TERENCE J SIGAMONY

ISLAMABAD: The Supreme Court on Wednesday held that the protection from taxation is not listed as fundamental right conferred by Chapter 1 of Part II of the Constitution.

A three-judge bench, headed by Chief Justice Asif Saeed Khan Khosa and comprising Justice Qazi Faez Isa and Justice Ijazul Ahsan on April 24, 2019 hearing a matter regarding deduction of taxes and other charges by mobile companies had disposed of the human right case and restored all the taxes charged by cellular service providers on mobile phone top-up cards.

Former CJP Mian Saqib Nisar taking suo motu on May 03, 2018 had declared that charging of high amount of tax/other charges (40%) on topping up the balance and calling cards is unreasonable. He also said that withholding tax, sales tax and service charges were not validly and legally imposed on amounts loaded by users of mobile phones.

Justice Qazi Faez Isa authored the judgement, while Justice Ijaz wrote a dissenting note. The judgement said the Supreme Court may invoke jurisdiction under Article 184 (3) of the Constitution in respect of matters of public importance which require the enforcement of any of the fundamental rights.

Whilst exercising this jurisdiction the Supreme Court regulates itself, therefore, it must ensure that the two stipulated preconditions are first met. Moreover, as there is no appeal against an order/judgement passed by this court in exercise of jurisdiction under Article 184 (3) of the Constitution, every precaution should be taken to strictly act within the precise parameters set by the Constitution.

The judgement said that in exercise of power under Article 184 (3) of the Constitution, the apex court may pass appropriate orders for the enforcement of fundamental rights. These fundamental rights are those conferred by Chapter 1 of Part II of the Constitution and “protection from taxation is not listed as one of these fundamental rights.”

Justice Qazi Faez agreed with the law officers (attorney general for Pakistan and advocate general of provinces) that the taxes can not be presumed to be against the public interest since taxes are spent for the benefit of the people.

He wrote that the apex court is generally slow in entertaining challenges to taxes which are imposed by the appropriate legislature in apparent conformity with the provisions of the Constitution. This, however, is not to say that a law imposing a tax cannot be challenged.

The judgement said the case of Iqbal Zafar Jhagra does not constitute a precedent in respect of a challenge to a tax imposed by the legislature. In the present case advance income tax and the federal excise duty imposed by the Parliament and sales tax imposed under the respective provincial laws are under consideration, it added.

“Only once the taxes imposed by the six statutes (Income Tax Ordinance, 2001, Federal Excise Act, 2005 and the provinces Sales Tax on Services Acts) are declared contrary to the Constitution and struck down, could their imposition and collection from subscribers/customers of cellular telecom companies be stopped.”

However, Justice Ijaz ul Ahsan differed with the main judgement. He wrote if the matter coming to the notice of this court falls within the ambit of Article 184(3), in that, it involves a question of public importance with reference to the enforcement of any of the fundamental rights conferred by Chapter I of Part II of the Constitution, then the Constitution empowers this court to take cognizance thereof and pass such orders as it may deem appropriate to protect, preserve and enforce such fundamental right(s) of citizens as may have been violated or threatened, being the protector, defender and guardian of the Constitution and the fundamental rights enshrined therein.

He further stated that the framers of the Constitution intentionally, deliberately and by conscious design placed no restriction on the types of fundamental rights for enforcement of which powers under Article 184(3) can and cannot be exercised.

He wrote that as long as two conditions are, in the opinion of the court, met, it is immaterial whether the violation relates to a fiscal matter, taxation, a matter involving property rights, personal freedoms or human liberties, this court can and should exercise its powers to come to the rescue of the citizen whose rights may be at risk of being bulldozed, destroyed or encroached upon by the state with all the might and resources available to it.

The power under Article 184(3) has been conferred upon the court to protect the weak and the downtrodden who may not be able to retain fancy and expensive lawyers but whose fundamental rights are as sacrosanct as those of the more privileged classes of the society who have the wherewithal and the requisite resources to approach and seek protection of their rights through courts of law.

“The Article 184(3) is a power designed and meant to be exercised for the protection of the proverbial “Little Man”; those who do not have the means to approach courts of law for enforcement and protection of rights guaranteed to them by Constitution which and each article whereof we are under oath to preserve, protect and defend. Failure or refusal to exercise this power in fit and appropriate cases is the violation of a trust and the hallmark of infidelity to the Constitution,” he stated.