Pandemic case affects challenge to NFC composition

Updated 24 May 2020


IHC delays hearing of NFC composition challenges following SC's observation regarding powers bestowed to provinces. — Dawn/File
IHC delays hearing of NFC composition challenges following SC's observation regarding powers bestowed to provinces. — Dawn/File

ISLAMABAD: The Supreme Court’s recent observation regarding the exercise of executive authority between federal and provincial governments has led the Islamabad High Court (IHC) to postpone the hearing of a challenge to the National Finance Commission (NFC) composition.

“There has been a recent order of the Supreme Court on the coronavirus pandemic case that reflects a paradigm shift in the jurisprudence on the Centre and province relationship,” Justice Mian Gul Hassan Aurengzeb observed while hearing a petition of the main opposition party in the National Assembly against the May 12 composition of the NFC.

“We have to keep this in mind before deciding the fate of the petition,” said Justice Aurengzeb before postponing the proceedings till May 28.

The petition was filed by Pakistan Muslim League-Nawaz lawmaker Khurram Dastgir Khan.

“Now the high court will have to consider the Supreme Court’s recent jurisprudence before deciding the matter at hand,” Advocate Umer Ijaz Gillani, who represented the petitioner before the IHC, told Dawn.

IHC observes SC order reflects paradigm shift in jurisprudence on Centre-provinces relationship

While hearing a suo motu case on government’s measures to combat the deadly coronavirus pandemic on May 19, a five-judge larger bench headed by Chief Justice of Pakistan Gulzar Ahmed had mentioned Article 149(1)(4) of the Constitution that deals with the direction to provinces in certain cases.

The provision says that the executive authority of every province will be exercised in such a manner not to impede or prejudice the exercise of the executive authority of the federation and that the executive authority of the federation will extend in giving directions to a province as may appear to the federal government to be necessary.

Similarly, Clause 4 of the Article 149 says that executive authority of the federation will also extend to the giving of directions to a province as to the manner in which the executive authority thereof is to be exercised for the purpose of preventing any grave menace to the peace or tranquillity or economic life of Pakistan or any part thereof.

In its order, the SC stated that the provision clearly showed that Covid-19 obviously was a grave menace to the peace, tranquillity and economic life of Pakistan and thus, the executive authority of the federation would stand extended to giving of the directions to the provinces to prevent the menace.

Explaining the challenge that the IHC had taken up on May 21, Advocate Gillani said the Pakistan Tehreek-i-Insaf (PTI) government on May 12 formed the 10th NFC to announce the new award. Subsequently, the finance ministry notified the constitution of an 11-member commission after approval by the federal and provincial members and its terms of reference by President Arif Alvi. However, the NFC would effectively be comprising only 10 members, because in the absence of the federal finance minister, Adviser to the Prime Minister on Finance Dr Abdul Hafeez Shaikh was authorised by the President to chair the NFC meetings.

The petition filed by the opposition party legislator contended that for the appointment of non-statutory members of the NFC, i.e. members other than the Minister of Finance, it was necessary to first consult the governors of the provinces under Article 160 of the Constitution, but the government did not follow it.

‘Assemblies job being given to NFC’

Besides, the IHC was apprised during the hearing that the NFC had also been delegated a task that was beyond its jurisdiction, as its mandate was to distribute the proceeds of the federal taxes which fall in the divisible pool.

Under Articles 80 and 122 of the Constitution, the issue of expenses falls under the mandate of National Assembly and the provincial assemblies, which pass their respective annual budget statements, the counsel for the petitioner argued.

But the ToRs of this NFC also included expenses incurred on security, debt repayment, natural disasters, and losses of the state-owned enterprises, he said, adding that this was against the scheme of Centre-province relationship as per the Constitution.

The petition also pleaded to declare the May 12 notification as illegal and ultra vires of Article 160(1) and (2) of the Constitution.

It argued that in the exercise of their functions under Article 160, the President was bound to act in accordance with the advice of the federal cabinet or the Prime Minister and the absence of such advice would render the appointments process defective.

The petition also urged the IHC to declare that any proceedings of the NFC where even one of the duly appointed members was absent would be void as Article 160 did not provide for any minimum operational quorum.

As the May 12 notification could not be given retrospective effect, any proceeding of the NFC that took place before May 12 were of no legal effect.

The petition also contended that any recommendations of the NFC must be expressed in terms of a unanimous view as per Article 160.

Published in Dawn, May 24th, 2020