ISLAMABAD: The Supreme Court discussed can a committee, constituted under SC (Practice and Procedure) Act, withdraw a case which is part-heard or pending before a bench?
A two-judge bench, comprising Justice Syed Mansoor Ali Shah and Justice Aqeel Ahmed Abbasi, on Wednesday heard the contempt notice against the SC Additional Registrar Nazar Abbas.
Rather proceeding on contempt notice the bench heard respondents’ counsel Shahid Jamil, and amici Munir A Malik and Hamid Khan, whom the bench had appointed a day ago (Tuesday). They argued that administrative order cannot take the jurisdiction of the bench taking cognisance of the constitutional matter. However, Shahid Jamil and both the amici recommended that a Full Court should determine this issue.
During the proceeding, Justice Mansoor noted that the Committee under 2A of the Supreme Court (Practice and Procedure) Amendment Act, 2024 would examine those cases which have not been fixed before a bench.
Shahid Jamil, representing the respondents, argued that first the cases of Supreme Court will be decided by a regular committee, and only those cases would be looked at by the Constitutional Committee where the question arises as to whether a cause, matter, petition, appeal or review application falls under clause (3) of Article 191A of the constitution. He asked the bench that a Full Court should decide this matter once and for all that a case is to be heard by which bench. He stated that administrative order can’t override the judicial order.
Munir A Malik supported the stance of Shahid Jamil that first the regular committee decide about the cases and when questions of law arise then the Constitutional Committee decide about the benches. He also stated that Full Court should decide this issue once and for all.
When Justice Aqeel questioned whether this bench, hearing contempt matter can pass an order that on administrative side the judicial order cannot be withdrawn or altered. Munir responded: “Yes it can do so in (a) contempt case.”
Hamid Khan, another amicus, put two questions before the bench. Firstly, whether judicial order and its implementation can be undone or varied by a Committee, constituted under the SC (Practice and Procedure) Act, while exercising administrative power?
He then submitted that the judicial power of the Supreme Court or bench cannot be undone by the chief justice of Pakistan or the judges’ committee. He said suppose a judicial order is passed that the case be fixed before a larger bench then the Committee has to follow its decision. He; however, said this need to be determined by Full Court.
Secondly, whether a constitutional question is heard by a regular bench of the Supreme Court or it is to be referred to the Constitutional Committee for determination? He said a bench can decide the constitutional matter on its own even after the enactment of 26th Amendment. To back up his contention, he stated that the Supreme Court and High Courts are established under Article 175 of the constitution, adding under Article 176, Supreme Court consist of Chief Justice of Pakistan and so many other judges. He said according to the constitution all judges are equal.
Justice Mansoor questioned; “Whether we (bench members) are included in other”? Justice Aqeel remarked; “We are now only in other.” Addressing AGP, Justice Mansoor said he saying this on a lighter note.
At the outset, Attorney General for Pakistan (AGP) Mansoor Usman Awan raised objection that the bench is hearing the matter of contempt of court; therefore, cannot go into question of law. He said that the contempt is a matter between the court and the contemnor, but the bench is hearing arguments on the main issue of the case; i.e., vires of the law, which has already been fixed before the constitutional bench.
A statement issued by Supreme Court PRO on 21-01-25 stated that the Constitutional Bench Committee on 17th January 2025 decided to fix all cases challenging the 26th Constitutional Amendment and vires of laws. Therefore, a Constitutional Bench comprising eight judges will hear these petitions (against Customs Act) on 27th January 2025.
The attorney general said whatever the Registrar has stated before the Court yesterday should not be considered Additional Registrar Nazar Abbas’s stance, and let him first submit his written statement. Justice Mansoor, while addressing Nazar Abbas, said they heard that an action has been taken against you, adding the bench has issued him contempt of court notice. Nazar was directed to file the written statement.
The AGP also raised objection regarding the appointment of Munir A Malik and Hamid Khan as amicus curiae. He contended that both these persons have challenged the 26th Amendment. Upon that, Justice Mansoor asked him to give names for more lawyers to act as amicus. The attorney general replied right now he has no names in his mind. However, Justice Mansoor also appointed Khawaja Haris and Ahsan Bhoon as the amici. The case was adjourned until today (Thursday).
Copyright Business Recorder, 2025