SHAHID ANWAR BAJWA, J. - With the consent of learned counsel this Constitution petition was finally heard at Katcha Peshi stage and is being decided accordingly. Finance Act, 2007 after having been passed by the National Assembly received assent of the President on June 30, 2007.
Its preamble stated as under:- "(Gazette of Pakistan, Extraordinary. (Part-1, 2nd July, 2007)
No. F 22(40)72007 Legis.-The following Act of Majlis-e-Shoora (Parliament) received the assent of the President on the 30th June, 2007, and is hereby published for general information:- WHEREAS it is expedient to make provisions to give effect to the financial proposals of the Federal Government for the year beginning from the first day of July, 2007 and to amend and enact laws for the purposes hereafter appearing;"
2. The Finance Act, 2007 amended a number of statutes. This Constitution petition has been filed to challenge amendments made through Section 2 (Workmen's Compensation Act, 1923), Section 6 (West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968, Section 7 (Companies' Profit Workers' Participation Act, 1968), Section 10 (Minimum Wages for Unskilled Workers) Ordinance, 1969 and Section 12 (Employees Old Age Benefits Act, 1976) of the Finance Act, 2007. Learned counsel for the petitioner submitted that preamble of the Finance Act, 2007 states that it has been promulgated to "give effect to financial proposals of the Federal Government." All the amendments which have been challenged in the petition have nothing to do with the financial proposals. Learned counsel referred to Article 50 of the Constitution which provides that the Parliament consists of President and two houses to be known respectively, as National Assembly and Senate. Thereafter learned counsel referred to Article 142 of the Constitution where it is provided that the Parliament shall have exclusive power to make laws with respect to any matter in the Federal Legislative List. Learned counsel submitted that the 5 amended statutes have nothing to do with money matters of the Federal Government and therefore could only have been amended by passage of bill by both houses of the Parliament and since Finance Act, 2007 was piloted and enacted as a money bill and did not therefore require passage by the Senate, it could not have made amendments which had no nexus with the subjects of a money bill. Learned counsel for the petitioners relied upon Sind High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary Ministry of Law and Justice, Islamabad and others, PLD 2009 SC 879.
3. Mr. Ashiq Raza, learned DAG referred to Article 73 of the Constitution and submitted that special procedure has been prescribed for money bills which procedure has been followed and therefore the Finance Act did not require it to be passed by the Senate. He referred to Article 73(2) arid said that it stipulates not only a 'bill' but also an amendment. He further submitted that decision of the Speaker of the National Assembly is final in this regard. Learned DAG relied upon besides Sind High Court Bar Association's case on Mutual Funds Association of Pakistan (MUFAP) v. Federation of Pakistan through Secretary Ministry of Finance, Government of Pakistan and another, 2010 PLC 306, M/s. Elahi Cotton Mills Ltd. And others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others, PLD 1997 SC 582, Mian .Anwar-ul- Haq Ramay v. Federation of Pakistan and others, 1992 M LD 2135 and Pakistan Burmah Shell Limited and another v. Federation of Pakistan through Secretary, Ministry of Finance, Government of Pakistan, Islamabad and 3 others, PTCL 1998 CL 690.
4. We have considered the Submissions made by the learned counsel and have also gone through the record as well as case-law cited at the bar.
5. Since Article 73 is at the heart of the controversy, the said Article is reproduced as under:- "73. Procedure with respect to Money Bills.-(1) Notwithstanding anything contained in Article 70, a Money Bill shall originate in the National Assembly: Provided that simultaneously when a Money Bill, including the Finance Bill containing the Annual Budget Statement, is presented in the National Assembly, a copy thereof shall transmitted to the Senate which may, within seven days, make recommendations thereon to the National Assembly.
(1A) The National Assembly shall, consider the recommendations of the Senate and after the bill has been passed by the Assembly with or without incorporating the recommendations of the Senate, it shall be presented to the President for assent.
(2) For the purposes of this Chapter, a Bill or amendment shall be deemed to be a Money Bill if it contains provisions dealing with all or any of the following matters, namely:-
(a) the imposition, abolition, remission, alteration or regulation of any tax;
(b) the borrowing of money, or the giving of any guarantee, by the Federal Government, or the amendment of the law relating to the financial obligations of that Government;
(c) the custody of the Federal Consolidated Fund, the payment of moneys into, or the issue of moneys from, that Fund;
(d) the imposition of a charge upon the Federal Consolidated Fund, or the abolition or alteration of any such charge;
(e) the receipt of moneys on account of the Public Account of the Federation, the custody or issue of such moneys;
(f) the audit of the accounts of the Federal Government or a Provincial Government; and
(g) any matter incidental to any of the matters specified in the preceding paragraphs.
(3) A bill shall not be deemed to be a Money Bill by reason only that is provides-
(a) for the imposition or alteration of any fine or other pecuniary penalty, or for the demand or Payment of a licence fee or a fee or charge for any service rendered; or
(b) for the imposition, abolition, remission, alteration or regulation of any tax by any Iocal authority or body for local purposes.
(4) If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the National Assembly thereon shall be final.
(5) Every Money Bill presented to the President for assent shall bear a certificate under the hand of the Speaker of the National Assembly that it is a Money Bill, and such certificate shall be conclusive for ail purposes and shall not be called in question."
6. Learned counsel for the petitioners relied upon Sindh High Court Bar Association's case (Supra).
Through Finance Act, 2008 number of Judges of the Supreme Court was increased from 17 to 29. It may be pointed out that Finance Act, 2008, was passed as a money bill. Supreme Court of Pakistan observed as under:- "125. Under Article 176 of the Constitution, the number of the Judges of the Supreme Court is to be determined by an Act of Majlis-e-Shoora (Parliament). Until the number of Judges is so determine, it may be such as may be fixed by the President. By the Supreme Court (Number of Judges) Act, 1997 (Act XXXIII of 1997), it was provided that the number of Judges of the Supreme Court of Pakistan other than the Chief Justice shall be sixteen. However, by section 13 of the Finance Act, 2008, the Act No. XXXIII of 1997 was amended and the words "be sixteen", the words "not be more than twenty- nine" were substituted with a deeming clause that the same shall be deemed always to have been so substituted on the 3rd day of November, 2007. We have considered submission made in reply by the learned Attorney General for Pakistan. Clearly, under Article 176, the number of Judges is liable to be determined in two modes, viz. By an Act of Parliament, and until so determined, by the President. An Act of Parliament is different to and distinct from a Finance Act. All substantial legislation is made by an Act of Parliament, that is to say, the passing of the relevant bill by the two houses of Parliament as defined in Article 50 of the Constitution. On the other hand, a Finance Act, in general, is concerned with fiscal matters. Since the Constitution, through its Article 176, authorizes only the Parliament to determine the number of Judges of the Supreme Court of Pakistan and since the Parliament had so done through the Supreme Court (Number of Judges)
Act XXXIII of 1997, the increase in the strength of Judges through the Finance Act of 2008, which was not passed by Majlis-e-Shoora (Parliament), but by the National Assembly alone, the same would be deemed valid only for financial purposes and not for purposes of Article 176 of the Constitution.
Increase of number of Judges in such a manner also militates against the independence of the judiciary Strength of Judges is only to be increased keeping in view its needs, It is also to be ensured that the Courts are packed with persons in disregard of merit, It may be noted that after 3rd November, 2007, after the purported increase of number of Judges of the Supreme Court by means of Finance Act, 2008, Judges of High Courts who did not possess the requisite qualification or who were not men of integrity, were appointed on quid pro quo basis. Against one such appointee, there were serious allegations of misconduct and impropriety. However, after restoration of the Judges to the position they were holding prior to 3rd November, 2007, he resigned from office. Thus, it is declared that the number of Judges of the Supreme Court for purposes of the said Article 176 would continue to remain sixteen."
7. A perusal of the above para indicates that any amendment made through a money bill in any substantive law dealing with the subject other than what is defined as money bill in Article 73(2) of the Constitution would be valid and effective only for the purposes of making financial provisions but-would not have the effect of changing piece of legislation which does not squarely fall within the ambit of scope of money bill as given under Article 73(2) of the Constitution.
8. Learned D.A.G, relied upon Mutual Funds Association's case (Supra), decided by a Division Bench of this Court of which one of us (Shahid Anwar Bajwa, J.) was a member, In the reported case what was challenged was an amendment in the Workers' Welfare Fund Ordinance, 1979. The Division Bench dealing with this matter held that contribution required to be made to Workers' Welfare Fund is in the nature of a tax and therefore, the amendment in the Workers Welfare Fund through a; Finance Act (a money bill) was valid and Intra Vires. However, as far as contention of Mr. Ashiq Raza; with reference to Article 73(4) of the Constitution that a Certificate issued by the Speaker cannot be called if question in any: Court was not decided as it was observed in Para 29 as under:- "29. Similarly contention of Mr. Ashiq Raza, learned DAG that under Article 73(4) of the Constitution decision of the Speaker of National Assembly is final in respect of the position where a particular bill is a money bill or not and therefore once the Speaker has so certified, superior Courts lack jurisdiction to go into such a question need not be decided. There is ample case-law available that where the Constitution or any statutory instrument excludes the jurisdiction of superior Courts, the Honourable Supreme Court and the High Court have repeatedly held that in many circumstances power of judicial review will still be available to the superior judiciary. However, since we have held above that intrusion of the amendment in Workers' Welfare Fund Ordinance, in respect of addition of section 2(f)(iva) in it is in the nature of a money bill, we need not to decide this particular aspect of Mr. Ashiq Raza's arguments."
9. Learned DAG relied upon Elahi Cotton Mills's case (Supra). Facts of case were that through Finance Act, 1991 certain amendments were made in the Income Tax Ordinance imposing tax on income of certain contractors and importers. Concept of deemed income was incorporated and in respect of companies it was provided that tax payable shall not be less than half percent of their turn over, It was this aspect which was challenged in the Constitution Petition and the Supreme Court held' that power conferred oh the Parliament in the Legislative List cannot be construed narrowly but the same is to be given a liberal construction. The question in issue in the reported case was a provision in the Income Tax Ordinance and it was question of imposition of tax which, as a very simple reading of Article 74(2)(a) indicates, falls within scope of money bill as contained in Article 73(2) of the Constitution.
10. Mian Anwar-ul-Haq Ramay's case (Supra) was also relied upon by the learned counsel.
Question under consideration was vires of section 19 of the Customs Act, 1969 and of Section 7 of the Sales Tax Act, 1951 and the consequential notifications. Under Section 19 of the Customs Act, the Central Government was granted power to exempt by notification any goods imported into or exported from the whole or any part of the customs duties. Similar power was conferred on the Federal Government by Section 7 of the Sales Tax Act. Through notification exemption was granted from custom duty to Polyester Staple Fire to the extent specified in the notification from sales tax to goods produced in the Khayber Pakhtoonkhwa and Province of Baluchistan except Hub Chowki area. Such amendments and notifications were challenged on the ground, inter alia, that the amendments were made in the Customs Act and Sales Tax Act through a money bill. The Division Bench of the High Court observed as under:- "7. Although apparently the argument , appears to have some force but not tenable on close scrutiny of the relevant provisions of the Constitution. Article 77 of the Constitution provides that tax shall be levied by or under authority of Act of Parliament. The framers of the Constitution in their wisdom intentionally omitted to bring within the scope of the Article the abolition, remission, alteration or regulation of any tax. There is no provision in the Constitution similar to Article 77 of the Constitution providing as a positive mandatory command that like the levy of tax, the abolition, remission, alteration or regulation of any tax levied under Article 77 should also be made only by an Act of Parliament so as to bring these matters within the scope of exclusive legislative function.
Learned counsel of the petitioner has not been able to point out any such provision in the Constitution except Article 73(2) of the Constitution which provides that if a Bill contains provisions for remission, alteration etc. Of a tax the same would constitute a Money Bill. This Article in our view simply defines the Money Bill and there is nothing in it that remission, alteration etc. Of tax "could only be made by the legislature exclusively through a Money Bill. Since in the scheme of the Constitution it is provided that a Money Bill unlike every bill has to originate in the National Assembly and after it had been passed the same has to be presented to the President for assent without being transmitted to the Senate, therefore it was necessary to provide the definition of the Money Bill for the said purpose.
8. It is of no merits to say and it can safely be stated that Article 73(2) cannot be construed to have provided that alteration, remission or abolition like levy of tax is also the exclusive legislative power which could only be performed by the Parliament."
11. In Pakistan Burmah Shell's case (Supra) what was under challenged was the same provision which was also challenged in the Supreme Court in Elahi Cotton Mills' case (Supra).
12. Since the Hon'ble Supreme Court in Sind High Court Bar Association's case has clearly held that an amendment in a statute not dealing with the subjects as detailed in Article 73(2) would be deemed to be valid only for financial purposes and not for the purpose of any other statute, therefore, what has to be seen is whether the amendments in the laws under challenged (as detailed in para 2 above) fall within the compass of what has been laid down by the founding fathers of the Constitution in Article 73(2) of the Constitution.
13. Workmen's Compensation Act, 1923 is the oldest statutory instrument still valid in Pakistan in the field of Labour legislation. Preamble of the Act of 1923 states that it is aimed for providing payment by certain classes of employer to their workmen of compensation for Injury by accident, In the Workmen's Compensation Act, Section 2(n) defines TSiJWJfkman and or of requirements was that he must be employed on monthly wages yet exceeding 3,000 rupees. Such requirement was sought to be Deleted by the amendment through Finance Act, 2007. Schedule-ll of the Workmen's Compensation Act, lays down the list of persons subject to the provisions of the Act. Elaborate provisions are made in the Act for compensation for injuries, total disablement and death and mechanismfor implementation and adjudication has been provided, It may be noticed that over the years Workmen's Compensation Act has been amended a number of times. For examples by Act of IX 1933, by Act of IX of 1938 and after the enforcement of 1973 Constitution, by Act XIV of 1973, Act XI of 1975, by Ordinance XXVII of 1981 etc. And all such amendments in the Workmen's Compensation Act, is in the interest of toiling millions but command of the Constitution must be followed and command of the Constitution is that except for the items provided under Article 73(2) of the Constitution other amendments in the statutes and enactments be made in accordance with the procedure prescribed by the Constitution.
14. Through Section 6 of the Finance Act, 2007 a proviso has been added to Clause (6) of Standing Order 12 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Through Section 7 amendments have been made in respect of definition of workman given in the Companies Profits (Workers' Participation) Act, 1968. This Act is only applicable to certain companies. Through Section 10 armament has been made in the Minimum Wages;for Unskilled Workers Ordinance, 1969, which fixes minimum wage for workers employed in Industrial and Commercial u Establishments. Through Section 12 amendment has been made in the Employees'
Old-age Benefits Act, 1976. None of these has any connection or link with any of the items specified in Article 73(2) of the Constitution. None of these amendments relate to imposition, abolition, remission or regulation of any tax. They do not concern with borrowing of money or giving of any grant by Federal Government or any law relating to the financial obligation to the Federal Government. They have no link whatsoever with the custody of Federal Consolidated Fund and payments of money into or issue of money from it. They do not deal with imposition of any charge upon the Federal Consolidated Fund or the abolition, alteration of any such charge. They do not impact upon receipts of moneys on account of Public Account of the Federation or to the audit of accounts of the Federal Government. None of them by any stretch of logic therefore can be treated as money bill.
15. Constitution of a country is the fundamental document laying down, among others, structures of the State and powers and functions of various organs of the State. All such organs are creations of the Constitution and derive their powers from the Constitution and subject to the Constitution from laws enacted in accordance with the dictates of the Constitution. Power to enact laws is one of the most essential powers in existence of any State. Our Constitution has conferred all necessary powers in this regard on the Parliament and the Provincial Assemblies and powers of issuing Ordinances though valid for defined periods upon the President or, as the case may be, a Governor of a Province. Where it deals with power of the Parliament to legislate it clearly created a dichotomy between money bills and other legislation. Money bill can originate only in the National Assembly and after having been passed by the National Assembly are to be transmitted to the President for his assent and are not required to be passed by the Senate. Scope of money bills has been defined under Article 73(2) of the Constitution. If a bill which does not fall within the scope of money bill defined is passed as money bill it amounts to depriving Senate of Pakistan of the powers conferred upon it by the Constitution. Mandate of the Constitution must be respected and should not be sacrificed at the alter of political expediency.
16. As far as contention that certificate issued by the Speaker of National Assembly cannot be challenged is concerned, suffice it to say that we have followed judgment of the Supreme Court in Sindh High Court Bar Association's case (Supra).
17. We are fully cognizant of the fact that all Labour legislation is primarily designed to be beneficial in nature and it aims at protecting a weaker segment of the society and at reducing rigors of their lives. The noble sentiments behind changes in the Labour Laws cannot have the effect of conferring legitimacy on a piece of legislation which otherwise has not been validly enacted, In Sindh High Court Bar Association's case(Supra) since Islamabad High Court as created in 2007 was found to have been created in exercise of powers which were not available with the then President/Chief of Army Staff, the Supreme Court held that Chief Justice and Judges of the Islamabad High Court shall cease to hold office. Thereafter in Para 183 of the judgment the Supreme Court noted that under Article 37 of the Constitution, the State is obliged, inter alia, to ensure inexpensive and expeditious justice. Thereafter the Supreme Court observed as under:- "The establishment of the Islamabad High Court was commendable step in aid of the right of access to justice in line with the above Constitutional mandate and the law laid down in the aforesaid cases. However, it is unfortunate that the said Court was not established in accordance with the provisions of the Constitution, rather it was so done that person not empowered under the Constitution to do so, with ulterior motive. General Pervez Musharrif, as held in the preceding paragraphs, mixed up his mala fide acts of removal of Judges of the superior Court in violation of the Constitution and his own purported validation of all such unconstitutional and illegal acts by means of Article 270 AAA, with the act of establishing a High Court for the Islamabad Capital Territory, otherwise an act, which would tend to advance or promote the good of. The people, so that he was able to get validation and affirmation from the Parliament, as had happened in the cases of Begum Nusrat Bhutto and Zafar AN Shah. Thus, having been so unconstitutionally established in a highly objectionable manner, it was not possible to project it. It is, therefore, added that notwithstanding what has been declared and ordered above, the relevant and competent authorities may take steps to establish such a Court in accordance with the Constitution and law."
18. We can only observe that it is within competence of the Legislature to legislation for providing similar, better or different provisions and benefits but that can only be done in accordance with the procedure prescribed under the Constitution.
19. Consequently we hold that the amendments brought about through Sections 2, 6, 7, 10 arid 12 of the Finance Act, 2007 are ultra vires of the provisions of the Constitution. The same are therefore treated as without any lawful authority and of no legal effect. This Constitution Petition is disposed of in the above term.