I DISSENT – THE JURISPRUDENTIAL DISAGREEMENTS IN TAX LAW

1. INTRODUCTION

Justice Mansoor Ali Shah and Justice Munib Akhtar of the Supreme Court, both, have an established, longstanding judicial record to speak for their acumen and understanding of the law. Despite their respective chief justiceships having fallen victim to politics, strangled by the passage of the Twenty-Sixth Amendment to the Constitution of the Islamic Republic of Pakistan, 1973, their widespread contributions to the jurisprudence in Pakistan are hard to ignore.

In fact, when the perverse noise of the chest-thumping of those who celebrated the passing over of these two highly capable, influential and original jurists dies down, the legal community may have to do some soul-searching regarding its treatment of them. Not only on constitutional matters, but in any realm of law that Justice Shah and Justice Akhtar have found occasion to apply themselves to, their elaborations on the law have been illuminating. This writer has previously attempted to grapple with their judgments in the realm of Federalism: “Post 18^th Amendment Federalism: ‘Pith and Substance’ Doctrine and Cooperative Federalism”.

This article, meanwhile, attempts to understand the jurisprudential bent of these two esteemed justices when it comes to their interpretation of fiscal statutes and resolving issues related to tax. A few judgments have been picked out, where Justice Shah and Justice Akhtar have found themselves to be on the opposite sides of the legal question, disagreeing with each other. Even when they broadly reach the same conclusions on the question of law, they have done so for different reasons in these judgments.

There are three legal issues that this article refers to. The first deals with the question of the difference between an exemption and a tax credit, particularly as provided in section 159 of the Income Tax Ordinance, 2001 (“Income Ordinance”). The second deals with the issue of whether the non-provision of limitation period in section 161 of the Income Ordinance, which imposes liability on a person who fails to make deductions, means that the limitation period provided in section 174(3) applies for the purposes of initiating action under section 161. Section 174(3) mentions the time period that a taxpayer is required to maintain record for. The third deals with the question of whether a notification issued under section 181 of the Customs Act, 1969 (“Customs Act”), specifying the amount of fine to be imposed on the confiscated goods, unlawfully curtails the discretion of a customs officer. This officer, while passing the order of confiscation of goods, under section 181, also has the discretion to allow the owner of the goods an option of paying such redemption fine as the officer “thinks fit”, instead of confiscating the goods. This grant of discretion, however, has been curtailed by allowing the FBR, under the provisos of section 181 to specify the goods for which this option is not available, and (2) to specify the redemption fine for particular goods. Such curtailment of discretion was contended to be unlawful by virtue of section 223 of the Customs Act, where it has been provided that the Federal Board of Revenue (FBR) shall not interfere with the discretion of the customs officer “in exercise of their quasi-judicial functions”.

This article does not seek to fully enunciate each of these issues but focuses on the tension points, that is, where the two respective justices diverged on the points of law.

•  EXEMPTION AND TAX CREDIT: TWO SIDES OF THE SAME COIN?

1. The Difference Between the Two is Immaterial?

The question of the difference between exemption and tax credit for the purposes of Income Ordinance, particularly section 159, arose before Justice Shah in Nishat Dairy (Pvt.) Ltd. v. Commissioner Inland Revenue and others, 2013 PTD 1883 (Lahore).

Before Justice Shah was the taxpayer, Nishat Dairy, a company in the business of corporate dairy farming. Under section 65D of the Income Ordinance, since omitted by Finance Act, 2021, Nishat Dairy was entitled to a 100% tax credit on its income for five (05) years. There was no dispute on this question since, the company, Nishat Dairy, squarely fell within the ambit of section 65D of the Income Ordinance.

The issue for the tax payer, however, was that it had to pay advance tax under section 148(1) of the Income Ordinance, on its imports, since it was importing livestock from Australia, and also other supplies such as cattle feed and calf milk replacer, from outside of Pakistan. This, essentially, meant that the money got out of Nishat Dairy’s pockets at the time of its imports, and went to the FBR’s coffers. Nishat Dairy, though, by virtue of being entitled to 100% tax credit on its income became entitled for a refund, at the time of the filing of its return.

Those familiar with the FBR, or any regulatory body set up under a fiscal statute in Pakistan, can zealously attest that getting a refund in Pakistan is almost an impossibility. Therefore, Nishat Dairy sought to convince the court that it was entitled to an exemption certificate under section 159(1) of the Income Ordinance. Getting an exemption certificate would mean that for the income subject to 100% tax credit, the money would not get out of its pockets, for the purposes of paying the advance tax at the time of imports, as it would be able to rely on the exemption certificate. Hence, the money, in turn, would not reach the FBR, which would mean that there would be no need to apply for a refund on the basis of a 100% tax credit on income.

Except that section 159(1) of the Income Ordinance did not mention anything about tax credits, but only about the certificate being issued if there were an exemption, or if a lower rate of tax applied.

Justice Shah in Nishat Dairy did not say that an exemption and a tax credit are identical. He appreciated the difference. Tax exemption, Justice Shah held, reduces the amount of taxable income, whereas tax credit reduces the amount of tax to be paid. For instance, if the income of a taxpayer is, say, Rs. 100, which is taxable at 20%, then an exemption, as held by Justice Shah, reduces the amount of income liable to tax, that is, it reduces the amount of Rs. 100. Whereas, a tax credit would mean that once the amount of tax levied has been determined, that is, 20% of Rs. 100, which is Rs. 20, then a tax credit reduces this amount of Rs. 20. In case the entire income is exempt from tax, then that means there is no tax on Rs. 100. Similarly, if the tax credit is 100%, then that means nothing of the Rs. 20 needs to be paid to the FBR.

Justice Shah, however, held that whatever the difference between an exemption and a tax credit, it was not material for the purposes section 159 of the Income Ordinance. He mentioned that, perhaps, “tax credit and tax exemption work on opposite sides of the same equation”.[1] Further, expressing the same notion, Justice Shah concluded that the “tax exemption and tax credit are two sides of the same coin”,[2] since “[a]t the end of day, both the incentives/methodologies reduce and ‘exempt’ the tax liability of the taxpayer”.[3]  Moreover, Justice Shah held that there was no point in seeing the two terms distinctly, as “[t]he nuance between the two terms (discussed above) is immaterial because the taxpayer stands exempt from the payment of tax at the end of the day in both the cases”.[4]

In reaching such a conclusion, however, there were other considerations in play. There was the practicality of it all: “In the present case the exercise of charging advance tax at the import stage appears to be unnecessary as the petitioner enjoys 100% tax credit against its tax liability arising from industrial undertaking”.[5] And then there was the purposive interpretation doing some work, since the “wisdom”, Justice Shah held, behind section 159 was “to avoid burdening the taxpayer and the tax administration with the calculations, refunds and adjustment of amounts, which in the end are not required to be credited to the State exchequer”.[6] Further, Justice Shah, asserted that the provisions of sections 65D and 159 of the Income Ordinance, “extend fiscal incentives for boosting our economy and must receive progressive interpretation advancing the legislature intent”.[7]

1. The Difference Between the Two is All Too Real?

Not so fast, held Justice Akhtar in his famous H.M. Extraction Ghee and Oil Industries (Pvt.) Limited and another v. Federal Board of Revenue and another, 2019 SCMR 1081. As the issue made its way to the Supreme Court, Justice Akhtar undertook a granular legal analysis, something he is known for, bifurcating the differences between an exemption and a tax credit, with the meticulousness of an academic. The purposiveness and the practical ramifications, which featured prominently in Justice Shah’s Nishat Dairy, were left on the wayside.

Justice Akhtar took issue with Justice Shah’s characterization that “tax credit and tax exemption are two sides of the same coin”, to which Justice Akhtar’s reply was: not exactly. Justice Akhtar conceded that on the issue before it, “it must be recognized that in practical terms there is no difference in the effect of a complete exemption from tax on the one hand and a 100% tax credit on the other”.[8] Yet he held that for conceptual clarity, it cannot be said that an exemption and a tax credit, are one and the same thing, merely on the basis of a “special case”, that is, in the case where the courts may be looking at the question of full exemption and a 100% tax credit.[9]

Borrowing from Whitney v. IR Commissioners (1926) 10 TC 88, there are two points that Justice Akhtar derived home. One, that the imposition of tax was to be broken down in three different stages. There was, as he held, a stage where tax became leviable, on the basis of the statute declaring that a particular property is subject to tax. Second, there was the assessment stage, where the exact quantum of payable tax was determined. Third, there was the recovery stage, where the FBR was entitled to recover tax, should the taxpayer not pay it willingly and voluntarily.

Two, an exemption, according to Justice Akhtar, did not allow the second stage, that of assessment, to be reached. Tax was leviable on a property, but there was no assessment, or only a partial assessment, in the case of a partial exemption. Meanwhile, in the case of a tax credit, tax was leviable, and to be assessed, yet the FBR was not to collect it. Justice Shah conceptualized the issue before him as that of an equation; Justice Akhtar, however, brought linearity in the analysis. An exemption applied, according to Justice Akhtar at a stage prior to when a tax credit applied. In the case of full exemption, there was no assessment of tax, and, in the case of a 100% tax credit, tax was assessed, but not required to be paid, since the FBR could not recover it. There was no coin, or two sides of the coin, according to Justice Akhtar; there were, instead, only stages. 

From this, Justice Munib, sought to clarify that exemptions come in different shapes and sizes, depending on “taxable income” and “total income”. This analysis, again, was done for the purposes of establishing the distinction between an exemption and a tax credit. This time referring to Kanga and Palkiwala’s monumental “The Law and Practice of Income Tax”, Justice Akhtar mentioned that an exemption reduced the income that was liable to be taxed, as Justice Mansoor had also recognized in Nishat Dairy, yet the total amount of tax to be paid hinged on two things. One, the amount of tax to be paid was dependent on the income liable to tax. An exemption, no doubt, reduced this amount. Two, the rate of tax applicable on the income liable to tax also determined the quantum of tax to be paid. Now, while there may be a reduction in the amount of income liable to be taxed due to an exemption, but, at the same time, that exempt amount may be includable in the total income for the purposes of determining the applicable rate of tax. On this basis too, Justice Akhtar concluded that “an exemption and tax credit are not, essentially, one and the same thing” but instead “are conceptually distinct”.[10]

In sum, Justice Akhtar highlighted two conceptual differences between an exemption and tax credit. First, an exemption and tax credit manifested themselves at different stages of the imposition of tax. An exemption dispensed with the need of carrying out an assessment; a tax credit did not. Two, for the purposes of exemption, the question remained alive, at least on a conceptual plane, whether along with the amount of income on which tax was levied, the applicable rate at which the income is taxed, was also affected. The applicable rate was never a relevant question for the purposes of a tax credit.

 Justice Akhtar next took up the question whether, despite the conceptual differences, exemption and tax credit could be read synonymously for the purposes of section 159 of the Tax Ordinance. Justice Akhtar held no. An “exemption”, as referred to in section 159(1)(a) of the Tax Ordinance, was “conceptually different from a tax credit”.[11] And hence, Justice Akhtar concluded that “no exemption certificate can be issued under section 159”, on the basis of a 100% tax credit.[12] Moreover, with the introduction of section 159(1)(c) of the Income Ordinance, through Finance Act, 2014, Justice Akhtar was reassured that where the legislature wanted an exemption certificate to be issued on the basis of 100% tax credit under section 100C of the Income Ordinance, as in the case of non-profit organizations, trusts and welfare institutions, the legislature expressly said so.

But while there may be conceptual differences between an exemption and a tax credit, the practical ramifications remained, that, at the stage of advance tax, the FBR collected tax, which was subject to a 100% tax credit, and which, therefore, required to be refunded to the taxpayer later, but was not. Justice Akhtar could not ignore this.

He, therefore, noted that the fact that the FBR did not refund the amounts had caused the Supreme Court “grave concern” because of “what does appear to be a genuine practical grievance”[13]. As a result, it was directed that the amounts with the FBR were to be refunded within thirty (30) days, and such future amounts deposited with the FBR, under the advance tax regime, but which amount was subject to 100% tax credit, similarly needed to be refunded within thirty (30) days.   

An exemption and a tax credit, may indeed be two different things, conceptually, but Justice Shah was animated, perhaps, more by the “genuine practical grievance” than Justice Akhtar was.[14] It is worth contemplating, though, in a system such as the one in Pakistan, how important it may be to maintain doctrinal clarity, at the expense of real, practical grievances. But, at the same time, if such doctrinal clarity is not maintained, then the justices, not as well-intentioned as Justice Shah, may get an opportunity to play fast-and-loose with the law. On which side does one err?

• LIMITS, WHEN NO LIMITATION PROVIDED?

In the year 2013, the same year Nishat Dairy was reported, Justice Akhtar, while at the Sindh High Court, had an opportunity to decide the question regarding limitation for the purposes of section 161 of the Income Ordinance, in Habib Bank Limited v. Federation of Pakistan, 2013 PTD 1659 (Sindh). Before the Sindh High Court were banking companies who had challenged notices issued under sections 161(1) and 161(1A) of the Income Ordinance, on the basis that they had been issued after the period of limitation had elapsed.

Under section 151 of the Income Ordinance, the department in issuing notices contended, that the banking companies were required to deduct taxes, at the rate of 10%, on the payments of profit on debt, to its customers. The banking companies, according to the department, did not deduct these taxes, and, therefore, were required to file statements of tax to account for the tax that needed to be deducted under section 151 of the Income Ordinance. Section 161, in its broad terms, provided that if there were payments liable to be deducted, then the person who failed to make the deductions, were to be personally liable. The banking companies denied the liability. Their primary contention before the Sindh High Court was that the notices had been issued after the time had run out, under the provisions of the Income Ordinance.

The nub of the dispute was that section 161 of the Income Ordinance, did not provide for a period of limitation. Therefore, according to the department, notices could be issued, at any time, because if the legislature sought to impose a period of limitation for the purposes of section 161, it would have done so, as the legislature in various other provisions of the Income Ordinance, has actually done. The department, in its contentions, was armed by an unreported decision of the Supreme Court, Pakistan Mobile Communications (Pvt.) Limited v. Commissioner of Income Tax and others, decided on 17.05.2011, upholding the reported decision from the Islamabad High Court, in Commissioner of Income tax v. Pakistan Mobile Communications (Pvt.) Ltd., 2009 PTD 1767 (Islamabad). It interpreted section 52 of the Income Tax Ordinance, 1979, which, for all material purposes was similar to section 161 of the Income Ordinance. The Supreme Court, in Pakistan Mobile Communications, held that there was no limitation period for the purposes of issuing notices under section 52 of the Income Tax Ordinance, 1979.

The banking companies, however, said that there was, at the same time, no provision akin to section 174(3) of the Income Ordinance in the Income Tax Ordinance, 1979, and therefore, the decision in Pakistan Mobile Communications was not applicable. Section 174(3) of the Income Ordinance held, in broad terms, that the taxpayer is required to maintain documents, records and accounts for the period of six (06) years from the end of the tax year, to which those documents related to. Therefore, the banking companies asserted that section 174(3) of the Income Ordinance provided the upper time-limit for which notices requiring reconciliation statements, for the purposes of imposing liability under section 161 of the Income Ordinance, could be issued. Justice Akhtar writing for the Sindh High Court, disagreed.

Justice Akhtar wrote that there can be “no period of limitation or time bar for action under and in terms of section 161”, since, according to him, “the rule laid down by the Supreme Court in Pakistan Mobile is applicable as much to the 2001 Ordinance as it was with respect of the 1979 Ordinance”.[15] In fact, Justice Akhtar held that “action under 161 could be taken even though years – indeed decades – may have passed”.[16]

While no time period was provided by the legislature in section 161 of the Income Ordinance, Justice Akhtar held that “a point in time eventually be reached such that if action is taken thereafter, this must be properly justified by the Commissioner”.[17] But this is where Justice Akhtar seemingly read into the statute. Just like there is no period of limitation specified in section 161 of the Income Ordinance, it is nowhere specified under the said provision, that after a period of time, there is an onus on the Commissioner to specify why the action is being taken belatedly. The decision also does not specify as to what sort of justifications for belated action by the Commissioner would be condoned by the courts, in its review. More interestingly, Justice Akhtar relied on section 174(3), for providing the time period, after which, the onus became that of the Commissioner’s to justify the belated action. This time period, therefore, after which the Commissioner had to provide a justification before initiating action under section 161 of the Income Ordinance, is six (06) years.

But, at the same time, it needs to be realized that Justice Akhtar had his constraints while sitting in the Sindh High Court, as a subordinate court to the Supreme Court, which had already adjudicated the same question, but with respect to section 52 of the Income Tax Ordinance, 1979. Therefore, while he could not read section 174(3) of the Tax Ordinance to provide an outer limit, for when notices under section 161 of the Tax Ordinance could be issued, as a way of relief to the banking companies, he provided that should no notices be issued within six (06) years from the end of the tax year under question, the Commissioner would have to justify the issuance of the notices thereafter. In the end, Justice Akhtar allowed the setting aside of the notices issued to the banking companies, since there was no justification from the Commissioner, and none was forthcoming.

This question came before the Supreme Court in Commissioner Inland Revenue, Zone-IV, Lahore v. Messrs Panther Sports and Rubber Industries (Pvt.) Limited and others, 2022 SCMR 1135. Justice Shah wrote for the Supreme Court, holding that the “view expressed in Habib Bank” could not be supported, since “we have not been able to find any statutory support”, for the conclusion, “that the department can override the timeframe under section 174(3) by justifying the delay in initiating the matter against the taxpayer”.[18]

The Supreme Court did not feel constrained by the unreported Supreme Court decision in Pakistan Mobile Communications. It could hold that notices under section 161(1A), 165 and Rule 44(4) of the Income Tax Rules, 2002, of the Income Ordinance, seeking reconciliation statements, could not be issued because the taxpayer was not required to maintain records beyond six (06) years under section 174(3) of the Income Ordinance.

The reasoning of Justice Shah again invoked purposivism. According to Justice Shah, “[t]ime based obligation of maintaining records contemplated under the Ordinance and the Rules is a legislative mandate that promotes efficient and smart fiscal administration and governance”.[19] Further, Justice Shah suggested that the Income Ordinance is “structured around time-framed provisions in order to make taxing mechanism certain and transparent and the tax administration smarter and efficient”.[20] 

At the same time, Justice Shah had to take into account the fact that provisions such as section 122 of the Tax Ordinance, for instance, provide for a hard time-line, which is not there for the purposes of initiating action under section 161 of the Income Ordinance. He, therefore, writing for the Supreme Court, reasonably held that “the department is only restricted where it seeks record beyond the statutory period under section 174(3) from the taxpayer but is otherwise free to proceed if the action or proceedings under the Ordinance are based on the record already in possession of the department”.[21]

Justice Munib in MCB Bank forged a solution, of imposing a burden on the Commission to justify the delay after the passage of six (06) years as provided under section 174(3) of the Income Ordinance, that was not provided by the statute, itself. Justice Shah, sitting in the Supreme Court, with the advantage of the decision from another High Court, Maple Lead Cement Factory Ltd. v. Federal Board of Revenue, 2016 PTD 2074 (Lahore), and not constrained by the unreported decision of the Supreme Court, could hold that no proceedings seeking any record from the taxpayer could be initiated under section 161 of the Income Ordinance, after the passage of six (06) years. And find that basis to be sufficient for the purposes of setting aside the notices. If liability was to be imposed on the taxpayer, it had to be on the basis of record already available.

•  THE KINDS OF POWER: QUASI-JUDICIAL OR NOT? 

In Haji Tooti and another v. Federal Board of Revenue, Islamabad and others, 2023 SCMR 1980, Justice Shah and Justice Akhtar, sat as colleagues, on the same bench of the Supreme Court, along with the then Chief Justice Umar Ata Bandial. The question before the Supreme Court was whether a notification issued by the FBR under section 181 of the Customs Act, that laid out the quantum of the redemption fine to be imposed on the owner of goods, when an option of paying the fine was made to the owner of goods, was in contravention of another provision of the Customs Act. The notification was challenged on the basis that the FBR, in violation of section 223 of the Customs Act, curtailed the discretion that had been granted to customs officer, under section 181, to determine such fine “as the officer thinks fit”. Section 223 of the Customs Act was violated, according to the owners of the goods, because while section 223 provided that the officers of customs were to “observe and follow the orders, instructions and directions of the board”, the proviso provided that no such orders, instructions or directions were to “interfere with the discretion of the appropriate officer of customs in the exercise of their quasi-judicial functions”. It was contended that the notification prescribing the fine, curtailed the quasi-judicial powers of customs officers.

Justice Akhtar, writing for the majority, comprising of himself and Justice Bandial, did not agree. And neither did Justice Shah, in his minority concurrence. But they differed in the reasoning. For Justice Akhtar, the question of quasi-judicial powers did not even arise. Because the order, in his view, issued under section 181 of the Customs Act, was “not in exercise of quasi-judicial functions”, but instead is an “exercise of a statutory power, and is in the nature of an administrative or executive order”.[22] Further, according to Justice Akhtar, writing for the majority, section 223 of the Customs Act, just like similar provisions in other fiscal statutes, allows FBR to exercise its supervision over, and provide guidance to, the officers performing their functions with the FBR. Justice Akhtar read quasi-judicial powers narrowly, holding that such powers are only performed by officers in an appellate role in the tax hierarchy, such as Collector (Appeals).

Moreover, Justice Akhtar held that the notification under challenge, had not been issued under the broader provision of section 223, providing some “general administrative or executive order, instruction or direction”.[23] But was, instead, issued under section 181, which is an entirely distinct provision.

Justice Shah, in his concurrence, agreeing with Justice Akhtar’s conclusion, however, held that the powers exercised by the custom’s officer under section 181 of the Customs Act, in providing an option of paying the redemption fine and determining the quantum of that fine, instead of confiscating the goods, were, in fact, quasi-judicial in nature. Justice Shah held that the power is quasi-judicial since “it authorizes a customs officer (not a judicial officer) to settle a dispute relating to the rights and liabilities of a person in respect of ownership of goods after ascertaining certain facts on the basis of relevant material/evidence, thus entailing civil consequences for that person”.[24] This involved, according to him, an exercise of discretion, where the officer decided whether the option of paying the redemption fine is to be given or not. This, as Justice Shah, put it, was an ancillary to the power of confiscation of goods, and hence was not merely an administrative or executive power. Justice Shah also referred to the Supreme Court judgment in M.A. Rahman v. Federation, 1988 SCMR 691, which had previously held that the powers granted to the customs officer, under sections 179-181, were quasi-judicial in nature.

For Justice Shah, the case could be decided on the basis that sections 181 and 223 were entirely distinct species, since section 181, in its provisos, delegated a legislative power to FBR, whereas section 223 is “merely recognition of administrative supervisory power of the Board”.[25] In Justice Shah’s view, the legislature in the provisos of section 181, allowed the executive to legislate with respect to the quantum of the fine to be imposed on the owners of the goods. This delegation governed the executive’s relationship with third parties. Whereas, section 223 only governed the relationship of the department and its employees, and is therefore, merely “internal, supervisory and administrative in nature”.[26] In other words, a notification issued under section 181 of the Customs Act, had nothing to do with section 223 of the Customs Act.

Once the executive exercised the delegated legislative power, as provided in section 181 in its provisos, the order of the executive, according to Justice Shah, “par[took] the colour and authority of a statutory instrument”.[27] Therefore, the notification issued under section 181 binds the customs officers even when “performing his quasi-judicial function”.[28] But the orders rendered under section 223 of the Customs Act did not confer any power to the executive through which there could be a determination of any of the rights of a third-party. Merely “[a]s a corollary”, this administrative order also did not bind customs officers’ exercise of quasi-judicial functions, along with those who exercised appellate authority, served on the tribunal or performed judicial roles in court”.[29] Put another way, it was not necessary for Justice Shah to hold that the powers exercised by customs officers under section 181 were quasi-judicial in nature.

Justice Akhtar held that the powers exercised by the customs officers under section 181 of the Customs Act were not quasi-judicial. Justice Shah held that they were. But, according to Justice Shah, despite being quasi-judicial powers, the legislature itself has delegated legislative power to the FBR to issue a notification regarding (1) the list of goods with respect to which the option of paying redemption fine shall not be available, and (2) the quantum of fine to be imposed for particular goods. This delegated legislated power was binding on the officers. Whereas, the domain of section 223 of the Customs Act was entirely distinct, where the FBR communicated, issued guidance and supervised its officers on administrative matters. Under section 223, the FBR is constrained, only “as a corollary”, from curtailing customs officers’ quasi-judicial powers as well, but only when the FBR exercised its supervisory powers under section 223.

While the eventual result is the same, it seems that the sort conceptual clarity that Justice Akhtar provided in neatly bifurcating the distinction between an exemption and a tax credit in H.M. Extraction Ghee, Justice Shah, probably, provided that sort of conceptual distinction to the concept of delegated legislative powers, and those exercised for the purposes of administration. This is particularly so, because of how, according to Justice Shah, those powers are exercised in regards to third parties, for instance the tax payers. Meanwhile, Justice Shah, also remained consistent with the superior courts’ prior characterizations of quasi-judicial powers.

• CONCLUSION

In an adversarial system, the assumption is that as the parties to a dispute represent their distinct factual and legal positions, contesting and poking holes in the contentions of their opponent, a truthful version eventually crystallizes. Similarly, in the situation, where two erudite, accomplished jurists take positions that are not identical, there is an opportunity to recognize a fundamental feature about the law, that there may, at times, not be one right answer to a legal question: a range of answers may be possible, as often happens when answering hard questions. The one answer chosen eventually often reflects a broader vision of the law that a particular jurist believes in. Or, alternatively, if one subscribes to the Dworkinian notion that there is necessarily one right, or better, answer to every legal question, on the basis of justification and fit, then these are occasions to recognize yet another fundamental truth, that even exceptionally accomplished jurists are fallible. They, at times, like the rest of us, make mistakes.

In any event, the two justices, Justice Shah and Justice Akhtar, with their strong doctrinal foundations, are able to produce – what may sound as overly grandiose – a symphony out of law. It is, therefore, extremely unfortunate that that those who could, decided to rely on pliable minds, that would do their bidding, irrespective of their jurisprudential priors. The powerful won, yet again, but at a huge expense to the still nascent development of law and jurisprudence in Pakistan.

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By Adeel Wahid

The writer is a lawyer based in Islamabad. The views expressed are his own and do not reflect those of his firm.

Email: [email protected]

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References