The Sindh High Court (SHC) has quashed a Statutory Regulatory Order (SRO) dated October 2017 that sought to impose regulatory duty on more than 356 products declaring it as ultra vires of the constitution and therefore of no legal effect. The case was filed by more than two dozen importers of the affected products and was premised on a verdict by a three-member bench of the Supreme Court dated 18 August 2016, authored by Justice Saqib Nisar which stipulated that: "the prime minister cannot take decisions by himself or by supplanting or ignoring the cabinet because the power to take decisions is vested with the federal government, ie, the cabinet which includes the prime minister and unilateral decisions taken by the prime minister would be a usurpation of power...it is the anti-thesis of a constitutional democracy and will amount to a reversion to a monarchical form of government reminiscent of King Louis XIV's famous claim that 'I am the State' (literally: L'etat, C'est Moi)'. It is most emphatically not the function of this court to surrender the hard-won liberties of the people of Pakistan to such a fanciful interpretation of the Constitution which would be destructive of all democratic principles."
In response to the Supreme Court's judgement, Ishaq Dar, the Finance Minister, inserted a clause relevant to all the four fiscal laws (income tax, federal excise duty, sales tax and customs duty - imports and exports) in the Finance Act 2017 section 18 (3) wherein instead of the 'federal government' it enabled the Federal Board of Revenue (FBR) with the approval of the Minister in Charge (the Finance Minister) to issue notifications and make changes in the tax rates. It is this particular amendment that has been struck down by the SHC. An attempt to transfer powers to Ishaq Dar, as well as some other line ministries, was first made in July 2015 when Prime Minister Nawaz Sharif constituted an 11-member ministerial committee, to be headed by Dar, empowering it to take crucial decisions about economic policy on behalf of the federal cabinet with the power to summon federal secretaries of the member ministries. This decision prompted many to unofficially refer to Ishaq Dar as the Deputy Prime Minister.
Be that as it may, throughout the first four and a half years after the PML-N took over the reins of government when Dar was a functional finance minister, there is overwhelming evidence that he was taking decisions in nearly all critical matters relating to the business of governance as well as those relating to politics including resolution of conflict with the opposition with the complete support of the then Prime Minister Nawaz Sharif. Any cabinet decision, reports indicate during the period, would simply rubber-stamp most of the recommendations by Dar. In other words, Dar's recommendations could have easily been approved by the Cabinet however he sought the power directly. Many maintain that this had less to do with Dar's attempt to exercise power directly and more to do with Nawaz Sharif's reluctance to be tied down to cabinet meetings as during his tenure cabinet meetings were few and far in-between.
It is being speculated that the federal government may challenge the SHC verdict though it is unlikely that the appeal would bear fruit as that process may well take more than the less than four remaining months of the tenure of the PML-N administration; but again there is speculation that the court may grant a stay order for the collection of regulatory duty on more than 350 products which implies that the decision would be applicable on the next government. To conclude, it is baffling why the government does not take the easy way out and takes all decisions in the cabinet which remains thoroughly pliant to the wishes of the PML-N party leader Nawaz Sharif.