Supreme Court spells out circumstances under which ordinances can be enforced

ISLAMABAD: The Supreme Court (SC) on Thursday declared promulgation of ordinances without emergency matters as unconstitutional.

A two-member bench of the apex court comprising Justice Qazi Faez Isa and Justice Amin ud Din Khan issued a detailed verdict regarding Income Support Levy Act 2013 and upheld the Sindh High Court (SHC) decision, dismissing some 581 appeals filed by Commissioner Inland Revenue, Karachi.

The petitioners had sought leave to appeal against the SHC judgment given in July last year declaring the Income Support Levy (ISL) Act 2013 as ultra vires to the constitution. The SC on December 28, 2021 in a short order upheld the SHC decision and dismissed the instant petitions.

Last year in July, the SHC held that the imposition of the Income Support Levy (ISL) Act by the former PMLN government in the 2013 budget did not possess the characteristics of a tax as it was not a common burden for raising revenue to be utilised for general public and thereby declared the Act as ultra vires to the Constitution.

The judgment came as many as 578 constitutional petitions have been pending since 2013 before the SHC in which the petitioners had challenged the vires of the ISL Act, 2013. The petitioners, who were taxpayers having more than one million net moveable assets, contended that the imposition of the Income Support Levy at the rate of 0.5 percent on the value of the net moveable assets through the Act was unconstitutional as it did not possess the characteristic of a tax, and also for being discriminatory as it created unreasonable classification within the same class.

On Thursday, the 30-page detailed judgment authored by Justice Qazi Faez Isa held that the President and provincial governors might promulgate ordinances, but their power to promulgate ordinances is circumscribed by the Constitution.

“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,” says the detailed verdict.

The court held that provincial governors might promulgate an ordinance in respect of (1) any matter which is not mentioned in the Federal Legislative List, when the provincial assembly concerned 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, the detailed judgment held adding that ordinances might 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, an ordinance should avoid creating long-term rights or liabilities, because on its expiry/repeal it may leave behind an imbroglio, the detailed verdict held.

It held that the very first Article of the Constitution states that ‘Pakistan shall be a Federal Republic adding that the territories of this Federal Republic are the provinces of Balochistan, Khyber Pakhtunkhwa, Punjab, Sindh and the Islamabad Capital Territory, and it is these parts which make up the whole.

The court held that the Federal Republic - the Islamic Republic of Pakistan -- is a representative democracy where the people act through their elected representatives.

“The directly elected representatives of the people are the members of the National Assembly and of the four provincial assemblies, says the detailed verdict adding that the members of the Senate are in turn elected by those who the people had elected.

The framers of the Constitution gave equal representation in the Senate to each province. This balance was struck in the aftermath of the break-up of Pakistan. The detailed verdict noted that the Federal legislation is 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 to.

“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”, says the detailed verdict.

“It is fair to state that when people through their elected representatives are involved in lawmaking, such laws are wholeheartedly accepted,” the detailed verdict added. It held that representative democracy helps to unite the people, engenders goodwill, and empowers them. “When the people are involved in governance, this strengthens the Federation”, says the detailed verdict

The detailed verdict concluded that 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”, says the detailed verdict adding that this also avoids wastage of time, money and effort, as witnessed in this case.

The detailed verdict further held that history is testament to the fact that whenever the Constitution is violated, it disrespects the people for whom it was made. “Constitutional transgressions invariably have disastrous ramifications which, as we have learnt to our peril, undermine democracy and national unity”, it added.

Therefore, for the foregoing reasons, leave to appeal is declined and consequently, these petitions are dismissed but with no order as to cost as these were the first cases of their kind before this Court”, the detailed verdict concluded.