ISLAMABAD               -          The Islamabad High Court (IHC) Thursday issued notices to the federal government in a petition of Engineer KhurramDastgir Khan Member National Assembly (MNA) belonging to Pakistan Muslim League-Nawaz (PML-N) challenging the notification regarding constitution of National Finance Commission (NFC).

A single bench of IHC comprising Justice Miangul Hassan Aurangzeb conducted hearing of the petition and directed the federation to submit its reply in this regard. The court also sought replies from the law secretary, Adviser to PM on Finance Dr Abdul HafeezShaikh, the president’s secretary, cabinet division secretary and other parties.

During the hearing, petitioner’s lawyers Barrister MohsinShahnawazRanjha and UmerGilani advocate appeared before the court. The counsel stated before the court that media reports showed that Sindh Chief Minister Murad Ali Shah had also expressed reservations on the formation of the NFC.

Expressing anger over it, the IHC bench remarked that the counsel would do better to stick to the facts. He also warned that there would be penalization if the petition is rejected. The bench observed that the case should have been based on the inclusion of the PM’s adviser without any consultation.

The petitioner’s lawyer adopted that the Constitution of Pakistan explicitly states that the country is to be run by elected representatives. He contended that nowhere in the constitution does it state that the PM’s adviser on finance can be the convener instead of the finance minister.

Later, the court issued notices to the respondents and deferred the hearing in this matter for further proceedings.

The NFC is meant to distribute financial resources among the federal government and the provinces. It includes distribution of taxes collected by the federal government which form a divisible pool. According to Article 160 of the Constitution, the president constitutes the NFC after every five years for a period of five years. Once there is a consensus of all stakeholders on a particular formula to distribute the finances, the award is implemented for the next five years. The PTI led federal government on May 12 formed the 10th NFC to announce the new award. The Ministry of Finance notified constitution of the 11-member commission after approval by federal and provincial members and its terms of reference by President ArifAlvi. The commission will, however, effectively consist of 10 members as the president also authorized the Adviser to the Prime Minister on Finance Dr Abdul HafeezShaikh to chair NFC meetings in the absence of the federal finance minister.

In his petition, Dastgir requested the court to declare the said notification as illegal being ultra vires sub-articles (1) and (2) of Article 160 of the Constitution. He filed the petition through his counsel Barrister Mohsin Nawaz Ranjha and cited President of Pakistan through his secretary, Federal Government through secretary cabinet division, Secretary Finance, Secretary Law and Dr Abdul Hafiz Sheikh Advisor to Prime Minister as respondents.

He stated in the petition that the basic framework of the state structure laid down by the colonial masters of the sub-continent was a centralized, centralizing and unitary structure and the winning provincial autonomy and fiscal de-centralization was one of the principle demands of our independent movement.

He adopted, “In pursuance of ideals espoused by our independence movement, the Preamble of the Constitution makes it abundantly clear that Pakistan shall be a federation of otherwise autonomous units and not a unitary state.”

The PML-N leader continued that the most important institution created in the Constitution for this purpose i.e. determining the center-province revenue distribution ratio is the National Finance Commission and this institution has been a part of every single Constitution of Pakistan and has been progressively empowered. Then he quoted a paragraph from the said impugned notification saying, “The President is further please to authorize Advisor the Prime Minister on Finance and Revenue to chair the meetings of the NFC in the absence of Federal Finance Minister.”

The petitioner contended that this paragraph of the notification gives rise to a reasonable apprehension that the federal finance minister intends to absent himself from at least some of the meetings of the Commission. He added that it further conveys the legal misunderstanding that there can be a Commission in the absence of the Federal Minister for Finance.

He termed the notification as unconstitutional and liable to be set aside. He prayed to the court to declare that in the exercise of their functions under Article 160, the President is bound to act on and in accordance with the advice of the Federal Cabinet or the Prime Minister where the Governors of the Provinces are bound to act on and in accordance with the advice of the Provincial Cabinets or the Chief Minister and absence of such advice shall render the appointments process defective.

He also requested the court to declare that any proceedings of the commission where even one of the duly appointed members of the Commission is absent shall be void since Article 160 does not provide for any minimum operational quorum.

The petitioner further prayed to the court to declare that impugned notification dated 12th May, 2020 cannot be given retrospective effect and any proceeding of the Commission which took place prior to May 12, 2020 were of no legal effect.