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Huzaima Bukhari & Dr. Ikramul Haq
Every year before the preparation of annual federal budget, the Federal Board of Revenue (FBR) seeks proposals from officers, trade/professional bodies, tax bars, and other stakeholders—this has become a ceremonial activity. Each year, after this fruitless exercise, the Finance Bill makes existing tax codes more complicated due to pointless amendments and burdens the citizens with unconstitutional obligations to act as withholding tax agents with specific restriction of not entitled to any compensation that is violation of fundamental right of Article 11(2) of the Constitution of Islamic Republic of Pakistan [The Constitution] that prohibits all forms of forced labour. All those who are made withholding agents should challenge it under the Constitution. The Legislature passes such laws on the recommendation of FBR after approval by Cabinet as it has never taken note of this gross violation of the supreme law of the land. The Supreme Court of Pakistan and High Courts under the Constitution are mandated to protect the fundamental rights of citizens, but unfortunately, forced labour (duties as withholding agents under the Income Tax Ordinance, 2001) have not been examined from the perspective of Article 11(2) of the Constitution. The judicial interpretation of “forced labour” as used in Article 11(2) even covers forcing somebody to do which he/she is not willing to perform even for consideration (Enforcement of Fundamental Rights, Constitutional Case No. 1 of 1988, decided on 18/09/1988, reported as 1989 SCMR 139 and Human Rights Commission of Pakistan v Federation of Pakistan PLD 2009 Supreme Court 507).
FBR has asked stakeholders to send proposals for budget 2021-22 by February 15, 2021 for income tax “preferably” in a ‘prescribed’ format and for customs by February 10, 2021 with the directions that “three separate formats are attached as Annex I, II and III for preparing the proposals on MS Excel Sheets (Please DO NOT use any other format) and “in case of local manufacturer claiming tariff protection on it’s finished product(s) or concession on its raw materials, please complete Annex-IV also, without which it will not be possible to process these types of proposals”. This entire exercise needs detailed analysis from the perspective of Constitution.
Our existing tax policy is ill-directed, regressive and unfair. Tax machinery is both inefficient and oppressive. The sole stress on meeting revenue targets, without evaluating its impact on the economy, has crippled our trade and industry, especially after following the dictates of the foreign lenders. The results of prescriptions by World Bank(WB) and International Monetary Fund (IMF) to fix the ailing economy and anti-growth tax system are discussed in detail in Tax Reforms in Pakistan: Historic & Critical View, recently published by PIDE (available free at: https://www.pide.org.pk/pdf/Books/Tax-Reforms-in-Pakistan-Historic-and-Critical-View.pdf.
Pakistan needs to move towards fair and simple tax system that can yield sufficient resources for the State—as defined in Article 7 of the Constitution—for welfare of citizens. Details are available in Towards flat, low-rate broad and predictable taxes-revised and expanded edition (2020) [available free at: https://primeinstitute.org/towards-flat-low-rate-broad-and-predictable-taxes/].
This article is, however, confined to examining the constitutional jurisdiction of FBR being part of Executive to seek tax proposals and prepare Finance Bill, which is none of its business. In fact, it amounts to flagrant violation of the Constitution. This is sole responsibility of the Legislature as held by the Supreme Court in CIT v Eli Lily (Pvt) Ltd (2009) 100 Tax 81 (S.C. Pak) and discussed in detail in the forthcoming paragraphs. The Constitution of Pakistan forbids any of the organs to usurp or meddle into the matters of other organs. Usurping the powers of an organ by another organ or organs leads to complete fiasco as elaborated by Supreme Court of Pakistan in a number of cases.
The definition of “State”, [first Article of Part II titled Fundamental Rights and Principles of Policy] says: “In this Part, unless the context otherwise requires, “the State” means the Federal Government, Majlis-e-Shoora (Parliament), a Provincial Government, a Provincial Assembly, and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess”.
Article 3 [titled Elimination of exploitation] of the Constitution says: ‘The State shall ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principle, from each according to his ability to each according to his work”.
Article 5 [titled Loyalty to State and obedience to Constitution and law] of the Constitution reads as under:
(1) Loyalty to the State is the basic duty of every citizen.
(2) Obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan
If “State” is not fulfilling its promise under Article 3 of the Constitution, how can it expect obligation imposed under Article 5(1) that “loyalty to the State is the basic duty of every citizen”? The Constitution is a social contract between the State and citizens. Any infringement of this cannot be taken lightly. How have legislators given powers to FBR to propose Finance Bills when Constitution makes it clear under Article 77 of the Constitution that “no tax shall be levied for the purposes of the Federation except by or under the authority of the Act of Parliament”? It is the duty of the legislators to decide tax policy and frame tax codes and make amendments in these. The Standing Committees of federal and provincial assemblies on revenue, having members of all elected parties, should themselves prepare Money Bills after public debates, televised hearings of experts summoned and/or seeking written proposals from stakeholders [see note of Justice Ch. Ijaz Ahmad in CIT v Eli Lily (Pvt) Ltd (2009) 100 Tax 81 (S.C. Pak).
In CIT v Eli Lily (Pvt) Ltd (2009) 100 Tax 81 (S.C. Pak), Justice Ch. Ijaz Ahmad in his separate note held as under:
“Our Constitution is based on trichotomy as law laid down by this Court in various pronouncements such as Zia ur Rehman’s case PLD 1973 SC 49, Mian Muhammad Nawaz Sharif’s case PLD 1993 SC 473 and Hakim Ali’s case PLD 1992 SC 595. The ratio of the aforesaid cases is as follows:–
Legislator to legislate the laws;
Executive to implement;
Judiciary to interpret the Law and Constitution
“2. It is a settled law that the Constitution has to be read as an organic whole as law laid down by this Court in various pronouncements. See Reference by the President PLD 1957 SC 219. The Constitution has confined the aforesaid organs of the state by clear demarcation. The Constitution forbids any of the organs to usurp or meddle into the matters of other organs. Usurping the powers of an organ by another organ or organs leads to complete fiasco. According to my understanding of the Constitution, the machinery of the Constitution has delicately established an equilibrium and harmony among all the organs, limiting them not to go beyond their limits. Every Article of the Constitution has its own significance and importance but Article 4 read with Article 5(2) commands each and every citizen and organ to remain within its bounds as is evident from the statement of the Article. Article 4 directs every citizen to act in accordance with law whereas Article 5(2) demands obedience to the Constitution. Aforesaid Articles were interpreted by the Apex Court of this country and laid down various principles including that even Chief Executive of the country is not omnipotent than the Constitution. See Chaudhry Zahoor Elahi’s case (PLD 1975 SC 383) and Zahid Akhtar’s case PLD 1995 SC 530……… Legislators should legislate after securing necessary views from every stake holder through deliberations and consultations, keeping in view all the aspects and circumstances at, the time of’ framing the law. Generally speaking Constitution is based on trichotomy whereas according to my understanding Constitution is based on quadruple which are as follows:–
Legislators;
Executive;
Judiciary;
People of Pakistan.
Constitution is a social binding contract among the aforesaid organs of the State. From preamble to the last Article of the Constitution, duties and obligation have been assigned to every organs of the State so as to get prosperity of the people of Pakistan. It is for this reason the Constitution has to be read as an organic whole for the purpose of maintaining balance in every sphere of life such as opportunities of job, social justice distribution of wealth etc”.
[Bold are by us to emphasise]
The Supreme Court of Pakistan inMessers Mustafa Impex, Karachi v Government of Pakistan (2016) 114 Tax 241 (S.C Pak.) held that “neither a Secretary, nor a Minister and nor the Prime Minister are the Federal Government and the exercise, or purported exercise, of a statutory power exercisable by the Federal Government by any of them, especially, in relation to fiscal matters, is constitutionally invalid and a nullity in the eyes of the law. Similarly budgetary expenditure or discretionary governmental expenditure can only be authorized by the Federal Government i.e. the Cabinet, and not the Prime Minister on his own”.
[Bold are by us to emphasise]
The legislative work related to framing tax policy and proposing changes in tax codes has been unconstitutionally exercised by FBR, and National Assembly just acts as a rubber stamp. The result is that FBR has failed to collect actual tax potential—which is not less than Rs. 8 trillion—and is also destroying trade and business growth with its irrational and oppressive tax policies as elaborated in Towards flat, low-rate broad and predictable taxes-revised and expanded edition (2020).
Justice Ch. Ijaz Ahmad in his separate note in CIT v Eli Lily (Pvt) Ltd (2009) 100 Tax 81 (S.C. Pak) made the following remarkable comments that should be read by all:
“6. The procedure for enacting laws is prescribed under the Constitution e.g., deliberations and the recommendations of the committees, the proceedings of the drafting committee and the speech of mover at the time of introducing the draft along with the report of these committees or all valuable material. The objectives of the Assembly, the manner in which they meet any criticism, the resultant decisions taken thereon, amendments proposed, speeches in favour or against them and their ultimate adoption or rejection will be helpful in throwing light on the particular matter in issue. Importance of deliberation is depicted from the proceedings of Legislative Council. The same are as under:–
“On 14th March, 1919 Founder of Pakistan participated in the proceedings of Legislative Council qua bill relating to criminal law (Emergency Powers) Bill. The relevant paras are reproduced hereunder:–
(On March 14, 1919 Part-II of the Bill was taken up for consideration. Mr. J.V. Patel moved for its deletion. Sir Verney Lovett, Mr. P.J. Fagan and Sir James Douboulay opposed the motion. Mr. M.A. Jinnah in his speech strongly opposed this part of the Bill).
The Honourable Mr. M.A. Jinnah. —My Lord, this part of title Bill is, as I said on the very first occasion, to me abhorrent and shocking and on that occasion, my Lord, I stated my reasons for it. I would not really have spoken in the Council on this motion of the Honourable Mr. Patel more than by merely saying that I am strongly opposed to this part of the Bill, and I would have done that, my Lord, for this reason, that I really feel that I cannot even trust myself to discuss this part lest I gave vent to my feelings and my opinion, which I honestly say to this Council I cannot possibly express in words, namely, my repugnance for this part of the Bill. But it is the first time that the Government side have tried to meet the real point in this bill, and that point having been made, I venture to make a few observations. The Honourable Sir Verney Lovett quoted me, but only portion of my reasons for opposing this Part-II. Therefore, as he has quoted me, he does not quite correctly represent my position or the grounds of my position. But I will meet his point. And the point which he endeavoured to make was that there is real danger, and that being so, are we, as a Government, not entitled to enact this measure into law? Now, my Lord, that is the sole question which the Council has got to decide. If I may quote an authority and I am quoting Blackstone who has been quoted by Lord Shaw (I am not quoting this as a judgment, but I merely as a quotation from Blackstone and for convenience sake, I am quoting it from his judgment). This is what he says—
Blackstone is quite clear upon the parties of the Constitution. He searchingly treats the case of both of liberty and life as tests both and equally of one and the same principle-the very principle, which is under scrutiny in the present case. To bereave a man of life or by violence to confiscate his estate without accusation or trial would be so gross and notorious an act of deposition as must at one convey the alarm of tyranny throughout the whole kingdom, but confinement of the person, by secretly hurrying him to jail where his sufferings are unknown or forgotten, is a less public and less striking and, therefore, a more dangerous engine of arbitrary government.”
The Honourable Mr. M.A. Jinnah. —“My Lord, I will only quote the words of a very great authority before I say anything more. In a very famous case, which is known as Deaniel’s case, one of the greatest jurists and lawyers, laid down three propositions:
The first proposition is that no man can be imprisoned upon the will and pleasure of any, but a bondman or a villain. The second proposition: If a freeman of England might be imprisoned at the will and pleasure of the king, or by his commandant, he were in worse case even than a villain.
The third proposition: A freeman imprisoned without cause is civilly dead.”
“My Lord, the provision of Part-III of this Bill will bring about this result. First, the selection of the victim will be left to the plenary discretion of the bureaucracy; secondly, my Lord, it means the negation of public safety and defence; and thirdly, my Lord, I say that it is poison to the Commonwealth. My Lord, to quote the words of Lord Shaw in that famous judgment to which I have referred, this is what he says:–
In the exercise of power, that the Government have the .plainest teachings of history and the dictates of justice demand that, on the one hand, Government power, and on the other hand, individual rights, these two shall face each other as party and party.
….The fundamental principles of justice have been uprooted and the Constitutional rights of the people have been violated at a time when there is no real danger to the State by an over-fretful and incompetent bureaucracy which is neither responsible to the people nor in touch with real public opinion and their sole plea is that the powers when they are assumed will not be abused.
“I, therefore, as a protest against the passing of the Bill and the manner in which it was passed tender my resignation as a member of Imperial Legislative Council for I feel, that under the prevailing conditions I can be of no use to my people in the Council nor consistently with one’s self respect is cooperation possible with a Government that shows such utter disregard for the opinion of the representatives of the people in the Council chamber, and for the feelings and sentiments of the people outside.
“In my opinion, a Government that passes or sanctions such a law in times of peace forfeit its claim to be called a civilized Government and I still hope that the Secretary of State for India, Mr. Montagu, will advise His Majesty’ to signify his disallowance to this Black Act.”
7. Hon’ble Chief Justice has highlighted the history of income tax laws which explicates adoption of pre-independence Income Tax Act, 1922 through Independence Act, 1947 which remained in the field ’till 1979, while the same was repealed through Income Tax Ordinance, 1979 which was also repealed through Income Tax Ordinance; 2001. Since the creation of Pakistan we have not been able to frame any Income Tax Act duly debated in the assembly. Both the Ordinances were promulgated during the Martial Law Regime otherwise the Constitution has prescribed a four month life of an Ordinance in case the Ordinance is not be placed before the Assembly and it shall be enacted as an Act then the Ordinance will automatically cease to exist. This aspect also reveals that the Constitution has cast duty upon the legislative body to frame the laws within the parameters prescribed under the scheme of the Constitution.
8. In view of what has been discussed above I wish that the law making body shall frame the laws after deliberations which is an additional duty cast upon the law making body in terms of the Article 2-A of the Constitution. The same is in accordance with the injunctions of Islam and the Doctrine of expectation of consultations as law laid down in the following judgments:–
(i) R.V. Secretary of State for Transport’s case (1985) 3 All ER 300 and
(ii) Re Liverpool Taxi Owners’ Association’s case (1972) 2 All ER 589.
9. The aforesaid principle is in consonance with the norms of democracy. The meaning of Democracy from the different Text Books is as follows: —
1. Black’s Law Dictionary Revised Fourth Edition
That form of government in which the sovereign power resides in and is exercised by the whole body of free citizens, as distinguished from a monarchy, aristocracy, or oligarchy. According to the theory of a pure democracy, every citizen should participate directly in the business of governing, and the legislative assembly should comprise the whole people.
2. International Encyclopaedia of the Social Sciences Volumes. 3 and 4
Democracy is, to begin with a principle of legitimacy.
3. Webster Comprehensive Dictionary Encyclopaedic Edition
A theory of government which, in its purest form, holds that the state should be controlled by all the people, each sharing equally in privileges, duties and responsibilities and each participating in person in the government.
4. The World Book Dictionary Volume 1
a government that is run by the people who live under it. In a democracy the people rule either directly through meetings that all may attend such as the town meetings in New England, or indirectly through the election of certain representatives to attend to the business of running government. Democracy means the community’s governing through its representatives for its own benefit”.
[Bold are by us to emphasise]
FBR’s Letter C.No.4(72)IT-Budget/2015-6255-R, is in utter violation of the Constitution as it is encroaching the domain of Legislature. It says it is “currently engaged in the formulation of proposals for the Finance Bill 2021”. Under what authority of law FBR is doing this?
To benefit from the collective wisdom of all the stakeholders is not their job but that of Parliament as elaborated in CIT v Eli Lily (Pvt) Ltd (2009) 100 Tax 81 (S.C. Pak) cited above.
Para 2 of the FBR’s letter says:
2. Your input/suggestions in the following policy areas shall be highly appreciated:-
- Broadening of tax base for a wider participation in revenue generation efforts;
- Taxation of real Income on progressive basis;
- Phasing out of tax concessions and exemptions;
- Removal of tax distortions and anomalies;
- Facilitation of taxpayers and ease of doing business;
- Promoting equity in taxation by introducing measures where incidence of tax is higher on affluent classes. The areas identified above are just illustrative and not exhaustive.
The areas identified above are just illustrative and not exhaustive”.
Tax system is one of the fundamental elements of a constitutional democracy. The important questions such as who is to be taxed, how much and for what purposes, are essentially political questions. These kinds of questions are always resolved through a political process. How tax obligations are to be imposed, administered and enforced are constitutional questions. The imposition, administration and enforcement of taxes raise vital issues about the rule of law, proper division of powers, and the role of judiciary and so on. How does FBR decide these issues and seek proposals from stakeholders?
In CIT v Eli Lily (Pvt) Ltd (2009) 100 Tax 81 (S.C. Pak), Justice Ch. Ijaz Ahmad in Para 3 of his note held as under:
“Taxing laws in particular must be framed in such a manner that people of Pakistan themselves voluntarily pay the taxes encouragingly and honestly. Such a motivation can only be infused among the people by eliminating the fear of being exploited by the machinery and income tax authorities. Such motivation will encourage our people to join the list of taxpaying nations consequently stabilizing the financial position of the state helping Nation get rid of IMF and World Bank. Fixing upper and lower tax limits for all occupants, industrialists and professionals other than salaried people will help inculcate a sense of responsibility and an encouragement among the people. Having achieved the maximum tax limit, the rigours of law should not touch the assessees. Once this legal technique is adopted, every person shall try his level best to reach the maximum level rather than avoiding paying the tax. This formula will also eradicate social evils of concealing, lying and erroneously submitting income tax returns resultantly providing a better and stronger social system…..”
[Bold and underlined by us to emphasise]
The process of seeking tax proposals by FBR and framing Finance Bill is in violation of Article 77 read with Article 162 of the Constitution as explained by the Supreme Court of Pakistan in Engineer Iqbal Zafar Jhagra and Senator Rukhsana Zuberi v. Federation of Pakistan and Others (2013) 108 TAX 1 (S.C.Pak.) as under:
“Parliament/Legislature alone and not the Government/Executive is empowered to levy tax. As far as delegation of such powers to the Government/Executive is concerned, the same is for the purpose of implementation of such laws, which is to be done by framing rules, or issuing notifications or guidelines, depending upon case to case, as we have come across some of the cases noted hereinabove. But in no case, authority to levy tax for the Federation is to be delegated to the Government/Executive. Therefore, arguments so raised by learned counsel have no force and the same are repelled hereby.”
[Bold are by us for emphasis]
The principle of “no taxation without representation”, embodied in Article 77 read with Article 162 of the Constitution, has been perpetually and flagrantly violated in Pakistan—a lamentable act that remains unnoticed at all levels. The prime culprits are members of parliaments who have been delegating their legislative power of levying taxes to the federal government (through FBR). This is in utter violation of Constitution and the decisions of the Supreme Court cited above.
Authority to issue Statutory Regulatory Orders (SROs) for extending any kind of exemption or concession in respect of any tax is gross violation of Article 162 of the Constitution which says:
“162. Prior sanction of President required to Bills affecting taxation in which Provinces are interested: – No Bill or amendment which imposes or varies a tax or duty the whole or part of the net proceeds whereof is assigned to any Province, or which varies the meaning of the expression “agricultural income” as defined for the purposes of the enactments relating to income-tax, or which affects the principles on which under any of the foregoing provisions of this Chapter, moneys are or may be distributable to Provinces, shall be introduced or moved in the National Assembly except with the previous sanction of the President.”
The delegated power to an executive authority to frame laws or issue SROs is in utter violation of Article 162 as Parliament itself is not authorised to consider any Bill or amendment that imposes or varies a tax or duty, the whole or part of the net proceeds whereof is assigned to any province, unless the same is first approved by the President. Exercise of delegated powers by FBR to vary a tax or duty through SRO is a blatant violation of Article 162 which has never been challenged and even no suo moto action is taken by the apex court that is to interpret and enforce the Constitution—this confirms our intellectual bankruptcy in understanding and implementing the supreme law of the land.
Enforcement of Rule of Law determines the failure or success of democracy in any society. In the context of tax laws, it means that taxes are imposed through parliamentary process, rather than through administrative discretions (SROs). The language of Article 77 of Constitution is couched in negative starting with the word “no”. It excludes all others to levy any tax. It shall and can only be levied for the purposes of the Federation and that too by or under the authority of the Act of Parliament.
In the past many FBR’s stalwarts [retired Member Policy, Dr. Muhammad Iqbal et al] have been insisting that words “by or under the authority of Act”, as used in Article 77 of the Constitution, authorise “taxation by delegation” as well which they considered justified doing so through Statutory Regulatory Orders (SROs). However, before the Supreme Court in Messers Mustafa Impex, Karachi v Government of Pakistan (2016) 114 Tax 241 (S.C Pak.), Additional Attorney General submitted”
“……the levy and exemption of tax is the function of Parliament under Article 77 of the Constitution and…… power of exemption if given to the executive per se, would amount to the negation of the doctrine of parliamentary supremacy and the doctrine of separation of powers”.
The above submission was against the view of FBR and was confirmed by the Apex Court. Irritated by the judgement of the Honourable Supreme Court, the tax babus sitting in FBR, who always hoodwinked the Finance Minister Ishaq Dar or he himself was party to such unconstitutional measures, inserted amendments through Finance Act 2017 in Customs Act, 1969 [section 221A], Sales Tax Act, 1990 [section 74A], Income Tax Ordinance, 2001 [section 241] and Federal Excise Act, 2005 [section 43A] to nullify the judgement of Supreme Court in Messers Mustafa Impex, Karachi v Government of Pakistan (2016) 114 Tax 241 (S.C Pak.). The textofall these amendments is almost the same: “All notifications and orders issued and notified in exercise of the powers conferred upon the Federal Government, before the commencement of Finance Act, 2017, shall be deemed to have been validly issued and notified in exercise of those powers, notwithstanding anything contained in any judgment of the High Court or Supreme Court”. One wonders what kind of wizards FBR and Ministry of Law had approved/vetted these amendments. Article 77 of the Constitution, as enunciated by Supreme Court, could not be bypassed though such amendments in subordinate laws? These, in fact, amounted to contempt of court. The then Law Minister and Attorney General of Pakistan, both seasoned lawyers, should have advised the then Finance Minister to withdraw them as the only remedy was a constitutional amendment and not mere insertion of validation clauses in subordinate laws but they failed to do so.
Unfortunately, the then Prime Minister and the Finance Minister have been violating the command of supreme law of the land and dictum of Supreme Court with impunity by levying and varying tax rates through Statutory Regulatory Orders (SROs). The worst example was SRO 408(I)/2017 dated May 31, 2017 through which against standard rate of 17% under Sales Tax Act, 1990, high speed diesel was subjected to rate of 34.5%. The coalition Government of Pakistan Tehreek-i-Insaf (PTI) since inception has also been levying higher taxes/levies on petroleum products through SROs. It is high time that present Advocate General and Federal Minister of Law should advise the PTI Government to stop this unconstitutional practice.
The landmark judgement by the Supreme Court [Messers Mustafa Impex, Karachi v Government of Pakistan (2016) 114 Tax 241 (S.C Pak.)] in unequivocal and unambiguous terms has provided that power of levying taxes (which includes exemption, waiver and change in tax rates etc) under Article 77 of the Constitution is the sole prerogative of the Parliament and it cannot be delegated to any executive authority.
It is shocking that after judgement of Supreme Court in Messers Mustafa Impex, Karachi v Government of Pakistan (2016) 114 Tax 241 (S.C Pak.) and Engineer Iqbal Zafar Jhagra and Senator Rukhsana Zuberi v Federation of Pakistan and Others [(2013) 108 TAX 1 (S.C. Pak)], successive governments, including the incumbent, headed by Prime Minister, Imran Khan, have been resorting to imposing new taxes or varying the rate of taxes through SROs violating not only Article 77 but also openly defying Article 189 of the Constitution. They are lucky that this aspect has neither been considered by the Apex Court suo muto nor has any counsel representing the parties in various tax disputes, highlighted it for seeking contempt proceedings against the contemnors.
Thus delegation of legislative power to the executive to vary a tax or duty renders the entire tax system unconstitutional. The so-called wizards sitting in FBR have been playing havoc with tax laws by issuing infamous SROs and administrative instructions—granting exemptions or modifying taxes imposed by the parliament or even levying taxes under the garb of rule-making powers.
Another blatant violation of Constitution remains unnoticed is raising non-tax revenue through maximum imposition of petroleum levy (PL) of Rs. 30 per litre as it remains with the Federal Government, whereas any rise in general sales tax (GST) has to be shared with the provinces as per prevalent National Finance Commission (NFC) Award giving them 57.5% of proceeds.
The Finance Act, 2018 substituted Fifth Schedule to the Petroleum Products (Petroleum Levy) Ordinance, 1961 authorising maximum imposition at the rate of Rs. 30 per litre on High Speed Diesel Oil, Motor Gasoline, Superior Kerosene Oil, Light Diesel Oil, High Octane Blending Component and E-10 Gasoline. As regards Liquefied Petroleum Gas (produced/extracted in Pakistan), the maximum levy can be Rs. 20,000 per metric ton. After this amendment, the Government needs not go to Parliament and can raise the PL anytime while remaining within the maximum limit.
Since PL is non-tax item, any amendment in Petroleum Products (Petroleum Levy) Ordinance, 1961 could not have been made through Money Bill. The law passed in 2018 by then National Assembly was thus unconstitutional. In 2011, amendments were made in Petroleum Products (Petroleum Levy) Ordinance, 1961 through Petroleum Products (Petroleum Levy) Amendment Act, 2011, which was passed by both National Assembly and Senate as per the Constitution. It can be seen at the website of Senate of Pakistan.
The substitution of Fifth Schedule to the Petroleum Products (Petroleum Levy) Ordinance, 1961 through Finance Act 2018, passed by National Assembly on May 18, 2018, bypassing the Senate was a flagrant violation of the Constitution. Now, it is being used by the PTI Government that is continuation of violation of supreme law of the land by the National Assembly during the Government of Pakistan Muslim League (Nawaz). It was explained by the Supreme Court of Pakistan in Workers Welfare Funds m/o Human Resources Development, Islamabad through Secretary and others v East Pakistan Chrome Tannery (Pvt.) Ltd through its GM (Finance), Lahore etc. and others [(2016) 114 TAX 385 (S.C. Pak.)] as under:
“We may develop this point further; although Article 73(3)(a) of theConstitution states that a Bill shall not be a Money Bill if it provides for the imposition or alteration of a fee or charge for any service rendered, this does not mean that if a particular levy/contribution does not fall within Article 73(2) it must necessarily fall within Article 73(3). Sub-articles (2) and (3) are not mutually exclusive. There may very well be certain levies/contributions that do not fall within the purview of Article 73(3) but still do not qualify the test of Article 73(2) and therefore cannot be introduced by way of a Money Bill, and instead have to follow the regular legislative procedure.
The above decision of the Supreme Court approved the judgement of Lahore High Court reported as 2011 PTD 2643 holding as under:
“The special legislative procedure is, therefore, an exception and must operate in its restricted scope. Being a special procedure it also has to be construed strictly as it is a deviation from the normal legislative process under the Constitution. Integrity of a money bill must be jealously guarded and matters falling outside the purview of Articles 73(2)(a) to (g) of the Constitution should not be permitted to stealthily crawl into a money bill (at times due to political sophistry of the Government in power) and adulterate its sanctity”.
At the time of passage of Finance Act, 2018, the above judgement of Supreme Court was in the field but nobody in the National Assembly, including members of PTI raised the issue as to how amendment in Petroleum Products (Petroleum Levy) Ordinance, 1961 could be made through Money Bill.
It is cardinal principle of law that if foundation of any law is unlawful then superstructure automatically collapses. Since the very amendment in Petroleum Products (Petroleum Levy) Ordinance, 1961 as part of Money Bill was unconstitutional, all actions taken thereunder are untenable in law. If Opposition is sincere, it must go to Supreme Court against unconstitutional action of the PTI Government. It proves that in the past they passed laws in utter violation of Constitution and now their protests/rallies/processions under the platform of Pakistan Democratic Alliance (PDM) is nothing but mere lip-service. The Supreme Court may also take suo muto action on this issue for violation of Constitution.
FBR is merely a tax collection body and nothing else. It should first of all take all those legislators to task who are violating the command of Article 5(2) of the Constitution to pay their taxes diligently. Majority of the legislators, who are under oath to safeguard the Constitution, are the worst violators by not filing tax returns or declaring laughable incomes but accumulating assets worth billions of rupees (Restructuring the tax system—III, Business Recorder, January 24, 2020).
Pakistan is a unique country where the legislators and administrators openly violate the Constitution and even well-educated members of civil society and human right activists ask the courts to take suo muto action or lawyers to file pro bono petitions but keep on voting these violators in power. They never even bother to sue the state functionaries for their unlawful acts or not fulfilling the obligation imposed by laws! This is called “collective apathy” or “learned helplessness’.
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Ms. Huzaima Bukhari, Advocate High Court and Visiting Faculty at Lahore University of Management Sciences (LUMS), is author of numerous books and articles on Pakistani tax laws. She is editor of Taxation and partner of Huzaima & Ikram, a leading law firm of Pakistan. From 1984 to 2003, she was associated with Civil Services of Pakistan. Since 1989, she has been teaching tax laws at various institutions including government-run training institutes in Lahore. She specialises in the areas of international tax laws, corporate and commercial laws. She is review editor for many publications of Amsterdam-based International Bureau of Fiscal Documentation (IBFD) and contributes regularly to their journals. She has to her credit over 1500 articles on issues of public importance, printed in various journals, magazines and newspapers at home and abroad.
She has coauthored with Dr. Ikramul Haq 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, 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).
The recent publication, coauthored with Abdul Rauf Shakoori and Dr. Ikramul Haq, is Pakistan Tackling FATF: Challenges & Solutions
available at: https://www.amazon.com/dp/B08RXH8W46
She regularly writes columns for Pakistani newspapers and has contributed over 1500 articles on issues of public finance, taxation, economy and on various social issues in various journals, magazines and newspapers at home and abroad.
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Dr. Ikramul Haq, Advocate Supreme Court, specialises in constitutional, corporate and tax laws. He established Huzaima & Ikram in 1996 and is presently its chief partner as well as partner in Huzaima Ikram & Ijaz. He studied journalism, English literature and law. He is Chief Editor of Taxation andVisiting Faculty at Lahore University of Management Sciences (LUMS).
He has coauthored with 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, 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).
The recent publication, coauthored with Abdul Rauf Shakoori and Huzaima Bukhari is Pakistan Tackling FATF: Challenges & Solutions
available at: https://www.amazon.com/dp/B08RXH8W46
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 for many Pakistani newspapers and international journals and has contributed over 2500 articles on a variety of issues of public interest, printed in various journals, magazines and newspapers at home and abroad.
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Our joint and individual articles can be seen at: