Dr. Ikramul Haq
On August 12, 2023, the present National Assembly will end its tenure as ordained in Article 52 of the Constitution unless sooner dissolved by President on the advice of Prime Minister. Strangely, the government of Pakistan Democratic Movement (PDM) intends to announce its second budget in June 2023, while it should be left for the new elected government. The government of PDM and its self-styled constitutional experts say that there is no constitutional bar for announcing the annual budget for fiscal year 2023-24 though regime’s tenure does not cover the period. The issue has not been debated in the Parliament. This shows that our elected members are indifferent to a vital matter that needs deliberations and debate in the light of provisions of the Constitution of Islamic Republic of Pakistan [“the Constitution”] and laws related to financial matters vis-à-vis powers of outgoing government.
Many experts, writing on the subject or appearing in TV talk shows, have asked the PDM government to hold early elections and leave the matter of budget for next fiscal year to the future elected government having a mandate of five years. Every year, budget, along with tax proposals (Finance Bill), is presented in the first week, or at the latest, by second week of June. The present government is going to dissolve on August 12, 2023 and a care-taker government as per Article 224 of the Constitution to take over for holding elections within 60 days “immediately following the day on which the term of the Assembly is due to expire, unless the Assembly has been sooner dissolved”.
The present government would lack electoral mandate for the period August 13, 2023 to June 30, 2024 for which it is bent upon to present budget, and tax proposals through Finance Bill 2023. Such a situation also occurred on April 27, 2018, when the then government of Pakistan Muslim League (Nawaz), ending its tenure on May 31, 2018, intended to announce its sixth budget amidst criticism that the same should be left for the new elected government. The action at the fag end of its five-year tenure of announcing the budget was questioned by Dr. Waqar Masood, former Adviser to Prime Minister on Finance & Revenue and ex-Federal Secretary of Finance, in an op-ed as under:
It is, therefore, not a question of whether the government is capable of passing the budget, but of whether it should make a budget that will not reflect the priorities and programme of the next government–the actual user. Therefore, we ask the following questions: (a) is it incumbent on the government to present a budget that it wouldn’t be making use of; (b) would there be a constitutional vacuum when an approved budget is not put in place during the period of an interim government; and (c) what is the desirable course of action for the government?
Annual budget, as aptly opined by Dr. Waqar, “contains estimates of receipts and expenditures (with a break-down between charged and voted expenditures); a detailed demand for grants voted for by the assembly under Article 82; and a schedule of authenticated expenditures under Article 83 that are signed by the prime minister and laid out in the assembly”. The National Assembly also passes the Finance Bill (Money Bill) under Article 73 that presents tax proposals.
If the PDM passes its second budget in June this year, all the approved expenditures will take effect from July 1, 2023, but after 42 days National Assembly would stand dissolved. For such a situation, the framers of Constitution provided a solution in Article 86 of the Constitution that reads as under:
“Notwithstanding anything contained in the foregoing provisions relating to financial matters, at any time when the National Assembly stands dissolved, the Federal Government may authorize expenditure from the Federal Consolidated Fund in respect of the estimated expenditure for a period not exceeding four months in any financial year, pending completion of the procedure prescribed in Article 82 for the voting of grants and the authentication of the schedule of authorized expenditure in accordance with the provisions of Article 83 in relation to the expenditure”.
The Supreme Court of Pakistan in Reference No. 1 of 1988 sent by President of Pakistan under Article 186 of the Constitution held [PLD 1989 SC 75]:
“Article 86 empowers Federal Government in a given situation to authorise expenditure from Federal Consolidated Fund for a period not exceeding four months. This is a Constitutional entrustment of legislative function on terms to the Federal Government and this is an exception to what is provided in Article 83(3)”.
In terms of Article 86 of the Constitution, the caretaker government after the dissolution of the present National Assembly completing its five year tenure, will be bound to hold elections by October 12, 2023. The caretaker government would be empowered to authorise expenditures for 60 days.
The government of PDM in terms of Article 77 of the Constitution should not prepare tax proposals for a period [July 1, 2023 to June 2024] for which it would have the approval/mandate of voters on the touchstone of well-established principle that no taxation without representation.
The newly-elected National Assembly for the period 2023-2028 alone would have mandate under Article 77 of the Constitution to prepare Finance Bill 2023 and prepare/take short-term and long-term fiscal measures. The PDM government would have no such mandate. Despite this clear constitutional perspective, many so-called experts are advising otherwise. Many leaders of the political parties, part of PDM alliance, have started claiming that budget 2023-24 “will bring relief for the masses”.
Needless to emphasise that populist budget in June 2023 in election year avoiding tough decisions to overcome grim economic challenges would be a clear violation of parliamentary norms and would amount to even pre-poll rigging.
It is now well-established that our legislators, no matter which party they belong to, have no will to resist the unconstitutional actions though they have taken oath to safeguard the supremacy of the Constitution and discharge all functions within strict parameters and powers laid down in the supreme law of the land. There is perpetual failure on this count and thus no wonder that we lack sustainable democracy, responsible governments that can protect the rights of masses guaranteed in the Constitution.
Legislature is sovereign but the supremacy of Constitution is above everything—legislators in fact exercise delegated powers given by the people within the framework of the Constitution. By violating the commands of Constitution our elected representatives are guilty of betraying the people of Pakistan.
Dr. Ikramul Haq, Advocate Supreme Court, specialises in constitutional, corporate, media and cyber laws, ML/CFT related laws, IT, intellectual property, arbitration and international tax laws. He established Huzaima & Ikram in 1996 and is presently its chief partner as well as partner in Huzaima Ikram & Ijaz. He studied law, journalism and English literature. He is Chief Editor of Taxation. He is country editor and correspondent of International Bureau of Fiscal Documentation (IBFD) and member of International Fiscal Association (IFA). He isVisiting Faculty at Lahore University of Management Sciences (LUMS) and member Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE).
He has coauthored with Ms. Huzaima Bukhari many books that include Tax Reforms in Pakistan: Historic & Critical Review, Towards Flat, Low-rate, Broad and Predictable Taxes (revised & Expanded Edition, Pakistan: Enigma of Taxation, Towards Flat, Low-rate, Broad and Predictable Taxes (revised/enlarged edition of December 2020), Law & Practice of Income Tax, Law , Practice of Sales Tax, Law and Practice of Corporate Law, Law & Practice of Federal Excise, Law & Practice of Sales Tax on Services, Federal Tax Laws of Pakistan, Provincial Tax Laws, Practical Handbook of Income Tax, Tax Laws of Pakistan, Principles of Income Tax with Glossary andMaster Tax Guide, Income Tax Digest 1886-2011 (with judicial analysis).
He is author of Commentary on Avoidance of Double Taxation Agreements signed by Pakistan, Pakistan: From Hash to Heroin, its sequelPakistan: Drug-trap to Debt-trap and Practical Handbook of Income Tax.
He regularly writes columns/articles/papers for many Pakistani newspapers and international journals. He has contributed over 2000 articles on a variety of issues of public interest, printed in various journals, magazines and newspapers at home and abroad.