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Business Recorder
26-05-2025
- Politics
- Business Recorder
SC questions validity of majority verdict granting relief to PTI amid review pleas
ISLAMABAD: The Supreme Court (SC) questioned if reviews are allowed then which judgment would prevail, as the majority verdict granted relief to a political party (PTI), which was not before the Court. A Full Court of 13 judges on July 12, 24 had passed five separate orders. Eight judges comprising Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, Justice Athar Minallah, Justice Syed HasanAzhar Rizvi, Justice Shahid Waheed and Justice Irfan Saadat Khan passed one set of order, declaring Pakistan Tehreek-e-Insaf(PTI) is eligible for reserved seats, while Chief Justice Qazi and Justice Jamal Khan Mandokhel released separate note. Similarly, Justice Yahya Afridi, Justice Aminuddin Khan, and Justice Naeem Akhtar Afghan wrote their own independent opinions. PTI reserved seats: SC issues notices to respondents A 11-member Constitutional Bench of the Supreme Court, headed by Justice Aminuddin Khan, on Monday, heard the review petitions of Pakistan Muslim League-Nawaz (PML-N), Pakistan Peoples' Party (PPP) and the Election Commission of Pakistan (ECP). The proceeding was live-streamed on SC's YouTube channel. Justice Amin observed that the main issue in Sunni Ittehad Council (SIC)'s appeal against the Peshawar High Court (PHC)'s judgment was reserved seats for women and non-Muslims, which has not been decided. He stated that none of 80 independent candidates, which had joined the SIC, were neither before ECP, nor PHC and the apex court. The Court on May 22, 2025 dismissed SIC's three applications, pertaining to the composition of the bench; same numerical strength, which heard the original case should hear the review petitions; and that the instant matter be heard after the decision on 26th Amendment. The bench, however, allowed live-streaming of review petitions hearing. The lawyers of the ECP, PPP and PML-N informed the bench they have filed a written submission. Justice Amin told the SIC counsels to get the copy of their submission from the SC Office, and adjourned the hearing until today (Tuesday). Sikandar Bashir, appearing on behalf of the Commission, stated that the ECP has not waived its right of rebuttal. Justice Jamal Khan Mandokhail questioned that if the reviews are allowed then which judgment would prevail. Makhdoom Ali Khan, representing some MNAs, who were elected on reserved seats of PML-N and PPP tickets, but were de-seated due to the SC's order, contended that the petitions have been filed against the majority judgment. He said if the reviews are allowed then the majority judgment would be overturned as no one has challenged the minority opinions. Justice Mandokhail asked; 'Can I change my views.' Makhdoom replied 'Yes you can.' He argued that the judgment on timeline is beyond the jurisdiction of the apex court. He submitted that Justice NaeemAkhtar Afghan, in his note, stated that to change the timeline, described in Article 51 of the Constitution, for joining a political party by the independents after notification of their victory, is like re-writing the constitution. He said that the justice is administered within the fourwalls of the constitution, adding the Court has power to interpret the constitution and laws, but cannot rewrite them. Makhdoom contended that the majority judgment not only quashed the ECP notification, but also allotted reserved seats to the PTI, and changed the time-limit, given in the constitution. The Court noted that the PTI existed before and after the general elections, but had not contested elections on a particular symbol. Justice MusarratHilali said the symbol is for the general public, if it is not given to the party then it does not disenfranchise the party. She noted that Chairman SIC Hamid Raza has himself contested elections on the ticket of PTI Nazriati. She inquired that when a party is not in the Parliament then how reserved seats could be allotted to it. Justice Hilali also questioned on what grounds the reserved seats were given to the PTI, when it was neither before the ECP, PHC and even the SC. 'It seems that suomoto kind of notice was taken in this regard.' Justice Mandokhail said that he could not understand that when some candidates who mentioned in their nomination papers, PTI and had its certificates then why after winning the polls joined SIC, which was not in the Parliament. Had they not done so they could have reserved seats for women and non-Muslims in the National Assembly. Justice Mandokhail questioned whether under Article 187 of the Constitution there is any limit in the SC power. Makhdoom said that the election disputes should be treated like civil disputes where the burden of proof is upon the plaintiff. He said that PTI's Women Wing leader application was neither allowed nor dismissed; adding the prayer in her petition was that she be permitted to implead party to assist the Court and not necessary party. Justice Mandokhail said that the presiding officers and returning officers failed to perform their duties in accordance with the law and constitution during February 2024 general election. Should the SC shut its eyes, he asked Makhoom. Copyright Business Recorder, 2025
Express Tribune
22-05-2025
- Business
- Express Tribune
Super tax hearing adjourned
A five-member Constitutional Bench of the Supreme Court, led by Justice Aminuddin Khan, adjourned the hearing on a case concerning the imposition of super tax until Tuesday. During the hearing, counsel for a company argued that Section 4B should be aligned with the income tax law. He pointed out that a 4 per cent super tax is imposed on banking companies, even if their income is as low as Rs10. In contrast, an individual earning over Rs400 million is subjected to a 3 per cent super tax. Justice Hasan Azhar Rizvi observed that the super tax was abolished in 2002 for all companies except banking institutions.
Business Recorder
14-05-2025
- Politics
- Business Recorder
Reserved seats: Counsel for SIC seeks time to file application
ISLAMABAD: The Sunni Ittehad Council (SIC) counsel sought time to file an application to challenge the constitution of the bench, hearing the review petitions on reserved seats. A 11-member Constitutional Bench of the Supreme Court headed by Justice Aminuddin Khan, and comprising Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan, Justice Shahid Bilal Hasan, Justice Muhammad Hashim Khan Kakar, Justice Salahuddin Panhwar, Justice Aamer Farooq and Justice Ali Baqar Najafi, on Tuesday, heard the review petition of Pakistan Muslim League-Nawaz (PML-N), Pakistan Peoples' Party (PPP) and the Election Commission of Pakistan (ECP). At the outset of the proceeding, Faisal Siddiqui, representing the SIC, came on the rostrum and requested the bench adjourned the hearing until next Monday (May 19) so that he can file a formal application challenging the formation of the bench. Faisal informed that on first hearing, he did not receive the notice, while on the second hearing could not come because of suspension of flights due to Pakistan-India conflict. The SIC counsel contended that as the flights have resumed operation; therefore, on the third hearing (May13) of the review petitions, he is before the bench but has not prepared the application yet; therefore, needed some time. The bench accepting Faisal's plea adjourned the case until May 19. The PML-N through advocate Haris Azmat on Tuesday filed the additional grounds, submitting that the detailed reasoning (of majority judges), unfortunately, ignored the settled jurisprudence of the Supreme Court, hence, this makes it an 'error apparent on the face of the record'. The constitution in Article 51 (6) (d) grants three days to an independent candidate to join any party after the issuance of notification as a returned candidate, contrary to that the majority judges provided 15 days for joining any party. The courts have no power to rewrite the constitution, the lawyer contended. He mentioned that Justice Yahya Afridi in his separate note stated; 'The undeniable power of this Court to do complete justice under Article 187 of the Constitution is recognized, exercising this power in the absence of an aggrieved party directly approaching the Court could set a dangerous and far-reaching precedent. Such a course risks undermining the principles of due process and judicial restraint, potentially leading to an overreach of judicial authority.' Similarly, Justice Aminuddin Khan in his note held; 'We are sitting in a jurisdiction vested in this Court under Article 185 of the Constitution and can exercise jurisdiction under Article 175 of the Constitution, but cannot exercise any other jurisdiction as this is not conferred upon this Court, therefore, it cannot be exercised.' The petitioner contended that the entire case in the detailed reasoning of the majority judges is built on the fact that even though Pakistan Tehreek-e-Insaf (PTI) has not been formally impleaded and is not a party before the Court, even then it can be granted relief under Article 187 of the Constitution. The same reasoning with respect is absolutely incorrect and hence, the detailed reasoning and the Order under Review is liable to be recalled. It is error apparent on the face of the record. The petition through Haris Azmat said the Order under Review is liable to be recalled and the Detailed Reasoning has no merit as the same is against the settled principles of law. It is now well-settled that no findings by a Court can be given in a list which is beyond the pleadings or the case set up by the parties in the Appeal or forums below. It submitted that the PTI never challenged the actions of the RO's or the Commission before this Court. Even in the impleadment application, no such orders were appended therewith. In view of the same, the findings recorded therein are liable to be recalled. Copyright Business Recorder, 2025
Business Recorder
14-05-2025
- Business
- Business Recorder
Section 4B of Income Tax Ordinance, 2001: Spent more than collection for TDPs rehabilitation: AAG
ISLAMABAD: The Additional Attorney General for Pakistan (AAG) informed that the federation has spent more than what it collected for the rehabilitation of temporary displaced persons (TDPs) under Section 4B of Income Tax Ordinance, 2001. A five-judge Constitutional Bench of the Supreme Court, headed by Justice Aminuddin Khan, on Tuesday, heard the appeals of 354 taxpayers against Section 4B, which was inserted in the Income Tax Ordinance, 2001 through the Finance Act 2015. AAG Aamir Rehman, on behalf of the Ministry of Finance, submitted that Rs114 billion were collected in terms of Section 4B, while the federation spent Rs117 billion on the rehabilitation of the TDPs, adding the estimated total cost of rehabilitation of TDPs was Rs80 billion. SC CB asks whether super tax is a 'tax' or 'fee' He stated that super tax, collected from affluent and rich individuals, association of persons, companies earning income above Rs500 million and the banks, is deposited into consolidate funds and from there through divisible pool is distributed among the federation and the provinces. The AAG said after the distribution under Article 160 of the Constitution the federal government from its share of 42.5 per cent spent the amount on the rehabilitation of the TDPs. Justice Jamal Khan Mandokhail questioned why super tax was imposed. Asma Hamid, FBR counsel in appeals against Lahore High Court (LHC) judgment, explained that if this amount (Rs80 billion) was spent from the existing budget amount then the government had to divert money from other projects, which could have affected them, therefore, super tax was imposed. Advocate Raza Rabbani, who also represented FBR in appeals against the Sindh High Court (SHC) judgment, argued that this levy has been imposed on income of every person specified in Division IIA of Part-I of the First Schedule, the Ordinance, 2001. It is a separate charge of super tax, in addition to the income tax, charged under section 4, the Ordinance, 2001, where a distinct mechanism for assessment, collection and recovery is provided. Both income tax and the super tax are imposed on the income, he added. Regarding argument that the tax levied under Section 4B is not tax as legislative procedure laid down in Article 73 is not followed, Raza Rabbani argued that in some federations of the world, Money Bills are passed by both Houses, in other federations Money Bills are passed by the Lower House of the Parliament, which comprises directly elected representatives of people. He said that Section 4B is a special tax and has been levied for a special purpose, and by virtue of the definition of taxation given in Article 260 of the constitution the parliament was well within its competence to impose such a tax. Raza Rabbani also contended that Entry 47 of the Fourth Schedule empowers the legislature to impose more than one tax on the income of a person. The term tax on income in Entry 47 effectively nullifies the arguments with regard to double taxation, adding the constitution does not impose a prohibition on double taxation but in fact permits the levy of more than one tax on income. He emphasised that before insertion of Section 4B, there was no provision for super tax in the Ordinance 2001. However, there is no bar on Parliament to insert, by way of an amendment in the law. He said that deliberately, a confusion is being created with a play of words that a tax has to have a characteristic of a 'general purpose', whereas, the law developed is for the 'general revenue' and 'public purpose', adding there are a string of judgments in which this characteristics, for 'public purpose' is discussed. Raza Rabbani has concluded his arguments. The case is adjourned until May 19. Copyright Business Recorder, 2025
Express Tribune
08-05-2025
- Politics
- Express Tribune
SC greenlights military trials of civilians
Listen to article After holding nearly five dozen hearings, the Supreme Court's constitutional bench, by a 5-2 majority, has upheld the military court convictions of PTI activists accused of attacking military installations during the events of May 9, 2023. In its order, the majority also urged the parliament to consider amending the Pakistan Army Act to grant civilians convicted by military courts an independent right of appeal. The intra-court appeal and other connected appeals were allowed by five judges – Justice Aminuddin Khan, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali and Justice Shahid Bilal Hassan – who also set aside the earlier judgment delivered on October 23, 2023, in the constitution petitions. However, two judges – Justice Jamal Khan Mandokhail and Justice Naeem Akhter Afghan – dismissed the intra-court appeals, according to the order announced in open court by the bench's head, Justice Aminuddin Khan. The majority verdict has effectively overturned the earlier decision that had declared the trial of civilians in military courts unconstitutional. "The impugned judgment is set aside and, as a consequence, subclauses (i) & (ii) of Clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952, and subsection (4) of Section 59 of the same Act are restored," the order stated. The bench clarified that the earlier verdict could not have declared these provisions void under Article 8(5) of the Constitution, which stipulates that fundamental rights cannot be suspended unless expressly provided for in the Constitution. The order held that there was no issue of fundamental rights suspension under Article 233 in this context. The court, in unison, emphasised the need for legislative changes that align with the International Covenant on Civil and Political Rights (ICCPR), in order to maintain constitutional and societal norms within the current legal framework. "Therefore, the matter is referred to the Government/Parliament for considering and making necessary amendments/legislation in the Pakistan Army Act, 1952, and allied Rules within a period of 45 days in order to provide an independent right of appeal in the High Court against the conviction awarded to the persons by the Court Martial/Military Courts under sub-clauses (i) & (ii) of Clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952, read with sub-section (4) of Section 59 of the Pakistan Army Act, 1952," the order reads. The order further clarifies that the limitation period for filing an appeal against conviction will be calculated from the date of notification of the proposed amendments under the Pakistan Army Act, and such convictions will remain subject to the final decision by the high court. The court also addressed pending writ petitions in high courts challenging anti-terrorism court orders related to the transfer of cases to military courts. "The individual cases/writ petitions, if pending or filed in the high courts for challenging the vires of orders passed by the Anti-Terrorism Courts, allowing the transfer of case/custody of any accused to the Military Court for trial, shall be decided by such Courts on its own merits." The order also directed the transmission of its copy to the attorney general, secretary general of the National Assembly, secretaries of the ministries of law and justice and defence, and the secretary of the law and justice commission, to ensure compliance. The majority opinion further elaborated on the right to fair trial, observing that the provisions merely accentuating the right to a fair trial and due process in any statute and their actual application and proper implementation during the trial are two distinct features and situations. It noted that if an independent right of appeal was provided in the high court for challenging the original order or internal departmental appellate order of conviction, "then obviously, the High Court in exercise of its appellate jurisdiction as conferred under the provisions of the Code of Criminal Procedure, 1898, may examine whether an equal and fair opportunity to defend the charges was afforded to the convict, whether sufficient evidence was available to substantiate the charges, and whether proper procedure in the trial was followed in letter and spirit". Many were taken aback by the timing of the short order's announcement, coinciding with a moment when national unity was deemed crucial amid Indian aggression. Following the order, PTI workers, representing the country's largest political party, expressed strong discontent over the majority decision. Barrister Salahuddin Ahmed remarked, "Despite taking 6 months to deliver its first real judgment, CB proves it is performing exactly as per design specifications & operational parameters." Asad Rahim Khan, who was part of the respondents' legal team opposing military courts, expressed dismay. "The landmark significance of the previous verdict in 2023 was to have outlawed the very provision that enabled such trials: it declared Section 2(1)(d) illegal as a rule, in light of the right to fair trial," he said. "Today's short order not only validates those trials, it has restored the law in general: civilians can thus be court-martialed again, even outside a state of exception." He further criticised the legal foundation of the verdict. "The logic is fundamentally wrong: it relies almost entirely on FB Ali's case from half a century ago – a verdict that came about under emergency rule; that related to a brigadier for acts he committed in service; and that hinged on the long-dead 1962 Constitution". He pointed out that there was no Article 10-A (right to fair trial) or Article 175(3) (independence of the judiciary) at the time of FB Ali. "Yet the short order has engaged with none of this." "It must be said that a chain of deliberate disasters – destroying judicial independence – had to happen for this: the Practice and Procedure Act, the 26th Amendment, and now this Constitutional Bench, reaching for a precedent from ZAB's emergency rule, to validate an awful Ayub-era law. There can be no military trials of civilians in our constitutional order. History delivered its verdict on 23 October 2023," he added. Minority opinion The two dissenting judges – Justice Jamal Khan Mandokhail and Justice Naeem Akhtar Afghan, both hailing from Balochistan – held that civilian trials by court martial violate core constitutional protections. They argued that such trials breach the principles of judicial independence, personal security, protection against arbitrary arrest and detention, fair trial and due process, access to information, equality of citizens, and Islamic injunctions as guaranteed under Articles 2A, 9, 10, 10A, 19A, 25 and 227(1) of the Constitution. They further maintained that such trials are inconsistent with international human rights commitments: "The trial of civilians by courts martial presided over by active military officers, is violative of the recognised covenants of the United Nations Human Rights Commission ('UNHRC') as well as the International Covenant on Civil and Political Rights, 1966 ('ICCPR') and treaties, to which Pakistan is a signatory." They concluded that the military's role, as defined by the Constitution, does not encompass such trials: "The trial of civilians by courts martial is in excess of the functions assigned to the Armed Forces by Article 245 of the Constitution," says the minority opinion. As such, the minority set aside all convictions: "The convictions and sentences awarded to civilians by the courts martial for the occurrence of 9th May, 2023, are declared to be without jurisdiction, hence, the same are set aside." "The accused under custody shall be treated as under-trial prisoners. Their cases stand transferred to the concerned courts of competent jurisdiction for trial. Upon receipt whereof, the concerned courts should proceed with their trials expeditiously and decide the same at the earliest, in accordance with law." "The persons who have completed/undergone their sentences or have been acquitted of the charge by the courts martial or Forum of Appeal under the PAA, shall have the effect of their discharge under section 169 of the Code of Criminal Procedure (CrPC)."
