ISLAMABAD: The Constitutional Bench of the Supreme Court was reconstituted on Monday to commence hearing on a set of challenges to the imposition of super tax on high earning individuals through Section 4C of the Income Tax Ordinance, 2001.

The composition was changed after Justice Aminuddin Khan, who was heading the bench, noted that one of the bench members, Justice Aamer Farooq, had already given a decision on the matter when he was chief justice of the Islamabad High Court.

The reconstituted bench will comprise Justice Jamal Khan Mandokhail, Justice Mohammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi and Justice Shahid Bilal Hassan besides Justice Aminuddin.

While counsel representing different industrial entities requested the bench to hear the matter after Eid, the court rejected the plea and declared that the case would be heard daily from Tuesday.

Hamid Khan says constitutional amendment required to try civilians in military courts

A number of taxpayers had challenged the constitutional vires of the amended Section 4C for the tax year 2023.

Last year, a division bench of IHC comprising Justice Farooq and Justice Tariq Mehmood Jahangiri while hearing intra-court appeals had ordered one of the respondents to continue paying the tax liability under the amended Section 4C.

The super tax was introduced by the PML-N government in 2015 and applied to wealthy individuals, associations of persons, and companies earning above Rs500 million. It levies a tax rate of 4pc on the income of banking companies and 3pc on other sectors, aimed at funding the rehabilitation of temporarily displaced persons.

Military trial case

Separately, senior counsel Hamid Khan — representing the Lahore Bar Association — argued before the Constitutional Bench that military courts cannot be established without a constitutional amendment.

Even a constitutional amendment for military courts must be time-bound and include the right to appeal against their decisions, the counsel contended.

However, he highlighted that the current circumstances did not justify the trial of civilians in military courts on such a large scale.

Mr Khan said Article 175(3) of the Constitution asked for the separation of the judiciary from the executive. He argued that the military, being part of the executive, could not exercise judicial powers. He was of the opinion that the Pakistan Army Act (PAA) was intended “solely for military personnel and not for civilians”. Therefore, he added, any provisions extending its jurisdiction to civilians were unconstitutional.

He argued that the F.B. Ali case was misinterpreted to justify the trial of civilians in military courts.

The counsel argued that parliament had not reviewed the issue of military courts since the F.B. Ali case, despite a recommendation to do so within two years. He asserted that the military courts, if allowed to try civilians, would constitute a parallel judicial system, undermining the constitutional framework.

During the hearing, Justice Mandokhail asked if the judiciary’s separation from the executive under Article 175(3) required a declaration by parliament. In response, the counsel said there was no need for a parliamentary declaration as the words of the constitution were clear.

On the other hand, Justice Mazhar remarked how SC in some previous cases through majority decisions had ruled that military courts did not fall under Article 175(3).

Since Mr Khan completed his arguments, defence ministry counsel Khawaja Haris Ahmed will begin his rebuttal and present a counter perspective.

Published in Dawn, March 11th, 2025