A constitutional writ petition was filed in Peshawar high Court today under Article 199 of the Constitution challenging the recently constituted NFC by the President urging the Court to declare null and void the notification of May 12 this year constituting the NFC.
The four petitioners describing themselves as ‘concerned citizens’ are former Senator Afrasiab Khattak, former Senator Farhatullah Babar, MNA Mohsin Dawar, former MNA Bushra Gohar and are represented by Advocates Latif Afridi and Advocate Sangeen Khan.
The President, the Federal Secretaries Finance, Cabinet and Law Divisions besides Chief Secretary and Secretary Finance Khyber Pakhtunkhwa and Abdul Hafeez Sheikh Advisor to Prime Minister have been named as respondents
The petitioners have maintained that the additional terms of reference as mentioned in the notification are far beyond the scope of Article 160 of the Constitution and therefore of no legal effect.
The additional TORs mentioned in the NFC include allocation of resources to Azad Government of the States of Jammu and Kashmir, Government of Gilgit Baltistan and newly merged districts of Khyber Pakhtunkhwa (erstwhile FATA), security and disaster management, repayment of debt, sharing losses made by State-owned enterprises.
The matters of the public debt of Federation including foreign loans and foreign aid are covered under entry No. 10 of the Part I of the Federal Legislative Act and Parliament has the exclusive jurisdiction to legislate on the matter. Inclusion of public debt as an item for the National Finance Commission is against the scheme of Constitution and the express provisions governing the subject.
“These additional terms of reference are beyond the scope of the National Finance Commission (NFC) are far beyond the scope of Article 160 of the Constitution and the President of Pakistan has no lawful authority to tamper with the powers and scope of the NFC” the petitioners maintained.
The impugned notification has not only been issued in violation of the constitution and the Rules of Business, 1973 it is also silent whether the President acted on his own or upon the advice of the Federal Government. The nominations for non-statutory members also required advice of the Governors of respective provinces who in turn remained oblige to act upon the advice of the respective provincial governments in terms of Article 105 of the Constitution. But the notification is silent on this also, says the petition.
The illegal induction of members including the so-called official expert is intended to tamper the 10th NFC Award and reduce the share of provinces it said.
Distribution of resources have always remained a matter of serious concern for the provinces. The Seventh NFC Award was a successful experiment whereby provinces found reasonable fiscal space to bear the burden of their responsibilities, particularly after the devolution of powers through 18th Constitutional (Amendment) Act, 2010.
The impugned composition of the Commission is meant to supply legitimacy and justify the intended decrease of provincial share in the NFC through the blatantly unconstitutional terms of reference, it said.
The petition says that the various appointments made to the NFC were without meaningful consultation with the Governors of the provinces who ought to have acted on the advise of respective provincial cabinets and liable to be struck down as ultra-vires of the Constitution.
Advisor to Prime Minister on Revenue and Finance has no lawful authority to chair or convene the meetings for 10th NFC proceedings/meetings whether in the absence of the Federal Finance Minister or otherwise and is against the constitution and of legal effect, it said.
The petition prays that the respondents be directed to reconstitute the National Finance Commission strictly in accordance with Article 160 of the Constitution of Pakistan and to strictly adhere to the command of Article 160 (3-A) of the Constitution in its true letter and spirit.