ISLAMABAD: Justice Qazi Faez Isa, in the detailed verdict on mobile phone top-up tax deductions, observed that the Supreme Court had in its June 11, 2018 order suspending the taxes neither recorded any reason nor did it determine that the imposition of such taxes was without jurisdiction.

Read: Supreme Court restores all taxes on mobile phone top-ups, wraps up suo motu case

However, Justice Ijaz-ul-Ahsan, one of the members of a three-judge apex court bench, differed with the contentions of Justice Isa, saying the apex court correctly, validly and properly exercised its authority under Article 184(3) of the Constitution since all conditions for invoking such powers were amply and adequately met in the case.

Justice Ahsan said there was no bar or impediment in the apex court’s way against exercising jurisdiction in such matters in future provided that the condition of matter being of public importance involving enforcement of fundamental rights was met.

On June 11, 2018, the then chief justice Mian Saqib Nisar had suspended the deduction of withholding tax, sales tax and service charges on mobile phone top-ups during a different hearing relating to the development of Diamer-Bhasha and Mohmand dams.

Order of suspension of taxes neither recorded any reason nor determined that imposition of taxes was without jurisdiction, observes Justice Isa in detailed judgement

On public complaints, the former chief justice had initiated the case on May 3, 2018 relating to a high amount of taxes or other charges being deducted from the topping up of mobile phone balance through easy load and scratch cards.

Justice Isa, in the verdict he had authored and which was issued on Wednesday, explained why on April 24, 2019, the apex court had restored deduction of the taxes.

He also highlighted the need for exercising extreme precaution while invoking extraordinary jurisdiction of the Supreme Court under Article 184(3) of the Constitution in matters of public importance requiring enforcement of fundamental rights since no appeal lied against such orders.

“As there is no appeal against an order/judgement passed by this court in exercise of jurisdiction under Article 184(3) of the Constitution, every precaution should be taken to strictly act within the precise parameters set by the Constitution,” observed Justice Isa.

He explained in his 13-page verdict that fundamental rights for the enforcement of which the Supreme Court could exercise its jurisdiction under Article 184(3) had already been conferred by Chapter I of Part II of the Constitution.

And the protection from taxation was not listed on any of these fundamental rights, the verdict said, also agreeing with the arguments of one of the law officers that the taxes could not be presumed to be against public interest since the taxes were spent for the benefit of the public.

The verdict said the apex court was generally slow in entertaining challenges to taxes which were imposed by the legislature in apparent conformity with the provisions of the Constitution, but that did not mean that a law imposing a tax could not be challenged.

However, Justice Ahsan in his dissenting note observed that it was not necessary that a petition be filed before it as long as information of any matter was received by the court through any mode or manner and from any quarter.

If the matter coming to the notice of the court fell within the ambit of Article 184(3) for involving a question of public importance, then the Constitution empowered the court to take cognizance and pass orders to protect, preserve and enforce such fundamental rights of the citizens, he said.

The framers of the Constitution had intentionally, deliberately and by conscious design placed no restriction on the types of fundamental rights for the enforcement of which powers under Article 184(3) could not be exercised, Justice Ahsan said.

It was immaterial whether the violation related to a fiscal matter, taxation or a matter involving property rights, personal freedoms or human liberties, Justice Ahsan explained, adding that the Supreme Court could and should exercise its powers to come to the rescue of the citizen whose rights might be at risk of being bulldozed, destroyed or encroached upon by the state with all the might and resources available to it.

The power under Article 184(3) had been conferred on the court to protect the weak and the downtrodden who might not be able to hire expensive lawyers but whose fundamental rights were as sacrosanct as those of more privileged classes of the society which had the wherewithal and requisite resources to seek protection of their rights through courts of law, Justice Ahsan said.

Thus Article 184(3) was a power designed and meant to be exercised for protection of the proverbial “little man”, those who did not have the means to approach courts of law for enforcement and protection of rights guaranteed to them by the Constitution, he observed.

Failure or refusal to exercise the power in fit and appropriate cases was the violation of a trust and the hallmark of infidelity to the Constitution, Justice Ahsan warned, adding that there were countless reported and unreported cases in which the court had exercised suo motu powers.

Therefore, the judge said, nothing turned on the fact that such powers were exercised upon an anonymous complaint.

Published in Dawn, July 4th, 2019