' DR. GHOUS MUHAMMAD, (1) For detailed reasons to be recorded later on we had disposed of the present petition by observing that the appeal of the petitioner pending before the Customs, Excise and Sales Tax Appellate Tribunal (hereafter referred to as "the CESAT") should be disposed of within a period of one month and till disposal of such appeal the respondents shall be restrained from taking any adverse action. This petition had partaken the nature and character of public interest litigation as shall be explained below. Accordingly, the learned members of the CESAT were directed to appear before this Court.
2. There have been rampant complaints by lawyers and litigants against the members of the CESAT and the conduct of their work. The commonest complaints are that the learned members do not maintain any punctuality of timings; sometimes they are completely absent; they come and go at their own sweet will; invariably hearings are conducted from 11-00 a.m. And sometimes no hearings take place at all; the injunction (stay) or other miscellaneous applications are usually neither fixed nor heard and rarely any orders are passed thereon; many appeals are heard and re- heard but no orders are passed; likewise there is no system of roster in the fixation of the appeals and application; there are lack of proper facilities at the place where the hearings take place, etc. Ironically, in the Letters to the Editor appearing in Daily Dawn, dated 25-12-1999 similar allegations have been leveled against the members of the CESAT.
3. The above complaints along with many other allegations had become widespread. Even while sitting on the tax bench we came across and decided numerous Constitutional petitions wherein the alleged inefficiency and apathy of the learned members of the CESAT was brought to surface.
Accordingly, when the present petition was filed it became obvious that the predicament had reached uncontrollable limits and it was necessary to pass corrective orders. In this manner it had become essential to take cognizance of the plight of the working of CESAT in the exercise of public interest litigation under Article 199 of the 1973 Constitution. It is pertinent to observe that public interest litigation is a concept which has been borrowed from India.
4. In the Indian jurisdiction public interest litigation was formally found for the first time through People's Union for Democratic Right v. Union of India AIR 1982 SC 1473 wherein it was observed that public interest litigation was totally different from other litigation which was adverbial in nature, in the latter there being a dispute between two litigating parties. It was observed that public interest litigation was brought before the Court not for the purposes of enforcing the right of one individual against another but was intended to promote and vindicate public interest. In our humble opinion this obviously means that public interest litigation is inquisitorial in nature where the Court may even delve into fact finding so as to promote public interest. A more celebrated case from India is the case of S.P. Gupta and others v. President of India and others AIR 1982 SC 149 wherein technical rules were relaxed to entertain a petition relating to transfer of Judges. Thereafter in India there have been a number of cases wherein public interest litigation has been involved ranging from cases of law and order (see Supreme Court Bar Association v. State of U.P. 1995 Supp. (3) SCC (602) to cleaning of the city [see Dr. V.L. Wadehra v. Union of India (1996) 2 SCC 594); there are many other instances where this mechanism has been used by the Indian Courts including a petition filed by a women's forum vindicating the rights of domestic servants indecently assaulted by army personnel (see Delhi Domestic Working Women's Forum v. Union of India (1995) 1 SCC 14); where human rights of home inmates were protected [see Dr. Upendra Bakhshi v. State of U.P. (1983) 2 SCC 308); where a doctor alleged improvement in railway services (see Dr. Nalla Thampy Thera v.
Union of India AIR 1984 SC 74); and of course in matters relating to environment and pollution (see Rural Litigation and Entitlement Kendra, Dehramdun v. State of U.P. AIR 1985 SC 652, Subhash Kumar v. State of Behar AIR 1991 SC 420, Indian Council for EnviroLegal Action v. Union of India (1996) 3 SCC 212, M.C. Mehta v. Union of India (1996) 4 SCC 750, Buffalo Traders Welfare Association v. Manika Gandhi (1996) 11 SCC 35, etc.
5. In the UK also there has been development in this area. Traditionally, litigation indicating public rights could only be brought by either a person directly aggrieved or through the Attorney-General.
However some initial attempts were made by Lord Denning to liberalize the principle of locus standi. Accordingly, in Attorney-General v. Independent Broadcasting Authority (1973) 1 All ER 689 Lord Denning, M.R. Was pleased to observe that the term "sufficient interest" could not be restricted and where the Attorney-General had improperly refused leave or had acted unreasonably or delayed in giving the leave or his machinery was too slow, a member of the public could approach the Court directly. Lord Denning took cognizance of abuse by the Government functionaries and elaborated a "high Constitutional principle" to the effect that "if there is good ground for supposing that a Government department or a public authority is transgressing the law and is about to transgress it, in a way which offends or injures thousands of Her Majesty's subjects, then in the last resort any one of those offended or injured can draw it to the attention of the Courts of law and seek to have the law enforced". Similarly, in R. v. GLC (1976) 3 All ER 184 Lord Denning, M.R. Relaxed the requirement of locus standi and maintained the case where the powers of censorship were unlawfully exercised by the Greater London Council (hereafter: "GLC").
' Accordingly, injunction was issued in relation to films consented by the GLC which were otherwise grossly indecent. Subsequently, however,. The liberal approach enunciated by Lord Denning in the Court of Appeal was watered down by the House of Lords in Gourmet v. Union of Post Office Workers (1977) 3 All ER 70 wherein it was held that it was a fundamental principle of English law that public right can only be enforced or ascertained in a civil action by the Attorney-General save exceptions provided by the statute. It was only in the late 1980 and the earlier 1990s that the Courts of England realized the wisdom of the earlier approach taken by Lord Denning. The House of Lords liberalized the principle of locus standi in Cook's v Southend Borough Council (1990) 2 WLR 61 wherein Wolf L.J observed that a more liberal approach should be adopted in recent times to "locus standi" and the "person aggrieved". It was further observed that some of the foundational cases supplying the restricted view could no longer be treated as good law. This liberal approach was followed in R. v. Bar Council Ex parte Persival (1990) 3 All ER 137 (QBD). A more liberal approach was taken up very recently in R. v. Secretary of State for Foreign Affairs, the World Development Improvement Ltd. (1995) 1 WLR 386 by a Divisional Court which relaxed the requirement of "sufficient interest" to extend judicial review. In this case the World Development Improvement Ltd., a pressure group campaigning for the last 20 years to improve the quality and quantity of overseas aid given by the British Government, challenged the grant to build a power station on Peragua Dam in Malaysia. The Court held that the applicant had the locus standi and entertained the application. In doing so the Court emphasized the need for the law to develop and not to stagnate. In Bangladesh the advent of public interest litigation has been marked by a decision of the Appellate Division in 199T in the case of Dr. Moinuddin Farooque v. Bangladesh and others (1997) 15 Bangladesh Legal Decision 1 (Appellate Division). In entertaining a petition filed by an Environmental Association of Lawyers, Mustafa Kamal, J. Was pleased to observe that the term "any aggrieved person" was not confined to individually affected persons only but it extends to the people in general, as a collective and consolidated personality. It was further observed that an applicant, if bona finely espouses a public cause in the public interest, acquires the competency to claim a hearing from the Court. In this case the petitioner had challenged the environmental ill-effect of a flood control plan affecting the life, property, livelihood, vocation and environmental security of more than a million people in the District of Tangail in Bangladesh. Quite interestingly, the path-breaking judgment from the Bangladeshi jurisdiction has placed reliance upon a number of judgments from the English, India, American and Sri Lankan jurisdiction. Very notably, the judgment has also placed its express reliance on four judgments from the Pakistani jurisdiction which are Muntizma Committee v.
Director, Katchi Abadis, Sindh PLD 1992 Karachi 54, Main Fazal Din v. The Lahore Improvement Trust 21 DLR (SC) 225 = PLD 1969 SC 223, Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Shehla Zia v. WAPDA PLD 1994 SC 693.
6. The pre-condition of public interest litigation and effective enforcement of rights and obligations of parties, whether the individual or the State, is to be found in judicial activism. Simply stating, judicial activism is nothing but to keep abreast with the times and offering an interpretation of law which would make the law workable rather than render it obsolete. The philosophy of law favours a dynamic interpretation rather than stagnation. In Duport Steel Ltd. v. Sirs (1980) 1 All ER 529 at page 551 Lord Scarman recognized that "great judges are in their different ways judicial activists".
However, the learned Law Lord expressed his reservation in any trend of liberal judicial activism as he observed that such an attempt would itself risk judicial independence since the society through the parliament could place clogs and fetters so as to "cut the powers of the Judges". Lord Scarman feared that if judicial power was confined the power to do justice would be at risk and be restricted by law, than it need to be. We do not share the pessimism of Lord Scarman. The law as enshrined in our Constitution expresses a tracheotomy of powers see State v. Ziaur Rehman PLD 1973 SC 49 where the judges are the guardians of the Constitution and thus, are under a legal and Constitutional obligation to monitor the entire legal order of the State. The Supreme Court of India has championed the cause of judicial activism. There are a number of instances where the Indian Courts have been responsible to effect social change through their decisions. There are express admissions by the Indian Supreme Court to have made the law rather than just interpret the same.
Bandhu Mukhti Morcha v. Union of India AIR 1984 SC 802 is case where the Supreme Court looked into the problem of bonded labour and slavery. Mukesh Advani v. State of Madhya Preadesh AIR 1985 SC 1368 is a case where the Supreme Court secured the flows of the River Ganges and eradicated pollution, while trying to solve co-logical issues. Significantly and pertinently, in Union of India v. Raghubir Singh AIR 1989 SC 1933 the Supreme Court observed that it could not-longer be disputed that the Judges could not make laws. It was further held that it was no longer a matter of doubt that a substantial volume of the law governing lives of the citizens and regulating the functions of the State flowed from the decisions of the Supreme Court. Very correctly the Indian Supreme Court in Pomal Kanji v. Karsandas Purohit AIR 1989 SC 436 realized that the law must respond to compulsions and circumstances which would be fair, equitable and just, unless of course being contrary to the statute. It was observed that the Court must take cognizance of this fact and act accordingly. In Central Inland Water Transport Corporation v. Brojonath Ganguly AIR 1986 SC 1571 it has been observed that the law should move forward in tune with the change of ideas and ideologies of the society. Similar views have been expressed in M.C. Mehta v. Union of India AIR 1987 SC 1086 wherein the Supreme Court of India has expressly observed that the law should keep pace with the changing socio-economic norms. Notably the Supreme Court has trod upon the zenith of judicial activism when in that case it further observed that where a law of the past does not fit in the present context, the Court should evolve a new law. We fully subscribed to the latter view. The Courts in Pakistan have equally marched towards judicial activism. In Muhammad Nawaz Sharif v. Pakistan PLD 1993 SC 473, a Full Court of the Supreme Court vehemently stressed the need to offer a dynamic interpretation in keeping with the needs of the time. In Qalandro v. The State 1997 MLD 1632 a Division Bench of this Court in which one of us i,e, Dr. Ghous Muhammad, J. While writing for the Court cited with approval the concept of judicial review dilated upon by F.W. Maitland to the effect that 'as an ideation judicial review has always been a dynamic concept and each generation has enormous power to shape its own laws; its progressive growth with passage of time would bring into its fold newer subjects and enrich its armoury with bolder concept'. In fact this is the mandate of Articles 3 and 4 of the Constitution which ' prescribed the due process clause. In Qalandro the decision of Al-Jehad Trust, PLD 1996 SC 324, enunciating the principles of legitimate expectation and access to justice, was explained as illustrations of the due process clause contained in Articles 3 and 4 of the Constitution. Similarly, in Abdul Rahim v. UBL PLD 1997 Karachi 62 a Division Bench of this Court wherein one of us i,e, Dr. Ghous Muhammad, J. Read in and read down provisions of the statute, while supplying construction, so as to evolve a person's unhindered right of appeal. The province of judicial review was rediscovered, re-defined and re-stated. The disillusionment expressed by Lord Scarman in Deport Steel has not been shared in recent times in the U.K. In World Development Movement Ltd.
Case (cited supra) wherein the Divisional Court while fully advocating judicial activism observed as follows: ' The truth is that the law is uncertain. It does not cover all the situation that may arise. Time and again practitioners are faced with new situations, where the decision may go either way. No one can tell what the law is until the Courts decide it. The Judges do every day make law, though it is almost hearsay to say so. If the truth is recognized then we may hope to escape from the dead hand of the past and consciously would new principles to meet the needs of the present. The Reform of Equity', in C.J. Hamson (ed.), Law Reform and Law-Making (1953), p.31).
' James S.C. Raid in 'The Law and the Reasonable Man' , 1968 Proceedings of British Academy, 193, 194-5, said: I suppose that almost every doctrine of the common law was invented by some judge at some period in history, and when he invented it he thought it was plain common sense and indeed it generally was originally. But, with the passage of time, more technically minded judges have forgotten its origin and developed it in a way that can easily cause injustice. In so far as we appellate judges can get the thing back on the rails let us do so; if it has gone too far we must pin our hopes on Parliament.
7. Frankly speaking Darshan Masih v. State PLD 1990 SC 513 has marked the formal advent of public interest litigation in our country when the Hon'ble Supreme Court took cognizance of illegal detention and bonded labour through a telegram received by the Hon'ble Chief Justice of the apex Court. That case, of course, reflected an exercise of power under Article 184(3) of the Constitution which empowers the Hon'ble Supreme Court to exercise original Constitutional jurisdiction where the matter concerns a question of public importance having reference to the enforcement of fundamental rights. Under the said Article 184(3) there is no clog for maintaining a petition by a person who is not directly aggrieved. After Darshan Masih there was some dispute as regards the power of the High Court under Article 199 to exercise similar power in the exercise of public interest litigation upon an application by a person not being directly aggrieved in the traditional sense., This controversy was triggered off in view of the express terms of Article 199 which itself provides that except in certain circumstances the application under Article 199 is to be filed by 'any aggrieved party' or 'aggrieved person'. The dilemma, however, has now to a great extent been resolved through certain latest pronouncements of the superior Courts whereby the need to relax the requirement of locus standi and in turn giving a liberal connotation to the term 'aggrieved party 'or 'aggrieved person' has been proposed and stressed. In this context it would not be out of place to extract support from Mushtaq Ali v. Government of Sindh PLD 1998 Karachi 416 wherein a Division Bench of this Court took cognizance of a petition under Article 199 filed by a free-lance journalist complaining the massive riggings in the award of octroi contracts. Writing for the Court, Wajihuddin, C.J., as he then was, has very correctly observed that in matters of public interest and public advantage the strict rules of locus standi would have little place. It was further observed that a good deal of laxity and equal amount of indulgence was permissible in such matters directed solely to achieve public good. Very recently the Hon'ble Supreme Court in Ardeshi Cowasjee v.
KBCA 1999 SCMR 2883 has held that in order to maintain a writ petition in the High Court it was not necessary for the petitioner to have a right in the strict sense but it was enough if the petitioner disclosed sufficient or personal interest for the performance of some legal duty. It was further observed that the concept of locus standi has been whittled down and accordingly, the term 'sufficient interest' had to be given a generous interpretation.
8. In the present case the petitioner, a litigant who under the statute has filed an appeal before the CESAT, derives a personal and sufficient interest to be dispensed with expeditious justice in accordance with law by the said forum. The necessary corollary would be that the petitioner would have sufficient interest in the proper working of the CESAT. The matter could be looked from another angle. The preamble of the Constitution alongwith the Objectives Resolution guarantee expeditious dispensation of justice. The said Objectives Resolution has been made a substantive part of the Constitution through Article 2A. Similarly, Article 37(d) guarantees a citizen inexpensive and expeditious justice. Accordingly, any direction in the form of ameliorating the working of the CESAT would be in the nature of enforcing the provisions contained in the Constitution. In Abdul Rahim v. UBL PLD 1997 Karachi 62 it has been observed that judicial forums must act in cognizance with the dictates of justice and equity and the cause should be decided expeditiously after giving full opportunity. It would also not be out of place to mention that our own Supreme Court in Al- Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 interfered in the process of appointment of Judges which in turn had a bearing on the working of Courts and judicial forums. Drawing support from Al-Jehad Trust, it could safely be said that where an adverse working of a subordinate judicial, quasi-judicial and administrative forum or Tribunal is impugned, the issue becomes justiciable under Article 199 of the Constitution. The petitioner in this case had complained that the remedy before the CESAT is neither efficacious nor expeditious. It will also not be out of place to mention that the CESAT established under the statute would not be immune from the superintendence of this Court under Article 203 of the 1973 Constitution which empowers the High Court to supervise and control all Courts subordinate to it.
9. In Afsaruddin Bhuiya v. Wazed A li Khan PLD 1953 Dacca 209 District subordinate Judge deciding an election petition was held to be a Court functioning under the Civil Procedure Code. It was held that a Court is a place where justice is administered by a person appointed by the State. It was further observed that the distinctive feature of Court is that it decides actual disputes between parties and it performs judicial functions which are different from other functions. In Malik Fateh Khan v.. Najeebullah Khan PLD 1957 Lahore 631 it was held that a Revenue Officer holding an enquiry or hearing an appeal in a mutation proceedings was not a Court within the meaning of section 195 of the Cr.P.C. Incoming to this conclusion S.A. Rehman, C.J., as he then was, laid down the operative test in this regard by holding that in order for an officer or authority to function as a Court it must exercise the judicial power of the State. Relying upon Shell Co. Of Australia Ltd. v. Federation Commission of Taxation 1931 AC 275 and Huddart, Parker & Co. Moorehead 8 CLR 330 and Nirman Singh v. Thakur Lal Budra Partabo Narain Singh AIR 1926 PC 100 it was held that judicial power was vested in a forum which could give authoritative decisions binding upon parties, whether subject to appeal or not. Judging by this test, it was observed that a Revenue Officer holding an enquiry or hearing an appeal in a mutation proceedings, did not become a Court, as he did not really adjudicate on the rights of parties and did not give a decision which was binding on them. In Muhammad Saeed v. Election Petition Tribunal, West Pakistan and others PLD 1957 SC (Pak.) 91 it was held that the Election Petition Tribunal was a Court and its 'report' was a 'judgment' in every sense since it decided the rights of the candidates declaring as to whether the election was valid or void, whether a person was duly elected and whether a person was disqualified. In other words, the emphasis was that where a forum could decide a dispute which was binding on parties, the forum was a Court., In Sahibzada Masood Ahmed v. Mian Muhammad Saeed Sehgal PLD 1958 Lahore 153, seven L preconditions were spelt out which had to be fulfilled before a forum could be construed as a Court. These seven conditions are as follows:--- ' (1) That such persons are entrusted with judicial functions i,e,, of deciding litigated questions according to law.
(2) That they derive their powers to decide such question from the State.
(3) That they exercise the judicial powers of the State.
(4) That there is a plaintiff who complains to such persons of an injury done.
(5) That there is a defendant who is called upon by such persons to make satisfaction for the injury done.
(6) That they are empowered to pronounce a definitive judgment which is binding and authoritative.
(7) That such persons are appointed by the Government and should receive payments for their services exclusively out of Government funds and they should not be liable to removal by any authority other than Government.'
' While construing the above seven conditions it was held that a Deputy Rehabilitation Commissioner functioning under the Pakistan Rehabilitation Act, 1957 did not constitute a Court within the meaning of the Contempt of Courts Act, 1926 as it was held that the same functionary did not satisfy the seven conditions stated above. In Muliji Manilal Kamdar v. State of Maharashtra 1963 PTD 811 a Division Bench of the Maharashtra High Court found an Income Tax Officer holding proceedings under section 23 of the Income-tax Act, 1922 to be Revenue Court within the meaning of section 195 of the Cr.P.C. In Jamal Din v. Haji Muhammad Aslam PLD 1965 Lahore 503 the dictionary meaning of the term 'Court', defining it as a place where justice is administered, was cited with approval. It was held that the Rent Controller was authorized under the Oaths Act, 1873 to receive evidence under oath as a Court. In Mst. Gaman v. Taj Din PLD 1968 Lah. 987 the Family Courts established under the West Pakistan Family Courts Act, 1964 were construed to be Courts rather than persona designata or tribunals. Quite significantly, a distinction was laid down between 'Court of law' and 'Tribunal'. The distinction has been drawn as follows:- ' In Article 242 of the Constitution, the word 'Court' has been defined to mean 'any Court of law'. It is well-known that there is a marked distinction between a Court of law and a Tribunal which renders a final decision between the parties after hearing witnesses on oath, and whose decisions may be subject to an appeal to a Court. These Tribunals are not necessarily Courts of law though they undoubtedly exert judicial powers. One of the hallmarks for determining as to whether a forum is a Court of law or not is to see as to whether it applies legal principles awl excludes adjudication based on considerations of policy. If the Tribunal is guided by some principles of policy rather than by regal principles or any particular law on the subject, then it will not be a Court of law. Other criteria for seeing whether a Tribunal is a Court of law is to examine as to whether it is required by law to give a public hearing to all the parties of a case subject, of course, to the proper exercise of power to exclude the public in proper cases."
' It is significant to observe that even in terms of Mst. Gaman v. Taj Din a forum has to be construed as a "Court of law" where it exercises judicial power i,e, whereby parties to the adjudication are bound by its decision, the forum applies legal principles, excludes considerations of policy, and gives hearing to all the parties. Accordingly, where a forum is termed as a "Tribunal" but is vested with judicial power and exercises the same in terms of the aforesaid guidelines, in substance it will be construed as "Court of law". Mere use of the expression "Tribunal" in its nomenclature will not deprive the forum from the powers and attributes of a "Court of law'. To this extent we disagree with two judgments from the Indian jurisdiction i,e, R.M. Seshadri v. Second Additional Income-tax Officer (1954) 25 ITR 400 and D.H. Satyana Raya Numurti v. ITAT, Madras (1958) 33 ITR 123 wherein it has been held that the Income-tax Appellate Tribunal is not a Court. To our understanding the Income- tax Appellate. Tribunal is created under the statute and it has the judicial power to decide disputes between the assessee and the Revenue Department having binding effect. Similarly, Income Tax Appellate Tribunal has to function in accordance with the statute and law laid down by the superior Courts. Also the Income-tax Appellate Tribunal is a fact-finding forum with the power to receive and examine evidence on oath. It is correct that such forum is essentially an administrative Tribunal created under Article 212 of the 1973 Constitution, however, the same also partakes the nature and character of a Court of law. In Jia Ram Mastung v. Kundana Wanti PLD 1987 Quetta .91 similar guidelines, expressed as aforesaid in relation to judicial power and administrative Tribunals in Shell Co. Of Australia Ltd. And Huddart Parker's case (cited supra), were laid down. The latter two cases were expressly cited and followed. It was held that since the statute did not confer on the Deputy Commissioner the power to give a definitive and binding judgment, the same could not be construed as a Court. Very significantly in Khadija Bibi v. Abdul Wahid 1980 CLC 2145 a Division Bench of the Quetta High Court was pleased to observe that Courts and Tribunals being under the direct hierarchy of the High Court in its appellate or revisional jurisdiction fell within Article 203 of 1973 Constitution. Accordingly, the Court of the Rent Controller with appellate jurisdiction vesting in the High Court came within the purview of Article 203 notwithstanding that the Rent Controller was not a Court stricto senso. In Mir Rehman Khan v. Sardar Asadullah Khan PLD 1983 Quetta 52 it was observed that Courts are organs of the State entrusted with the administration of justice in accordance with law. It was also observed that the term "Court" is often applied in circumstances otherwise than in the technical sense and is also applied to various Tribunals. In Abdul Qayyum v.
Government of Punjab 1983 PLC (C.S.) 948 the enquiry officer who was under the obligation to take evidence was found to be a Court as defined under section 3 of the Evidence Act, 1872. In Iftifkhar Ahmed v. MCB PLD 1984 Lah. 69 a Banking Court established under the Banking Companies (Recovery of Loans) Ordinance, 1979 was held to be a 'Court' in fact and in law. It was further observed that under Article 203 of the Constitution the High Court exercised the superintendence, control and disciplinary jurisdiction not only over the Courts subordinate to it but also the judicial and quasi-judicial Tribunals which functioned in the Province. It was also observed that all forums by whatever names called, if exercising judicial power in the Province, became susceptible to supervision and control by the High Court of the province under Article 203 of the Constitution. In Nazar All v. Brig. Shahid Aziz 1987 PCLJ 1435 it was held that the Member (Judicial) of the C.B.R. Could not be construed as a Court since it lacked the attribute of a Court. In Baghu Singh v. Burrakur Coal Co. AIR 1966 Calcutta 504 an Industrial Tribunal was held to be a Court.
10. The above discussion squarely confirms that a Court is a forum which is created by the authority of the State and has the judicial power to decide matters which are in the nature of authoritative and binding decisions upon parties; equally a Court follows the law in terms of statute and case-law rather than policies; has the power to receive and examine evidence and conducts itself by giving hearing to parties and by following the accepted judicial procedures and conventions. The CESAT has similar attributes under section 194-C(8) of the Customs Act, 1969 whereby the proceedings before the CESAT are deemed to be judicial proceedings and the said CESAT is deemed to be a Court for the purposes of sections 480 and 482 of the Cr.P.C. For the purposes of Article 203 there is no reason to give the term "Courts" appearing therein any narrow or pedantic meaning so as to exclude judicial or quasi-judicial forums or administrative tribunals from its purview. Article 2(a) of the Qanoon-e-Shahadat Order, 1984 defines a "Court" to include all Judges, Magistrates and all persons, except arbitrators, legally authorized to take evidence.
Accordingly to this definition, except arbitrators all forums legally empowered to record evidence have been defined to be Courts". The CESAT like other administrative tribunals is the final fact- finding authority in matters relating to Customs, Central Excises and Sales Tax. Section 194-C(7)(b) of the Customs Act, 1969 specially empowers the CESAT with the function to enforce attendance and examine persons on oath. Similarly, under sub-clause (d) of the said sub-clause the CESAT has a power to issue commissions. Also under sub-clause (7) of section 194-C the CESAT for the purposes of discharging its functions has been entrusted with the powers vested in a Court under the Civil Procedure Code. In this manner, there can be little doubt that the CESAT, at least for the purposes of Article 203 of the Constitution is a Court in which case the powers of its superintendence and control vests with the High Court. In coming to such conclusion we are also fortified from the fact that the appeals against the orders and judgments of the CESAT, under relevant statutes, lie with the High Court. Thus, applying the verdicts in Khadija Bibi v. Abdul Wahid and Iftikhar Ahmed v. MCB (cited supra) there is every reason to hold that CESAT would fall within the superintendence and control of the High Court under Article 203 of the Constitution, in which it is territorially situated.
11. Mr. Arshad Malik, the learned Judicial Member and Mr. Mir Fawad, the learned Technical Member of the CESAT had appeared before us and submitted their respective assurances that they would do the needful to ensure the working of the CESAT. In compliance to this Court's order the Chairman of the CESAT has submitted the following statistics of pending cases from September to November, 1999. The statistics are as follows:--- "STATEMENT SHOWING THE NUMBER OF CASES HEARD AND DECIDED DURING THE PERIOD FROM SEPTEMBER, 1999 TO NOVEMBER, 1999 BY THE KARACHI BENCH Month No of Decided cases heard: ' November 1999 488 87 ' October 1999 296 63 ' September 1999 290 32 ' STATEMENT SHOWING THE NUMBER OF STAY APPLICATIONS HEARD AND DECIDED.
' Month Stay Disposed applications of: ' November 1999 35 31 ' October 1999 07 07 ' September 1'999 08 08 ' Total pendency 1158 cases up to 30-11-1999"
Without giving any findings on the complaints which are discussed above or the above performance of the CESAT for three months, the following directions are given to the learned members of the CESAT for strict compliance:---
(a) The learned members must commence hearing on daily basis from 9-00 a.m. To 1-30 p.m. Or till the daily roster of causes is completed, with half-an-hour break;
(b) the learned members thereafter should be available in their respective chambers and writ judgments/orders and attend to miscellaneous and other administrative work;
(c) once in a week no hearings, except in urgent matters, may take place and that day may be reserved for judgment writing. This day may be Friday preferably;
(d) every day the daily roster should list out the hearings and causes for the next day on a notice board by 12-00 noon;
(e) at least one intimation/notice regular hearing parties; week's written of fixation of be received by;
(f) injunction/stay and other miscellaneous applications are to be taken up urgently and disposed of without delay;
(g) orders on the injunction and other miscellaneous applications be communicated within a day or two of the hearing to the applicants or their counsel;
(h) orders/judgments of the appeal after the final hearing may also be given promptly and in turn communicated to the appellants and/or their counsel within a period of 10 days of passing of such judgment/order. The judgment order of the appeal be given preferably within one month of the hearing;
(i) the Chairman and other members of the CESAT are directed to consult senior lawyers appearing before the CESAT as also the President and Office Bearers of the Customs, Central Excise and Sales Tax Bar Association, if any, so as to vet and finalize the rules for the working of CESAT on the lines of the Income-tax Appellate Tribunal Rules, 1981; the conduct of hearing and its outcome should be strictly in accordance with law and 'settled judicial conventions. The learned members of the CESAT are directed to pass speaking and judicial orders by following the provisions of the statute and the judgments of the superior Courts. Attempt should be made to consider all arguments of the parties and give well-reasoned findings thereon. Effort should be made to redress a common complaint that arguments of parties have not even been looked into;
(j) where recoveries of tax are restrained, attempt should be made to decide the main appeal expeditiously and in any event before six months;
(k) another common complaint is that the CESAT never proceeds in the absence of departmental representatives despite repeated notices and intimations of hearings sent to the department.
Despite proper service of notice if none appears, the CESAT is at liberty to proceed and decide the matter. The Chairman. C.B.R. Is directed to ensure presence of departmental representatives before the CESAT;
(l) another common complaint is that even where some injunction restraining the recoveries is granted, the Departmental Representatives seek repeated adjournments so as to effect any time limit of injunction to expire. In such cases the Departmental Representative be directed to submit his oral undertaking on behalf of the Department not to effect recoveries.
12. But this is not the end of the matter. We in Pakistan subscribe to a written Constitution which prescribes a trichotomy of powers where under Article 175 of the 1973 Constitution the Legislature makes the laws, executive implements the latter and the judiciary interprets the same. The concept of separation of powers as embedded in the 1973 Constitution has been recognized by our Supreme Court in State v. Zia ur Rehman PLD 1973 SC 49. This being the legal and Constitutional state of affairs it appears to be a rather unhappy situation to leave the appointments of members of the appellate and administrative tribunals created under Article 212 of the Constitution read with the respective statutes to the Government. In matters of taxation alongwith others there is no reason why the concept of separation of powers should not be applied. It would not be out of place here to place reliance on Corpus Juris Secundum, Volume 16, at page 503 wherein the principle of separation of powers has been approved to be extended to matters of taxation as follows:--- "General principles with respect to separation of powers and encroachments by the Legislature on the judiciary have been applied in determining the validity of statutes relating to the regulation and assessm ent of taxes."
' At pages 483, 484 and 485 in Volume 16 of Corpus Juris Secundum the following extracts relating to separation of powers are worth mentioning:- "The separation of governmental powers into legislative, executive, and judicial is provided for by Constitutional provision, and it is an Established and fundamental principle that one department cannot interfere with, or encroach on, either of the other departments, except in cases expressly provided for."
"Each, of the department of Government must perform the duties assigned to it, and may not delegate such duties to another department, and it is an established and fundamental principle of Constitutional law that one department cannot interfere with, or encroach on, either of the other departments, in the absence of an express provision therefore, notwithstanding the Constitution does not expressly so require. If any department of Government acts beyond the bounds of its authority, such action is without jurisdiction, unconstitutional and void."
If the principle of separation of powers as enshrined in our Constitution- is made applicable to matters of taxation, then at least the hierarchies of the judicial forums culminating in the Appellate Tribunals should function under the umbrella of the judicature. If this is so then various provisions in the taxing statutes providing for appointments of members to the Appellate Tribunals by the Central Government would fall foul of the Constitution. If this predicament is to be streamlined in accord with the Constitution, the Government should consider at least seeking an approval of the judicial organ for the appointments made by it to various Tribunals. In Government of Balochistan v. Azizullah Memon PLD 1993 SC 31 the separation of the judiciary from the executive was found to be the corner-stone of independent of judiciary. It was further observed that unless the judiciary was independent the fundamental right of access to justice could not be guaranteed. This decision was followed in Government of Sindh v. Sharaf Faridi PLD 1994 SC 107 wherein similar observations were expressed and a time limit was given to the Government of Sindh to separate the judiciary from the executive. There is great wisdom in the concept of separation of powers and according to Dias on Jurisprudence, Fifth Edition, at page 102, while quoting Montesquieu, the great French proponent of separation of powers "it is the experience of history that power tends to be abused, so power must be used to check power". If the appointments to the Appellate Tribunals are also regulated and supervised by the judicial organ, it would also be in keeping with Article 203 of the Constitution as already discussed above. In these circumstances the Federal Government may consider and devise schemes or amendments whereby---
(a) all existing appointments of members in all the Appellate Tribunals created under Article 212 are placed before the Chief Justice of the Province in which the incumbents are performing their duties. The Chief Justice himself or any other Judge authorised by or committee appointed by him may look into such appointments to approve or disapprove the same, which would be binding upon the Federal Government;
(b) all future appointments would be screened by the judicial organ of the State.
' For the time being the observations in this para. As above are not in the shape of directions to the Federal Government, which may select the above or other course in keeping with the mandate of the law, the Constitution, fundamentals of independence of judiciary and the principle of separation of powers.
13. Before parting, it may be emphasized that the raison deter of establishing administrative Tribunals has been to dispense a better quality of justice where people better trained in particular fields and disciplines could provide quality decisions and resolution of disputes. Equally speaking, one other main reason for having created the specialized Tribunals is to relieve the ever-escalating burden on the Courts. Appointing members to these Tribunals on political basis or who are otherwise incompetent or have doubtful integrity would prove completely, counter-productive, since firstly the quality of judgments as intended or aspired cannot be delivered and secondly, aggrieved against the actions and inactions of the Appellate Tribunals a flood-gate of litigation could be experienced by the High Courts as is marked by the recent trend.
14. The Registrar of this Court is directed to immediately send copies of this judgment to the Federal Secretary Law, Islamabad to look into the observations in para. 12 of this judgment, Chairman, C.B.R.
Islamabad for implementation of observations contained in para. 11(1) of this judgment and the Assistant Registrar of the Customs, Excise and Sales Tax Appellate Tribunal at Karachi who is in turn directed to circulate the same to its Chairman and all members for information and compliance of directions given in para.11 of this judgment.