January 21, 2025
By Rana Malhi
ISLAMABAD
On Tuesday, two Supreme Court judges, Justice Mansoor Ali Shah and Justice Aqeel Ahmed Abbasi, raised concerns about the transfer of a case related to the jurisdiction of regular benches to a constitutional bench. This occurred as the court simultaneously heard contempt proceedings against its additional registrar regarding the same issue.
The case originated on January 13th when a three-judge bench, comprising Justices Mansoor Ali Shah, Ayesha A. Malik, and Irfan Saadat Khan, heard the federal government’s petition against a Sindh High Court decision striking down Section 221-A(2) of the Customs Act, 1969. The applicant argued that a regular bench lacked the authority to hear the case due to its constitutional implications.
On January 16th, Justice Abbasi replaced Justice Saadat Khan, who was on leave. However, when the bench deferred the matter to January 20th, Justice Shah ordered that the case be fixed before the original bench including Justice Khan. Nevertheless, the hearing on January 21st was presided over by the bench comprising Justice Abbasi.
Justice Ayesha was absent from the January 21st hearing as the two-member bench, led by Justices Shah and Abbasi, initiated contempt proceedings against Additional Registrar (Judicial) Nazar Abbas. The proceedings stemmed from an administrative error that led to the incorrect assignment of a case intended for a constitutional bench to a regular bench.
The Supreme Court Registrar appeared before the bench to explain the error, attributing it to an oversight in bench assignment. When questioned by Justice Aqeel Abbasi about the delay in identifying this mistake, the registrar apologized.
Justice Mansoor Ali Shah sought further clarification regarding the registrar’s actions, inquiring about the involvement of the Practice and Procedure Committee in the matter. The registrar admitted to having written a note to the committee, which Justice Shah reviewed during the hearing. Justice Shah noted that the explanation provided in the note did not align with the court’s original order, emphasizing that the committee’s involvement should have been limited to initial case scheduling.
Justice Mansoor Ali Shah also underscored that the Practice and Procedure Committee’s role concludes once a case has been assigned to a bench. He argued that the committee lacks the authority to withdraw cases from a bench. The court appointed senior lawyers Munir A Malik and Hamid Khan as judicial assistants and summoned Attorney General for Pakistan (AGP) Mansoor Usman Awan to provide clarity on the issue.
Barrister Salahuddin Ahmed presented a crucial argument, stating that while the committee or research officers may recommend which bench should hear a case, the ultimate decision rests with the court. He cited precedents, such as the Qazi Faez Isa and Iftikhar Chaudhry cases, where judicial orders referred cases to the full court. Justice Aqeel Abbasi expressed concern over the implications of changing a bench before a case is heard, questioning whether such actions undermine judicial independence.
The Additional Attorney General supported the view that the committee’s decisions could be reviewed in contempt of court proceedings.
During the hearing, Justice Mansoor Ali Shah emphasized the importance of judicial independence, warning that if the committee’s scope includes reassigning ongoing cases, it could erode the judiciary’s autonomy. Justice Abbasi echoed these concerns, pointing out the uncertainty surrounding bench compositions and their potential impact on judicial processes.
The hearing was adjourned until Wednesday, January 22nd, with the Supreme Court poised to address whether the Practice and Procedure Committee possesses the authority to withdraw pending cases.