QUETTA: The Balochistan High Court (BHC) on Tuesday annulled the notification issued by President Dr Arif Alvi for constitution of the 10th National Finance Commission (NFC), ruling that the appointment of NFC members was not in accordance with the constitution.
In its judgement, the court also annulled the appointments of Finance Adviser Abdul Hafeez Shaikh and the federal finance secretary as members of the NFC.
The court, while issuing orders for implementation of Article 160 for the appointment and procedure of members of NFC Awards, remarked that the Balochistan governor should appoint a new member from the province on the recommendation of the provincial government.
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 Pakistan Tehreek-e-Insaf (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 Alvi. The commission will, however, effectively consist of 10 members as the president also authorised PM’s Adviser on Finance Dr Abdul Hafeez Shaikh to chair NFC meetings in the absence of the federal finance minister.
A similar case is pending before the Islamabad High Court (IHC) in which the petitioner, PML-N leader Khurram Dastgir Khan, has submitted that there is no room in the constitution for a PM’s adviser to become even a member of the commission. The commission will have four provincial finance ministers and four non-statutory members representing the provinces and the federal finance secretary as official expert.
In his arguments before the IHC bench, Khan’s counsel Umar Gillani said adviser to the PM could not become a member of the commission and even for appointment of non-statutory members, it is necessary to first consult with the governor of the respective province.
He said under the constitution, the presence of all members of the commission is necessary during a meeting. “The prime minister currently holds portfolio of the finance minister and there are chances that he will not attend the NFC meetings,” he said.
The judge, however, noted that this was an assumption. “Let the NFC meet, you can move the court later if you find any violation of the constitution,” the judge said.
The counsel contended that the NFC has also been delegated task which are beyond its jurisdictions. The forum has also been delegated the power to make estimates in case of natural disasters and security.
The judge noted that the Supreme Court in coronavirus suo motu case interpreted the Article 149 of the Constitution with regard to powers of the federal government.
He asked the counsel to read the SC order and assist the court. “The IHC will issue notices to the respondents in the light of the SC order,” he said.
A five-judge larger bench of the Supreme Court has ruled that the provinces are bound to follow directives of federal government in view of Article 149 (1) & (4) of Constitution –an observation that once again shows the superior judiciary’s predilection for a powerful federation.
According to Article 149 (1), the executive authority of every province shall be so exercised as not to impede or prejudice the exercise of the authority of the federation, and the executive authority of the federation shall extend to the giving of such directions to a province as may appear to the federal government to be necessary for that purpose.
“The executive authority of the Federation shall 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 tranquility or economic life of Pakistan or any part thereof,” it says.
