Justice Shah highlights loopholes in new system

SC judge questions role of 'unconstitutional benches' after 26th amendment

ISLAMABAD:

Supreme Court senior puisne judge Syed Mansoor Ali Shah on Monday made some interesting remarks during a case hearing, highlighting the confusion created in adjudication of cases after the passage of the 26th Constitutional Amendment.

The constitutional amendment, bulldozed through parliament on October21, included sweeping changes in the country's judicial system including formation of a constitutional bench within the SC and change in the procedure for selection of the top judge.

The Judicial Commission of Pakistan (JCP) on November 5 appointed Justice Aminuddin Khan as head of the constitutional bench which also includes six other SC judges. However, transfer of cases to the constitutional bench has not yet started, creating confusion during the case hearings.

On Monday, a three-member bench led by Justice Shah and comprising Justice Ayesha Malik and Justice Aqeel Abbasi, heard a case related to taxation. During the proceedings, Justice Ayesha noted that the case was supposed to be heard by a constitutional bench rather than a regular one.

Commenting on the situation, Justice Shah said as there is currently no constitutional bench, what should "this unconstitutional bench" do with the case.

"Are we unconstitutional until a constitutional bench convenes? Does this mean constitutional cases won't be heard until a constitutional bench sits?" he asked. Highlighting a legal loophole, Justice Shah noted that even if the bench decides on this case, no one can question it.

"The question repeatedly arises: should this case be heard by a regular bench or a constitutional one? And if we proceed with a decision, what will happen? Let's say we make a ruling ourselves—who would stop us? Even if a review reaches us, we can assert that we have jurisdiction," he observed.

Justice Aqeel Abbasi inquired whether they could currently hear the case or not, to which Justice Ayesha Malik suggested deferring the matter "Under Section 2A, the Practice and Procedure Committee will decide whether a constitutional or regular bench should hear the case," she said.

The bench later adjourned the case indefinitely, with Justice Shah noting that the bench had seemingly gathered for a "chitchat". According to the regular cause list issued by the SC, Chief Justice of Pakistan Yahya Afridi will not sit on bench until Thursday, though he is scheduled to hear cases on Friday.