Tengku Maimun (second from left) at the launch of the book with authors (from left) Nur Amira Naban and Saravana. – RAJA FAISAL HISHAN/The Star
KUALA LUMPUR: Lawyers who appear in court for tax litigation matters carry not just their clients' interests but must also consider the interest of the public at large, says Chief Justice Tun Tengku Maimun Tuan Mat.
She said those involved in such disputes, including advocates and lawyers representing the government, should continue to remember their duty to the courts and the law.
"Whether you appear for the taxpayer or the taxing authority, you must remember that any precedent you help set must not only bring justice to your client, but also to the public that expects the highest level of integrity from all those tasked to uphold the rule of law," she said in her address at the launch of the book "Malaysian Tax Law & Principles" by DP Naban, Nur Amira Ahmad Azhar and S. Saravana Kumar here at Sime Darby Convention Centre on Tuesday (Feb 18).
She said while judges decide cases in accordance with the law and the facts – without regard to their own minds on what tax law should be – they can only do so if fairly guided by sound legal principles and with honesty to the Bench.
Speaking on the role of the judiciary in tax law, she said the most foundational provisions are Article 4(1) and Article 121(1) of the Federal Constitution.
She cited a case brought by former prime minister Datuk Seri Najib Razak, where the constitutionality of tax law was challenged.
"(In the case) it was alleged that Section 106(3) of the Income Tax Act was void for the reasons that it usurped judicial power in Article 121(1) of the Constitution; that it does not accord a taxpayer the right to a fair trial and that it impedes their right of access to justice, both rights being preserved by Article 5(1)," she said.
"In considering the applicable constitutional principles, the Federal Court remarked thus the determination of the validity of a written law that is challenged as ultra vires the Constitution is an exercise of construction which is to be undertaken in accordance with established constitutional principles.
"This is equally true for tax or fiscal statutes as it is for any other statute," she said.
She said the courts must be the last bastion of justice, where any member can seek recourse to challenge any law that they believe to be unconstitutional.
"Thus – at least from the constitutional perspective and insofar as constitutional judicial review is concerned – any law including law that bears tax or fiscal implication remains subject to such kinds of challenge," added Tengku Maimun.
"I think it is fair to say that most people are afraid of the tax authority.
"Many, including the common man, are perhaps more afraid of the knock on their door from the tax authority – even more so than the police or other similar authorities.
"This is because when the Inland Revenue Board (LHDN) is involved, it is not just your personal criminal liability and freedom at stake, but your entire business records and financial situation – even your money – that is open to question and seizure," she said.
However, she said the harshness of tax law and enforcement also opens it to abuse and harm.
"While tax authorities such as LHDN have a wide array of powers, every legal power is bound by legal limits.
"As has been suggested earlier, the courts remain that last bastion of justice that protects the public from legal injustice," she said, adding that this does not mean that the Courts are in any way interfering with taxation, a matter in which the Courts can have no say.
Instead, she said the role of an independent judiciary is to ensure that the law and legal process – as complex as they are – remain paramount and that their compliance is always maintained.
"The judicial process is not a means to avoid taxation and national fiscal obligations, rather it is a means to ensure that such legal obligations are carried out fairly and in line with the rule of law," she said.
