Cracks in SC become more pronounced

ISLAMABAD:

The Supreme Court on Tuesday removed its additional registrar (judicial) for "mistakenly" listing a constitutional matter before a regular bench but did not review its decision to withdraw the case from the regular bench, despite a request by the bench members for compliance of their order.

A three-member regular bench led by Justice Syed Mansoor Ali Shah and comprising Justice Ayesha Malik and Justice Aqeel Abbasi were hearing a bunch of cases in which vires of Custom Act, 1969 were challenged.

However, an SC committee led by Chief Justice of Pakistan Yahya Afridi on January 17 directed its office to withdraw these cases from the regular bench and placed them before the Constitutional Bench (CB) Committee constituted under Article 191A of the Constitution for re-listing.

This move irked the regular bench members who issued a contempt notice to additional registrar (judicial). The bench members also wrote a letter to the committee led by CJP Afridi.

In the letter, they stated that a failure of the office to comply with a judicial order of the court not only undermines the institution's integrity but was also in defiance of a settled law by this court that administrative orders cannot take away the jurisdiction of the bench taking cognizance of a matter'.

"It also raises serious concerns about the independence of the benches. Such non-compliance constitutes contempt of court and erodes public confidence and trust in the judiciary, damaging its reputation as a fair and impartial arbiter of justice."

It said propriety demanded that in order to maintain independence, transparency, comity of judges, and smooth functioning of the court, the judicial order passed by the regular bench on January 16 be complied with.

"The office may be directed to fix the case at 1:00 pm today [Tuesday], as per the judicial order and the contents of this letter," it added.

Despite their letter, the SC regular committee did not review its decision regarding the withdrawal of case from the regular bench but removed the assistant registrar "on account of serious lapse"

In a statement issued on Tuesday, the SC said these cases were required to be fixed before the Constitutional Bench but were mistakenly fixed before the regular bench, "consequently, it led to wastage of time, resources of the institution as well as the parties".

"Briefly it is stated that the mentioned cases were fixed before a regular Bench of three Hon'ble Judges. The cases were heard on 13th January 2025 where in addition to the merit of the case, the constitutionality of sub section 2 of section 11A of the Customs Act were challenged.

"Based on this, the jurisdiction of the Hon'ble Bench was contested. Subsequently, the cases were adjourned to 16th January 2025.

"Realizing the serious lapse on their part, the Judicial Branch through a note approached the regular Committee under section 2(1) of the Supreme Court (Practice and Procedure) Act, 2023.

"Keeping in view the serious nature of lapse, the Committee convened on 17th of January 2025 under the Chairmanship of the Chief Justice of Pakistan.

"The Committee noted that clause 3 of Article 191A of the Constitution of the Islamic Republic Pakistan read with clause 5 of Article 191A of the Constitution expressly vests such jurisdiction in the Constitutional Bench and none other.

"The regular Committee also directed that in future all cases falling under Article 191A of the Constitution shall be placed before the Constitutional Bench Committee constituted under Article 191A of the Constitution irrespective of any order passed by a regular Bench.

"The regular Committee directed the Registrar of the Supreme Court to expedite the process of scrutiny of all pending cases as well as due diligence of the case daily instituted in this court to avoid repetition of such lapses.

"It is worthy to mention that the Constitutional Bench Committee also met on 17th of January 2025 and decided to fix all cases challenging the 26th Constitutional Amendment and vires of laws. Therefore, a Constitutional Bench comprising eight Hon'ble Judges will hear these petitions on 27th January 2025."

Meanwhile, the regular bench consisting of Justice Syed Mansoor Ali Shah and Justice Aqeel Ahmed Abbasi heard the contempt proceedings initiated against the additional registrar (judicial).

However, on account of the sick leave of the additional registrar, the SC Registrar, Muhammad Salim Khan, appeared before the bench and stated that the cases were listed before the regular bench "on account of mistake which is being examined".

He also contended that delisting of the cases before the bench was not based on malicious intent of the additional registrar but a bona fide act taken in compliance with the direction of the Regular Committee.

During the hearing, Justice Shah and Justice Abbasi wondered how the committee under the Supreme Court Practice and Procedure Act, 2023 through an administrative order could withdraw a case from the regular bench which has already seized off the matter

The bench also wondered why Justice Ayesha Malik was excluded from the bench on Tuesday. Justice Abbasi said that this division bench might be dissolved after some of their remarks.

It noted that the bench is adjudicating certain legal questions as to whether a judicial order can be discarded by a committee on the administrative side. It will also review how the committee can order withdrawing a case from a bench which has already seized off the matter.

The bench appointed Hamid Khan and Muneer A Malik as amicus curiae in this matter. The hearing will be resumed today (Wednesday).

Commenting on the development, Barrister Asad Rahim Khan said that this entire confusion is the result of a refusal to hear the petitions challenging the 26th Amendment.

"A matter that has completely transformed the judicial branch should have been listed on the first day; it was instead left in the freezer for three months, while the Supreme Court benches wondered about the limits of their jurisdiction," he added.

Asad stated that it has now been finally listed for hearing by the Constitutional Bench but this is also no solution, given the fact that the very existence of the Constitutional Bench has been directly challenged. "To state the obvious, a Constitutional Bench cannot be deciding the fate of the Constitutional Bench."

Former additional attorney general Tariq Mahmood Khokhar, who has command on judicial history, commented that this is worse than the 1997 assault on the SC.

"The 26th Amendment and its fifth columnists have delivered the superior judiciary and its role under the control of the executive. An apartheid is imposed within the superior judiciary: an alternative constitutional order with a segregation of judges where some judges are more equal than others"

Khokhar says that consequences are: a perverse definition of the SC—most judges, including the CJP are barred from judicial review and determining their own jurisdiction, their judicial orders are being overturned by administrative order and the vires of the 26th Amendment have been put on a hold.

"It is settled law since 1803 (the case of Marbury) 'that deciding the constitutionality of the laws is an inherent part of the judiciary's role'.

"Under the aegis of the CJP, the Constitutional Bench of the SC has reversed that. A constitutional institution has been rendered impotent and dysfunctional with the active collaboration of its members.

Commenting on the removal of the additional registrar, Khokhar said a middle ranking official has been made a scapegoat for the actions of his superiors in the judiciary.