Islamabad - The Islamabad High Court Monday issued notices to federation, secretaries Cabinet Division, Ministry of Law, Ministry of Finance and the chairman of the Federal Board of Revenue in a petition of 32 senators who have challenged substitution of term ‘federal government’ with ‘board’ in the money bill 2017. Though this act all powers and functions of the federal government provided in the taxing statutes have now been shifted and delegated to the FBR.
A single bench of IHC comprising Justice Aamer Farooq conducted hearing of the petition and issued notices to the aforementioned respondents in the petition of senators belonging to opposition parties. After issuing the notices, the court directed them to submit their reply within two weeks.
The 32 senators belonging to Pakistan People’s Party (PPP), Pakistan Tehreek-e-Insaf (PTI), ANP, Jamat Islami, Muttahida Quami Movement (MQM), Pakistan Muslim League and independent filed the petition through their counsel Mohsin Kamal Advocate.
The senators, including Saleem Mandvviwalla, Aitzaz Ahsan, Shahi Syed and Kamil Ali Agha, Senator Khalida Parveen and others nominated federation of Pakistan, secretary Cabinet Division, secretary ministry of law & justice, secretary ministry of finance and Chairman FBR as respondents in their petition.
The petitioners stated that they are elected senators and have a mandate to protect the rights of federating units ensuring that devolution of subjects and power takes place within the constitutional parameters.
They said that ministries of law and finance had introduced finance bill 2017 in the National Assembly whereby it was proposed to amend the Customs Act 1969, Sales Tax 1990 and Federal Excise Act 2005.
Petitioners added that the bill among various other amendments had proposed the substitution of term ‘federal government’ with ‘Board’ with the approval of minister-in-charge and wherever the said term was mentioned in taxing statutes, the Board shall mean the Federal Board of Revenue (FBR) and minister-in-charge the finance minister.
The above bill was introduced by government as ‘Money Bill’ and the provisions for which is contained in Article 73 of the Constitution and the bill was adopted by the National Assembly on June 13, 2017 despite reservations from the opposition benches in the house.
They contended that by substitution of term ‘federal government’ with ‘Board’, all powers and functions of the federal government provided in the taxing statutes have been shifted and delegated to the FBR.
The senators argued that this delegation of powers is in violation of the Article 90, 91 and 99, eighteenth amendment to the Constitution, Rules of Business 1973 and dictum laid down by the Supreme Court in PLD 2016 SC 808. Therefore the substitution of the term is illegal and ultra vires to the constitution.
“Article 1(1) of the Constitution clearly and unambiguously states that Pakistan shall be a federal republic and the constitution of the federation of Pakistan are further specified in article 1(2) as the four provinces, Islamabad Capital Territory and Federally Administrated Tribal Areas (FATA) as such states and territories as are and may be included in Pakistan,” said the petitioners.
The petitioners continued that to protect rights of the provinces, bicameral legislature is in place here in Pakistan. However in the context of money bill there is an exception that it only originates in National Assembly and presented to the President of Pakistan for approval even if Senate of Pakistan not consented to it.
They were of the view that the Ministry of Law and Ministry of Finance in utter disregard of the mandate of constitution delegated powers and functions of the federal government in violation of the constitution.
They added that before 18th amendment, executive authority was lied in President of Pakistan and exercised by him directly or through the officers subordinate to him. After 18th amendment the executive authority is exercised in the name of President by federal government through prime minister and federal cabinet. According to the petitioner, the substitution of term is also against the Rules of Business especially rule 6, 14 and 17. In the light of said judgment it is quite clear that the said amendment could not have had passed in the Finance Act.
The senators raised two basic questions before the court. First, whether the substitution of term ‘Federal Government’ with ‘Board’ with prior approval of minister-in-charge is ultra vires of the constitution & unlawful and secondly whether the federal minister and agency such as ministry of finance and FBR can place continued reliance on the above amendment which is being inserted through money bill/finance act?
They prayed to the court to declare the said amendments as ultra vires of constitution and manner in which this amendment was made unlawful, void ab initio and of no legal effect. The senators further requested the court to direct federation of Pakistan to take immediate action and channelise the said matter, which is not the subject matter of Article 73, by way of beginning of such matter before the federal government and then introduce a regular bill under article 70.