Daily Times

Addressing a ceremony in Quetta the other day, the Chief Justice of Pakistan (CJP) stated, “The time has come to bring our house in order”. While emphasising the need for much-delayed judicial reforms, the CJP noted that the salaries and facilities available to the judges were comparable to officers belonging to a similar grade in other departments. Thus, he asked them to justify their incomes and facilities. Speaking about inordinate delays in delivering verdicts on cases, the CJP remarked that the responsibility for this lied with him and all the judges collectively.

The real malady that escapes everybody’s attention is the existence and perpetuation of exploitative, anti-people and elitist structures. The reform agenda for the Judiciary, Executive or Legislative based on patchwork here and there can never succeed, unless fundamental structural changes are made. There is a need to replace the prevalent, decayed and disintegrating systems with modern and efficient models working successfully in other countries. Since independence, we have failed to reconstruct, modernise and democratise our obsolete state institutions.

Mere cliché and rhetoric about reforms will not serve any purpose. Bringing up the lack of competent judges, delays in dispensation of justice, huge pendency and other issues plaguing the judiciary is not enough. Of course, these are mere symptoms of a very sick system, but nobody knows how to treat the disease. Curing the symptoms without removing the root cause of illness will be an exercise in futility. The judiciary, Parliament and government have failed to come up with concrete proposals and executable plans in this regard, despite there being many examples of successful systems and structures all over the world.

We need to abandon mere clichés and move on to pragmatism — let us concentrate on tax appellate system as a model project. The existing tax appellate system is hopelessly redundant, painfully unproductive and marred with inefficiency and inordinate delays. It needs complete restructuring so that fiscal disputes between the State and taxpayers are settled within a year at the latest.

The existing 4-tier appeal system under the tax laws — direct and indirect — consumes so much time until a final settlement is reached that the very purpose of seeking a remedy becomes purposeless. The government has wasted billions of rupees, including money borrowed from the World Bank, for these ill-directed tax reforms, but no effort has been made to revamp the putrid tax appellate system for rapid disposal of tax disputes and reduction of unnecessary litigation.

Pakistan’s tax system needs to be more like the system in the United Kingdom (UK), where out of a population of 60 million people, 30 million file income tax returns. Hardly 20 appeals go to the level of the high court. This is because a reliable system eliminates undue litigation and saves the tax payer and state’s precious time and money.

Under the existing four-tier appeal process, a taxpayer, if aggrieved, files first appeal before the Commissioner of Appeals. They work under the administrative control of Federal Board of Revenue (FBR). Such a system can only be termed a travesty of justice. How can FBR-controlled men deliver justice? They act as helping hands for their brothers in service of the meeting of irrational and harsh demands so that budgetary targets can be met.

The next tier is Appellate Tribunal Inland Revenue and Customs Tribunal. These Tribunals are under the control of Ministry of Law, which is against the principle of ‘independence of judiciary’. Tribunals have two types of members, Legal Members, who are from the legal fraternity or judicial service, and Accountant or Technical Members, sent by the FBR on deputation. A Member’s salary is even lower than that of a civil judge that along with inadequate facilities cannot be sufficient motivation for them to take interest in their work. Everybody knows the motive behind such a system, because ‘mutual’ beneficial relations prevail between those seeking justice and those tasked with providing it.

The Tribunal is the final fact-finding authority and further appeals reach the High Court only if a question of law arises. Tax codes are federal statutes but appeals and references against the orders of the Tribunals go to the provincial High Courts. A person filing an appeal or reference in the Lahore High Court may get a different order on an identical issue filed in the Sindh High Court. On identical issues, there is no certainty of uniform orders at the level of High Courts. Therefore, it is imperative to a Tribunal working under direct supervision of the Supreme Court. Presently, thousands of tax cases are pending in the High Courts. It takes years and years for taxpayers to get to the first hearing.

The existing Inland Revenue and Customs Tribunals should be merged and renamed the National Tax Tribunal (NTB). The first appeal should come directly to NTB and right of intra-court appeal should be provided. The final appeal against any NTB order should go directly to the Supreme Court as is the case with Service Tribunal. Members of NTB should be recruited in the same manner as judges of the High Courts and get the same pays and benefits.

How tax cases are decided in our country can be illustrated in the light of the Supreme Court’s decision in the case of Assistant Collector of Central Excise & Land Customs versus Mst Siddiqan Afzal & Others 2008 PTR 34. This is a classic case of portraying inefficiency and apathy on the part of the tax department and inordinate delay in dispensation of justice in Pakistan. The apex court after taking into account the legal and factual position held: “Show cause notice to owner was issued after fifteen years of seizure of gold and eight years after coming into force of the Customs Act, 1969, gold now becomes liable to be returned to owner . . . .

Anywhere else, tax departments would have been asked to pay pecuniary damages to the family. In this case, the accused passed away during litigation process and his widow became embroiled in a long-drawn not to mention costly legal battle. One wonders if such a system can truly be considered ‘judicial’ where proceedings that started in 1963 were finally settled in 2007!

The CJP’s frank speeches and good intentions will not bring efficacious dispensation of justice unless complete structural changes are undertaken. Competent men in each field of law can be hired as Additional Judges in terms of Article 197 of Constitution for 3-5 years to clear the entire backlog, while the permanent judges should be asked to tackle new cases and finalise the same within one year of their filing. This simple solution can go a long way in improving the delivery of justice in this country.

The writer, Advocate Supreme Court, is Adjunct Faculty at Lahore University of Management Sciences (LUMS). Email: ikram@huzaimaikram.com; Twitter: @drikramulhaq

Published in Daily Times, April 15^th 2018.