In a first, Constitutional Bench invokes power given by 26th Amendment – Pakistan

• Summons all intra-court appeals on super tax from LHC, IHC
• The more 2023 ruling is ‘dissected’, the more issues appear, observes Justice Mazhar
• Civilians can be tried by military court, asserts defence ministry lawyer

ISLAMABAD: In a first, the Constitutional Bench (CB) of the Supreme Court on Wednesday invoked its authority under the 26th Amendment, transferring to itself all intra-court appeals (ICAs) relating to the imposition of Super Tax pending in the high courts of Lahore and Islamabad.

Headed by Justice Aminuddin Khan, the five-judge CB invoked Ar­­­ticle 186A, which was inserted in the Constitution through the 26th Amendment that empowers the apex court to transfer any case from any high court to any other high court or to itself if it considers it expedient in the interest of justice.

The CB had taken up the challe­nges by different taxpayers assailing the constitutional vires of Sec­t­ion 4C of the Income Tax Ordinance, 2001.

Representing various companies, Makhdoom Ali Khan said the apex court, under the fresh amendment, enjoyed the authority to transfer any pending cases to itself.

When Justice Muhammad Ali Mazhar wondered whether any written application would be required for transferring the cases, the senior counsel explained that SC can consider the request for the transfer of case even on verbal application. He said the court can transfer the cases even by using its suo motu powers.

The suggestion to summon the cases was made after some lawyers pointed out that cases and appeals were still pending in the Lahore High Court and Islamabad High Court.

The CB while summoning the cases ordered the registrars of the high courts to furnish complete case records to the top court along with a complete list of pending cases. Around 200 cases are pending in the high courts.

The CB also issued notices to the parties involved in different appeals so that nobody could raise any objection that he was not heard while deciding the matter.

The CB had decided on March 10 that the hearing will be held daily. The court asked Advocate Ejaz Awan to commence his arguments on Thursday.

The super tax, introduced by then PML-N government in 2015, was applied to wealthy individuals, associations of persons, and companies earning above Rs500 million after the launch of Operation Zarb-i-Azb against militants in North Waziristan. The government levied a tax rate of 4 per cent on the income of banking companies and 3pc on other sectors, aimed at funding the rehabilitation of temporarily displaced persons.

Military trial

Hearing a set of 38 ICAs against the Oct 23, 2023 Supreme Court order nullifying the trial of civilians by military courts involved in the May 9 violence, the seven-judge bench wondered if the 1975 F.B. Ali case being cited for the umpteenth time was still haunting the bench.

The mystery was further compounded when Justice Muhammad Ali Mazhar, while pointing towards Defence Ministry lawyer Khawaja Haris Ahmed, observed that the more the counsel dissected the judgement, the more issues cropped up.

That’s why Justice Yahya Afridi in his Oct 23, 2023 judgement had suggested revisiting the F.B. Ali case by a larger bench, Justice Mazhar observed, also reminding that during the first round of litigation, a nine-judge bench was constituted but its size later shrink after some judges chose not to sit on the bench.

The court had taken up the ICAs moved by the federal and provincial governments as well as the Shuhada Forum Balochistan against the Oct 23 verdict.

Justice Jamal Khan Mandokhail also wondered whether a forum could be established under the military law, which does not come under the umbrella of Article 175(3) — “a provision which asks for the separation of executive from the judiciary — yet, it has the jurisdiction to hold the trial of civilians.

Khawaja Haris said it was not necessary to consider whether Arti­cle 6(3) of the 1962 Constitution — Article 8(3) of the 1973 Consti­tu­tion — was attracted in the circumstances of this case, but if the law was violative of any of the fundam­ental rights then this provision wou­­ld not protect it from the challenge.

The counsel explained that the F.B. Ali case did not consider the 1967 Defence of Pakistan Ordinance, under which Sections 2(1)(d)(i)(ii) had become part of the Pakistan Army Act 1952, and therefore the civilians could be tried by the military court.

Published in Dawn, March 13th, 2025