Counsel told to satisfy SHC on maintainability of petition against NFC

The Sindh High Court (SHC) has issued pre-admission notices to the finance secretary, the cabinet division and others on a petition against the forming of the 10th National Finance Commission (NFC), and directed the petitioner’s counsel to satisfy the court on the petition’s maintainability.

Economist Dr Kaiser Bengali, who had been a member of three previous NFCs and had represented Sindh and Balochistan, claimed in his petition that the forming of the 10th NFC was in stark violation of Article 160 of the constitution because no direct or effective consultation had taken place in the appointment of its members.

He said that the terms of reference (ToR) mentioned in the impugned notification of the forming of the NFC were beyond the scope of Article 160 because issues such as public debt, rationalisation of subsidies and losses of state-owned corporations fell within the domain of other constitutional forums such as the Council of Common Interests and the National Economic Council.

He also said that certain ToR dealt with budgetary issues, which were within the scope of separate articles of the constitution that did not fall within the domain of the NFC.

Issues pertaining to the allocation of resources for Azad Jammu & Kashmir and Gilgit-Baltistan as well as the expenditures for security fall within the domain of the federal government and parliament, and have no bearing on the NFC’s proceedings, he added.

Dr Bengali pointed out the dangers of attempting any rollback of the 7th NFC Award under the 10th NFC, saying that if the principle of the provinces picking up the tab for the federal government’s expenditures was established, the provinces might demand collecting all the taxes themselves and reimbursing the Centre’s expenditures.

He said that in such an event, the federal structure would roll on its head and the stage might be set for creating a de facto confederation.

The petitioner’s counsel claimed that the respondent was attempting to rig the 10th NFC to manipulate the process of decision-making to eventually reduce the share of the provinces in the divisible pool and increase the share of the federal government in violation of Article 160.

Besides, he argued, the notification sought to permit the 10th NFC to act retrospectively, the authority of which did not vest in the Ministry of Finance, and the act to cover any clandestine meetings that took place prior to the forming of the 10th NFC.

The petitioner requested the high court to declare the notification of the forming of the NFC as well as the appointment of additional members as unlawful.

He also questioned some ToR in the impugned notification, including those in clauses 3(d), 3(e), 3(f), 3(g) and 3(h), saying that they should be declared as being beyond the scope of Article 160 of the constitution.

The economist asked the court to declare that the prime minster’s finance & revenue adviser does not retain the authority to convene or chair the 10th NFC proceedings, and to direct the federal government to reconstitute the commission strictly in accordance with Article 160.

Replying to a query by the court, the counsel said the petition is not one of quo warranto, which may be filed by any person.

Quo warranto is defined as a writ or a legal action that requires a person to show that by what warrant they hold, claim or exercise an office or franchise.

The SHC’s division bench headed by Justice Omar Sial said that at this stage the court was not

entirely satisfied with the arguments of the counsel, and directed him to satisfy the court as to the maintainability of the petition.

The bench issued pre-admission notices to the Ministry of Finance, the finance secretary, the cabinet division, the NFC and others for August 19 so that the court might be further assisted on the issue of the petition’s maintainability.