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Express Tribune
26-05-2025
- Politics
- Express Tribune
SC reviews landmark verdict amid absences, silence and restraint
The highest court in the land on Monday waded into uncharted waters as it began hearing review petitions against its July 12 judgement - a verdict that had handed Pakistan Tehreek-e-Insaf (PTI) reserved seats in the national and provincial legislatures - but without six of the original judges, including the judgement's author. The hearing broke new ground in more ways than one, marking several firsts in judicial history. The review petitions, filed by the ruling PML-N and PPP alongside the Election Commission of Pakistan (ECP), are being heard by a 13-member larger bench. Curiously, the majority of the new Supreme Court bench were not part of the original decision, and no explanation has been offered as to why the court's constitutional committee did not recommend including the six judges from the earlier ruling. For the first time since the 26th Constitutional Amendment was passed, the Supreme Court proceedings were broadcast live, a move hailed as a step toward transparency, though the absence of key judges cast a long shadow. Despite the high stakes, not a single judge offered observations in favour of the majority judgement under review. Even Justice Muhammad Ali Mazhar and Justice Hasan Azhar Rizvi - both signatories to the original ruling - remained unusually tight-lipped, adopting a tone of marked restraint. In contrast, two judges who had not been part of the original bench raised a fundamental question: if the PTI was not a party in the initial case, how could it receive relief? They wondered as to how reserved seats were given to PTI when they were not a party, neither before the ECP nor the Peshawar High Court (PHC). Justice Aminuddin Khan observed that it was an admitted fact that all PTI-backed returned candidates had joined the Sunni Ittehad Council, which had not contested the general elections. He pressed further, asking whether any PTI-backed returned candidate had approached any forum to declare himself as a PTI candidate. 'Should the SC shut its eyes?' The elephant in the courtroom, however, remained the role of the ECP during the controversial February 2024 polls, with most judges sidestepping the discussion on it. Though the majority judgment had held the ECP to account, only Justice Jamal Khan Mandokhail pointed to the electoral body's failings. Justice Mandokhail - part of the minority who believed PTI was entitled to reserved seats - said that the presiding officers and returning officers failed to perform their duties in accordance with the law and constitution during the February 2024 general election. He challenged the opposing counsel, Makhdoom Ali Khan, by asking: "Should the Supreme Court shut its eyes?" Commenting on the matter, lawyer Abdul Moiz Jaferii flagged what he saw as a glaring lapse in judicial due diligence. "What I found most amazing was how some of the judges who were not part of the original proceedings had clearly not read the judgment under review. You are seated to determine an error floating on the face of the record." "You are extraordinarily doing so without the author judge and many other judges senior to you who were part of the original proceedings. Surely you can read the judgment for yourself and not rely on the arguments of counsel to refresh the most basic principles of the case for you," he added. Observers also noted that the government's side appeared in a rush to tie up loose ends. Counsels for the PML-N, PPP and ECP all fell in line behind the arguments presented by Makhdoom Ali Khan, despite the original verdict's criticism of the ECP's conduct. Insiders suggest that Justice Aminuddin Khan's upcoming Hajj might be behind this urgency. There is speculation that the ruling coalition is keen to see the matter settled before his departure. On the other side of the aisle, PTI and its allied Sunni Ittehad Council (SIC) have engaged four senior counsels to defend the majority ruling. SIC's Faisal Siddiqi is slated to present his arguments today (Tuesday). Legal circles believe that the current impasse stems from the ECP's misreading of the Supreme Court's January 13 verdict, which declared PTI's intra-party polls illegal. Besides, the court under former chief justice Qazi Faez Isa also came under fire for dragging its feet on PTI's review petition – a delay that many say left the political field clouded in uncertainty. Even the majority judgment had flagged constitutional tensions at the heart of the matter. The majority verdict had quested how the matter of intra party elections - a matter of internal governance of a party - could trump the fundamental rights of citizens to vote and of political parties to effectively participate in and contest elections by obtaining a common symbol for their candidates, guaranteed under Articles 17(2) and 19 of the Constitution.
Business Recorder
22-05-2025
- Politics
- Business Recorder
‘Judges' transfer issue will be resolved once IHC seniority dispute is settled'
ISLAMABAD: The Supreme Court was asked that once the issue of seniority is decided in favour of Islamabad High Court (IHC) then the judges' transfer case will be resolved by itself. A five-member SC Constitutional Bench, headed by Justice Muhammad Ali Mazhar, on Wednesday, heard the petitions of IHC five judges, Pakistan Tehreek-e-Insaf (PTI) founder Imran Khan, and Karachi and Lahore Bar Associations. Faisal Siddiqui, appearing on behalf of Karachi Bar Association, argued that the matter before the bench is sensitive, and can be solved through two ways. Firstly, interpreting the constitution in view of independence of judiciary, but here judges are versus judges, and secondly, enhance the comity of judges and reduce the conflict among them. He submitted that none of the chief justices of the High Courts were consulted before the initiation of process for the transfer of judges, while chief justice of Pakistan was never told about the seniority issue. He contended this is not only malice of fact, but the malice of fact as well. The CJP has no power to determine the seniority and the fresh oath of judges transferred from provincial High Courts to the IHC. At the outset of the hearing, advocate Idrees Ashraf, representing founder chairman PTI Imran Khan and a lawyer, argued that the transfer under Article 200 of the constitution is temporary and not permanent. He said earlier there were provisions in 1973 Constitution that the judges will be transferred from one High Court to another for one to two years. However, after 18th Amendment this provision has been excluded from the constitution. During the proceeding, Justice Shahid Bilal Hassan, addressing Idrees, said you have filed two petitions, one on behalf of the PTI chairman and other by a lawyer. He then asked the counsel to read para 4 of the PTI petition. According to the para; 'The Judges of the Islamabad High Court are also being punished because they decided the false cases on merits registered and filed against the petitioner (Imran Khan), without 'fear or favour'. Moreover, the ex-Chief Justice of the Islamabad High Court (Justice Aamir Farooq and now rewarded by elevating him to the supreme court) was repeatedly asked to recuse himself from the petitioner's cases but he refused to do so and when the Judges of the Islamabad High Court made a representation to the ex-Chief Justice of the IHC, however, the same was dismissed forthwith and a fresh seniority list was issued whereas, the senior puisne judge was demoted from his position and a freshly transferred judge was put into the senior most position.' Copyright Business Recorder, 2025
Express Tribune
20-05-2025
- Politics
- Express Tribune
'Judge's consent needed for transfer'
The Supreme Court on Tuesday examined the procedure for transferring judges in India, noting that unlike the neighboring country, Pakistan's Constitution requires a high court judge's consent before they can be transferred to another high court. A five-member constitutional bench (CB) led by Justice Muhammad Ali Mazhar resumed hearing multiple petitions challenging the transfer of three judges from provincial high courts to the Islamabad High Court (IHC), as well as the subsequent change in the IHC judges' seniority list. During the proceedings, Hamid Khan, representing the Lahore High Court Bar, continued his arguments, stating that several legal aspects of judges' transfers from high courts need thorough consideration. Justice Muhammad Ali Mazhar remarked that in India, judges' consent is not required for transfers, and such decisions are made in consultation with the chief justice of the high court of that state. "In our system, however, obtaining a judge's consent for transfer is a constitutional requirement," he noted. Justice Naeem Akhtar Afghan observed that India follows a unified cadre system for high court judges, while Pakistan does not have a similar system for seniority. Justice Shakeel Ahmed added that in India, the seniority list for high court judges is uniform. Hamid Khan argued that in India, consultation with the chief justice is mandatory prior to any transfer. He said consent is essential when transferring judges and that, under Section 3 of the Islamabad High Court Act, consultation is required before a transfer or new appointment. "The selection of judges for transfer must be based on merit and that the executive branch should not hold the authority to nominate judges for transfer. This power should rest solely with the chief justice," he asserted. Hamid Khan pointed out that instead of transferring judges to the IHC, new appointments are often made. "In a recent case, the IHC acting chief justice was consulted regarding the transfer of a judge from Balochistan, but the advice for transfers was not approved by the Cabinet," he added. Idrees Ashraf Advocate, representing PTI founder Imran Khan also presented his arguments. He stated that the transfer notification did not mention the tenure of the transferred judges and claimed that such transfers could lead to discrimination among judges within the same high court. Justice Mazhar asked the counsel if Article 25, which ensures equality before the law, should be considered in the process of judges' transfers. He also inquired whether the counsel would be satisfied if the transfer tenure was fixed at two years, noting that the core issue remains the matter of seniority. The court later adjourned the hearing until 9:30 am today (Wednesday).
Business Recorder
20-05-2025
- Business
- Business Recorder
Sec 4B of income tax law: SC asked to dismiss appeals of cos, big units
ISLAMABAD: The Supreme Court has been asked to dismiss appeals of the companies and big industrial entities and uphold the verdicts of the provincial high courts regarding Section 4B of the Income Tax Ordinance. A five-member SC Constitutional Bench, headed by Justice Muhammad Ali Mazhar, on Monday, heard the petitions of Islamabad High Court (IHC)'s five judges, Pakistan Tehreek-e-Insaf (PTI) founder Imran Khan, and Karachi and Lahore Bar Associations. Upon the completion of arguments of departments counsels, Justice Amin inquired from petitioners' lead counsel Makhdoom Ali Khan, whether he would like to rebut the arguments of respondents. The bench; therefore, adjourned the case until May 22. If a case is subjudice proviso of Sec 174 (1) of ITO will kick in: SC Earlier, Dr Shahnawaz argued that the levy of super tax is a separate charge under Section 4B, whereas, the tax paid under FTR is a separate charge under Section 4 read with Section 8 and Section 169. He contended that the history of income taxation and literature thereto is fraught with examples where separate taxes are incorporated in income taxation to achieve progressivity in tax burden for ensuring vertical equity. The income taxation, besides revenue collection, has other objectives also which include redistribution of income to help impoverished people of the country. The progressivity in taxation, in addition to progressive tax rates, is secured either through levy of surcharge or super tax. These levies are also imposed when there is need for additional revenue for specific purpose such as war. Dr Shahnawaz stated that the contention that super tax is violative of Article 25 of the Constitution also reflects lack of basic understanding of income tax system. He submitted that the progressivity in tax rates for achieving equity in tax system is the cardinal principle of good tax system and it could be achieved when the individuals with different levels of income are taxed differently. Thus, discrimination is mandatory for achieving equity and consequently securing a good tax system. He emphasised that super tax is not a new feature in Pakistan's income tax law. It was also part and parcel of Pakistan income tax system under repealed Income Tax Ordinance, 1979. He mentioned that many countries have been using super tax for many reasons. Currently, super tax is part of income tax system in Australia, Canada, and New Zealand, he added. Dr Shahnawaz stated it is justified to say that legislature should classify the persons on reasonable basis to achieve the purpose of good tax system. In the case of super tax, the classification is quite logical as only the super rich are required to bear this burden of helping those impoverished and displaced victims of war of terror who are our fellow citizens. He argued that the allegation that agriculture income of Rs500 million is not subjected to super tax is also irrelevant because the agriculture income, being a provincial subject, is not charged to tax under Income Tax Ordinance 2001 and we are not even aware and even doubt that any agriculturist in Pakistan has the assessed agricultural income of Rs500 million. Additional Attorney General for Pakistan (AAGP) Aamir Rehman told the court that he would file three judgments of the apex court regarding the matter, adding in light of those decisions the government can levy additional tax. Justice Amin told him to file the written submission. The case has been adjourned until May 22. Copyright Business Recorder, 2025
Express Tribune
19-05-2025
- Politics
- Express Tribune
Justice Mazhar slams misuse of review powers
Supreme Court Justice Muhammad Ali Mazhar has emphasised that a review of a judgment or order is a serious legal measure that should only be undertaken when there is a clear and undeniable error or oversight on record that results in a miscarriage of justice. In a seven-page additional note authored during the hearing of a review petition, Justice Mazhar wrote that if the error in the judgment is so obvious and apparent, so material that, had it been noticed prior to the rendering of the judgment, the conclusion would have been different, then a review petition is justified. He observed that the constitution does not impose any restriction on the Supreme Court's power to review its earlier decisions or even to depart from them. " Nor does the doctrine of stare decisis stand in the way, so long as the review is warranted due to its significant impact on the fundamental rights of citizens or in the interest of public good. The Court is also competent to review its judgment or order suo motu, without any formal application." The note was issued alongside a ruling by a three-judge bench headed by Justice Syed Mansoor Ali Shah, which dismissed the review petition and stressed the need to discourage the filing of frivolous reviews. Justice Mazhar, in his additional note, clarified that the review jurisdiction of the SC is not a fallback option for unsuccessful litigants to reopen cases, but a narrowly defined judicial tool meant to correct glaring and consequential errors. He observed that while interpreting provisions of law or the Constitution, some errors might be apparent on the face of the record and cause substantial injury, necessitating remedial intervention to uphold justice. Such instances, he explained, may include the discovery of new and significant evidence that was not available despite due diligence, a mistake or error clearly visible on the record, or other sufficient cause. The ground of "error apparent on the face of the record", he added, applies to both civil and criminal review petitions. "For such review to be entertained, the specific ground must not only be mentioned in the certificate of the advocate, but also be conspicuously spotted in the review petition, rather than relying on sweeping or irrational grounds having no nexus with the case," the note read. "Undoubtedly, it is the duty of the Judges of the apex Court to correct their errors, because the principles of law enunciated in their judgments are binding on all other courts in the country under Article 189 of the Constitution." "Orders based on an erroneous assumption of material facts, or those made without adverting to a provision of law, or reflecting a departure from the undisputed construction of law and the Constitution, may amount to an error apparent on the face of the record and can be rectified." Justice Mazhar expressed concern over the growing trend of filing review petitions indiscriminately, often backed by certificates from advocates that merely repeat arguments already addressed in the original case. "At present, it has become a custom or routine practice to file review applications unwarily and injudiciously, based on certificates issued by advocates that merely imitate the grounds already urged and decided in the main petition or appeal, without specifying any genuine error in the judgment or order which merits its reversal." He noted that it was high time that the practice be denounced and condemned, as it constituted "nothing but a waste and depletion of the precious time of the Court and places an unnecessary burden on its docket".
