ISLAMABAD: Justice Muhammad Ali Mazhar stated that the 26th Amendment Act, 2024, will remain in the field unless and until they are either withdrawn/ omitted by the Parliament through further amendments or struck down by the Supreme Court.
Justice Mazhar wrote an additional note to the order passed by the Constitutional Bench on 28.01.2025, recalling the orders dated 13.01.2025 and 16.01.2025, passed by the Regular Bench, headed by Justice Syed Mansoor Ali Shah in an appeal of the federation against SHC’s judgment in the tax matter.
He mentioned that for all intents and purposes, this additional note may be read in the context of the present controversy.
Pleas against 26th Amendment: Constitutional bench issues notices to federation, others
Justice Mazhar stated that notices have been issued and all such matters, including applications moved for the formation of a full court and live streaming of proceedings, will be decided on their own merits. However, in the intervening time, neither can one ignore the ground reality nor turn a blind eye or a deaf ear to the present amendments made to the Constitution, which is a hard fact with its physical existence that is as clear and open as the pages of a book, and will remain in the field unless and until they are either withdrawn/ omitted by Parliament through further amendments or struck down by this Court as prayed for in the pending petitions.
“However, until the final adjudication of the aforesaid pending petitions, we cannot shut our eyes to and ignore a ground reality that not only is the Constitutional Bench of this Court being assembled regularly under the current framework of the Constitution, but cases are also being fixed and heard regularly.”
The judgment noted that the present proceedings are confined solely to the question of the alleged vires of sub-section (2) of Section 221-A of the Customs Act, 1969, inserted through the Finance Act, 2018. Therefore, neither can the Constitutional Bench in the tax matter decide the validity or invalidity of amendments made to the Constitution, whether such amendments are intra vires or ultra vires, or whether they were made in disregard of other constitutional provisions or against the basic scheme or structure of the Constitution as it existed in its original form, nor does any such jurisdiction is otherwise vested in any Regular Bench of this Court to decide the validity of constitutional amendments or vires of any law.
He wrote that by virtue of Section 4 of the Supreme Court (Practice and Procedure) Act, 2023, a collegium system was introduced whereby every cause, appeal or matter before the Supreme Court was to be heard and disposed of by a Bench constituted by a committee comprising the Chief Justice of Pakistan and the two next most senior judges in order of seniority.
Justice Mazhar stated that the original text of the Practice and Procedure Act provided that in cases involving the interpretation of constitutional provisions, the Committee shall constitute a bench comprising not less than five judges of the Supreme Court. Being mindful of this provision, whenever any question regarding the interpretation of a constitutional provision arose in a case, the judges of this court unremittingly referred the matter, along with their opinions, to the committee for the constitution of a bench comprising not less than five judges of the Supreme Court. However, under no circumstances did a bench seized of a matter ever constitute a larger bench by its own judicial order rather than referring the matter to the Committee for consideration and further orders. It is also a matter of record that upon reference by the Court, the Committee constituted several five-member benches to hear such matters in terms of Section 4 of the Practice and Procedure Act.
The jurisdiction of every court is delineated and established to ensure adherence to the law and the issuance of legal orders. Transgressing or exceeding the boundaries of its jurisdiction and authority annuls and invalidates the judgments and orders.
Justice Mazhar further wrote that instead of taking cognisance or assuming jurisdiction or passing any judicial order for fixation, the best course of action would have been to refer the matter to the Committee constituted under Section 2 of the Practice and Procedure Act. Had the Committee found the matter beyond the jurisdiction of a regular bench, it could have referred to the Committee formed for the determination of whether a matter is to be sent to the Constitutional Bench.
Copyright Business Recorder, 2025
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