ISLAMABAD: The Supreme Court raising concern over the independence of benches questioned whether an administrative order can take the jurisdiction of the bench taking cognisance of the constitutional matter.
A three-judge bench, headed by Justice Syed Mansoor Ali Shah, a day ago (20-01-25), had issued a contempt notice to Additional Registrar Nazar Abbas for not fixing an appeal of the federation through Revenue Division against the Sindh High Court (SHC)’s decision to strike down Section 221-A (2) of the Customs Act, 1969.
However, on Tuesday instead of three-member bench, a two-judge bench comprising Justice Mansoor and Justice Aqeel Ahmed Abbasi took up the contempt matter against the SC Additional Registrar Nazar Abbas. Rather proceeding on contempt notice, the bench deliberated upon the 26th constitutional amendment, and appointed senior advocates Hamid Khan and Munir A Malik as amicus curiae to assist whether judicial order can be withdrawn on the administrative side?
The Constitutional Bench Committee, which met on 17th January 2025, decided that all cases challenging the 26th Constitutional Amendment and vires of laws be fixed before the Constitutional Bench. Therefore, a Constitutional Bench comprising eight judges will hear these petitions (against Customs Act, 1969) on 27th January 2025.
During the proceeding, SC Registrar Muhammad Salim Khan appeared before the bench and informed that the Additional Registrar (Judicial) is on medical leave. He said there was some misunderstanding regarding fixing of this case before the regular bench.
When the bench inquired about committee’s minutes. The registrar replied that the minutes are confidential. Justice Aqeel remarked that withdrawing a case from the bench is very serious matter. Salim Khan responded that it was the decision of the committee.
Justice Mansoor stated that once proceeding began on a matter then no committee can withdraw the case before the bench. The registrar replied; “If the Committee can fix the cases, then it has power to withdraw them, as well.
However, Justice Mansoor disagreeing with it and said; “It (Committee) can’t do it.” “If the committee is taking back ongoing cases, then the judiciary’s independence has ended,” he observed.
Justice Mansoor reiterated that once a case is fixed before a bench then it can’t be withdrawn, adding; “this is gift from God that this way they can hear the challenges against the 26th Amendment.” “I was informed by the Committee but since I had issued the judicial order; therefore, I stay away.”
Justice Aqeel said the Committee has fixed the petitions against 26th Amendment before the Constitutional Bench, but it does not include the instant matter. He wondered, “We do not even know what the future of the current bench would be. We are hearing the case today, (but) it’s possible this bench might not even exist tomorrow.”
Advocate Salahuddin Ahmed, representing the respondents, asked the bench that whether the decision of the Committee is contrary to the law and constitution, and whether the regular benches of the Supreme Court after the 26th Amendment can hear the constitutional matters or not be decided by the Full Court.
Justice Mansoor on Monday (20-01-25) wrote a letter, which was co-signed by Justice Ayesha A Malik and Justice Aqeel Ahmed Abbasi, to the chairman of the Committee, constituted under the Supreme Court (Practice and Procedure) Act, 2023, Chief Justice of Pakistan Yahya Afridi and member Justice Aminuddin Khan.
The committee constituted under the Supreme Court (Practice and Procedure) Act, 2023 on January 17, 2025. One of us (Justice Mansoor Ali Shah), being a member of the Committee verbally communicated to the chair of the Committee that as he has passed the judicial order, his view is on the record which may be considered as it is and he need not be personally present in the meeting.
We are surprised and disturbed that inspite of a judicial order, the cases have not been fixed for hearing before any bench today (20-01-25). It is noted with concern that a three-member bench had already been constituted to hear the case by the Committee which heard the case on 13-01-25. On 16-01-25 the new bench could not hear the case as Justice Aqeel Abbasi had passed the impugned judgment; therefore, the Court simply directed that the earlier bench, constituted by the Committee, to hear the matter on 20-01-25 being part heard.
The letter said that there is no need for the Committee to take up the matter as the office was to simply fix the case before the earlier bench as it was a part heard matter. Even if the Committee took up the matter, it could have once again constituted the same bench as constituted earlier and as mentioned in the judicial order and fix the case for 20-01-25. “Or the Committee could have reconstituted the bench by adding a third member instead of Justice Aqeel Ahmed Abbasi. In any case the Committee could not ignore the dictate of the judicial order and was bound to fix the case for hearing before a bench on 20-01-25.
“We are not aware of the order passed by the Committee and nothing has been communicated to us,” it added.
“The failure of the office to comply with a judicial order of the Court not only undermines the institution’s integrity but is in defiance of the settled law by this Court, which clearly states that administrative order cannot take the jurisdiction of the bench taking cognizance of the matter. Such non-compliance constitutes contempt of court and erodes public confidence and trust in the judiciary, damaging its reputation as a fair and impartial arbiter of justice.
“Propriety demands that in order to maintain independence, transparency, comity of judges, and smooth functioning of the Court, the judicial order passed by the Court dated 16-01-25 be complied with and the office may be directed to fix the case at 1:00 pm today (Monday), as per the judicial order and the contents of this letter”.
Copyright Business Recorder, 2025
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