On December 24, 2019
Why the Office of Commissioner Inland Revenue (Appeals) is Unconstitutional [Part 2]
[Part 1 can be accessed here: http://courtingthelaw.com/2019/12/04/commentary/why-the-office-of-commissioner-inland-revenue-appeals-is-unconstitutional-part-1/]
Courts and Tribunals Under the Constitution
The Constitution of Pakistan 1973 makes a distinction between ‘courts’ and ‘tribunals’ despite both exercising judicial power.
Courts are established under Article 175 of the Constitution and include:
the Supreme Court,
a High Court for each province as well as Islamabad, and
other courts established by law, i.e. courts of law established through sub-constitutional legislation as and when required by Parliament or Provincial Assemblies, as the case may be.
Tribunals consist of specialized tribunals, established or recognized by the Constitution itself, such as the Federal Shariat Court, Administrative Courts or Tribunals, Election Tribunals and Military Tribunals. Where such specialized tribunals have been established, the High Courts’ jurisdiction has been barred.
The Supreme Court enjoys the status of being the highest appellate authority deciding appeals arising from both the courts as well as tribunals. The Constitution does not recognize any other forum enabled to exercise judicial functions. In the epic judgement of Mehram Ali v Federation of Pakistan, the Supreme Court categorically recognized this constitutional framework and held that our Constitution recognized only such specific tribunals to share judicial powers with the courts which had specifically been provided by the Constitution itself. It must follow as a corollary that any court or tribunal not founded on any of the Articles of the Constitution cannot lawfully share judicial power with the courts referred to in Articles 175 and 203 of the Constitution. The constitutional validity of the office of the Commissioner (Appeals) needs to be tested on the touchstone of powers of both courts as well as tribunals.
Commissioner (Appeals): a Tribunal or Court?
The Commissioner (Appeals) has not been founded in the Constitution as a specialized court or tribunal for tax matters. Even a reference to such an authority is lacking in the Constitution and there can be no presumption in favor of the existence of tribunals after the categorical findings of the Supreme Court in Mehram Ali that they must be:
specific tribunals, or
specifically provided by the Constitution itself.
The office of the Commissioner (Appeals) fulfills neither of the conditions for tribunals and cannot be equated with other tribunals under the Constitution as discussed above.
This leaves us with the ‘other courts’ in Articles 175 and 203 of the Constitution.
Except for the Supreme Court and High Courts which have been established under the Constitution, all ‘other courts’ come into being through sub-constitutional legislation. In Mehram Ali, the Supreme Court held that the words ‘other courts’ used in clause (1) of A.175 were relevant to the subordinate courts referred to in A.203 of the Constitution. In this case, the Supreme Court grappled with the constitutional validity of special courts created by then newly introduced Anti-Terrorism Act 1997. As originally enacted, ATA 1997 eroded the boundary between the executive and the judiciary with respect to exercise of judicial powers. The Supreme Court laid down legislative changes to such provisions of the ATA 1997 creating a hybrid and parallel system of courts to conform to the constitutional structure. The Supreme Court, inter alia, brought special courts within contemplation of the phrase ‘other courts’ appearing in clause 1 of A.175 and as a corollary made it to be subordinate to the High Courts under Art. 203 of the Constitution. The Supreme Court followed its view in Mehram Ali subsequently in Sh. Liaqat Hussain v Federation of Pakistan PLD 1999 SC 504. In Sh. Liaqat Hussain, the vires of the Pakistan Armed Forces (Acting in Aid of Civil Power) Ordinance 1998 providing a parallel judicial system by way of military courts to try civilians had been examined and held to be unconstitutional to the extent of military courts. A part of the reasoning in the judgment was that military courts had been manned by personnel who were part of and under the command of the executive, which disqualified them from occupying judicial office.
Expanding the Scope of ‘Other Courts’
Recent jurisprudence has been even more progressive. The Supreme Court has addressed the issue of ‘other courts’ in a broader spectrum. The Supreme Court considered all previous judicial decisions on the issue, including the ones in Mehram Ali and Sh. Liaqat Hussain, and provided a clear yardstick for qualifying as ‘other courts’. In Sh. Riaz ul Haq v Federation of Pakistan, the Supreme Court laid down the following conjunctive criteria:
the nature of dispute under adjudication must relate to a right or liability recognized by the Constitution;
discovery of relevant facts in the presence of parties; and
admission of evidence.
The criteria had been applied by the Supreme Court to bring the federal and provincial service tribunals established under Article 212 within the contemplation of ‘other courts’ and accordingly separate the forums from executive control following the principle of separation of powers envisaged in clause(3) of A.175 of the Constitution. In effect, the Supreme Court in Sh. Riaz ul Haq prescribed meaningful consultation with the respective Chief Justices of the Supreme Court and High Courts as a prerequisite for the appointment of judicial officers or chairs of tribunals. This landmark judgment followed the reasoning that even though service tribunals were not created as courts, they had been vested with the characteristics of a ‘court’, hence their independence should also have been ensured pursuant to clause 3 of A.175 of the Constitution. Moreover, it was clarified that whenever judicial power had been vested in a forum, be it a court or tribunal, for all legal intents and purposes it would be a court. The Sindh High Court also subscribed to this view by holding that, except for tribunals, whenever judicial power had been vested in a forum, be it a court, tribunal or commission, for all legal intents and purposes it would be a court. 
There is indeed another pronouncement of the Supreme Court which has taken a different view on the issue. However, the judgement of the Supreme Court in Army Welfare Trust v Collector of Sales Tax 2017 SCMR 9 is, with respect, per incuriam as the matter of ‘other courts’ has never been deliberated upon beyond the overruling of a procedural objection.
The criteria of ‘other courts’ laid down by the Supreme Court in Sh. Riaz ul Haq is significant in the context of the office of Commissioner (Appeals) in order to evaluate its constitutional validity. Commissioner (Appeals) satisfies all three conditions of ‘other courts’.
Taxation is an essential and inherent attribute of sovereignty belonging as a matter of right to every state for any purpose, except where a limitation on the power to levy tax has been indicated in the Constitution. In turn, such tax is a liability or obligation upon the citizens, therefore, the first condition is squarely fulfilled. Secondly, as detailed in Part I of this article, the Commissioner (Appeals) is doubtlessly a forum where both the appellant taxpayer as well as the officer of Inland Revenue have, as a right, the opportunity to present written and oral pleadings which are also made part of the appellate order. Lastly, the third condition of admitting evidence also stands fulfilled as the Commissioner (Appeals) has been empowered to take existing and fresh evidence on record for a judicious disposal of the case. There is no cavil, therefore, that the Commissioner (Appeals) qualifies the criteria laid down for ‘other courts’ by the Supreme Court. The only question now remaining is whether this court can be separated from the executive, as has been done with special courts in Mehram Ali or service tribunals in Sh. Riaz ul Haq.
A typical executive configuration underlies the soul and spirit of the office of Commissioner (Appeals) which is so profoundly clutched in executive control that its separation and independence is plainly impossible. Even in theory, let alone practice, there is no way to botch this constitutional infirmity. Hence, the office of Commissioner (Appeals) is unmistakably ultra vires to the Constitution. It is a product of legislation aimed to create hybrid offices, occupied by executive officers, exercising judicial power. Similar legislation, to a certain extent, has been struck down by the Supreme Court previously in a leading precedent namely Sh. Liaqat Hussain.
Finishing up with the timeless words of Thomas Jefferson:
“The executive power in our government is not the only, perhaps not even the principal, object of my solicitude. The tyranny of the legislature is really the danger most to be feared, and will continue to be so for many years to come. The tyranny of the executive power will come in its turn, but at a more distant period.”
The Constitution of Pakistan, 1973
Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445
Liaqat Hussain v Federation of Pakistan PLD 1999 SC 504
Riaz ul Haq v. Federation of Pakistan PLD 2013 SC 501
Ranyal Textiles v Sindh Labour Court PLD 2010 Karachi 27
Army Welfare Trust v Collector of Sales Tax 2017 SCMR 9
 the Constitution
 Chapter 3A, Part VII, the Constitution
 Art. 212, the Constitution
 Art. 225, the Constitution
 Referred to in Art. 199(3) of the Constitution dealing with terms and conditions of service of members of Armed Forces;
 PLD 1998 SC 1445
 PLD 1998 SC 1445 [Para 11(iii)]
 PLD 1998 SC 1445 [Para 11(ii)]
 ATA 1990
 PLD 2013 SC 501
 PLD 2013 SC 501 [Para 40]
 Ranyal Textiles v Sindh Labour Court PLD 2010 Karachi 27 [Para 20]
[Link to Part 1: http://courtingthelaw.com/2019/12/04/commentary/why-the-office-of-commissioner-inland-revenue-appeals-is-unconstitutional-part-1/]
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.
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