Top court sets guidelines for promulgating ordinance

ISLAMABAD:

The Supreme Court has upheld a high court’s decision to nullify the Income Support Levy Act 2013, noting that an ordinance should avoid creating long-term rights or liabilities, because on its expiry, it might leave behind an imbroglio.

A division bench of the apex court led by Justice Qazi Faez Isa was hearing petitions filed by the Federal Board of Revenue (FBR) against a Sindh High Court judgment.

Justice Isa noted in his 30-page judgment that the president and provincial governors might promulgate ordinances. However, he added that their power to promulgate ordinances was circumscribed by the Constitution.

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"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,” the judgment read.

“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.”

The court noted that in the absence of even one of the stated preconditions, neither the president, nor the governors, could promulgate ordinances. “Ordinances may only be promulgated in respect of emergent matters because this alone is what the Constitution permits.”

The court also observed that federal legislation was made for the entire country, but the Senate was kept away from voting on the Act, which was wrapped in the Finance Act, 2013, and where it evidently did not belong.

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"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.”

The court noted that representative democracy helped to unite the people, engendered goodwill, and empowered them.

“When the people are involved in governance, this strengthens the Federation. A concomitant to enacting good legislation is to act carefully, with due deliberation, and by strictly adhering to the Legislative Procedure stipulated in the Constitution."

The judge noted that each and every word of the Constitution, and the methodologies and procedures prescribed therein, must be strictly adhered to. “When this is done it dissipates misgivings and mistrust, and steers away from pitfalls. This also avoids wastage of time, money and effort, as witnessed in this case. History is testament to the fact that whenever the Constitution is violated it disrespects the people for whom it was made."

The court observed that constitutional transgressions invariably had disastrous ramifications which undermined democracy and national unity.

On the Income Support Levy Act 2013, the court noted that it did not constitute a Money Bill and had to be transmitted to the Senate for voting, failing which it could not have become a law.

Therefore, it added, the petitioner could not take action pursuant to something, which was not law and nor was anyone liable thereunder.

"We have also observed that the stated objective of alleviating poverty and setting up an income support fund could not be achieved, because the amounts recovered as Income Support Levy would go into the Fund, and would be distributed in terms of the applicable constitutional provision.”

The judgment noted that the Act also suffered from other insurmountable constitutional shortcomings. “In the absence of any legislative mechanism to secure the amounts collected as Income Support Levy for the stated objective of poverty alleviation, such amounts would be deposited and become part of the Federal Consolidated Fund, becoming indistinguishable from other monies therein. Monies which are set aside for particular purposes are referred to as expenditure charged upon the Fund and these are mentioned in Article 81.”

The court further noted that the expenditure charged upon the Fund included the remuneration of the president, judges, chief election commissioner, chairman and deputy chairman of the Senate, speaker and deputy speaker of the National Assembly and the Auditor-General for Pakistan and the administrative expenses of their respective offices.

"Undoubtedly, the object of charging the same on the Fund is to bolster their independence by also securing them financially. Clause (e) of Article 81 enables other sums also to be charged upon the Fund if either the Constitution or an Act of Parliament declares them to be so charged. But, as stated above, the Act did not declare that the amounts recovered pursuant to the Act were to be charged in any specific manner on the Fund.”

The court noted that as result, the amounts raised by the Income Support Levy would go into the Fund and would have to be distributed pursuant to the mechanism provided in the Constitution.

“Consequently, the stated objective of poverty alleviation, for which the Act was purportedly enacted, could not be achieved."

The court also noted that the Senate was cognisant that the proposed legislation was not a Money Bill. “The concerns of the Senate were not heeded and its recommendations disregarded. However, after the Act had been enacted (through the Finance Act, 2013), realisation dawned that the concerns expressed by the Senate were legitimate, because the Finance Minister proposed the repeal of the Act.”