Is Hafeez Shaikh’s inclusion in the 10th NFC ‘unconstitutional’?

Hafeez Shaikh's inclusion in the 10th NFC award has been challenged on technical grounds. Lawmakers from Balochistan are already unhappy over Javed Jabbar’s nomination. Will the controversy let the commission work?

Hafeez Shaikh's inclusion in the 10th NFC

The Islamabad High Court (IHC) has directed the federal government to submit its response as it took up a petition questioning Hafeez Shaikh’s inclusion in the 10th NFC (National Finance Commission). Shaikh is Prime Minister’s Special Assistant on Finance and Revenue and has allegedly been made a part of the 10th NFC without consultation in accordance with Article 160(1) of the Constitution. The petitioner has questioned if the President of Pakistan can authorize an unelected person to head the NFC.

President Dr Arif Alvi has reconstituted the 10th NFC to work out a new resource distribution formula between the Centre and the federating units. The NFC is a constitutional body meant to distribute financial resources between the federal government (vertical distribution), and the provinces (horizontal distribution).

According to details, a petition filed by Pakistan Muslim League-Nawaz (PML-N) senior leader Khurram Dastgir Khan has challenged the constitution of the commission.

The one-member bench comprising Justice Miangul Hassan also sought responses from Federal Law Secretary Muhammad Khashihur Rehman, SAPM Shaikh, Principal Secretary to the president Tariq Najmi, Cabinet Secretary Ahmad Nawaz Sukhera and other respondents.

Barristers Mohsin Shahnawaz Ranjha and Omer Gilani represented the petitioner in the court.

Since the country does not have a regular/elected finance minister, President Dr Arif Alvi authorized the inclusion of Shaikh in the commission to enable him to chair meetings of the NFC otherwise there was no room in the Constitution for an adviser to be even a member of the commission let alone preside over its meetings.

Read More: Can Hafeez Shaikh present budget without taking oath as federal minister?

In his arguments, Barrister Ranjha noticed that the Constitution demands the country to be governed by elected representatives. “In the absence of an elected finance minister, who will be the convener [of the NFC]. The president cannot convene a session,” he said.

Ranjha argued that the Constitution leaves no room for a PM’s adviser, an unelected official, to call a session of the NFC. “In this case, we have to review whether the PM’s finance adviser is the only one who has been included without consultation,” remarked the judge.

Focus on Hafeez Shaikh’s inclusion in the 10th NFC, advises the judge

During the hearing, citing media reports, Barrister Omer Gilani contended that Sindh Chief Minister Murad Ali Shah has also objected to the decision regarding the 10th NFC. To which, Justice Miangul Hassan warned the lawyer to present “factual arguments instead of speculating” about the issue in question.

“Whatever you cannot resolve on the assembly floor, you bring it here [to courts],” remarked the judge. The judge warned the barrister that in case the petition gets rejected then an “exemplary fine” will be imposed on the petitioner.

Read More: Federal Government set to constitute 10th NFC Award – provinces apprehensive!

Justice Aurangzeb was of the view that instead of questioning the establishment of the commission, the petitioner should have questioned Hafeez Shaikh’s inclusion in the 10th NFC.

Controversy surrounding the 10th NFC: Balochistan’s perspective

It is worth noting that the decision that Javed Jabbar would represent Balochistan in the 10th NFC Award has raised many questions in the political realm. Maria Malik, an academic and researcher, has recently questioned the inclusion of Javed Jabbar in the commission. Ms. Malik is the author of Balochistan Conundrum: The Real Perspective.

“The opposition and several analysts believe, she maintained, “that the nomination is not representative of Balochistan and its financial interests and concerns and a person more specialized in fiscal matters of Balochistan should have been nominated by the provincial government.”

Mohammad Aslam Bhootani, an independent member of the National Assembly from Gwadar-Lasbela, disapproved of Javed Jabbar’s nomination. He told reporters that he would challenge the decision in court. “The chief minister did not find a single qualified person in 10.3 million population of Balochistan to plead Balochistan’s case in the NFC and protect interests of the province?”, he asked.

Read More: 10th NFC Award: Will Javed Jabbar get Balochistan its due share?

Notably, the four private members who have a critical role in articulating the views and interests of their federating units. The finance ministers, nominated for the NFC, come from political parties. They are elected representatives and most of them may not be public finance experts. They follow the directions of their respective political leaderships.

The private members are named for the NFC by the provincial governments after approval from their cabinets. They play an important role in achieving consensus on the apportionment of federal taxes among the units of the federation.