Per Muhammad Haleem, J.
(a) Constitution of Pakistan (1973), Articles 89 & 94:
Article 89 – No tax shall be levied for the purpose of the Federal Government except by or under the authority of an Act of the Federal Legislature.
Article 94 – (1) The President may, at a time when the National Assembly stands dissolved or is not in session, make and promulgate Ordinances for the peace and good Government of Pakistan or any part thereof, and any Ordinance so made shall have the like force of law as an Act of the federal Legislature, but the power of making Ordinances under the Article is subject to the like restrictions as the power of the Federal Legislature make laws, and any Ordinances made under this Article may be controlled or superseded by such Act.
(2) Notwithstanding any restrictions imposed by the preceding clause, an Ordinance made under this Article may authorise expenditure from the Federal Consolidated Fund.
(3) An Ordinance promulgated under this Article – (a) shall be laid before the National Assembly and shall cease to operate est the expiration of six weeks from the reassemble thereof, or if before the expiration of that period, a resolution disapproving it is passed by the Assembly, upon the passing of that resolution, (b) may be withdrawn at any time by the
President.
Article 94 read with Articles 89 & 290(2) – Power to “make and promulgate Ordinances for peace and good Government” under Article 94(1) – Held: Includes power to exact tax President can promulgate an Ordinance on any subject including levy of tax.
It was urged that no Ordinance imposing tax could be promulgated by the President under Article 94 of the Constitution of 1972.
Held: The President’s power to make and promulgate Ordinances for the peace and good Government of Pakistan must include the power to exact tax as without money no good Government can function. The subject of tax therefore must be included within the scope of the phrase. The only limitation that is placed on the power of the President to promulgate Ordinance is that it is subject to the like restrictions as the powers of the Federal Legislature to make laws and the Ordinances so promulgated may be controlled or superseded by any such act. In other words the President can promulgate an Ordinance on any subject in regard to which the Federal Legislature can legislate which impliedly defines the scope of the legislation by the use of the phrase “peace and good Government”. Again Article 89 of the Constitution authorises the levy of tax under the authority of an Act of the Federal Legislature. Sub-clause (2) of Article 290 of the Constitution lays down that any reference to Federal Act shall be construed as including the reference to an Ordinance made by the President. Hence Article 89 would also include the levy of tax by an Ordinance promulgated by the President. As such the power to levy tax stands beyond dispute. [p.230]B
COLLECTOR OF CENTRAL EXCISE AND LAND CUSTOMS V. AZIZUDDIN INDUSTRIES LTD. CHITTAGONG PLD 1970 SC 439 distinguished.