KARACHI: Justice Athar Minallah of Islamabad High Court  allowing four identical constitution petitions ordered the Federal Government to forthwith take appropriate measures and initiate the process for making fresh appointments of the Chairman and Members of the Appellate Tribunal after meaningful consultations with the Hon’ble Chief Justice of Pakistan.

The Federal Government shall endeavour to complete the process, preferably within 45 days from the date of receipt of this judgment. The incumbent Chairperson and members of the Appellate Tribunal shall seize to function with effect from the date of notification of appointments made pursuant to this judgment, the judgment  approved for reporting and announced on Feb 24 in open court said.

The bench earlier heard counsel for petitioner in petition number 3414 of 2011 filed by: Pakistan Oil Fields Limited, 3235/2012 filed by Pakistan Mobile Communications Limited, 2966/2011, PKP Exploration Limited  and 4810/2014 filed  Pakistan Oilfields Limited against  Federal Secretary Revenue and Ministry of Law and Parliamentary Affairs & 2 others. The  bench in its judgment  noted that “It is admitted that the Chairman of the Appellate Tribunal and its Members were appointed without the consultation of the Chief Justice of Pakistan in violation of the principles and law enunciated by the august Supreme Court and discussed herein. The appointments are, therefore, declared as illegal, void and without lawful authority. The Chairman and Members so appointed are to be treated as de-facto holders of their respective offices. The acts done including any and all proceedings, shall remain protected under the de-facto doctrine, the bench ordered.

The grievance of the petitioners relates to the manner in which the Appellate Tribunal has been established through the appointment of its Chairman and members in violation of the law laid down by the august Supreme Court. In a nutshell, the grievance of the petitioners concerns the independence of the Appellate Tribunal established under section 130 of the Ordinance of 2001. The appeals of the petitioners, arising from the orders passed by the respective authorities of the Income Tax Department, are pending before the Appellate Tribunal. It is alleged that the lack of independence of the Appellate Tribunal and its separation from the Executive inevitably leads to the denial of access to justice and violation of fundamental rights guaranteed under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973 (hereinafter referred to as the ‘Constitution’). The petitioner in W.P. No.3015/2011 asserts that at the time of filing the petition four appeals were heard by the learned Tribunal on 22-06-2015, and the judgment was reserved; however, despite a lapse of eight months, the same was not announced. It is the case of the petitioners that the learned Appellate Tribunal is not, therefore, properly constituted and neither are its Chairman or members appointed as mandated under the law, hence the instant petitions.

Mr. Shahid Hamid senior advocate Supreme Court has contended that; there cannot be any dispute to the proposition that the Tribunal is a judicial forum for the simple reason that it determines the rights and liabilities of the parties; the order passed by the Tribunal are judicial orders; section 224 of the Ordinance of 2001 specifically affirms that the proceedings before a Tribunal are judicial proceedings; section 227 of the Ordinance of 2001 ousts the jurisdiction of the Civil Courts in matters before the Tribunal; Article 203 of the Constitution mandates that a judicial tribunal has to be under the supervision and control of the High Court; Article 175(3) of the Constitution mandates that the judicial tribunal has to separated from the Executive; Article 2-A mandates that the independence of the judiciary shall be fully secured. He relied on the cases of ‘Govt. of Balochistan v. Azizullah Memon’ [PLD 1993 SC 341], ‘Govt. of Sindh v. Sharaf Faridi’ [PLD 1994 SC 105], ‘Imran v. Presiding Officer Punjab Special Court No.VI, Multan’ [PLD 1996 Lah. 542], ‘Mehram Ali v. -4- W.P. No. 3414 of 2011. Pakistan Oil Field Ltd. Versus FOP, etc.

The counsel submitted that in line with the dicta laid down in aboved cited cases the appointment of members to a judicial tribunal has to be in consultation with the Chief Justice of the respective High Courts; the appointment of a member to a judicial tribunal must have a reasonable fixed tenure; the judicial tribunal must be under the effective control and superintendence of the High Court; the proceedings, procedures and working of the judicial tribunal must be totally independent of the influence or control of the Executive; section 130 of the Ordinance of 2001 does not fulfil the constitutional requirements relating to the appointment of the Chairman or members of the tribunal; the appointment of a member is made by the Federal Government without consultation with the Chief Justice; there is no provision in section 130 for a fixed tenure; the amendment made through clause (c) of sub-section (3) of section 130 through the Finance Act 2013 i.e. appointment of an officer of the Inland Revenue Services in BS-20 to be appointed as Judicial Member; sub-section (7) permits a Bench with a majority of the Accountant Members while the Judicial Members are required to be in majority; the Federal Government’s power under sub-section (8) are contrary to the principle of the independence of the judiciary; sub-section (8A) which gives the power to the Federal Government to specify the cases to be heard by a single member is also a negation of the independence of the judiciary; the tribunal has to be under the effective control and superintendence of the High Court, and entirely independent of the Executive.

Barrsiter Makhdoom Ali Khan appearing for one of the petitioners argued that; the Appellate Tribunal ought to be an independent forum so as to exercise judicial functions; a Chairperson or a Member of the Appellate Tribunal beholden to the Federal Government for their appointment or posting undermines their independence and casts a shadow over their impartiality; it is a travesty of justice to have any member of a tribunal exercising judicial functions to be dependent on the Federal Government for their current and future assignments; the tribunal performs judicial functions and is a ‘Court’ for the purpose of Article 175 of the Constitution; it is a settled principle that the Chairperson or members of the tribunal performing judicial functions must be appointed after meaningful consultation with the Chief Justices of the respective High Courts or the Chief Justice of Pakistan; any appointment made without such consultation is void; section 130 of the ordinance of 2001 does not provide for consultation with the Chief Justice of the respective High Courts and/or the Chief Justice of Pakistan; the provisions of section 130 of the Ordinance of 2001 as such are in violation of Articles 175 and 203 of the Constitution; He placed reliance on the cases of ‘Sh. Riaz-ul-Haq & others v. Federation of Pakistan & others’ [PLD 2013 SC 501], ‘Ranyal Textiles v. Sindh Labour Court’ [PLD 2010 Karachi 27], ‘Imran v. Presiding Officer, Punjab Special Court, Multan’ [PLD 1996 Lahore 542].

 Mr. Ali Sibtain Fazli  advocate representing yet another petitioner  while adopting the above arguments in addition has argued that the appeal provided under the Ordinance of 2001 remains illusory and ineffective on account of the manner in which the tribunal is constituted and its Chairperson and members. appointed; the learned tribunal, as the first independent forum outside the departmental hierarchy, can only function independently if it is not under the influence and control of the executive; the Constitution visualizes two tribunals i.e. in Article 212 and 225 respectively, other than Courts under Article 175 of the Constitution; the said two provisions have been held by the Apex Court to fall within the meaning of a Court in terms of Article 175(1).

The bench after hearing the counsel at length noted that  “edifice of the arguments raised by the learned counsels are based on the provision being in violation of the independence of judiciary and the separation of powers from the Executive. This Court, however, is of the view that a meaningful consultation with the Chief Justice of Pakistan, before making the appointments, would obviously safeguard the independence of the judiciary. Moreover, it would be through such meaningful consultation that it would be determined whether a person falling in clause (c) of sub section 3 is to be appointed as a judicial member. It is also pertinent to note that clauses (a) to (c) prescribe three categories of persons who may be appointed as a judicial member, and in the light of the established principles and obviously with regard to the nature of such appointment preference would be given to such category as would be in the best interest of the independence of the Appellate Tribunal as a forum exercising judicial functions. This object can be achieved through meaningful consultations with the Chief Justice of Pakistan.

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