The Constitution of Pakistan, 1973 Developed by Zain Sheikh

Per Dr. Ghous Muhammad, J.

(a) Constitution of Pakistan, 1973 Preamble

Lord Scarman feared that if judicial power was confined the power to do justice would be at risk and be restricted by justice would be at risk and be restricted by law, than it need to be. We do not share the pessimism of Lord Scarman. The law as enshrined in our Constitution expresses a trichotomy of powers see State v. Ziaur Rehman PLD 1973 SC 49 where the judges are the guardians of the Constitution and thus, are under a legal and Constitutional obligation to monitor the entire legal order of the State. [p. 2732]C

(b) Constitution of Pakistan, 1973 Articles 3 & 4

Maitland to the effect that as an ideation judicial review has always been a dynamic concept and each generation has enormous power to shape its own laws; its progressive growth with passage of time would bring into its fold newer subjects and enrich its armoury with bolder concept. In fact this is the mandate of Articles 3 and 4 of the Constitution which prescribed the due process clause. [p. 2732]E

(c) 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