The Constitution of Pakistan, 1973 Developed by Zain Sheikh

(a) Constitution of Pakistan, 1973 Article 184(3)

In our humble opinion this obviously means that public interest litigation is inquisitorial in nature where the Court may even delve into fact finding so as to promote public interest. [p. 2730]A

(b) Constitution of Pakistan, 1973 Articles 184(3) & 199

The pre-condition of public interest litigation and effective enforcement of rights and obligations of parties, whether the individual or the State, is to be found in judicial activism. Simply stating, judicial activism is nothing but to keep abreast with the times and offering an interpretation of law which would make the law workable rather than render it obsolete.

Notably the Supreme Court has trod upon the zenith of judicial activism when in that case it further observed that where a law of the past does not fit in the present context, the Court should evolve a new law. We fully subscribed to the latter view. The Courts in Pakistan have equally marched towards judicial activism. [pp. 2731, 2732]B & D

(c) Constitution of Pakistan, 1973 Article 184(3)

That case, of course, reflected an exercise of power under Article 184(3) of the Constitution which empowers the Hon’ble Supreme Court to exercise original Constitutional jurisdiction where the matter concerns a question of public importance having reference to the enforcement of fundamental rights. Under the said Article 184(3) there is no clog for maintaining a petition by a person who is not directly aggrieved. [p. 2733]F

(d) Constitution of Pakistan, 1973 Article 199

Very recently the Hon’ble Supreme Court in Ardeshi Cowasjee v. KBCA 1999 SCMR 2883 has held that in order to maintain a writ petition in the High Court it was not necessary for the petitioner to have a right in the strict sense but it was enough if the petitioner disclosed sufficient or personal interest for the performance of some legal duty. It was further observed that the concept of locus standi has been whittled down and accordingly, the term sufficient interest had to be given a generous interpretation. [p. 2734]G

(e) Constitution of Pakistan, 1973 Article 199

In the present case the petitioner, a litigant who under the statute has filed an appeal before the CESAT, derives a personal and sufficient interest to be dispensed with expeditious justice in accordance with law by the said forum. The necessary corollary would be that the petitioner would have sufficient interest in the proper working of the CESAT. [p. 2734]H

(f) Constitution of Pakistan, 1973 Articles 2A, 37(d) & 199

The preamble of the Constitution alongwith the Objective Resolution guarantee expeditious dispensation of justice. The said Objectives Resolution has been made a substantive part of the Constitution through Article 2A. Similarly, Article 37(d) guarantees a citizen inexpensive and expeditious justice. Accordingly, any direction in the from of ameliorating the working of the CESAT would be in the nature of enforcing the provisions contained in the Constitution.

Without giving any findings on the complaints which are discussed above or the above performance of the CESAT for three months, the following directions are given to the learned members of the CESAT for strict compliance:–

(a) The learned members must commence hearing on daily basis from 9-00 a.m. to 1-30 p.m. or till the daily roster of causes is completed, with half-an-hour break;

(b) The learned members thereafter should be available in their respective chambers and writ judgments/orders and attend to miscellaneous and other administrative work;

(c) Once in a week no hearings, except in urgent matters, may take place and that day may be reserved for judgment writing. This day may be Friday preferably;

(d) Every day the daily roster should list out the hearings and causes for the next day on a notice board by 12-00 noon;

(e) At least one week’s written intimation/notice of fixation of regular hearing be received by parties;

(f) Injunction/stay and other miscellaneous applications are to be taken up urgently and disposed of without delay;

(g) Orders on the injunction and other miscellaneous applications be communicated within a day or two of the hearing to the applicants or their counsel;

(h) Orders/judgments of the appeal after the final hearing may also be given promptly and in turn communicated to the appellants and/or their counsel within a period of 10 days of passing of such judgment/order. The judgment order of the appeal be given preferably within one month of the hearing;

(i) The Chairman and other members of the CESAT are directed to consult senior lawyers appearing before the CESAT as also the President and Office Bearers of the Customs, Central Excise and Sales Tax Bar Association, if any, so as to vet and finalise the rules for the working of CESAT on the lines of the Income tax Appellate Tribunal Rules, 1981;

(j) The conduct of hearing and its outcome should be strictly in accordance with law and settled judicial conventions. The learned members of the CESAT are directed to pass speaking and judicial orders by following the provisions of the statute and the judgments of the superior Courts. Attempt should be made to consider all arguments of the parties and give well reasoned findings thereon. Effort should be made to redress a common complaint that arguments of parties have not even been looked into;

(k) Where recoveries to tax are restrained, attempt should be made to decide the main appeal expeditiously and in any event before six months;

(l) Another common complaint is that CESAT never proceeds in the absence of departmental representatives despite repeated notices and intimations of hearings sent to the department. Despite proper service of notice if none appears, the CESAT is at liberty to proceed and decide the matter. The Chairman, C.B.R. is directed to ensure presence of departmental representatives before the CESAT;

(m) Another common complaint is that even where some injunction restraining the recoveries is granted, the Departmental Representatives seek repeated adjournments so as to effect any time limit of injunction to expire. In such cases the departmental representative be directed to submit has oral undertaking on behalf of the department not to effect recoveries. [pp. 2734, 2738]I & R

(g) Constitution of Pakistan, 1973 Article 199

Drawing support from Al-Jehad Trust, it could safely be said that where an adverse working of a subordinate judicial, quasi-judicial and administrative forum or Tribunal is impugned, the issue becomes justiciable under Article 199 of the Constitution. [p. 2734]J

(h) Constitution of Pakistan, 1973 Articles 175, 203 & 212

In matters of taxation alongwith others there is no reason why the concept of separation of powers should not be applied. It would not be out of place here to place reliance on Corpus Juris Secundum, Volume 16, at page 503 wherein the principle of separation of powers has been approved to be extended to matters of taxation.

If the principle of separation of powers as enshrined in our Constitution is made applicable to matters of taxation, then at least the hierarchies of the judicial forums culminating in the Appellate Tribunals should function under the umbrella of the judicature. If this is so then various provisions in the taxing statures providing for appointments of members to the Appellate Tribunals by the Central Government would fall foul of the Constitution.

If the appointments to the Appellate Tribunals are also regulated and supervised by the judicial organ, it would also be in keeping with Article 203 of the Constitution as already discussed above. In these circumstances the Federal Government may consider and devise schemes or amendments whereby-

(a) All existing appointments of members in all the Appellate Tribunals created under Article 212 are placed before the Chief Justice of the Province in which the incumbents are performing their duties. The Chief Justice himself or any other Judge authorized by or committee appointed by him may look into such appointments to approve or disapprove the same, which would be binding upon the Federal Government;

(b) All future appointments would be screened by the judicial organ of the State.
Appointing members to these Tribunals on political basis or who are otherwise incompetent or have doubtful integrity would prove completely counter-productive, since firstly the quality of judgments as intended o aspired cannot be delivered and secondly, aggrieved against the actions and inactions of the Appellate Tribunals a flood-gate of litigation could be experienced by the High Courts as is marked by the recent trend. [pp. 2740, 2741]S, T, U & V