 is clearly evident from the definition of the subjects it seeks to govern, i.e. “healthcare service providers” as enshrined in Section 2 (xvii):
“healthcare service provider” means an owner, manager, or in-charge of a healthcare service establishment and includes a person registered by the Medical and Dental Council, Council for Tibb, Council for Homeopathy or Nursing Council”
Moreover, due to the broad scope of the Punjab Healthcare Commission Act, 2010, it can safely be said that the said Act is a general law on the subject of healthcare services. ManzoorHussainSial, J while asserting that the Pakistan Medical and Dental Degrees Ordinance, 1982 could not impliedly repeal the Allopathic System (Prevention of Misuse) Ordinance, 1962 held that this was so because the 1982 Ordinance did not deal with the entire field of Allopathic System of Medicine exhaustively. While, on the other hand, the 1962 Ordinance did. The relevant section of the above quoted judgment is reproduced hereunder:
“As observed earlier, 1982 Ordinance is not exhaustive to cover the entire field of Allopathic System of Medicine. It operates in line with the 1962 Ordinance and Medical and Medical Council Ordinance XXXII of 1962 to achieve the common objective. In result, I hold that the doctrine of implied repeal cannot be pressed into service in the present case.”
Hence, it is clear that the Allopathic System (Prevention of Misuse) Ordinance is a special law dealing specifically with the Allopathic System exhaustively. It is a settled principle that in the construction of general and special acts, the maxim ‘generaliaspeciabilus non derogant’ applies, and a general act will not be held to repeal or modify a special one embraced within the general terms of the general act.
It is pertinent at this juncture to refer to the judgment of HamoodurRehman J in the case titled Abdul A’laMaudoodi v Government of West Pakistan [PLD 1964 SC 673]. In the instant case, the petitioner had contended that the Political Parties Act, 1962 was a general law that governed the conduct of political parties. HamoodurRehman, J, however, dismissed this contention of the petitioner. He ruled that the effect of section 3 of the Political Parties Act, 1962 could not be construed as rendering the operation of other statutes (the Criminal Law Amendment Act, 1908 in particular) inapplicable. He held that the Act of 1962 had nothing to do with the maintenance of law and order, and just because a particular activity of a political party which was prejudicial to the maintenance of law and order but did not come within the mischief of section 3 of the 1962 Act did not mean it would not be caught under the Criminal Law Amendment Act, 1908 - an Act that dealt specifically with the maintenance of public order.
wide in its scope and impact as compared to the provisions of the Customs Act. In this respect the Customs Act, 1969 is to be treated as a special Act while P.O. 4 of 1979 as a general Act. Under the provisions of Customs Act only under special circumstances when bringing in and taking out of Pakistan of narcotics and psychotropic substance is prohibited under a notification issued by the Federal Government only then such bringing in and taking out or an attempt or abatement thereof is punishable under the Custom Act, while under P.0.4 of 1979 possession of every kind, of intoxicants, its transportation, manufacturing, processing, bottling', selling and serving is made punishable. The purposes and objects of the two legislations are, therefore, quite different. The promulgation of P.0.4 of 1979 has neither altered the offence of smuggling nor its punishment. Mere fact that under the provisions of P.O.4 of 1979 the act of import and export of a narcotic could also be punished is not sufficient to hold that there is conflict between the provisions of the Customs Act and P.0.4 of 1979 and the two cannot stand together consistently. ” (Emphasis Supplied)
In the case titled Inspector-General of Punjab Police, Punjab v Mushtaq Ahmad Warraich [PLD 1985 159] the respondents took the stand that seniority on promotion was to be ascertained by Section 7 (2) of the Punjab Civil Servants Act, 1974 which provided that seniority and promotion shall take effect from the date of regular appointment and not from the date of confirmation as enjoined by rule 12.2 of the Punjab Police Rules, 1934. The reason for this being that the Punjab Civil Servants Act, 1974 was a later Act, and so it impliedly repealed the Punjab Police Act, 1861 and the Rules framed thereunder. Muhammad Haleem, CJ, however, dismissed this contention of the petitioner. He ruled that the Punjab Police Act, 1861 was a special law that could not be repealed by implication by a later general law on the subject matter. The relevant portion of the said judgment is reproduced below:
“The Civil Servants Act is an Act of general application and as earlier said it has no constitutional status…In this view of the matter, as to which would prevail over the other in case of inconsistency is of no difficulty it should not be forgotten that the Police Act and the rules framed thereunder are such as would be applicable to a disciplined force while the Civil Servants Act cannot serve this purpose.”
AmmadManzur
