ISLAMABAD: The Supreme Court held that an ordinance should avoid creating long-term rights or liabilities, because on its expiry/ repeal it may leave behind an imbroglio.

A two-judge bench, headed by Justice Qazi Faez Isa, and comprising Justice Aminud Din declared that on 581 petitions against the Sindh High Court (SHC)’s judgments on Income Support Levy Act, 2013. The Act which was imposed in 2013 was repealed through Finance Act, 2014.

Justice Faez, who authored 30-page judgment, stated that the ordinances may only be promulgated in respect of emergent matters because this alone is what the Constitution permits. However, since an ordinance expires after a few months, unless it is earlier set aside.

The Constitution was made with remarkable unanimity by the elected representatives of the peoples of Pakistan after the 1971 debacle. Therefore, it is all the more imperative to ensure that the rights of the peoples of the four provinces are not trespassed or curtailed by sidestepping the Senate in enacting (non-Money Bill) legislation.

The judgment said that the president and provincial governors may promulgate ordinances, but their power to promulgate ordinances is circumscribed by the Constitution. The president may only promulgate an ordinance in respect of (1) any matter in the Federal Legislative List, (2) when neither the Senate nor the National Assembly is in session, and (3) can only do so when “circumstances exist which render it necessary to take immediate action.” And, provincial governors may promulgate an ordinance in respect of (1) any matter which is not mentioned in the Federal Legislative List, (2) when the concerned Provincial Assembly is not in session, and (3) can only do so when “circumstances exist which render it necessary to take immediate action.” In the absence of even one of the stated preconditions neither the President nor the governors can promulgate ordinances.

It further said that the laws are made for the people. Therefore, their participation through their representatives in the making of laws is not only essential but a stipulated constitutional requirement. It is fair to state that when people through their elected representatives are involved in lawmaking, then such laws are wholeheartedly accepted. Representative democracy helps to unite the people, engenders goodwill, and empowers them. When the people are involved in governance, this strengthens the federation.

It was the contention of the counsel of the Commissioner Inland Revenue, Karachi, before the court that the Income Support Levy had all the characteristics of taxation and the nomenclature used to describe it was immaterial. He further submitted that since the Act constituted a Money Bill, as described in Article 73(2) of the Constitution of the Islamic Republic of Pakistan it became law when it was passed by the National Assembly and received the president’s assent. And, since the Act subsisted from 1 July 2013 to 30 June 2014 the Income Support Levy for this period is required to be paid by all those who were liable to pay it under the Act.

However, the respondents’ counsels submitted that the Act was enacted through the Finance Act, 2013 even though it did not have the ingredients of a Money Bill as mentioned in Article 73(2) of the Constitution. Therefore, if it was to be made law then it had to comply with the ordinary legislative procedure prescribed in Article 70 of the Constitution. However, by tabling the Act as a Money Bill, or as a purported component of a Money Bill, the Senate of Pakistan was bypassed. Ordinary legislation (which is not Money Bill), they submitted, must be sent to the Senate for voting, but this was not done. Therefore, the Act did not constitute law, and because it was not law it need not be complied with.

The High Court had held that the Act could not have been introduced as a Money Bill, and also that the Income Support Levy was not a tax or taxation.

Copyright Business Recorder, 2022