Formation of NFC challenged, notices issued

The Islamabad High Court (IHC) on Thursday issued notices to the federal government and others regarding the constitution of the National Finance Commission (NFC).
Pakistan Muslim League-Nawaz MNA Engineer Khurram Dastgir Khan has challenged the notification for constitution of the NFC through Mohsin Shahnawaz Ranjha and Umer Gilani.
He has made president of Pakistan through his secretary, the federal government through secretary Cabinet Division, secretary Finance, Secretary Law, and Dr Abdul Hafeez Sheikh, advisor to the prime minister on finance and revenue, as respondents.
A single bench of IHC comprising Justice Miangul Hassan Aurangzeb heard the petition of the PML-N MNA.
Justice Hassan inquired from the lawyers whether they were confining their challenge only to the appointment of Dr Hafeez Sheikh.
Umer Gilani said "no" adding that they had other grounds for assailing the notification as well.
For instance, there is retrospective protection given to actions from 23rd April to 12 May.
Para 2 of the notification suggests that the commission can meet in the absence of the federal minister of finance, he added.
Justice Hassan further inquired, "How we know that relevant consultations have not been carried out."
The counsel said, "We have a reasonable apprehension in this regard. There are two grounds; firstly, there's no mention of such consultation with regard to Hafeez Sheikh, and secondly, media has reported that the CM of Sindh wrote a letter stating that he has not been consulted."
The judge said; "In principle political disputes should be settled inside Parliament and the petitions which raise political questions are liable to be dismissed with heavy costs."
He noted that since a reasonable apprehension had been expressed by the petitioner regarding serious constitutional violations, so the notices to be issued to the respondents.
The bench observed that the case should have been based on the inclusion of the prime minister'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 does the constitution state that the PM's adviser on finance can be the convener instead of the finance minister.
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 the federal and provincial members, and its terms of reference by President Arif Alvi.
The president also authorized the Adviser to the Prime Minister on Finance Dr Abdul Hafeez Shaikh 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.
The petitioner further prayed before the court to declare that impugned notification dated 12th May, 2020 cannot be given a retrospective effect and any proceeding of the Commission, which took place prior to May 12, 2020 were of no legal effect.
Dastgir 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.
He termed the notification 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.
The petitioner contended 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 principal demands of our Independence 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 also stated that the most important institution created in the Constitution for this purpose i.e. determining the center-province revenue distribution ratio is the NFC and this institution has been a part of every single Constitution and has been progressively empowered.