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Jurisdiction case has nothing to do with 26th Amendment: Justice Shah

Sohail Khan
Thursday, Jan 23, 2025

ISLAMABAD: Supreme Court’s senior judge and a member of a two-judge bench, Justice Mansoor Ali Shah, observed on Wednesday that the judges’ jurisdiction case had nothing to do with the 26th Constitutional Amendment.

However, he remarked that if someone was scared, it was squarely up to him. He continued that they just wanted to know why a case was returned. He made these remarks after the federal government raised objections over the amicus curies (friends of court), appointed by a Supreme Court bench for its assistance on the question of jurisdiction of a court, hearing the contempt proceedings.

A two-member bench of the apex court comprising Justice Mansoor Ali Shah and Justice Aqeel Ahmed Abbasi heard a contempt case against Additional Registrar (Judicial) Nazar Abbas. The court had appointed former presidents of the Supreme Court Bar Association (SCBA) Hamid Khan and Munir A. Malik as amicus curies the other day for its assistance on the question of court’s jurisdiction hearing contempt proceedings.

On Wednesday, Additional Registrar (Judicial) Nazar Abbas appeared before the court. The court directed him to submit his written reply on Thursday (today) in response to a show-cause notice, issued to him.

However, Attorney General for Pakistan Mansoor Usman Awan objected to the amicus curies, appointed by the court. He argued that Munir A. Malik and Hamid Khan were counsel for the petitioners, challenging the 26th constitutional amendment, adding that both the lawyers had stances, hence they could not be neutral.

Justice Mansoor asked the attorney general to suggest more amicus curies. However, he submitted that he could not suggest the names but appear before the court as a prosecutor in the contempt case. “In contempt matter, my position as the attorney general is different,” the AG submitted and added that he could assist the court on a law point under Article 27-A of the Constitution.

He submitted that the questions raised by the court could not be heard within the context of a contempt case. He submitted that until Nazar Abbas, additional registrar (judicial), submits a written reply, the registrar’s stance could not be considered as his defence. Advancing his stance, the AG submitted that under the court’s original criminal jurisdiction, the issue was strictly between the court and alleged contemnor.

Mansoor Usman submitted that after the 26th Constitutional Amendment, the authority to constitute benches rested with the committee of the constitutional bench. Justice Mansoor, however, observed that the question was related to Section 2 of the Supreme Court (Practice and Procedure) Act. “Whether a case can be withdrawn from a regular bench seeking to determine its jurisdiction,” Justice Mansoor asked. He further questioned whether the committee could shift a case which was being heard by a regular bench.

Justice Shah observed that the arguments made in the defence of the additional registrar by the registrar stated that everything happened due to the decision of the two judges’ committee. “So far, the exercise made by the committee under Section 2A was to constitute regular benches,” Justice Mansoor remarked, adding that under Section 2A, the committee could change the bench but only when the case was not before any court.

Justice Mansoor observed that the instant matter had nothing to do with the 26th Constitutional Amendment, and remarked that if someone was scared, it was squarely up to them. He continued that they just wanted to know why the case was returned. Later on, the court also appointed Khawaja Haris advocate and Ahsan Bhoon as amicus curies.

During the hearing, Munir Ahmed Malik, while appearing before the court through video-link from Karachi Registry, suggested the court issue an order for constituting a full court. Justice Shah asked Munir as to whether while hearing the contempt case, the court could issue an order for a full court. Malik replied that the order of the committee had been presented as a defence in the court, hence the court could issue an order for full court on the jurisdiction of the committee constituted under the Supreme Court (Practice and Procedure) Act, 2023. Malik argued that the constitutional bench was only a section of the Supreme Court, while the Supreme Court comprised all judges including the chief justice. He submitted that all those cases that came to Supreme Court should be reviewed first by the committee constituted under the Supreme Court (Practice and Procedure) Act, 2023. Malik submitted that the said three-member committee should settle which cases should be referred to the constitutional bench.

“In my view, the committee cannot remove the judicial order through an administrative order,” Malik contended adding that he the other day saw a press release, issued by the Supreme Court wherein it was stated that the instant case was mistakenly fixed before a regular bench. “If it was mistakenly fixed before the regular bench, even then a judicial order was passed by the regular bench and now a judicial order can only be replaced by another judicial order which can be passed by this bench,” Munir A Malik contended. The amicus curies further submitted that the matter was now linked with the independence of judiciary and it could only be resolved by a full court once and for all.

Shahid Jameel, counsel for one of the parties in the main case, submitted before the court that a bench was also changed in the Peshawar Registry Branch of the Supreme Court and Justice Qazi Faez Isa had written a note on it. He submitted that here, a case was heard by a bench and the said bench was changed in the middle while some time, a judge is excluded from a bench. He contended that when a bench resumes a case, it cannot be withdrawn from that bench. “It means that once a case starts, it cannot be returned,” Justice Mansoor remarked. Shahid Jameel submitted that the constitutional bench was nominated by the Judicial Commission, adding that all cases would first go to the central committee, constituted under the Supreme Court (Practice and Procedure) Act, 2023. “All cases cannot be sent to the committee of the constitutional bench, the counsel contended” adding that the present matter in hand could be referred to the Committee of Practice and Procedure for the constitution of a full court. Meanwhile, Hamid Khan, another amicus curie, while commencing his arguments questioned whether a judicial order passed by the regular bench can be undone or varied through an administrative order.

Later, the court adjourned the hearing for Thursday (today) wherein Hamid Khan will argue before the court.