ISLAMABAD: The Constitutional Bench (CB) of the Supreme Court on Tuesday recalled the orders passed by a bench, headed by Justice Syed Mansoor Ali Shah on January 13 and 16, 2025, and declared them without jurisdiction and non-est.
On the other hand, Attorney General for Pakistan Mansoor Usman Awan informed the bench that the federal government has decided to challenge the order regarding formation of Full Court in contempt of court case.
A seven-member CB, headed by Justice Aminuddin Khan, heard the federation’s appeal against the Sindh High Court (SHC)’s judgment on subsection (2) of Section 221-A of the Customs Act, 1969.
It declared that the bench, headed by Justice Mansoor, had inappropriately fixed the matter on 16-01-25 and passed an order which is without jurisdiction and non-est. It said that the committee, constituted under Section 2(1) of Supreme Court (Practice and Procedure) Amendment Act, 2024, and the committee formed under Article 191A (3) of the Constitution are the legal and appropriate forums.
“In the light of that we grant leave in the instant petitions (CPLA 836),” and directed the office to fix the case before them after two weeks. It said the case of Criminal Original Jurisdiction wherein contempt notice was issued by the regular bench will annex with this case, and issued notices to the Attorney General for Pakistan and the respondents.
The orders of January 13 and 16, 2025 had become the basis for contempt of court case.
A three-judge bench, headed by Justice Syed Mansoor Ali Shah and comprised Justice Ayesha A Malik, and Justice Irfan Saadat Khan, on 13-01-25 adjourned a case (CPLA No 836-K of 2020) that involves a challenge to the constitutionality of subsection (2) of Section 221-A of the Customs Act, 1969, until 16-01-25 for hearing of arguments.
On 16th January 2025, that bench stood reconstituted, with Justice Aqeel Ahmed Abbasi replacing Justice Irfan Saadat Khan. The reconstituted bench could not proceed, as Justice Aqeel recused from the bench as he had delivered the impugned judgment in these cases in the SHC. Consequently, the reconstituted bench (comprising Justice Mansoor, Justice Ayesha and Justice Aqeel) directed the office to fix them (CPLA 836) before the earlier bench on 20th January 2025.
When on 20th January, the bench (comprising Justice Mansoor, Justice Ayesha and Justice Aqeel) came to know that the matter was not fixed before it then initiated suo motu contempt proceedings against the additional registrar (judicial).
During the proceedings, Justice Muhammad Ali Mazhar noted that there is a constitutional command that after the insertion of Article 191A, all the cases that involve constitutionality of law should be immediately transferred to the Constitutional Bench. He observed that as far as the instant matter is concerned it is clear that this should also be heard by the Constitutional Bench.
Justice Amin noted that two orders were passed on 13-01-25. First order fixed the case for next date of hearing on 27-01-25. Subsequently, through another order the next date of hearing was changed to 16-01-25. Justice Mazhar said for antedate the bench issues notices to the parties, and can’t change the date itself.
Justice Amin then inquired from Salahuddin Ahmed, one of respondents’ lawyers, and Additional Attorney General Mirza Nasser Ahmed whether on 13 January that bench had given any specific date. Both replied: no specific date was given.
Justice Amin, without taking names, remarked “not only they”, but “all the judges of the Supreme Court” are concerned about the independence of the judiciary. He questioned; “Are we performing illegal functions”? He stated in the past ‘they’ had referred the cases to the Constitutional Bench (CB), which involved questions of law. He further said it was reported in the media that they had stated “if all the constitutional cases would go to the CB, then shall they do.”
Justice Mussarat Hilali questioned why that bench was so keen to hear this case, despite the fact it was pointed out to it that the case involves constitutionality of law. Justice Mandokhail said; “We are not interested in any case.”
The attorney general said there is no doubt that the matter (CPLA 836) is covered under Article 191A of the constitution. Justice Mazhar said there is nothing wrong in Article 191A, adding as long as it is part of the constitution everyone has to follow it.
Justice Naeem Akhtar Afghan said by giving direction through judicial order to constitute a bench and gave names for bench members, whether that bench has deviated from the constitutional provisions. “Should the CB start the appropriate action against that order (13-01-25)?”
The AGP argued that when the contempt notice was vacated then that bench should not have proceeded with the matter, even in show-cause notice. Authoritative judgment needs to be announced by the CB so that such complications do not take place in the future. He apprised that the government intended to file a review petition against the orders of 13 and 16 January, and would challenge the 27-01-25 judgment, passed by that bench.
Copyright Business Recorder, 2025
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