A Pakistan Muslim League-Nawaz MNA has challenged the notification for constitution of the National Finance Commission (NFC) in the Islamabad High Court (IHC).

The PML-N MNA, Engineer Khurram Dastgir Khan, on Tuesday filed a petition under Article 199 of Constitution through Umer Gilani and Barrister Mohsin Nawaz Ranjha and prayed before the High Court to declare that the impugned notification is illegal, being ultra vires sub-articles (1) and (2) of Article 160 of the Constitution.

He further prayed 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.

He requested the IHC 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.

Declare that impugned notification dated 12th May, 2020 cannot be given retrospective effect, and any proceeding of the commission, which took place prior to May 12, 2020 were of no legal effect.

Declare that any recommendations of the commission must be expressed in terms of a unanimous view since Article 160 does not allow for majority decision-making.

The petitioner has cited president of Pakistan through his secretary, federal government through secretary Cabinet Division, secretary Finance, secretary Law and Dr Abdul Hafiz Sheikh, Advisor to Prime Minister on Finance and Revenue as respondents.

The petitioner contended that the advisor to the prime minister has been illegally appointed as a member of the National Finance Commission without consultation with the governors of the provinces, which is clearly ultra vires the letter and spirit of Article 160(1).

He stated Quaid-e-Azam Barrister Muhammad Ali Jinnah, who has a better claim to being an exponent of the ideology of Pakistan than its modern-day interpreters, struggled all his life to strengthen provincial autonomy.

Anyone who went to school in Pakistan knows that Point No. 1 among the famous 14-Points of Quaid-e-Azam. "1. The form of the future constitution should be federal, with the residuary powers vested in the provinces."

He stated that in pursuance of the 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 continued the most important institution created in the Constitution for this purpose - i.e. determining the center-province revenue distribution ratio - is the National Finance Commission (NFC).

This institution has been a part of every single Constitution of Pakistan and has been progressively empowered.

He stated that the presence of five members is essential to the commission.

Federal Minister for Finance by virtue of Article 92(1) can only be from among the members of the parliament; and four provincial ministers for finance are by virtue of Article 132(1), can only be from among the members of the provincial assembly.

In addition to the five statutory members further members can be added.

However, a co-opted member may only be added after "consultation with the governors of the provinces".

The petitioner contended that the impugned notification does not make reference to any consultations whatsoever, which the president had with the governors of the provinces regarding the selection and appointment of each one of the co-opted members of the NFC.

It may be assumed that no such consultations were held.

He said according to para 2 of the impugned notification, president authorized advisor to the prime minister on finance and revenue to chair the meetings of the NFC in the absence of Federal Finance Minister.

He said it gives rise to a reasonable apprehension that the Federal Finance Minister intends to absent himself from at least some of the meetings of the commission.

It further conveys the legal misunderstanding that there can be a commission in the absence of the Federal Minister for Finance.